- 1 - HC-KAR NC: 2025:KHC-D:7610 RSA No. 2180 of 2007 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 12TH DAY OF JUNE 2025 BEFORE THE HON'BLE MR. JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO.2180 OF 2007 (PAR) BETWEEN: BALAPPA GAVADU PATIL DEAD BY L.R9S 1. SMT. KANCHAN W/O. KRISHNA PATIL, AGED ABOUT 40 YERAS, R/AT NETAJI GALLI, YALLUR, TQ AND DIST: BELAGAVI - 590 015. 2. KUMAR VISHAL S/O. KRISHNA PATIL, AGED 7 YEARS, R/AT NETAJI GALLI, YALUR, TQ AND DIST: BELGAVI - 590 015. REP. BY NATURAL GUARDIAN AND MOTHER KANCHAN KRISHNA PATIL, APPELLANT NO.1. 3. SRI. MANOHAR S/O. BALLAPPA PATIL, AGED ABOUT 54 YEARS, R/AT: NETAJI GALLI, YALLUR, TQ AND DIST: BELAGAVI - 590 015. 4. SRI. ASHOK S/O. BALLAPPA PATIL, AGED ABOUT 47 YEARS, R/AT: NETAJI GALLI, YALLUR, TQ AND DIST: BELAGAVI - 590 015. 5. LATA W/O. HANAMANTH PATIL, AGED ABOUT 37 YEARS, R/AT: BALEKUNDRI KH, TQ AND DIST: BELGAVI - 590 012. 6. SAGAR S/O. HANAMANT PATIL, AGED ABOUT 16 YEARS, R/AT BALEKUNDRI KH, TQ AND DIST: BELGAVI - 590 012, MINORS REP. BY THEIR NATURAL GUARDIAN MOTHER APPELLANT NO.5, Digitally signed by SAROJA HANGARAKI Location: High Court of Karnataka, Dharwad Bench, Dharwad - 2 - HC-KAR NC: 2025:KHC-D:7610 RSA No. 2180 of 2007 LATA HANAMANTH PATIL. 7. SURAJ S/O. HANAMANT PATIL, AGED ABOUT 12 YEARS, R/AT BALEKUNDRI KH, TQ AND DIST: BELGAVI - 590 012, MINORS REP. BY THEIR NATURALGUARDIAN MOTHER APPELLANT NO.5, LATA HANAMANTH PATIL. 8. SUSHILA W/O. SHIVAJI DESAI, AGED ABOUT 49 YEARS, R/AT: HALASHIWADI, POST HALASHI, TQ: KHANAPUR, DIST: BELGAVI - 590 121. 9. SUMAN W/O. KRISHNA NIBALAKAR, AGED ABOUT 45 YERAS, R/AT: NEAR TAMPALAI NAKA, KOLHAPUR, MAHARASTRA - 414 308. 10. SUREKHA BALAPPA PATIL SINCE DECEASED BY HIS LRS 10A. SRI. RAMESH S/O. DAJIBA DESAI @ PATIL, AGED 60 YEARS, OCC: AGRICULTURE, R/AT: JIJAMATA GALLI, PARMESHWAR NAGAR, YALLUR, DIST: BELAGAVI 3 590 001. 10B. SMT. NAMITA W/O. GURUDATH PATIL, AGED: MAJOR, OCC: AGRICULTURE, R/A: URBAN BANK, DESHPANDE GALLI, H.NO.89, BELAGAVI 3 590 001. 10C. SMT. NIKITA W/O. NITIN PATIL, AGED: MAJOR, OCC: AGRICULTURE, R/AT: MAIN ROAD MUTAGA, H.NO.702, BELAGAVI 3 590 001. R/AT: MIDC UDHAG BHAVAN, PATAVARDAN LAKE, TQ: KHAD, DIST: RATNAGIRI. 10D. SRI. ASHOK S/O. RAMESH PATIL, AGE: MAJOR, OCC: WORKING, R/AT HEAD G.R.COMPANY 38 R.R.MADRAS, C/O 56 LEKHS HILL. - 3 - HC-KAR NC: 2025:KHC-D:7610 RSA No. 2180 of 2007 10E. SRI BHAU S/O. RAMESH PATIL, AGED MAJOR, OCC: AGRICULTURE, R/AT: LAXMI GALLI, MUTAGA, H.NO.141, BELAGAVI 3 590 001. 11. SUBHASH S/O. BALLAPPA PATIL, AGED ABOUT 45 YERAS, R/AT: MALLIKARJUN GALLI, POST YELLUR, TQ AND DIST: BELAGAVI. &APPELLANTS [BY SRI. AMRUTA M. MAINALLI, ADVOCATE FOR SRI. MRUTYUNJAY T. BANGI, ADVOCATE FOR A10(A TO E) AND OTHERS APPELLANTS] AND: YADOJI GAVADU PATIL, SINCE DECEASED BY L.R9S. 1. JIJABAI W/O. YADOJI PATIL, SINCE DECEASED BY LR9S ARE ALREADY ON RECORD AS RES NOS.2 TO 7. 2. RAVALANATH S/O. YADOJI PATIL, AGED ABOUT 45 YEARS, R/AT: SHIVAJI NAGAR, YELLUR, TQ AND DIST: BELGAVI - 590 015. 3. PRABHAKAR S/O. YADOJI PATIL, AGED ABOUT 43 YEARS, R/AT: SHIVAJI NAGAR, YELLUR, TQ AND DIST: BELGAVI - 590 015. 4. PRAKASH S/O YADOJI PATIL, AGED ABOUT 41 YEARS, R/AT: SHIVAJI NAGAR, YELLUR, TQ AND DIST: BELGAVI - 590 015. 5. RENUKA W/O. BHASKAR MUTAGEKAR, AGED ABOUT 40 YEARS, R/AT: SHIVAJI NAGAR, YELLUR, TQ AND DIST: BELGAVI - 590 015. 6. ANANAT S/O. YADOJI PATIL, AGED ABOUT 39 YEARS, R/AT: SHIVAJI NAGAR, YELLUR, - 4 - HC-KAR NC: 2025:KHC-D:7610 RSA No. 2180 of 2007 TQ AND DIST: BELGAVI - 590 015. 7. MANOHAR S/O. YADOJI PATIL, AGED ABOUT 37 YEARS, R/AT: SHIVAJI NAGAR, YELLUR, TQ AND DIST: BELGAVI - 590 015. 8. NIRMALA W/O. KAMANNA PATIL, SINCE DECEASED BY LR9S ARE ALREADY ON RECORD AS RES NOS.13 TO 19. 9. SUMITRA W/O. CHANDRAKANT PATIL, AGED ABOUT 55 YEARS, R/AT: KOLI GALLI, NEAR HOME GUARD OFFICE, BELAGAVI - 590 001. 10. RAJU S/O. CHANDRAKANT PATIL, AGED ABOUT 35 YEARS, R/AT: KOLI GALLI, NEAR HOME GUARD OFFICE, BELAGAVI - 590 001. 11. VIJAY S/O. CHANDRAKANT PATIL, AGED ABOUT 30 YEARS, R/AT: KOLI GALLI, NEAR HOME GUARD OFFICE, BELAGAVI - 590 001. 12. SACHIN S/O. CHANDRAKANT PATIL, AGED ABOUT 28 YEARS, R/AT: KOLI GALLI, NEAR HOME GUARD OFFICE, BELAGAVI - 590 001. 13. SURESH S/O. KAMMANNA PATIL, AGED ABOUT 45 YEARS, R/AT: NAWAB GALLI, DANDELI, DIST: KARWAR - 581 325. 14. SADANAD S/O. KAMANNA PATIL, AGED ABOUT 43 YEARS, R/AT: MALLIKARJUN GALLI, YELLUR, TQ AND DIST: BELAGAVI - 590 015. - 5 - HC-KAR NC: 2025:KHC-D:7610 RSA No. 2180 of 2007 15. DILIP S/O. KAMANNA PATIL, AGED ABOUT 37 YEARS, R/AT: MALLIKARJUN GALLI, YELLUR, TQ AND DIST: BELAGAVI - 590 015. 16. MANGAL W/O. RAMA JADHAV, AGED ABOUT 65 YERAS, R/AT IDDALHOND, TQ:KHANAPUR, DIST: BELAGAVI - 590 0121. 17. KUSUM W/O .PANDU DESAI, AGED ABOUT 600 YEARS, R/AT: JAMBOTI, TQ: KHANAPUR, DIST: BELGAUM - 590 0121. 18. PRABHAVATHI W/O. MANOHAR DESAI, AGED ABOUT 32 YEARS, R/AT: KONKANWADA, JAMBOTI, TQ: KHANAPUR, DIST: BELAGAVI - 590 121. 19. SAROJINI W/O. RAMAKRISHNA ZUNJAWADKAR, AGED ABOUT 28 YEARS, R/AT: HAJGOLI, TQ: CHANDGAD, DIST: KOLHAPUR - 414 308. 20. SRI NAGAN @ NAGAPPA S/O. GAVADU PATIL, SINCE DECEASED BY HIS LR9S. 20A. SMT. SHANTABAI W/O. NAGAPPA PATIL, SINCE DECEASED BY LR9S ALREADY ON RECORD R20 (B) TO R20(F). 20B. SMT. HOUSABAI W/O. GANAPAT DESAI, AGED ABOUT 50 YEARS, OCC: HOUSEHOLD, R/AT: KANADI, POST: IBRAHIMPUR, TQ: CHANDGAD, DIST: KOLHAPUR, MAHARASTRA. 20C. SMT. VIMAL W/O. TATOBA PATIL, AGED ABOUT 48 YEARS, OCC: HOUSEHOLD, R/AT: JYOTIRLING GALLI, KUPPATGIRI, TQ: KHANAPUR, DIST: BELAGAVI. - 6 - HC-KAR NC: 2025:KHC-D:7610 RSA No. 2180 of 2007 20D. SRI. PARASHURAM S/O. NAGAPPA PATIL, AGED ABOUT 45 YEARS, OCC: PRIVATE SERVICE, R/AT MALLIKARJUN GALLI, YALLUR, TQ AND DIST: BELAGAVI. 20E. SRI. CHANGAPPA S/O. NAGAPPA PATIL, R/AT MALLIKARJUN GALLI, YALLUR, TQ AND DIST: BELAGAVI. 20.F SRI. MANOHAR S/O. NAGAPPA PATIL, AGED ABOUT 36 YEARS, OCC: PRIVATE SERVICE, R/AT MALLIKARJUN GALLI, YALLUR, TQ AND DIST: BELAGAVI. 21. SUGANDHA W/O. MARUTI PATIL, AGED ABOUT 63 YEARS, R/AT: NEAR VITHOBA TEMPLE, KARLE VILLAGE, TQ AND DIST: BELGAVI - 590 019. 21A. SMT. DAYA W/O. SADANAND PATIL, AGED MAJOR, OCC: HOUSE HOLD, R/AT: JIJAMALA GALLI, PARMESHWAR NAGAR, YALLUR, DIST: BELAGAVI 3 590 001. 21B. SRI. NAGESH S/O. MARUTI PATIL, AGED MAJOR, OCC: AGRICULTURE, R/A PANDURANG GALLI, KARALE, BELAGAVI 3 590 001. 21C. SMT. CHAYA W/O. SANJAY PATIL, AGED MAJOR, OCC: HOUSE HOLD, R/AT: AT POST MAIN ROAD MUTAGA H.NO.702, BELAGAVI 3 590 001. 22. SMT. PARAWATIBAI W/O. BALAPPA PATIL, AGED ABOUT 70 YEARS, R/TA NETAJI GALLI, YALLUR, TQ AND DIST: BELAGAVI. - 7 - HC-KAR NC: 2025:KHC-D:7610 RSA No. 2180 of 2007 23. SMT. SHANTA W/O. PRABHAKAR PATIL, AGED: 54 YEARS, OCC: HOUSE WORK. 24. GOURESH S/O. PRABHAKAR PATIL, AGED:34 YEARS, OCC: PVT. SERVICE. 25. AKSHAY S/O. PRABHAKAR PATIL, AGE: 29 YEARS, OCC: PVT. SERVICE. RESPONDENT NO. 23 TO 25 ARE R/O: 353/21, SHIVAJI NAGAR, YELLUR 3 590 005, TQ AND DIST: BELAGAVI. &RESPONDENTS (BY SRI. CHETAN MUNNOLI, ADVOCATE FOR R1 TO R7 AND R9 TO R19, R23, R24, R25, R20(B) TO R20(F), R21(A), R21(B) ARE SERVED; NOTICE TO R21(C) IS DISPENSED WITH V/O DATED 12.06.2025; V/O DATED: 04.06.2024 APPEAL STAND ABATED AGAINST R2) THIS RSA IS FILED UNDER SECTION 100 OF CODE O CIVIL PROCEDURE PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE I ADDITIONAL DISTRICT JUDGE, BELAGAVI DATED 19.06.2007 PASSED IN R.A.NO.28/1999 AND THE JUDGMENT AND DECREE PASSED BY THE I ADDITIONAL CIVIL JUDGE (SR.DN) BELAGAVI DATED 15.07.1999 PASSED IN O.S.NO.11 OF 1995 AND DISMISS THE SUIT OF THE PLAINTIFFS BY ALLOWING THE PRESENT APPEAL IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL, COMING ON FOR ORDERS THIS DAY, THE JUDGMENT WAS MADE THEREIN AS UNDER: - 8 - HC-KAR NC: 2025:KHC-D:7610 RSA No. 2180 of 2007 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL) 1. This appeal is filed by the legal representatives of defendant No.1 and by defendant No.4 aggrieved by the judgment and decree dated 15.07.1999 passed in O.S.No.11/1995 on the file of I Additional Civil Judge (Sr.Dn.), Belagavi (Trial Court) granting 1/5th share to the parties, which is confirmed by the I Additional District Judge, Belagavi (First Appellate Court) vide its judgment and decree dated 19.06.2007 passed in R.A.No.28/1999. 2. Plaintiffs filed the above suit seeking partition and separate possession of 1/5th share in the suit schedule properties consisting of landed and residential properties more fully described in schedule A to the plaint, contending inter alia that one Gavadoji Yado Patil was the propositus of the family and he passed away in the year 1950 leaving behind his children namely Balappa, Yadoji, Kamanna Nagan, Waman and Sugandha. Kamanna passed away about 15 years ago leaving behind his legal representatives. Waman died issueless. - 9 - HC-KAR NC: 2025:KHC-D:7610 RSA No. 2180 of 2007 3. Suit lands bearing Sy.Nos.301 and 571 were the tenanted lands and were under the cultivation of all the sons of the deceased propositus. That the defendant No.1 being the eldest son of the propositus was the Kartha of the joint family. He had applied for grant of occupancy rights in respect of said lands in Sy.Nos.301 and 571. That there was no severance of joint family status though all the plaintiffs and defendants were residing separately and enjoying the share separately for the sake of convenience. 4. That upon the demise of Gavadoji Yado Patil in the year 1950, the plaintiffs requested the defendants for partition as they were entitled for 1/5th share in the suit schedule properties. Since, they requested for partition which was denied, they filed the above suit for partition and separate possession. 5. Defendant No.1 in his written statement has admitted the relationship between the parties. He contended that, there was a partition that had taken place long ago, in terms of which parties are residing separately, - 10 - HC-KAR NC: 2025:KHC-D:7610 RSA No. 2180 of 2007 enjoying their respective shares. That the house property bearing No.470 was allotted to the share of plaintiff No.1 and late Waman Patil. Plaintiff No.1 had effected a partition in the said house by executing a 8Watni Kararu Patra9 on 13.07.1982. That the said Waman Patil passed away during 1994 bequeathing his share in terms of Will dated 16.09.1993 in favour of defendant No.4. That the plaintiffs have not included all the ancestral properties in the suit. The defendant No.1 was the tenant of the suit RS No.301 and RS No.571, which was exclusively cultivated by him. Accordingly, he was exclusively granted occupancy rights and plaintiffs did not have any rights therein. 6. The Trial Court based on the pleadings framed the following issues: 1. Whether the description of the suit properties as given in plaint para No.1 is true and correct? 2. Whether the plaintiffs prove that that the plaintiffs and defendants are the members of Hindu joint family? 3. Whether the plaintiffs prove that the plaintiffs and defendants are in joint - 11 - HC-KAR NC: 2025:KHC-D:7610 RSA No. 2180 of 2007 possession of joint family properties as mentioned in schedule-A and B? 4. Whether the defendant No.1 proves the fact that the suit agricultural lands bearing R.S.No.301, 571 as described in B Schedule are the self acquired properties of himself? 5. Whether the defendant No.1 further proves that this defendant and deceased co- parcener late Sri Shrivaman have effected partition amongst themselves before elderly person in the locality of Yallur in all the ancestral properties long book? 6. Whether the plaintiffs prove that defendant No.1 being eldest son of the propositus was all along acting as karta of the joint family consisting of plaintiffs and defendants after the death of the propositus, and such as after coming into force of the Kar. Land Reforms Act as amended by get No.1 of 1974? 7. Whether the plaintiff No.1 is entitled to 1/5th share and plaintiff Nos.2 to 10 are entitled to 1/5th joint share in the suit properties by metes and bounds? 8. Whether the plaintiffs are entitled to mesne profits? 9. What order or decree 7. On appreciation of evidence, the Trial Court decreed the suit granting 1/5th share to the plaintiffs in all the suit schedule properties. Aggrieved by the same, the defendant No.1 preferred regular appeal in RA No.28/1999 - 12 - HC-KAR NC: 2025:KHC-D:7610 RSA No. 2180 of 2007 before the First Appellate Court. Defendant No.4 had also filed an application for production of additional documents before the First Appellate Court. The First Appellate Court framed the following points for its consideration: 1. Whether the defendant No.1 proves that there was a partition in the joint family? 2. Whether the suit properties R.S.No.301 and 571 of B-Schedule are the self acquired properties of defendant No.1? 3. Whether Waman Patil has bequeathed his 1/5th share in the suit property under a registered Will dated 16.09.93 while in sound state of mind? 4. Whether the legal representatives of defendant No.1 and 4 have made out the grounds for remand in view of the non-framing of the issues and also on account of death of defendant No.1 before pronouncing the judgment? 5. Whether the legal representatives of defendant No.1 and 4 have made out the grounds to permit them to produce the additional evidence in the case? 6. Whether the Judgment and decree of the trial court is erroneous and calls for interference? - 13 - HC-KAR NC: 2025:KHC-D:7610 RSA No. 2180 of 2007 8. On re-appreciation of evidence, the First Appellate Court answered point Nos.1, 3, 4 and 5 in the negative and point No.2 in the affirmative and accordingly, dismissed the appeal confirming the judgment and decree passed by the Trial Court. Being aggrieved by the same, the legal representatives of defendant Nos.1 and 4 are before this Court. 9. This Court by order dated 08.01.2014 admitted the appeal to consider the following substantial questions of law: 1. Whether the Trial Court and the First Appellate Court have seriously erred in ignoring the material admission regard to the plea of earlier partition set up by the defendants in their written statement? 2. Whether both the Courts have seriously erred in not noticing that some more joint family properties had been left out and thus the suit was partial partition for all practical purposes? 3. Whether the Trial Court and the First Appellate Court have committed serious error in coming to the conclusion that the granting of occupancy right ensures to the benefit of the entire joint family? - 14 - HC-KAR NC: 2025:KHC-D:7610 RSA No. 2180 of 2007 10. Sri. Mrutyunjay Tata Bangi, learned counsel appearing for the appellants reiterating the grounds urged in the memorandum of appeal submits that, there had been a partition of the suit properties on 13.07.1982 which was acted upon and in furtherance thereof mutation entries were affected. Referring to paragraph No.7 of the plaint, the learned counsel submits that plaintiffs themselves have admitted the fact of earlier partition and entering of their names in revenue records pursuant thereto. Thus, he submits that the Trial Court and the First Appellate Court erred in holding that there was no partition in the suit properties contrary to the admission and material evidence made available by the parties. 10.1. He further submits that as regard item Nos.5 and 6 are concerned the grant order was made on 14.09.1982 in favour of defendant No.1 and revenue records in this regard are produced. However, the Trial Court and the First Appellate Court have not considered the said material evidence placed on record. - 15 - HC-KAR NC: 2025:KHC-D:7610 RSA No. 2180 of 2007 10.2. He submits that, Will executed by the deceased Waman Patil bequeathing his portion of the property in favour of defendant No.4 is another documentary evidence indicating earlier partition. He further submits that perusal of said Will would indicate that Waman who was allotted a share in the suit schedule properties had categorically stated so in the Will and had bequeathed his share in favour of defendant No.4. 10.3. That the admission by the plaintiffs in the plaint regarding prior partition and the aforesaid document produced before the Trial Court and the First Appellate Court would lead to conclusion that there was earlier partition as such, the present suit was not maintainable. Hence, he submits substantial question of law raised be answered in the affirmative and allow the appeal. 11. Per contra, Sri. Chetan Munnoli, learned counsel appearing for the plaintiffs/respondents submits that there is no admission of any nature whatsoever by the plaintiffs regarding earlier partition as sought to be made out. - 16 - HC-KAR NC: 2025:KHC-D:7610 RSA No. 2180 of 2007 Referring to the deposition of DW1 recorded on 25.05.1999, learned counsel on the other hand submits that there is a categorical admission by the said witnesses regarding there being no earlier partition of the family properties. He submits that, the said witness had admitted that the plaintiff and defendant are entitled for 1/5th share in the suit properties and he has no objection for partition of the suit properties and has sought to exclude tenanted lands bearing Sy.Nos.571 and 301. Thus, he submits that the defendants have failed to prove the factum of prior partition. 11.1. As regards grant of occupancy rights in respect of item Nos.5 and 6 of the suit properties, learned counsel submits that no evidence of any nature whatsoever is produced by the contesting defendants in justification of their claim of the said lands having been granted exclusively in favour of defendant No.1. In the light of these aspects of the matter, he submits that substantial - 17 - HC-KAR NC: 2025:KHC-D:7610 RSA No. 2180 of 2007 question of law be answered in the negative and appeal needs to be dismissed. 12. Heard and perused the records. 13. Relationship between the parties is not in dispute. Suit properties, except item Nos.5 and 6 namely Sy.Nos.571 and 301, being joint family properties is also not in dispute. Though, a plea of prior partition set up by the defendants, the same is sought to be proved referring to the averments made in paragraph No.7 of the plaint by the plaintiff and no independent or cogent evidence is led in this regard. 14. Paragraph No.7 of the plaint reads as under: <7. The plaintiffs and defendants are the members of the Hindu Joint Family and there is no severance of joint family status though all the plaintiffs and defendants are putting up separately and enjoying their shares separately for the sake of convenience. The propositus Gavdoji died intestate in 1950. On his death, the plaintiffs and defendants succeeded to the suit agricultural lands and house properties left by the deceased Gavdoji, as tenants in common, as per Sec.8 of the Hindu Succession Act. Accordingly, Mutation Entry showing the names of plaintiffs and defendants 1 and 2 - 18 - HC-KAR NC: 2025:KHC-D:7610 RSA No. 2180 of 2007 came to be effected in the record of rights in respect of the agricultural lands. Similarly, the names of all the sons of the propositus were entered in the property extract of the house properties after the demise of the propositus.= 15. A perusal of the aforesaid averments made in paragraph No.7 of the plaint would indicate that upon the demise of propositus Gavadoji Yado Patil in the year 1950, plaintiff and defendants succeeded to the suit agricultural lands and house properties in terms of Section 8 of the Hindu Succession Act, 1956. Accordingly, their names have been mutated in the revenue records and though they are residing separately and enjoying their share separately for the sake of convenience, there is no severance of joint family status. The aforesaid pleading cannot be construed to be an admission by the plaintiff regarding purported prior partition as contended by the defendants. At the most the said pleading would only indicate that upon the demise of propositus, parties have got their names entered in the revenue records they being entitled for equal share in terms of Section 8 of the Act, 1956 and nothing more. - 19 - HC-KAR NC: 2025:KHC-D:7610 RSA No. 2180 of 2007 16. Further as rightly pointed out by the learned counsel for the respondents, DW1 in his deposition recorded on 25.05.1999 has admitted as under: <It is true that there is no mention regarding effecting partition in the Will deed executed that by deceased Waman. It is true that my father Balappa has been in possession of more extent of land compare to others. It is true that the plaintiffs and defendants are entitled to 1/5th share. I have no objection to effect the partition in the suit properties except suit tenanted lands bearing Sy.Nos.571 and 301.= 17. The aforesaid deposition of DW1 categorically admitting the entitlement of plaintiff of 1/5th share in the suit properties and there being no partition, would belie the case of defendants. 18. As regards the contention of land bearing RS No.571 and RS No.301 (item Nos.5 and 6 of the suit properties) having been granted exclusively in the name of defendant No.1, no acceptable evidence is produced in this regard. In fact, in the very same deposition recorded on 25.05.1999, the witness has admitted that his father had filed Form No.7 before the Tribunal in respect of suit land - 20 - HC-KAR NC: 2025:KHC-D:7610 RSA No. 2180 of 2007 and the occupancy rights were granted in his favour as Karta of the family. He also admits that revenue records pertaining to the said land in Sy.Nos.571 and 301 reflect the name of original propositus Gavadu Yadoji Patil, as tenant in respect of the said properties. 19. The pleading, material evidence and the deposition of the parties as narrated above have been taken note of by the Trial Court and the First Appellate Court to come to the conclusion that the suit properties are the joint family properties of plaintiff who is entitled for 1/5th share therein. 20. Since, there is no admission of prior partition as sought to made out and merely because parties are residing separately, the same cannot be construed as severance of the joint family properties and in the absence of any evidence produced by the defendant No.1 regarding the Tribunal having granted rights exclusively in his favour in respect of land in Sy.Nos.571 and 301, his claim of he being the exclusive owner also cannot be countenanced. - 21 - HC-KAR NC: 2025:KHC-D:7610 RSA No. 2180 of 2007 21. Though it was contended that some other joint family properties were not included in the suit, no details of the said properties have been brought on record. The substantial questions of law raised are answered accordingly, the appeal is therefore dismissed. 22. The judgment and decree passed by the Trial Court and the First Appellate Court are hereby confirmed. 23. Pending applications, if any, are disposed off accordingly. Sd/- (M.G.S. KAMAL) JUDGE SH 3 para 01 SMM 3 para 02 to till end List No.: 1 Sl No.: 2