- 1 - RSA No. 5904 of 2010 RESERVED ON : 30.08.2025 PRONOUNCED ON : 10.09.2025 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 10TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE G BASAVARAJA REGULAR SECOND APPEAL NO.5904 OF 2010 BETWEEN: SMT. DEVI W/O. KUMA PATREKAR AGE: MAJOR, R/O. HOUSE NO.698, KONKAN KHARVIWADA, M.G.ROAD, KAJUBAG, KARWAR,U.K.-581427. …APPELLANT (BY SRI. J.S. SHETTY, ADVOCATE) AND: SMT. SUKRI W/O. RAMA PATREKAR AGE: 57 YEARS, OCC: HOUSE WIFE, R/O. HOUSE NO.698, KONKAN KHARVIWADA, M.G.ROAD, KAJUBAG, KARWAR, U.K.-581427 …RESPONDENT (SERVICE HELD SUFFICIENT V/O. DATED 31.10.2023) THIS RSA FILED U/SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED:30.06.2010 PASSED IN R.A.NO.22/2008 ON THE FILE OF THE PRL. CIVIL JUDGE (SR.DN.) KARWAR, DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT DATED:14.07.2008 AND THE DECREE PASSED IN OS. NO.89/2003 ON THE FILE OF THE CIVIL JUDGE (JR.DN.) KARWAR, DECREEING THE SUIT FILED FOR DECLARATION. IN THIS REGULAR SECOND APPEAL ARGUMENTS HAVING BEEN HEARD AND RESERVED ON 30.08.2025 AND COMING ON FOR “PRONOUNCEMENT OF ORDERS”, THIS DAY, THE COURT DELIVERED THE FOLLOWING: MALLIKARJUN RUDRAYYA KALMATH Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Date: 2025.09.11 10:35:52 +0530 - 2 - RSA No. 5904 of 2010 CAV JUDGMENT (PER: THE HON'BLE MR. JUSTICE G BASAVARAJA) This defendants appeal is against the Judgment and decree dated 14th passed in OS No.89 of 2003 on the file of Civil Judge (Jr.Dn.), Karwar (for short “the trial Court”) which is confirmed by the Principal Civil Judge (Sr. Dn.), Karwar (for short “the appellate Court”), in RA No.22 of 2008 dated 30th June 2010. 2. For the sake of convenience, the parties herein are referred to as per their rank and status before the trial Court. 3. Brief facts leading to this appeal are that, plaintiff filed suit for declaration, declaring that plaintiff has got half share in the suit property. It is stated that husband of the plaintiff-Rama Patrekar and husband of defendant-Kuma Patrekar are brothers; and the husband of defendant is the eldest brother, and as such, property is the joint family property of the husbands of plaintiff and defendant. The father-in-law of the plaintiff and defendant was tenant of the suit party and after his death, the name of defendant's husband was mutated in the record of rights as he was the eldest son. The husband of the Defendant, being manager of the family was representing the family, and had filed Form No.7 before the Land Tribunal, Karwar - 3 - RSA No. 5904 of 2010 for grant of occupancy right on behalf of the family. The land Tribunal, granted occupancy right in favour of the husband of defendant. It is stated that in the said land there was a dilapidated house, and the husbands of the plaintiff and defendant decided to construct a new house by joint labour and bearing the expenses equally. The husbands of the Plaintiff and defendant were fishermen and they had income from their profession and had invested their hard-earned money and constructed a House with two parts. Husband of the plaintiff having great respect and faith on his brother, had consented to take the permission in his name. Accordingly, application was filed by the husband of the defendant in his name though the suit property was the joint family property and they were in joint possession. After construction of house, they were in possession of their respective portions with mutual understanding. The Northern portion was given to the husband of the plaintiff and accordingly, plaintiff along with children, were residing in the said portion; and the defendant, along with her children, are residing in Southern portion. After the death of plaintiff’s husband, by taking undue advantage that the son of the plaintiff is handicapped and also mentally unsound, the defendant started - 4 - RSA No. 5904 of 2010 to give trouble on one or the other reason in order to evict the plaintiff from the said house. The defendant, in order to harass the plaintiff, closed the front door of plaintiff’s portion which was used for ingress and egress. In view of this illegal act by the defendant, plaintiff issued legal notice and the defendant got issued reply notice stating that plaintiff is residing as a licensee, and she has no right over the house. It is further contended by the plaintiff that during October 2003, the defendant and her children threatened the plaintiff to evict her from the schedule house. The plaintiff has got half share in the suit land as well as in the suit house. Hence, the plaintiff was constrained to approach the Court seeking declaration of half share in the suit schedule property and also consequence relief of partition by metes and bounds. 4. Upon service of summons, defendant appeared through Counsel and filed written statement denying regarding acquiring property on behalf of joint family and further denied that their father-in-law was in possession of property as a tenant, but the relationship of the plaintiff and defendant husband as brothers is admitted. Further, they have denied all other governments made in the plaint as false. It is further - 5 - RSA No. 5904 of 2010 contented that the suit property is the self acquired property of the husband. The defendant, after the death of her husband, is continued in possession and enjoyment of the property by way of inheritance, and the plaintiff has no right, title or interest whatsoever in the suit schedule property. It is contended that on humanitarian ground, defendant has given portion of house to the plaintiff without taking any rent. It is further contented that at the time of occupying the house, the plaintiff has promised the defendant that she is ready to vacate the premises as and when required. As the premises is required for her, defendant asked the plaintiff to vacate the premises, but the plaintiff has not vacated the premises. Hence, defendant prayed to dismiss the suit with costs. Based on the pleadings, the trial Court has framed as many as five issues: “1) Whether the plaintiff proves that her husband and husband of Defendant constituted an undivided family as contended in the plaint? 2) Whether plaintiff further proves that suit property is ancestral property as contended in the plaint? 3) Whether plaintiff further proves that she is entitled for 1/2 share in the suit property as contended in the plaint? - 6 - RSA No. 5904 of 2010 4) Whether Court fee paid is proper? 5) What Order or Decree?” 5. To prove the case, Plaintiff examined two witnesses as PW1 and PW2 and marked eight documents as Exhibits P1 to P8. On the other hand, defendant examined three witnesses as DWs1 to DW3 and marked eleven documents as Exhibits D1 to D11. 6. Having heard on both sides, the trial Court has given its finding to issues 1 to 4 in the affirmative and decreed the suit of the plaintiff as sought for. Being agreed by the Judgment and decree passed by the trial Court, defendant preferred appeal before the first appellate Court in RA No.22 of 2008, which came to be dismissed by Judgment and decree dated 30th June, 2010. Being aggrieved by the Judgments and decree passed by the Courts below, the defendant/appellant has preferred this second appeal. 7. The learned Counsel appearing for the appellant submits that the Judgment and decree passed by both the Courts below are illegal, arbitrary, capricious and are not sustainable in the eye of law. He would submit that the trial Court having - 7 - RSA No. 5904 of 2010 noticed, the fact that the occupancy rights of the suit property has been granted by the Land Tribunal in favour of the husband of the appellant alone in his individual capacity, has committed an error in holding that the plaintiff has got half share in the suit property and also committed an error in passing the decree for partition and separate position of his alleged of share. He would further submit that the occupancy right was granted in favour of the husband of the appellant exclusively and in his individual capacity and after his death, the same has been succeeded by the appellant and, as such the plaintiff is not having any right, title or interest over the property. The Courts below have committed an error in holding that the suit property is the joint family property. The Courts below have failed to take note of the settled position of the law as declared by the Hon’ble Supreme Court that the occupancy right of the property in dispute is a joint family property or of the absolute property shall be decided by the Tribunal and the Courts are not having jurisdiction to decide the said question. When the land Tribunal has already granted occupancy right exclusively in favour of the husband of the appellant in his individual capacity, the Courts below have committed a serious error in the suit filed by the - 8 - RSA No. 5904 of 2010 respondent and as such the order passed by the Courts below are required to be set aside. It is further submitted that the both the Courts have held that the husband of appellant herein filed Form No.7, and the Land Tribunal was pleased to grant occupancy right in favour of him and even the house is constructed by him, and as such the house property is also registered in the name of the appellant herein. If the respondent and her husband were having right over the said properties, they would have filed Form No.7 jointly and also the house property would be registered in their name, but they have not done so because they had no right at all, and they were residing in the house only on humanitarian ground and not as holder of some right over the same. On all these crowns, it is sought to formulate substantial question of law by admitting the appeal. To substantiate his submission, the learned Counsel for the appellant placed reliance on the Judgment of Hon’ble Supreme Court in the case of ISHWARAGOUDA v. MALLIKARJUN GOWDA reported in 2008-LAWS(SC)-11-98. 8. I have examined the material placed before me. This Court has also secured the trial Court records. The relationship between the parties is not in dispute. It is a specific defence of - 9 - RSA No. 5904 of 2010 the defendant that the property in question is the exclusive property of the husband of the defendant since the Land Tribunal has granted the occupancy right in favour of the husband of the defendant. The plaintiffs have no right to seek partition. Exhibit P7-Form No.7 filed by the husband of the defendant clearly goes to show that father Chooda Janu was in possession of the suit land. He being the legal representative of his father, has filed Form No.7. It is crystal clear that the father of husband of the plaintiff and father of husband of the defendant, were tenants of the land. After the death of the father-in-law of the plaintiff and the defendant, the suit property was mutated in the name of the husband of the defendant, as he was the manager of the family and filed Form No.7 before the Land Tribunal, representing the joint family. Further on perusal of Column No.8 in Exhibit P7, wherein “the period for which the applicant has been cultivating the land as tenant”, it is stated as under: “C£Á¢PÁ®¢AzÀ®Æ £Á£ÀÄ F d«ÄãÀÄ C£ÀĨsÀ«¸ÀÄwÛzÉÝãɔ. 9. The contents of Exhibit P7, has not been disputed by the other side. The averment made in the written statement of the defendant is contrary to the contents of Exhibit P7, which is - 10 - RSA No. 5904 of 2010 not disputed by the defendants. Absolutely, there are no materials to show that this property is the exclusive property of the husband of the defendant. 10. Both the Courts are properly appreciated the oral and documentary evidence in accordance with law and facts. I have also gone through the Judgment of Hon’ble Supreme Court in the case of Ishwargouda (supra) on which reliance is placed by the learned Counsel for the appellant. The facts of this case are not in consistence with the facts of the case relied upon by the Counsel for the appellant. Hence, the aforestated Judgment of the Supreme Court would not come to the aid of the appellant to formulate any substantial question of law as sought for. I do not find any ground to formulate substantial question of law as sought for. Hence, I proceed to pass the following: O R D E R Being devoid of merits, appeal stands dismissed at the stage of admission itself. Sd/- (G BASAVARAJA) JUDGE lnn CT-CMU