- 1 - HC-KAR NC: 2025:KHC-D:8425 RSA No. 5721 of 2012 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 7TH DAY OF JULY 2025 BEFORE THE HON'BLE MR. JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO.5721/2012(DEC/INJ) BETWEEN: SIDDARAMAPPA S/O. BHARAMAPPA MADALAGERI, AGE: 68 YEARS, OCC: AGRICULTURE, R/O: LAKKUNDI, GADAG- 582 115. …APPELLANT (BY SRI. S. G. KADADAKATTI, ADVOCATE) AND: 1. BASAVANNEPPA S/O BHRAMAPPA MADALAGERI, AGE: 50 YEARS, OCC: AGRICULTURE, R/O: LAKKUNDI, GADAG – 582 115. 2. SHEKHARAPPA S/O BHRAMAPPA MADALAGERI, AGE: 56 YEARS, OCC: AGRICULTURE, R/O: LAKKUNDI, GADAG – 582 115. …RESPONDENTS (BY SRI. H.N.GULARADDI, ADVOCATE FOR R1 & R2) THIS RSA IS FILED UNDER SECTION 100 OF CPC PRAYING TO CALL FOR RECORDS; SET ASIDE THE JUDGMENT AN DECREE DATED 30.01.2012, PASSED BY THE FAST TRACK COURT, AT GADAG, IN R.A.NO.64/2010 AND THE JUDGMENT AND DECREE DATED 09.06.2010 PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE AND C.J.M., GADAG IN O.S.NO.29/2007 BY ALLOWING THIS APPEAL; DECREE THE SUIT FILED BY THE PLAINTIFF IN O.S.NO.29/2007 ON THE FILE OF THE LEARNED PRINCIPAL SENIOR CIVIL JUDGE AND C.J.M., GADAG AND ETC., THIS APPEAL, COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: Digitally signed by SAROJA HANGARAKI Location: High Court of Karnataka, Dharwad Bench, Dharwad - 2 - HC-KAR NC: 2025:KHC-D:8425 RSA No. 5721 of 2012 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL) 1. This appeal is filed by the plaintiff, being aggrieved by the judgment and decree dated 09.06.2010 passed in O.S. No.29 of 2007 on the file of the Prl. Senior Civil Judge and C.J.M., Gadag (for short “the trial Court”), by which the said suit of the plaintiff seeking declaration and injunction was dismissed, which is confirmed by the judgment and order dated 30.01.2012 passed in R.A. No.64 of 2010 by the Fast Track Court, Gadag (for short “the First Appellate Court”). 2. The above suit has been filed by the plaintiff seeking relief of declaration of his title and a consequential relief of permanent injunction in respect of the land bearing R.S. No.691/2A, measuring 4 acres 36 guntas (suit land) contending inter alia that he purchased the suit land in terms of a registered deed of sale dated 16.06.1971 from one Rambhatt, out of his own income earned from agricultural coolie and Ox trading business. Thus, he claims - 3 - HC-KAR NC: 2025:KHC-D:8425 RSA No. 5721 of 2012 that the suit land is his self acquired property and that he has been paying the land revenue regularly. That he is unmarried and has no issues. That the defendants are his brothers. That there are other landed and movable properties belonging to the family and that a partition of these family properties had taken place about 12 years ago. That in the said partition, the plaintiff, defendants and their other brothers received their respective shares. The suit property, being the self acquired property of the plaintiff, was not included in the partition. 3. Therefore, the defendants have no share, right, title, or interest in the suit property. Despite this, they have attempted to interfere with the plaintiff’s peaceful possession and enjoyment of the suit property, which has led to the filing of the suit. 4. Defendant No.1 has filed a written statement denying the averments made in the plaint. The relationship between the parties is not disputed. It is contended that one Bharmappa and Parvetevva had six sons, namely (i) - 4 - HC-KAR NC: 2025:KHC-D:8425 RSA No. 5721 of 2012 Shivappa, (ii) Sidramappa (plaintiff), (iii) Parasappa, (iv) Late Channabasappa and Basavanneppa (defendant No.1) and Shekharappa (defendant No.2). Their mother, Parvatevva passed away on 07.01.2005, and their father, Bharmappa, passed away on 12.06.1980. The fourth son, namely Channabasappa died in the year 1980, leaving behind his wife Ansawwa and five children namely (i) Shivappa also known as Muttappa, (ii) Basavaraj, (iii) Ashoka, (iv) Smt.Sumangana, & (v) Kumari Balamma. 5. It is contended that the above suit for partition is not maintainable without including other legal heirs and members of the joint family. It is further stated that another property bearing R.S. No. 158/2A, measuring 4 acres 2 guntas, situated towards the western side of the whole land bearing R.S. No. 158/2 has not been included in the family hotchpotch, even though it is claimed to have been purchased by the plaintiff on 03.06.1976. 6. That the land bearing R.S. No.158/2A was purchased while the plaintiff, their mother and other three - 5 - HC-KAR NC: 2025:KHC-D:8425 RSA No. 5721 of 2012 brothers were all living together under the one roof and that the said purchase was made using the money given by their father from the income of the joint family properties bearing (i) R.S. No.80/1 measuring 17 acres 19 guntas, (ii) R.S. No.127 measuring 14 acres 35 guntas, (iii) R.S. No.132/3 measuring 3 acres 28 guntas, all situated at Lakkundi, Taluk Gadag and another land bearing R.S. No.61/1 measuring 8 acres 20 guntas situated at Kadampur Village. That the total extent of land held by the family of the plaintiff and defendants is about 42 acres 22 guntas. 7. Thus, the father of the plaintiff and defendants, Bharmappa, had sufficient nucleus from joint family properties to provide funds for acquiring further properties. Since, the father of the plaintiff had already held 42 acres 22 guntas of lands, and to avoid any legal complication or to avoid exceeding the land ceiling limits, some of the lands were purchased in the name of the plaintiff, who had gained the confidence of their father. - 6 - HC-KAR NC: 2025:KHC-D:8425 RSA No. 5721 of 2012 8. That the eldest son, Sivappa, had left the house/joint family in the year 1976. Therefore, Bharmappa did not purchase any property in the name of the eldest son, Shivappa. The plaintiff had declared himself a Brahmachari and had taken up the responsibility of the entire family from the year 1970. He had funds generated from the income of the other joint family properties. That the plaintiff had no independent source of income to purchase the suit land or the property bearing R.S. No.158/2A. These properties were purchased from and out of the income derived from the joint family, and hence, are considered as the joint family properties. 9. That the land bearing R.S. No.158/2A is not at all in possession of the plaintiff and the same is in the possession of defendant No. 3 – Parasappa to the extent of 2 acres and another 2 acres is being enjoyed by the legal heirs of deceased Channabasappa since 1988. 10. That out of the suit land an extent of 2 acres 18 guntas each is being enjoyed by defendant No.1 and - 7 - HC-KAR NC: 2025:KHC-D:8425 RSA No. 5721 of 2012 defendant No.2 respectively. The plaintiff had orally permitted defendant Nos.1 and 2 to enjoy the land since 1998. The plaintiff by virtue of his name appearing in the records of rights is now staking claim over the suit land on the false grounds. 11. That the suit land was excluded from the partition, as it was irrigated land generating good income to the family. In order to maintain the family harmony, at the advice of the elders, it was agreed to possess the land jointly by the plaintiff and the defendants. 12. Defendant No.1 thus seeking dismissal of the suit on the aforesaid grounds also sought counterclaim seeking partition and separate possession of the suit properties. 13. The plaintiff filed a written statement in response to the counter claim, denying the averments made in the written statement. 14. Based on the aforesaid pleadings, the trial Court framed the following issues for its consideration: - 8 - HC-KAR NC: 2025:KHC-D:8425 RSA No. 5721 of 2012 1) Whether plaintiff proves that he is the absolute owner in actual possession and enjoyment of the suit properties? 2) Whether plaintiff proves that the alleged attempt to obstruct the plaintiff's possession? 3) Whether defendant -1 proves that he had purchased the suit properties in the name of plaintiff out of joint family income as stated in para-9 and 10 of the written statement? 4) Whether defendant No.1 proves that suit lands are the joint family-properties? 5) Whether suit is bad for non-joinder of necessary parties? 6) Whether suit is not maintainable as stated in para-8 of the written statement? 7) Whether counterclaim of defendants is barred by time? 8) Whether the counterclaim is not properly valued and CF thereon is not sufficient? 9) Whether plaintiff is entitled to the reliefs sought for? 10) Whether defendants are entitled for counterclaim? 11) What order or decree? 15. The plaintiff examined himself as PW1 and produced 35 documents, which were marked as Exhibits P1 to P35. On behalf of the defendants, three witnesses were examined as DW1 to DW3, and produced 9 documents, marked as Exhibits D1 to D9. - 9 - HC-KAR NC: 2025:KHC-D:8425 RSA No. 5721 of 2012 16. On appreciation of evidence on record, the trial Court answered issue Nos.1, 2, 5, 6, 9 and 10 in the negative, and issue Nos.3 and 4 in the affirmative. Issue Nos.7 and 8 were held as not arising for consideration. Consequently, the trial Court dismissed the suit. 17. Aggrieved by the judgment and decree of the trial Court, the plaintiff preferred an appeal in R.A. No.64/2010 before the First Appellate Court. 18. The First Appellate Court framed the following points for its consideration. 1. Whether the plaintiff proves that suit land is his self acquired property purchased by him out of his income derived from agriculture coolie and ox-trading 2 Whether plaintiff proves that he is in lawful possession of suit land? 3. Whether plaintiff is entitled to reliefs sought for in the suit? 4. Whether judgement and decree of the lower court calls for any interference" 5. What order? 19. On re-appreciation of the evidence, the First Appellate Court answered point Nos.1 to 4 in the negative - 10 - HC-KAR NC: 2025:KHC-D:8425 RSA No. 5721 of 2012 and, consequently, dismissed the appeal, thereby confirming the judgment and decree passed by the trial Court. 20. Aggrieved by the concurrent findings of the Courts below, the plaintiff has filed this Regular Second Appeal before this Court. 21. Learned counsel appearing for the plaintiff, reiterating the grounds urged in the memorandum of appeal, submitted that both the trial Court and the First Appellate Court failed to appreciate the evidence placed on record in support of the contention of the plaintiff having purchased the suit property out of his own income, which is derived from agricultural coolie and Ox Trading business. That mere fact that he did not maintain the separate accounts for his business should not negate the claim of the plaintiff of self acquisition of the suit property. He further contends that a family partition had admittedly taken place 12 years prior to the filing of the suit, and that the suit land bearing R.S. No.691/2A measuring 4 acres 36 guntas, along - 11 - HC-KAR NC: 2025:KHC-D:8425 RSA No. 5721 of 2012 with another land bearing R.S. No.158/2A measuring 4 acres 22 gutnas, had been excluded from the said partition. This fact, has remained undisputed, which ought to have been considered by both the trial Court and the First Appellate Court to come to a conclusion that the suit land was the self acquired property of the plaintiff. 22. Learned counsel further submitted that though a presumption of joint family may exist, such a presumption cannot automatically extend to the nature of self-acquired properties. The plaintiff had produced registered deeds of sale and the revenue records in support his claim. Therefore, no further evidence was required to establish his ownership. 23. It was contended that the trial Court and the First Appellate Court committed perversity by failing to appreciate the documentary evidence and by giving undue weightage to the oral testimony of the defendants, which runs contrary to the provisions of Section 92 of the Evidence Act. This, learned counsel submits, gives raise to - 12 - HC-KAR NC: 2025:KHC-D:8425 RSA No. 5721 of 2012 substantial question of law warranting interference. Accordingly, seeks for allowing of the appeal. 24. Learned counsel appearing for the respondents / defendants, on the other hand, submits that the plaintiff, in his deposition, has categorically admitted to being a member of the joint family during the lifetime of his father and also to having engaged in agricultural activities being carried on the joint family properties. He submits that the plaintiff has failed to produce any credible or acceptable material evidence to prove that he had sufficient independent income to purchase the suit property or the other property bearing R.S. No.158/2A. 25. Learned counsel submits that the defendants have provided a clear explanation in their written statement regarding why these properties were not included in the family partition. In light of these facts, he contends that no substantial question of law arise for consideration in the present appeal. 26. Heard. Perused the records. - 13 - HC-KAR NC: 2025:KHC-D:8425 RSA No. 5721 of 2012 27. The relationship between the parties is not in dispute. In the plaint, the plaintiff claims that the suit property is his self-acquired property and that the defendants have no share, right, title or interest over the same. 28. In their written statement, the defendants have elaborately contended that their father, Bharmappa, had six sons, and that the plaintiff has filed the suit only against two of them. It is contended that the joint family, comprising of Bharamappa and his six sons, possessed and enjoyed a total of 42 acres and 22 guntas of land. The plaintiff, being the second son, had declared himself a Bramachari, and their father, reposing confidence in him, purchased the suit property and another property bearing R.S.158/2A in the name of the plaintiff, for the benefit of the entire family. 29. It is further contented that the property bearing R.S. No.158/2A, which was purchased from joint family income in the name of the plaintiff, is in possession of the - 14 - HC-KAR NC: 2025:KHC-D:8425 RSA No. 5721 of 2012 third son, Parasappa, while another extent of 2 acres is being enjoyed by the heirs of the deceased brother Channabasappa since 1988. 30. It is significant to note that though the plaintiff claims to have purchased two properties, one being the suit properties in R.S.691/2A, measuring 4 acres 36 guntas and the other being land in R.S. No.158/2A, measuring 4 acres 2 guntas, he chose to file the suit only in respect of R.S.No.691/2A. Even though, the defendants in their written statement, specifically contended that the land in R.S. No.158/2A is in the possession of the other brothers and the legal heirs of Channabasappa, and though plaintiff filed the written statement to the counter claim, he did not take any steps to bring the said property on record or seek any declaratory relief in respect thereof. 31. Be that as it is, in the cross examination recorded on 13.01.2010 and 09.02.2010, as noted by the trial Court in paragraph Nos.13 and 14 of its judgment, the plaintiff admitted that until the demise of their father, the - 15 - HC-KAR NC: 2025:KHC-D:8425 RSA No. 5721 of 2012 plaintiff and the defendants resided in the same house and dined together. He further admitted that during the lifetime of their father there was no dispute regarding the properties, and there was oneness amongst the family members, all of whom jointly cultivated the family properties. That their father passed away in the year 1980. The plaintiff also stated that their eldest brother, Sivappa, was addicted to alcohol. It was further admitted that their father managed all affairs, including marriage and educational expenses of the family members, and that he was also earning. Though the father retained the income generated from the family properties, there were no objections or disputes with regard to the income earned by the other members, and there was no financial difficulty during the lifetime of their father. 32. The Trial Court taking note of the aforesaid deposition of the plaintiff with regard to jointness of the family, jointness in cultivation and earning, has drawn presumption that there was sufficient family income even as - 16 - HC-KAR NC: 2025:KHC-D:8425 RSA No. 5721 of 2012 admitted by the plaintiff for the purpose of purchase of the suit property in the name of the plaintiff. 33. Plaintiff on the other hand except the deeds of sale, has not produced any document to show that he was indeed carrying on the Ox trading business as contended during the time of purchase of the property. The documents produced by him to show his Ox trading business are of subsequent to year 2000. The aforesaid deposition and the evidence has led the trial Court and the First Appellate Court to come to the conclusion of plaintiff failing to prove the suit property having been purchased out of self-earning and accepting the case of the defendant of the same having been purchased from the income of the joint family. 34. Another aspect of the matter to be seen is as rightly taken note of by the trial Court, plaintiff has not pleaded anywhere in the plaint of he having separated from the joint family. It is his specific case in the deposition that he continued to reside and cultivate jointly with the family and that during the lifetime of his father there was no - 17 - HC-KAR NC: 2025:KHC-D:8425 RSA No. 5721 of 2012 differences amongst the members of the family with regard to the property or with regard to the income. 35. Though there can be a presumption of joint family, there cannot be a presumption of joint family property and in the instant case even as admitted by the plaintiff, the family owned and possessed 42 acres 20 guntas of land which was being managed by the father of the plaintiff and the defendants earning sufficient income and in the absence of plaintiff producing any evidence, the presumption drawn by the trial Court and the First Appellate Court regarding suit property being joint family property cannot be found fault with. 36. Though plaintiff has not pleaded anything in the suit with regard to he having purchased another extent of land in Sy.No.158/2A, the said aspect of the matter has been brought on record by the defendants in their written statement. They have specifically contended that the said property was also purchased in the name of the plaintiff and the same is in their possession. This is a strong indication of - 18 - HC-KAR NC: 2025:KHC-D:8425 RSA No. 5721 of 2012 the fact that even the said property was also jointly purchased, inasmuch as against the said stand taken by the defendants in the written statement, plaintiff has not taken any steps to seek any declaratory relief in respect of the said property. 37. View from any angle, no error can be found with the reasoning and conclusion arrived by the trial Court and confirmed by the First Appellate Court. No substantial question of law would therefore arise for consideration. Hence, the appeal lacks merit accordingly, dismissed. Sd/- (M.G.S. KAMAL) JUDGE VNP & SMM / CT-ASC List No.: 1 Sl No.: 1