Extracted from the PDF above. The PDF is authoritative.
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HC-KAR NC: 2025:KHC-D:9026-DB RFA No. 100545 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 21ST DAY OF JULY 2025 PRESENT THE HON'BLE MR. JUSTICE R.NATARAJ AND THE HON'BLE MR. JUSTICE RAJESH RAI K REGULAR FIRST APPEAL NO.100545 OF 2019 (PAR/POS) BETWEEN:
1. JITENDRA RANAPPA HOLER @ RAJAGOLI AGE: 29 YEARS, OCC: PCT SERVICE, R/O: YADGUD, TQ: HUKKERI, DIST: BELAGAVI-591309. 2. RAJENDRA RANAPPA HOLER @ RAJAGOLI AGE: 27 YEARS, OCC: PRIVATE SERVICE, R/O: YADGUD, TQ: HUKKERI, DIST: BELAGAVI-591309. 3. GANGAPPA RAYAPPA HOLER @ RAJAGOLI AGE: 59 YEARS, OCC: AGRICULTURE, R/O: YADGUD, TQ: HUKKERI, DIST: BELAGAVI-591309. 4. DASHARATH MALLAPPA @ YALLAPPA RAJAGOLI @ HOLER, AGE: 56 YEARS, OCC: AGRICULTURE, R/O: YADGUD, TQ: HUKKERI, DIST: BELAGAVI-591309. Digitally signed by SAMREEN AYUB DESHNUR Location: HIGH COURT OF KARNATKA DHARWAD BENCH Date: 2025.09.01 15:58:29 +0530
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5. BASAPPA RAMAPPA RAJAGOLI @ HOLER @ MAHAR, AGE: 52 YEARS, OCC: AGRICULTURE, R/O: YADGUD, NOW AT BENIWAD, TQ: HUKKERI, DIST: BELAGAVI-591309. …PETITIONERS (BY SRI. RAMESH I ZIRALI, ADVOCATE)
AND:
1. PARASHARAM LAXMAN HOLER @ RAJAGOLI AGE: 69 YEARS, OCC: AGRICULTURE, R/O: YADGUD, TQ: HUKKERI, DIST: BELAGAVI-591309. 2. DASHARATH LAXMAN HOLER @ RAJGOLI AGE: 62 YEARS, OCC: AGRICULTURE, R/O: YADGUD, TQ: HUKKERI, DIST: BELAGAVI-591309. 3. DILIP LAXMAN HOLER @ RAJAGOLI AGE: 57 YEARS, OCC: PRIVATE WORK/AGRICULTURE, R/O: YADGUD, TQ: HUKKERI, DIST: BELAGAVI-591309. 4. OMANNA LAXMAN HOLER @ RAJAGOLI AGE: 52 YEARS, OCC: RTD. MILITARY SERVICE/ AGRICULTURE, R/O: YADGUD, TQ: HUKKERI, DIST: BELAGAVI-591309. 5. LAXMAN @ LAGAMAPPA YALLAPPA @ MALLAPPA PRAJAGOLI, AGE: 59 YEARS, OCC: PRIVATE SERVICE, R/O: YADGUD, TQ: HUKKERI, DIST: BELAGAVI-591309. - 3 -
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6. BALAPPA BHARAMAPPA HOLER AGE: 66 YEARS, OCC: AGRICULTURE, R/O: YADGUD, TQ: HUKKERI, DIST: BELAGAVI-591309. 7. SMT. SHOBHA, W/O. KUMAR HOLER, AGE: 49 YEARS, OCC: AGRICULTURE /HOUSEHOLD, R/O: YADGUD, TQ: HUKKERI, DIST: BELAGAVI-591309. 8. ANIL DATTATREYA RAJAGOLI, AGE: 52 YEARS, OCC: JOB/AGRICULTURE, R/O: YADGUD, TQ: HUKKERI, DIST: BELAGAVI-591309. 9. BHARAMAPPA DATTATREYA RAJAGOLI AGE: 47 YEARS, OCC: AGRICULTURE, R/O: YADGUD, TQ: HUKKERI, DIST: BELAGAVI-591309. …RESPONDENTS
(BY SRI.
GIRISH A.YADAWAD, ADVOCATE FOR R1 TO R4;
VIDE ORDER DATED 03.08.2023, NOTICE TO R5 IS DISPENSED WITH;
NOTICE TO R6 IS SERVED;
VIDE ORDER DATED 22.02.2022, SERVICE OF NOTICE TO R7 TO R9 IS HELD SUFFICIENT)
THIS RFA IS FILED UNDER ORDER 41 R(1) R/W SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 16.09.2019 PASSED IN O.S.NO.81/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE AT HUKKERI DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION. THIS APPEAL COMING ON FOR ORDERS THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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CORAM:
THE HON'BLE MR. JUSTICE R.NATARAJ AND THE HON'BLE MR. JUSTICE RAJESH RAI K
ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE R.NATARAJ)
The defendants No.1 to 4 and 6 in O.S. No.81/2015 on the file of the Senior Civil Judge, Hukkeri, have filed this appeal challenging the judgment and decree dated 16.09.2019 by which the suit for partition and separate possession was
decreed. It was held that the plaintiffs were together entitled to half share along with their sisters in the suit schedule properties, while the defendants No.1 to 6 together were entitled to 1/4th share and the defendants No.7 to 10 together were entitled to 1/4th share in the suit schedule properties. 2. For the sake of convenience and easy understanding, the parties shall henceforth be referred to as they were arrayed before the Trial Court. 3. i) A suit in O.S. No.81/2015 was filed for partition and separate possession of four agricultural lands situated at Yadgud Village, Hukkeri Taluk. The plaintiffs claimed that they
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and the defendants constituted a joint family. They gave the genealogy of the family as follows: Siddappa (Propositus) (Dead)
Bharamappa (Dead)
Yallappa (Dead)
Basappa (Dead)
Balappa (Dead)
Neelappa @ Rayappa Mallappa @Yallappa Ramappa Neelakantha(Dead) (Dead) (Dead)
(Dead)
Ranappa (Died) Gangappa (Df.3) Dasharath Laxman @ Lagamanna (Df.4) (Df.5)
Basappa Jeetendra (Df.1) Rajendra (Df.2) (Df.6)
Bharamappa Ningappa Dattatreya
(Dead) (Dead) (Dead)
Balappa (Df.7)
Ashok Raval Babu Sushila Shobha (Dead) (Dead) (Dead) (Dead) (Df.8) Parasappa (Dead)
Anil Bharamappa
(Df.9) (Df.10) Laxman (Dead)
Gangavva (Dead) Bharamappa
Parasappa (Dead)
Laxman (Dead)
Parashuram Dasharath Dilip Omanna
(Pl.1) (Pl.2) (Pl.3) (Pl.4)
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ii) The plaintiffs claimed that the suit properties were the ancestral properties of the family and they and the defendants were in joint possession and enjoyment of the suit schedule properties. They claimed that the suit properties were never partitioned between the plaintiffs and the defendants. They claimed that they were entitled to half share in the suit schedule properties, while the defendants No.1 to 6 were entitled to 1/4th share and defendants No.7 to 10 were entitled to 1/4th share in the suit schedule properties. They claimed that defendants No.4 and 6 adopted unlawful means in filing O.S. No.91/2015 against the defendant No.3 and another and, in the said suit, defendants No.3, 4 and 6 obtained a collusive decree and thereafter, were in the process of getting their names entered in the revenue records. Therefore, they contended that the defendants were creating nuisance to the plaintiffs possession of the suit schedule properties.
They demanded the defendants to handover their half share in the suit schedule properties which was resisted by the defendants and therefore, they were advised to file a suit for partition and separate possession of their half share. - 7 -
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4. i) Defendants No.1 to 3 contested the suit and filed their written statement inter alia denying the averments of the plaint. They also denied the boundaries of the suit schedule properties mentioned in the plaint and claimed that the suit schedule properties were not identifiable. They contended the land bearing R.S.No.125/5 of Yadgud Village belonged to defendants No.1 to 6 and neither the plaintiffs nor the defendants No.7 to 10 had any share therein and therefore, prayed that the suit be dismissed for misjoinder of properties. They also denied that the plaintiffs were in joint possession of the suit schedule properties and also denied the claim of the plaintiffs that the suit schedule properties were never partitioned. ii) They contended that in respect of lands bearing R.S. Nos.132/10, 159/16 there was already a partition 30 to 40 years ago and as per the said partition, the names of the plaintiffs and defendants were entered in the revenue records. They also contended that as per the partition, they were in possession of their respective shares and they were enjoying it. They denied the claim of the plaintiffs that the plaintiffs and
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defendants were cultivating the suit schedule properties for groundnut, maize, soya bean, chilli etc. iii) They contended that the land bearing R.S. No.125/5 belonged to defendants No.1 to 6 and that from the year 1965 till the date of filing the statement, the revenue records stood in the name of Basappa Bharamappa Holer. They also contended that defendants No.7 to 10 had no right, title or interest in the said land.
iv) The plaint was amended pursuant to allowing I.A.No.1/2017 and the plaintiffs were permitted to challenge the decree passed O.S.No.91/2015. The defendant No.3 submitted an additional written statement on 24.01.2018 which was adopted by defendant Nos.1, 2, 4 and 6. They contended that the properties, which were the subject matter of O.S. No.91/2015 were not concerned to the plaintiffs and therefore, there was no cause of action to seek for declaration that the decree passed in O.S. No.91/2015 did not bind the plaintiffs. Defendant No.3 contended that land bearing Sy.No.125/4 stood in the name of the predecessor of the plaintiffs namely
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Yallappa, which fell to his share at a partition and accordingly, his name was entered in the revenue records. v) The plaintiffs again amended the plaint pursuant to allowing I.A.No.8 vide order dated 01.01.2019 and they were permitted to include Sy.No.125/4 as another suit property. The defendant No.3 filed an additional written statement which was adopted by defendant Nos.1, 2, 4 and 6. They contended that Sy.No.125/4 fell to the share of the predecessors of the plaintiffs. 5. Based on these contention, the Trial Court framed the following issues:
“ISSUES 1) Whether the plaintiffs prove that themselves and the defendants constitute a joint Hindu family and schedule properties are their joint family properties? 2) Whether the plaintiffs prove that the defendants No.3, 4 and 6 have obtained a collusive decree in O.S.No.91/2015 more particularly as contended in para No.7 of the plaint ? 3) Whether the defendant No.1 to 3 prove that this suit is bad for mis-joinder of properties ? - 10 -
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4) Whether the defendant No.1 to 3 further prove that there is already partition taken place in the family of the plaintiffs and defendants in terms as contended in their written statement ? 5) Whether the plaintiffs are entitled to the relief as prayed for in this suit ? 6) What order or decree ?
ADDL ISSUES: 1) Whether the defendant No.3 proves that there was a previous partition and thus the property bearing R.S.No.125/4 and 125/5 of Yadgud village fallen to the share of their ancestor ? 2) Whether the defendant No.3 further prove that the suit is bad for non-joinder of parties ?” The plaintiff No.4 was examined as P.W.1 and they marked Exs.P.1 to P.9. He examined to other witnesses as P.W.2 and P.W.3. On the other hand, defendant No.3 was examined as D.W.1 and he marked Exs.D.1 to D.9. He examined a witness as D.W.2. 6. Based on the oral and documentary evidence, the Trial Court held that all the suit schedule properties were ancestral joint family properties of the plaintiffs and the
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defendants and they constituted a joint family. It held that the plaintiffs proved that the defendants No.3, 4 and 6 had obtained a collusive decree in O.S. No.91/2015. It held that the suit was not liable to be dismissed for misjoinder of properties as claimed by defendants No.1 to 3. It negatived the claim of the defendants that there was a prior partition between the plaintiffs and the defendants and consequently, decreed the suit and declared that the plaintiffs were entitled to half share in the suit schedule properties, while defendants No.1 to 6 together were entitled for 1/4th share and defendants No.7 to 10 were entitled to other 1/4th share. 7. Being aggrieved by the said judgment and decree, the defendants No.1 to 4 and 6 have filed this appeal. 8. The learned counsel for the defendants submitted that the revenue documents marked by the plaintiffs and the defendants established that R.S.No.125/5 fell to the share of defendants No.1 to 10 while R.S.No.125/4 fell to the share of the predecessor of the plaintiffs. He contends that in respect of the other two survey numbers, the revenue documents stood in the names of the plaintiffs and the defendants in equal shares.
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He contends that this established that the parties had divided the properties long back and were in possession of their respective shares. He, therefore, contends that the Trial Court committed an error in not noticing the antiquity of the revenue records which indicated that the parties had partitioned the properties long back. He, therefore, contends that the Trial Court committed an error in directing partition and separate possession of the plaintiffs’ half share in the suit schedule properties. ii) He also contends that P.W.2, who is a permanent resident of Yadgud Village, deposed that the plaintiffs and defendants were members of a joint family and that they were in possession of their half share in the land bearing R.S. Nos.125/5, 132/10, 159/16 and were cultivating their respective shares. He also deposed that there was no partition of the properties between the plaintiffs and the defendants. However, in his cross-examination, he admitted that as per partition, plaintiff No.1, defendant No.1 and Ningappa were in possession of their respective shares. He admitted that in R.S.No.132/10 there were three strips of land. The eastern
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strip which lay adjacent to his land, was the land of defendants which measured 1 acre 28 guntas. He admitted that abutting the land of the defendants, plaintiffs were in possession of 3 acres 15 guntas. Likewise, defendants No.7 to 10 were in possession of the land adjacent to the land allotted to the share of the plaintiffs. The learned counsel submitted that P.W.2 was a planted witness as he had no information about the revenue records of the suit properties, its boundaries etc. He, therefore, contends that the Trial Court committed an error in relying on the evidence of P.W.2.
iii) He also contends that P.W.3 was a stranger to the family and though he claimed that the plaintiffs and defendants were in joint possession and enjoyment of suit schedule properties, in his cross-examination, he admitted that R.S. No.132/10 was divided into three portions and that the eastern portion was possessed by the defendants and the western portion was possessed by the plaintiffs and other portion was allotted to defendants No.7 to 10. In so far as R.S. No.159/16 is concerned, he admitted that the northern portion was in possession of the plaintiffs No.1 and 2
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HC-KAR NC: 2025:KHC-D:9026-DB RFA No. 100545 of 2019
and on the southern portion, defendants No.1 to 6 were in possession and the third portion was in possession of defendants No.7 to 10. He, therefore, contends that even as per the evidence of P.W.3, the properties were divided between the plaintiffs and the defendants and they were in possession of their respective shares. He further contended that the plaintiffs were ill-advised to file another suit for partition. He contends that R.S. No.125/4 was allotted to the share of the plaintiffs as the predecessor of the plaintiffs was the only son, while R.S. No.125/5 was allotted to the share of the defendants as the predecessors of defendants were in two in number. He also submits that there was an equitable partition between the plaintiff and the defendants and the Trial Court committed an error in reopening the said partition. 9. Per contra, the learned counsel for the plaintiffs contended that there was no partition of the properties of the family though the parties were separately possessing and cultivating the suit schedule properties. He contends that the properties bearing R.S. Nos.125/5 and 125/4 though were in the names of the defendants and plaintiffs respectively, they
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HC-KAR NC: 2025:KHC-D:9026-DB RFA No. 100545 of 2019
too belonged to the family and had to be put up for partition.
He, therefore, contends that the Trial Court was justified in passing the impugned judgment and decree and in declaring that the plaintiffs were entitled to half share and the defendants were entitled to 1/4th share each. 10. We have considered the submission of the learned counsel for the defendants and the learned counsel for the plaintiffs. We have also perused the records of the Trial Court and its judgment and decree. The only point that arises for our
consideration in this appeal is: Whether the defendants No.1 to 6 proved that the suit properties were partitioned earlier and that the plaintiffs and defendants were in separate possession of their respective share? 11. (i) The plaintiffs had marked Ex.P.1 which was the RTC of R.S. No.125/5 measuring 23 guntas including kharab land of 4 guntas. Column No.9 of this RTC showed that the names of defendants No.3, 4 and 6 were incorporated pursuant to M.R. No.89/2014-15 which was as per a partition. - 16 -
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(ii) Ex.P.2 is the revenue record of R.S. No.132/10 which shows that 1 acre 28 guntas was made out in the name of defendants No.7, 9 and predecessor of defendant No.8 and another 1 acre 28 guntas was made out in the names of the predecessor/s of the defendants No.1, 2 and 6 and defendants No.3 and 5 and remaining 3 acres 15 guntas was made out in the names of the plaintiffs. Therefore, Sy.No.132/10 was divided into 3 bits and the plaintiffs names appeared in respect of half extent, while the names of defendants appeared in respect of the other half. (iii) Ex.P.3 is the RTC of land bearing R.S. No.159/16 which shows that the names of the plaintiffs were entered in respect of 28.08 guntas while 14.04 guntas was made out in the names of the defendants No.7, 9 10 and predecessor of defendant No.8 and 14.04 guntas in the name of predecessor of defendants No.1 to 6. It is, therefore, evident that in respect of R.S. No.159/16, the plaintiffs are in possession of half extent of land, while the defendants are in possession of the other half. (iv) As regards R.S. Nos.125/5 and 125/4, the names of the defendants No.3, 4 and 6 are found in the revenue records
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HC-KAR NC: 2025:KHC-D:9026-DB RFA No. 100545 of 2019
of R.S.No.125/5 in Ex.P.1, while the names of the plaintiffs are entered in respect of R.S. No.125/4. This is evident from Exs.P.8 and P.9. In all these revenue records, there is invariably a reference to certain mutation proceedings in M.R.141/2005-06. The plaintiffs have not produced the mutation register extracts.
On the other hand, the defendants have produced an exhibit marked as Ex.D.1, which is the RTC in respect of R.S. No.125/5 from the year 1965-66 which shows that the name of the predecessor of defendants No.1 to 6 was entered in column No.9. This is continued till the year 2017-18. They have also placed on record, the mutation proceedings in M.E. No.4252 dated 09.07.1991 in respect of R.S. No.125/4 which stood in the name of the plaintiffs. The evidence of P.W.2 and P.W.3 give a clear indication that the plaintiffs had divided the properties and were in possession of equal share in R.S.No.132/10 and Sy.No.159/16. P.W.2 and P.W.3 admitted that the plaintiffs were in possession of the properties which were allotted to their share while defendants were in possession of their respective share. - 18 -
HC-KAR NC: 2025:KHC-D:9026-DB RFA No. 100545 of 2019
12. P.W.1 in his evidence stated as follows:
“........... ¸ÁQëAiÀÄ£ÀÄß ¤r.1 jAzÀ 6 £ÀÄß vÉÆÃj¹ ¥ÀæwªÁ¢AiÀÄgÀ »jAiÀÄgÀ ºÉ¸ÀgÀÄ £ÀªÀÄÆzÁVgÀĪÀÅzÀ£ÀÄß PÉüÀ¯ÁV ¸ÁQëAiÀÄÄ CzÀ£ÀÄß M¦àPÉÆAqÀÄ ¸ÀzÀj GvÁj£À°è §gÉ¢gÀĪÀ ¸ÀAUÀwUÀ¼ÀÄ SÉÆnÖ EzÉ JAzÀÄ ºÉüÀÄvÁÛgÉ.”
13. P.W.2 deposed in his cross-examination as follows:
“............... ¸ÀzÀj 23 UÀÄAmÉ d«ÄãÀ£ÀÄß ¥ÀgÀ±ÀÄgÁªÀÄ, NªÀÄuÁÚ, zÀ±ÀgÀxÀ, ¢Ã°¥À EªÀgÀÄ ºÁUÀÄ CªÀgÀ CtÚ vÀªÀÄäA¢gÀÄ ¸ÁUÀÄ ªÀiÁqÀÄwÛzÁÝgÉ.”
“6 JPÀgÉ 31 UÀÄAmÉ d«ÄãÀÄ 3 ¥ÀnÖUÀ¼À£ÀÄß M¼ÀUÉÆArzÉ JAzÀgÉ ¸Àj. ¥ÀƪÀð ¢QÌUÉ £À£Àß d«ÄäUÉ ºÉÆA¢PÉÆAqÀÄ ¥ÀæwªÁ¢AiÀÄgÀ d«ÄãÀÄ EzÉ. CzÀgÀ PÉëÃvÀæ 1 JPÀgÉ 28 UÀÄAmÉ JAzÀgÉ ¸Àj. ¥ÀæwªÁ¢AiÀÄgÀ d«ÄäUÉ ºÉÆA¢PÉÆAqÀ ªÁ¢AiÀÄgÀ »¸ÉìzÀ d«ÄãÀÄ EzÉ JAzÀgÉ ¸ÀjAiÀÄ®è. ªÁ¢AiÀÄgÀ »¸ÉìzÀ 3 JPÀgÉ 15 UÀÄAmÉ d«ÄãÀÄ EzÉ JAzÀgÉ ¸Àj. ªÁ¢ ¥ÀgÀ±ÀÄgÁªÀÄ EªÀgÀ d«ÄäUÉ ºÉÆA¢PÉÆAqÀÄ ¤AUÀ¥Àà EªÀgÀ »¸ÉìzÀ d«ÄãÀÄ EzÉ JAzÀgÉ ¸ÀjAiÀÄ®è. ªÁ¢ ªÀÄvÀÄÛ EªÀgÀ d«ÄäUÉ ªÀiÁrPÉÆAqÀÄ ¥ÀæPÁgÀ CªÀgÀ ¨sÁUÀPÉÌ §AzÀ ¸ÀévÀÄÛUÀ¼À£ÀÄß ¸Áé¢üãÀ ºÉÆA¢ C£ÀĨsÀ«¸ÀÄwÛgÀĪÀ «ZÁgÀ £À£ÀUÉ UÉÆwÛ®è.”
14. P.W.3 deposed in his cross-examination as follows:
“j.¸À.£ÀA.132/10 gÀ°è 3 ¥Á®Ä ªÀiÁrPÉÆArzÁÝgÉ JAzÀgÉ ¸Àj. ¸ÀzÀj d«Ää£À ¥ÀƪÀðzÀ ¨sÁUÀ 1 jAzÀ 6 ¥ÀæwªÁ¢ gÀªÀgÀ »¸ÉìUÉ ºÉÆÃVzÉ JAzÀgÉ ¸Àj. ¸ÀzÀj ¨sÁUÀzÀ ¥À²ÑªÀÄ ¨sÁUÀ ªÁ¢AiÀÄjUÉ ºÉÆÃVzÉ JAzÀgÉ ¸Àj. ¸ÀzÀj ¨sÁUÀzÀ ¥À²ÑªÀÄ ¨sÁUÀzÀ G½zÀ ¨sÁUÀ 7
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HC-KAR NC: 2025:KHC-D:9026-DB RFA No. 100545 of 2019
jAzÀ 10£Éà ¥ÀæwªÁ¢AiÀĪÀgÀÄ ºÀAaPÉÆArzÁÝgÉ JAzÀgÉ ¸Àj. D ¥ÀæPÁgÀ CªÀgÀÄ PÀ§eÉ ºÉÆA¢ ªÀ»ªÁl ªÀiÁrwÛzÁÝgÉ JAzÀgÉ ¸Àj.
j¸À£ÀA.159/16 PÉëÃvÀæ 1 JPÀgÉ 18 UÀÄAmÉ d«Ää£À GvÀÛgÀ ¨sÁUÀªÀ£ÀÄß 1 ªÀÄvÀÄÛ 2£Éà ªÁ¢AiÀÄgÀÄ CzÀgÀ zÀQëÃt §¢UÉ 1 jAzÀ 6£Éà ¥ÀæwªÁ¢AiÀÄgÀÄ CzÀgÀ zÀQëãÀ §¢UÉ ¨sÁUÀªÀ£ÀÄß 3 ªÀÄvÀÄÛ 4£Éà ¥ÀæwªÁ¢AiÀÄgÀÄ ¸Áé¢üãÀzÀ°èzÁÝgÉ JAzÀgÉ ¸Àj. G½zÀ zÀQëÃt ¨sÁUÀPÉÌ ¥ÀnÖAiÀÄ£ÀÄß ¥ÀæwªÁ¢ 7 jAzÀ 10 gÀªÀgÀÄ ¸ÀDUÀĪÀ ªÀiÁqÀÄwÛzÁgÀ JAzÀgÉ ¸Àj. j¸À£ÀA.125/5 23 UÀÄAmÉ d«ÄãÀÄ 1 ªÀÄvÀÄÛ 2£Éà ¥ÀæwªÁ¢AiÀÄgÀ£ÀÄß ºÉÆgÀvÀÄ ¥Àr¹ G½zÀ ªÁ¢AiÀÄgÀÄ ªÀÄvÀÄÛ ¥ÀæwªÁ¢AiÀÄjUÉ ¸ÀA§AzsÀ E®è JAzÀgÉ ¸Àj.”
15. D.W.1 deposed in his cross-examination as follows:
“¹zÀÝ¥Àà ªÀÄvÀÄÛ DvÀ£À E§âgÀÄ ªÀÄPÀ̼ÀÄ £ÀqÀÄªÉ ªÁnßAiÀiÁVzÉ F PÀÄjvÁzÀ zÁR¯É E®è.”
A suggestion was put to this witness which reads as follows:
“¹zÀÝ¥Àà EªÀ£À ªÀÄgÀtzÀ £ÀAvÀgÀ CªÀgÀ E§âgÉ ªÀÄPÀ̼ÀÄ vÀ¯Á CzsÀð CzsÀ𠻸Éì ºÉÆA¢zÀÝgÀÄ JAzÀgÉ ¸Àj. ¨sÀgÀªÀÄ¥Àà ªÀÄvÀÄÛ AiÀÄ®è¥Àà EªÀgÀ ªÀÄgÀtzÀ £ÀAvÀgÀ CªÀgÀ ªÁgÀ¸ÀÄzÁgÀgÀ ºÉ¸ÀgÀÄ GvÁj£À°è £ÀªÀÄÆ¢AiÀiÁV §gÀÄvÀÛzÉ JAzÀgÉ ¸Àj”
“j.¸À.£ÀA§gï 132/10 ªÀÄvÀÄÛ 159/16 gÀ°è ªÁ¢AiÀÄgÀ CzsÀ𠻸Éì EzÉ JAzÀgÉ ¸Àj. CzÉà jÃw ¸ÀzÀj ¸ÀévÀÄÛUÀ¼À°è ¥ÀæwªÁ¢ £ÀA.1 jAzÀ 6
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gÀªÀgÀ 1/4 »¸Éì ¥ÀæwªÁ¢ £ÀA.1 jAzÀ 10 gÀªÀgÀ 1/4 »¸Éì EzÉ JAzÀgÉ ¸Àj”. ¢.26.07.2015 gÀAzÀÄ ªÁ¢AiÀÄgÀÄ zÁªÁ ¸ÀévÀÄÛUÀ¼À°è ¸ÀgÀ¸À ¤gÀ¸À ªÁnßAiÀiÁUÀ¨ÉÃPÉAzÀÄ PÉýzÀÝgÀÄ JAzÀgÉ ¸Àj.”
16. D.W.2 a resident of the village also deposed as follows:
“................ ªÁ¢AiÀÄgÀ ªÀÄvÀÄÛ ¥ÀæwªÁ¢AiÀÄgÀ ªÀÄÄvÀÛdÓ£À PÁ®zÀ°è ªÁnßAiÀiÁVzÀÄÝ ªÁ¢AiÀÄgÀ ªÀÄvÀÄÛ ¥ÀæwªÁ¢AiÀÄgÀÄ ¥ÀævÉåÃPÀ PÀ§eÁ ªÀ»ªÁl G¥À¨sÉÆÃUÀ ªÀiÁrPÉÆAqÀÄ §A¢zÀÄÝ”
Therefore, this gives an indication that the plaintiffs and defendants had accepted that the plaintiffs were entitled to half share while the defendants together were entitled to half share in the lands bearing R.S.No.132/10 and R.S. No.159/16. The very fact that they are in exclusive possession of the property shows that there was a prior partition between the family members. 17. As regard as land bearing R.S. No.125/4 and R.S. No.125/5, the revenue records of R.S. No.125/5 stands in the names of the predecessors of defendants No.3, 4 and 6, while R.S. No.125/4 stands in the names of the plaintiffs.
It is
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relevant to note that the predecessor of the plaintiffs was the only son named Yallappa, but the predecessors of the defendants were two persons named Basappa and Balappa. It is therefore, probable that taking into account that the predecessors of the defendants were two brothers, 19 guntas of land was allotted to the predecessors of the defendants and 11 guntas was allotted to the predecessors of plaintiffs. The plaintiffs have not placed on record how, when and why R.S. No.125 was divided into 125/4 and 125/5. The revenue records produced by the defendants showed that R.S.No.125/5 was made out in their names from the year 1965-66. The revenue records when pieced with the evidence of P.W.2 and P.W.3 give an indication that the plaintiffs and the defendants had already partitioned the suit properties and were in possession of their respective shares. These revenue entries are not challenged by either the plaintiffs or the defendants before any Court of law and since the same are brought about in the usual course, some amount of evidentiary value has to be attached. If the evidence of the plaintiffs’ witnesses are taken into account, they would corroborate with the revenue records which gives
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HC-KAR NC: 2025:KHC-D:9026-DB RFA No. 100545 of 2019
an impression that the plaintiffs and the defendants had partitioned the properties long back. 18. The suit appears to be filed only on account of the defendants No.3, 4 and 6 being granted 19 guntas, while the plaintiffs were granted 11 guntas in R.S. No.125/5 and 125/4 respectively. Since the parties have conducted themselves in a particular manner from a substantial long time, it invariably points out to the fact that they had all partitioned the suit properties. Therefore, we have no hesitation to hold that the plaintiffs and the defendants had partitioned long back. Consequently, we answer the point for consideration framed by us in favour of the defendants and against the plaintiffs.
19. The suit filed by the defendants in O.S. No.91/2015 is not in respect of the properties that were allotted to the share of the plaintiffs, but were in respect of the properties allotted to their share and they have partitioned the same on 28.04.2015 consequent to which the revenue entries are brought about pursuant to the acceptance of M.R.89/2014-15 dated 11.07.2015. Hence, plaintiffs cannot challenge the validity of the compromise decree in O.S.No.91/2015. - 23 -
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20. In view of the above, this appeal is allowed. The impugned judgment and decree passed by the Trial Court is set aside and the suit filed by plaintiffs in O.S. No.81/2015 is dismissed. Sd/- (R.NATARAJ) JUDGE
Sd/- (RAJESH RAI K) JUDGE
Ct:vh List No.: 1 Sl No.: 32