- 1 - NC: 2025:KHC-D:3151-DB RFA No. 100143 of 2021 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 14TH DAY OF FEBRUARY, 2025 PRESENT THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO. 100143 OF 2021 (PAR/POS) BETWEEN: 1. SMT. HULIGEMMA W/O LATE HANUMANTHAPPA AGE. 82 YEARS, 2. SRI. THIPPESWAMY S/O. LATE HANUMANTHAPPA AGE. 56 YEARS, 3. SRI. THIPPERUDRA S/O. LATE HANUMANTHAPPA AGE. 50 YEARS, APPELLANT NOS. 1 TO 3 ARE PERMANENT R/O. VENIVEERAPURA VILLAGE POST TQ AND DIST. BALLARI-583115. …APPELLANTS (BY SRI. MAHENDRA N, ADV) AND: 1. SRI. KENHAPPA H.D S/O. THIMMAPPA C. AGE. 56 YEARS, 2. SRI. SREENIVASA H.D. S/O. THIMMAPPA.C. (SINCE DECEASED BY HIS LR’S.,) 2a. SMT. NEELAMMA W/O LATE. SRINIVASA H.D AGE: 43 YEARS, 2b. ROOPA D/O LATE. SRINIVASA H.D AGE: 24 YEARS, 2c. MUNIYAPPA S/O LATE. SRINIVASA H.D AGE: 23 YEARS, 2d. VENKATESH S/O LATE. SRINIVASA H.D AGE: 21 YEARS, MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Date: 2025.03.01 11:18:56 +0530 - 2 - NC: 2025:KHC-D:3151-DB RFA No. 100143 of 2021 ALL ARE R/AT: ANANTHASHAYANA GUDI PANDURANDA COLONY, HOSPET TALUK OLD BALLARI DISTRICT, NEW VIJAYANAGARA DISTRICT -583201. 3. SMT. KENCHAMMA W/O. DUBBA GALEPPA D/O THIMMAPPA C., AGE. 54 YEARS, R/AT. MALAPANGUDI VILLAGE PANDURANGA COLONY, HOSPET TALUK, OLD BALLARI DISTRICT NEW VIJAYANAGARA DISTRICT-583201. 4. SMT. SHANTHAMMA W/O RAMAPPA D/O. THIMMAPPA C, AGE. 48 YEARS, R/AT. NEW AMARAVATHI HOSPET TALUK, OLD BALLARI DISTRICT NEW VIJAYANAGARA DISTRICT-583201. 5. SMT. GEETHAMMA W/O. THALAVARA HULUGAPPA D/O. THIMMAPPA C, AGE. 46 YEARS, R/AT. ORAVAL VILLAGE, BALLARI TALUK, BALLARI DISTRICT-583116. 6. THE SPECIAL LAND ACQUISITION OFFICER K.I.A.D.B. KAROOR INDUSTRIAL AREA, P.B.ROAD, DAVANAGERE-577006. …RESPONDENTS (BY SRI. F.V. PATIL AND SMT. PALLAVI PACHHAPURE, ADVS FOR R1, R3 TO R5. R2 DEAD. NOTICE TO R2 (A TO D) ARE SERVED, SRI. P.N. HATTI, HCGP FOR R6) THIS RFA IS FILED UNDER ORDER XLI RULE 1 READ WITH SEC. 96 OF CPC., 1908, AGAINST THE JUDGMENT AND DECREE DTD 28.07.2021 PASSED IN O.S.NO.286/2015 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, BALLARI, PARTLY DECREEING THE SUIT FILED FOR PARTITION. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - NC: 2025:KHC-D:3151-DB RFA No. 100143 of 2021 CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) This Regular First Appeal is filed by the appellants, challenging the judgment and preliminary decree dated 28.07.2021 passed in O.S.No.286/2015 by the learned II Additional Senior Civil Judge, Ballari. 2. For convenience, the parties are referred to, based on their rankings, before the trial Court. The appellants were defendant Nos.1 to 3, respondent Nos.1 to 5 were the plaintiffs and respondent No.6 was defendant No.4. 3. Brief facts, leading rise to the filing of this regular first appeal, are as follows: The plaintiffs filed a suit against the defendants for a partition and separate possession regarding the suit schedule properties. It is the case of the plaintiffs that Late Sannappa was the propositus of the family of the - 4 - NC: 2025:KHC-D:3151-DB RFA No. 100143 of 2021 plaintiffs and defendants No.1 to 3. Sannappa had two sons viz. Hanumanthappa and Thimmappa. The plaintiffs are the sons and daughters of late Thimappa. Defendant No.1 is the wife and defendants No.2 and 3 are the sons of late Hanumanthappa. The original propositus, Sannappa, owned and possessed the suit schedule properties, and he was in possession of and was cultivating item nos.1 to 5 of the suit schedule properties till his death. After the death of Sannappa, Thimmapa and Hanumanthappa continued in possession of and were cultivating the suit schedule properties. The father of the defendant No.2 and 3, Hanumanthappa, was the elder son of the late Sannappa and as such, he was acting as the kartha of the family. The father of the plaintiffs and defendants were living jointly, which constituted a joint Hindu family. Hanumanthappa, being the elder son of late Sannappa, was acting as a kartha of the joint family consisting of Smt.Thayamma, wife of late Sannappa & mother of Hanumanthappa and Thimappa, and was cultivating item nos.1 to 5 of the suit schedule properties. - 5 - NC: 2025:KHC-D:3151-DB RFA No. 100143 of 2021 Hanumanthappa, acting as kartha of the joint family, applied for ‘rathawari patta’ of the aforesaid suit schedule properties for and on behalf of the joint family. The land Tribunal granted patta in his favour in 1975-76. Since the date of the grant, the plaintiffs’ father and defendants were in joint and constructive possession over the suit schedule properties. Hanumanthappa and Thimappa died intestate, leaving behind the plaintiffs and defendants as their legal heirs. Defendants No.2 and 3 by playing fraud and misrepresentation with the revenue officers, mutated their names in the record of rights without the consent or knowledge of the plaintiffs. The plaintiffs learnt about the illegal mutation order passed in favour of the defendants. The plaintiffs, demanded the defendants, for partition and separate possession several times. The defendants did not heed to the request made by the plaintiffs. Defendant No.4, the Special Land Acquisition Officer, acquired items no.1 to 5 of the plaint schedule properties for the development of industries, under the Land Acquisition Act, 1894 and defendants No.1 and 2 were making hectic - 6 - NC: 2025:KHC-D:3151-DB RFA No. 100143 of 2021 efforts to get compensation from defendant No.4. Hence, a cause of action arose for the plaintiffs to file a suit for partition and separate possession. Accordingly, he prays to decree the suit. 3.1. Defendants No.1 to 3 filed a common written statement. Except admitting the relationship between the parties, they denied all the averments made in the plaint. It is contended that the plaint schedule item nos.1 to 5 were not acquired by late Sannappa. It is contended that late Sannappa acquired and owned the land bearing Sy.No.274B/1, measuring 8 acres 52 cents and a house mentioned in the plaint schedule item No.6. It is contended that after the demise of late Sannappa, Sy.No.274B/1 was divided equally between Hanumanthappa and Thimmappa to the extent of 4.26 acres each. The plaintiffs’ father, Thimmappa, shifted his residence from Veniveerapur to Hospet as he had secured employment in the Railway department. He served in the Railways for many years and retired from the service. He - 7 - NC: 2025:KHC-D:3151-DB RFA No. 100143 of 2021 sold the land bearing Sy.No.274B/1, fallen to his share measuring to an extent of 4 acre 26 cents, under three registered sale deeds, to three different persons. So no joint family status existed between the plaintiffs’ father i.e., Thimmappa and the father of defendants No.2 and 3 i.e., Hanumanthappa. The plaintiffs’ father settled at Hosapete, acquired landed properties and built a valuable house at Hosapete. The plaintiffs have suppressed the material facts and filed the present suit. It is contended that, suit schedule Sl. No.6 property is available for partition between Hanumanthappa and Thimmappa. It is further contended by the defendants that, Hanumanthappa continued the agricultural activities. Insofar as the suit schedule properties i.e. items Nos.1 to 5, are the tenanted lands cultivated by Hanumanthappa and he was not representing any joint family consisting of himself and his brother Thimappa. It is contended that the Tahasildar granted tenancy rights regarding the plaint schedule item nos.1 to 5 properties in 1982 and item No.7 of the suit schedule property is the self acquired house - 8 - NC: 2025:KHC-D:3151-DB RFA No. 100143 of 2021 property of Hanumanthappa. Hence, they contended that the suit filed by the plaintiffs is not maintainable. It is contended that there is no cause of action for the plaintiffs to file the suit for partition and separate possession. It is further contended that the plaintiffs are not entitled to payment of compensation from the SLAO i.e., defendant No.4. Hence, prays to dismiss the suit. 3.2. Further, the plaintiffs during the pendency of the suit, filed an application for amendment to the plaint. The said application was allowed and the plaintiffs carried out the amendment. Defendant No.2 filed an additional written statement contending that, the plaintiffs have no right in items No.1 to 5 of the suit schedule properties and they are not entitled for any compensation and contended that, only defendant No.1 to 3 are the parties to the acquisition proceedings. The gazette notification was published in the names of defendants No.1 to 3. It is contended that, the plaintiffs without challenging the acquisition notification, - 9 - NC: 2025:KHC-D:3151-DB RFA No. 100143 of 2021 cannot maintain the suit. Hence, he prays to dismiss the suit. 3.3. The trial Court, based on the pleadings of the parties, framed the issues and additional issues : issues “1. Whether the plaintiffs proves that suit schedule properties are the joint family properties of plaintiffs and defendants No.1 to 3? 2. Whether defendant No.1 to 3 proves that the father of the plaintiffs Thippe Swamy, husband of the defendant No.1 and father of the defendants No.2 and 3 Hanumanthappa served themselves both in status and properties and got divided the ancestral properties long back? 3. Whether the defendants No.1 o 3 proves that suit schedule properties are the separate properties of father of the defendant Nos.2 and 3 and the husband of defendant No.1 Hanumanthappa? 4. Whether plaintiffs proves that in view of the acquisition of the suit schedule item Nos. 1 to 5 properties by the KIADB the instant suit for the relief of partition in respect of suit schedule item No.1 to 5 properties is maintainable before this court? 5. Whether the plaintiffs are entitle for the relief’s sought for? 6. What order or Decree? - 10 - NC: 2025:KHC-D:3151-DB RFA No. 100143 of 2021 ADDITIONAL ISSUES 1. Whether the defendant Nos. 1 to 3 proves that the suit of the plaintiffs is barred by law of limitation? 2. Whether the defendant Nos. 1 to 3 proves that the valuation of the suit and the court fee paid is incorrect?” 3.4. The plaintiffs, to substantiate their case, examined plaintiff No.1 as PW.1, and marked 45 documents as Exhibits P.1 to P.45. On the other hand, defendant No.2 was examined as DW.1, and marked 51 documents as Exhibits D.1 to D.51. 3.5. After recording the evidence, hearing on both sides, and on the assessment of the oral and documentary evidence. The trial Court, answered issue No.1, 4 and 5 in the affirmative, issue nos.2, 3, additional issue No.1 and 2 in the negative, and issue No.6 as per the final order. 3.6. The suit of the plaintiffs was partially decreed with cost vide judgment dated 28.07.2021 holding that the plaintiffs jointly are entitled to half share in the compensation amount of Rs.4,31,02,000/- awarded by - 11 - NC: 2025:KHC-D:3151-DB RFA No. 100143 of 2021 defendant No.4 regarding the acquisition of properties at Sl.Nos.1 to 5 of the plaint schedule, and further, held that the plaintiffs are jointly entitled to a half share in the suit schedule property at Sl.No.6 by partition and separate possession. 3.7. The defendants, aggrieved by the judgment and preliminary decree passed in O.S.No.286/2015, filed this Regular First Appeal. 4. Heard learned counsel for the defendants, and the learned counsel for the plaintiffs. 5. Learned counsel for the defendants submits that the suit schedule item nos.1 to 5 properties are the self- acquired properties of Hanumanthappa. He submitted that, tenancy rights were granted in favour of Hanumanthappa in his individual capacity, and not to inure to the benefit of the joint family. He submits that the plaintiffs have no right to claim a share in item Nos.1 to 5 of the suit schedule properties. He further submits that, - 12 - NC: 2025:KHC-D:3151-DB RFA No. 100143 of 2021 the land bearing Sy.No.274B/1 measuring 8 acres 2 cents was the only property owned by Sannappa, and after his death, Hanumanthappa and Thimmappa got the properties divided and each of them were allotted a share to the extent of 4.26 acres. Further, as of the date of filing the suit, there is severance of status and the said schedule properties are not the joint family properties of plaintiffs and defendants, and they were not members of the joint family. The trial Court, without considering the said aspect, has passed the impugned judgment. PW.1 has admitted regarding the partition regarding the land in Sy.No.274B/1. When there is a partition and severance of status, the trial Court ought to have dismissed the suit, but on the contrary, has decreed the suit of the plaintiffs in part. He also submits that the plaintiffs have not included the particulars of the property purchased by Thimmappa. Hence, the suit is not maintainable for non- joinder of necessary properties. Hence, on these grounds, he prays to allow the appeal. - 13 - NC: 2025:KHC-D:3151-DB RFA No. 100143 of 2021 6. Per contra, learned counsel for the plaintiffs, Smt.Pallavai Pachhapure, submits that, to show that the Land Tribunal granted occupancy rights in favour of Hanumanthappa in his individual capacity, the defendants have not produced any records. She also further, submits that the landlord has given a statement before the Land Tribunal stating that, Hanumanthappa was in possession of the suit schedule properties item Nos.1 to 5 for 20 years. She submits that, if the said statement is taken into consideration, the age of the deceased Hanumanthappa would have been 13 years in 1947, and he was incompetent to enter into a contract as per Section 11 of the Indian Contract Act. She submits that, a minor is incompetent to enter into a contract. The Land Tribunal granted occupancy rights in favour of Hanumanthappa as he was a elder male member of the family. She submits that Sannappa was in possession of item nos.1 to 5 of the suit schedule properties and after his demise, Hanumanthappa, being the elder member of the family, his name came to be mutated/entered in the revenue - 14 - NC: 2025:KHC-D:3151-DB RFA No. 100143 of 2021 records and he has filed form No.7 for and on behalf of the joint family, and the Land Tribunal granted occupancy rights for the benefit of the family, and not in his individual capacity. She further submits that, Hanumanthappa and Thimmappa, have jointly executed a registered mortgage deed as per Exs.P.43 and 44 which discloses that, they were the joint owners of the suit schedule properties. She further submits that, the defendants did not produce form No.7 submitted before the Land Tribunal, and that the records were called for from the Land Tribunal. The trial Court perused the records of the Land Tribunal, and found that Form No.7 was missing from the file. She submits that the defendants did not produce any record to show that Hanumanthappa was a major as of the date of death of Sannappa. She submits that the trial Court was justified in passing the impugned judgment. Hence, on these grounds, she prays to dismiss the appeal. 7. Perused the records, and considered the submissions of the learned counsel for the parties. - 15 - NC: 2025:KHC-D:3151-DB RFA No. 100143 of 2021 8. The points, that arise for our consideration are : i) Whether the plaintiffs prove that the suit schedule properties are the joint family properties of the plaintiffs and defendants No.1 to 3 ? ii) Whether defendants No.1 to 3 prove that the suit schedule items nos.1 to 5 of the suit schedule properties are the separate properties of Hanumanthappa ? iii) Whether defendants No.1 to 3 prove that the judgment and decree passed by the trial Court is perverse and arbitrary? iv) What order or decree ? Re.point No.1 & 2 9. Since points No.1 and 2 are interlinked, they are discussed together to avoid repetition of facts. The plaintiffs to prove their case, plaintiff No.1 was examined as PW.1. He reiterated the plaint averments in the examination in chief and to prove the oral evidence, produced the documents. Ex.P.1 is the genealogical tree - 16 - NC: 2025:KHC-D:3151-DB RFA No. 100143 of 2021 which discloses that Sannappa had two sons i.e. Hanumanthappa and Thimmappa. Plaintiffs belongs to the Thimmappa’s branch whereas defendants belongs to Hanumanthappa’s branch. Ex.P.2 is the RTC extract of the land bearing Sy.No.391A standing in the name of Hanumanthappa; Ex.P.3 is the RTC extract of the land bearing Sy.No.391A standing in the name of Hanumanthappa; Ex.P.4, is the RTC extract of the land bearing survey No. 391A standing in the name of Hanumanthappa; Ex.P.5 is the RTC extract of the land bearing Sy.No.392A standing in the name of the Hanumanthappa; Ex.P.6 is the RTC extract of the land bearing Sy.No.391/A/2 standing in the name of the Hanumanthappa; Ex.P.7 is the RTC extract of the land bearing Sy.No.394 standing in the name of the Hanumanthappa; Ex.P.8 is the RTC extract of the land bearing Sy.No.394 standing in the name of the Hanumanthappa; Ex.P.9 is the RTC extract of the land in Sy.No.394 standing in the name of the Hanumanthappa; Ex.P.10 is the RTC extract of the land in Sy.No.394 - 17 - NC: 2025:KHC-D:3151-DB RFA No. 100143 of 2021 standing in the name of the Hanumanthappa; Ex.P.11 is the RTC extract of the land in Sy.No.394 standing in the name of Hanumanthappa to the extent of half portion; Ex.P.12 is the RTC extract of the land in Sy.No.394/1A standing in the name of Hanumanthappa; Ex.P.13 is the RTC extract of the land in Sy.No.391/A/1a standing in the name of Hanumanthappa; Ex.P.14 is the RTC extract of the land in Sy.No.391/A/1a standing in the name of Hanumanthappa; Ex.P.15 is the RTC extract of the land in Sy.No.391/A/1a standing in the name of Hanumanthappa; Ex.P.16 to P.20 are the RTC extract of the lands in Sy.No.394/2 standing in the name of Hanumanthappa and KIADB respectively; Ex.P.21 is the RTC extract of the land in Sy.No.392A standing in the name of Hanumanthappa; Ex.P.22 is the RTC extract of the land Sy.No.391/A standing in the name of Hanumanthappa; Ex.P.23 to P.42 are the record of rights extract of the lands in Sy Nos.392/A, 394/2, 391/A/2, and 393 standing in the name of Hanumanthappa and KIADB respectively; Ex.P.43 and P.44 are the certified copies of the mortgage deeds. - 18 - NC: 2025:KHC-D:3151-DB RFA No. 100143 of 2021 Ex.P43 discloses that Hanumanthappa and Thimappa had executed a registered mortgage deed regarding the land bearing Sy.No.274B/1 measuring 8 acres 52 guntas, Sy.No.393 measuring 3 acres 40 guntas, and Sy.No.394 measuring 9 acres 20 guntas; Ex.P.44 is the registered mortgage deed executed by Hanumanthappa and Thimappa regarding the land in Sy.No.274B/1 and 394 and the said documents were executed on 12.08.1983 and 11.08.1988. Exs.P.43 and P.44 discloses that Hanumanthappa and Thimmappa mortgaged the properties; Ex.P.45 is the certified copy of the sale deed. 9.1. During the course of cross examination of PW.1, it is elicited that the grandfather had two sons viz., Hanumanthappa and Thimmappa, and his father was working in Railway Department. It was denied that, in 1957, his father started working in the Railway department at Hosapete. It is elicitated that, the suit properties are the Sy.Nos.391 to 394 and they totally measure 26 acres, and admits that the plaintiffs have not - 19 - NC: 2025:KHC-D:3151-DB RFA No. 100143 of 2021 shown the boundaries of the suit schedule properties. It was elicited that, to show that it was a joint family property, the plaintiffs have produced form No.7 and it is also elicitated that, PW.1 knows reading and writing in Kannada, and he does not know English. PW.1 denies that, item nos.1 to 5 was cultivated by Hanumanthappa, and the land Tribunal granted occupancy rights in favour of Hanumanthappa. It is denied that, the entire 26.01 guntas belongs to the father of the defendants. The father of PW.1 died about 5 years back. During the life time of Thimmappa, occupancy rights were granted in favour of Hanumanthappa as per the order passed by the Land tribunal. The said suggestion was denied by PW.1 and it is denied that the plaintiffs have no right to claim any share in the agricultural lands viz. suit schedule items 1 to 5 of the suit schedule properties, and he admits that Sy.No.274B/1 measuring 8 acres 52 cents belongs to Sannappa i.e., the grandfather. He admits that there was a partition in the said land between Hanumanthappa and Thimmappa and in the said partition, Hanumanthappa got - 20 - NC: 2025:KHC-D:3151-DB RFA No. 100143 of 2021 4.26 acres and Thimmappa got 4.26 acres each and Thimmappa sold the properties fallen to his share, and he denied that, his father has constructed two houses at Hosapete by investing Rs.50,00,000/-. 9.2. In rebuttal, defendant No.2 was examined as DW.1. He reiterated the written statement averments in the examination-in-chief, and to prove the defence, produced the copy of Ex.D.1 to D.10 which are the copy of the notices issued by the KIADB, Ex.D.11 to D.15 are the letter of information issued by KIADB, dated 10.07.2014; Ex.D16 to D.20 are letters of information issued by KIADB, dated 26.08.2014; Ex.D.21 to D.25 are the letters of information issued by KIADB, dated 22.11.2014; Ex.D.26 is the order sheet of Special Land Acquisition Officer, KIADB, dated 26.08.2015; Ex.D.27 is the Form No.10 which discloses that, the lands were granted in the name of Hanumanthappa. Ex.D.28 is the entire records before the Land Tribunal. From a perusal of Ex.D.28 we could not find Form No.7 in the entire records of the Land Tribunal. - 21 - NC: 2025:KHC-D:3151-DB RFA No. 100143 of 2021 Ex.D.29 is the acknowledgement by Tahasildar, Ballari dated 10.10.2017, Ex.D.30 is the certified copy of the proceedings before the Land Tribunal Ex.D.31 to D.35 are the record of rights extract of the land Sy.No.274B/1 & 274/B/1-b standing in the name of Hanumanthappa; Ex.D.36 to D.38 are the certified copies of the mutations; Ex.D.39 is the record of rights extract of the Land Sy. No.274/B/1-a standing in the name of Thippeswamy; Ex.D.40 is the mutation extract, and Exs.41 to 51 are the record of rights extract of the Lands in Sy.Nos. 391/A/2, 392/A, 393, 394, 403/2, 404 and 394/2 (in 1977) standing in the name of Hanumanthappa. 9.3. From the perusal of the entire evidence on record, it discloses that, earlier, Sannappa was in possession of item nos.1 to 5 of the suit schedule properties, and after his death, Hanumanthappa, being the eldest son of Sannappa, submitted Form No.7 before the Land Tribunal, and further the landlord gave a statement before the Land Tribunal stating that, Hanumanthappa was in possession - 22 - NC: 2025:KHC-D:3151-DB RFA No. 100143 of 2021 of the suit schedule properties for 20 years. If the statement of the landlord is accepted, that means when the land was leased, Hanumanthappa was a minor and that when the land was leased in 1977, admittedly, Hanumanthappa was a minor in 1957, and he died in 1999 at the age of 50 years. From the perusal of records, the land in Sy.No.274B/1 was owned and possessed by Sannappa and there was a partition between Hanumanthappa and Thimmappa regarding the land in Sy.No.274B/1 and in the said partition, share to the extent of 4.26 acres each was fallen to the share of Hanumanthappa and Thimmappa, respectively. 9.4. The trial Court has recorded a finding that, as per the landlord’s say, she leased the properties in 1957. In 1957, Hanumanthappa was a minor and he was aged about 13 years, and that, a minor cannot cultivate the land as a tenant. Further, a minor is not competent to enter into a contract as per Section 11 of the Indian Contract Act, 1872. As per Section 11 of the Indian - 23 - NC: 2025:KHC-D:3151-DB RFA No. 100143 of 2021 Contract Act, 1872, every person is competent to contract who is of the age of major according to the law to which he is subject and who is of a sound mind, and is not disqualified from contracting by any law to which he is subject. 9.5. Admittedly, Hanumanthappa was a minor in 1957, and he was incompetent to enter into a contract, as Sannappa was in possession of the suit schedule properties and after his demise, Hanumanthappa being the elder member of the joint family, has submitted Form No.7 for the grant of occupancy rights regarding item No.1 to 5 of the suit schedule properties, and DW.1 has admitted in the course of cross examination. He admits that, his father has submitted Form No.7 regarding item Nos.1 to 5 as a Manager of the family. The said admission is sufficient to hold that Hanumanthappa has submitted Form No.7 as an elder member of the family, and not in his individual capacity. The suit schedule item Nos.1 to 5 and 6 are the joint family properties of the plaintiffs and - 24 - NC: 2025:KHC-D:3151-DB RFA No. 100143 of 2021 defendants No.1 to 3. The plaintiffs are entitled to a half share in item nos.1 to 6 of the suit schedule properties. The plaintiffs have proved that item No.1 to 6 are the joint family properties, they are the members of a Hindu joint family, and no partition is effected between the plaintiffs and defendants No.1 to 3. 9.6. As we have observed above, the suit schedule properties, item nos.1 to 6, are the joint family properties of the plaintiffs and defendants. Occupancy rights granted in favour of Hanumanthappa is for the enure of the joint family and not in the individual capacity. Hence, the said properties are not the separate properties of Hanumanthappa. The plaintiffs have a share in the suit schedule properties. In view of the above discussion, we answer point No.1 in the affirmative and point No.2 in the negative. Re.point No.3 10. The trial Court considering the entire material on record, admission of DW.1 that Hanumanthappa, as a - 25 - NC: 2025:KHC-D:3151-DB RFA No. 100143 of 2021 Manager of the family, submitted form No.7 before the Land Tribunal, and also Ex.P.43-registered mortgage executed in favour of the Society and Ex.P.44 is another certified copy of the mortgage deed dated 11.8.1998 executed by Hanumanthappa and Thimappa in favour of the society regarding the land in Sy.No.274B/1 and Sy.No.394, decreed the suit of the plaintiffs in part. In a suit for partition and separate possession, the initial burden is on the plaintiffs to establish the relationship and nature of suit schedule properties. 10.1. Admittedly, in the instant case, the plaintiffs have discharged the burden of proof. The burden is shifted on defendants No.1 to 3. Defendants No.1 to 3 did not produce form No.7 to establish that form No.7 was submitted to the Land Tribunal in the individual capacity, and not for the benefit of the family. In the absence of Form No.7, the trial Court was justified in recording its finding that the suit item nos.1 to 6 of the suit schedule properties are the joint family properties of the plaintiffs - 26 - NC: 2025:KHC-D:3151-DB RFA No. 100143 of 2021 and defendants No.1 to 3 and rightly granted a half share to the plaintiffs, and half share to defendants No.1 to 3. Admittedly, item nos.1 to 5 of the suit schedule properties were acquired by defendant No.4, and the compensation amount was deposited before the trial Court. The plaintiffs are entitled to a half share in the compensation amount, and defendants No.1 to 3 are entitled to a half share. The impugned judgment passed by the trial Court is just and proper, and does not call for any interference. In view of the above discussion, we answer point No.3 in the negative. Re.Point No.4 : 11. As, We have answered points No.1 to 3 in favour of the plaintiffs. Accordingly, we proceed to pass the following : ORDER i) The Appeal is dismissed. - 27 - NC: 2025:KHC-D:3151-DB RFA No. 100143 of 2021 ii) The impugned judgment and decree dated 28.07.2021 in O.S No.286/2015 passed by the II Additional Senior Civil Judge, Ballari, is hereby confirmed. No order as to the cost. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE rs CT: BSB