Extracted from the PDF above. The PDF is authoritative.
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HC-KAR NC: 2025:KHC:40099 RFA No. 1118 of 2006 C/W RFA No. 1921 of 2005
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR FIRST APPEAL NO.1118 OF 2006 (PAR) C/W REGULAR FIRST APPEAL NO. 1921 OF 2005
IN RFA No. 1118/2006 BETWEEN:
PUTTASWAMY GOWDA AGED ABOUT 57 YEARS S/O LATE PEDDAMMANA ANKEGOWDA PANDAVAPURA TALUK R/AT CHINAKURALI VILLAGE MANDYA DISTRICT-571 401 …APPELLANT (BY SRI H.GOPALAPPA, ADVOCATE) AND:
1. SMT.MANCHAMMA AGED ABOUT 70 YEARS W/O LATE MARI GOWDA @ GIRI GOWDA R/AT GENE HOSAHALLI VILLAGE, ARAKERE HOBLI SRIRANGAPATNA TALUK MANDYA DISTRICT-571 438
SRI SRINIVASA S/O LATE MARIGOWDA SINCE DEAD BY LRS
2. SMT.GOWRAMMA AGED ABOUT 44 YEARS 1ST WIFE LATE SRINIVASA R/O GENE HOSAHALLI VILLAGE,
Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA
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ARAKERE HOBLI SRIRANGAPATNA TALUK MANDYA DISTRICT-571 438
3. SRI NAVEEN S/O LATE SRINIVASA AGED ABOUT 26 YEARS R/AT GENE HOSAHALLI VILLAGE, ARAKERE HOBLI SRIRANGAPATNA TALUK-571 438
4. SMT ARUNA AGED ABOUT 23 YEARS S/O LATE SRINIVASA R/AT GENE HOSAHALLI VILLAGE, ARAKERE HOBLI SRIRANGAPATNA TALUK MANDYA DISTRICT-571 438
5. SMT BHAGYAMMA AGED ABOUT 40 YEARS SECOND WIFE OF LATE SRINIVASA R/O CHINNAKURALI VILLAGE, PANDAVAPURA TALUK MANDYA DISTRICT-571 434
6. C M RAMAKRISHNE GOWDA AGED ABOUT 50 YEARS S/O LATE MARIGOWDA @ GIRIGOWDA R/AT CHINNAKURALI VILLAGE, PANDAVAPURA TALUK MANDYA DISTRICT-571 434
7. SRI GIRIGOWDA MAJOR S/O LATE HUTCHE GOWDA (DIED ON 28.2.2021 DEAD BY HIS Lrs)
7(a) SMT.VEENA, JAGADEESHA AGED ABOUT 35 YEARS
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W/O JAGADISHA R/AT NO.160, NORTHERN EXTENSION CHANNARAYAPATNA TOWN-573 116 HASSAN DISTRICT
8. SRI GOPALAGOWDA AGED ABOUT 56 YEARS S/O LATE HUCHEGOWDA R/AT CHINAKURALI VILLAGE, PANDAVAPURA TALUK MANDYA DISTRICT-571 434
9. SMT. THAYAMMA AGED ABOUT YEARS R/AT CHINAKURALI VILLAGE AND POST PANDAVAPURA TALUK MANDYA DISTRICT-571 434
10. SMT.
MANGALAGORAA AGED ABOUT YEARS D/O LATE HUTCHEGOWDA PANDAVAPURA TALUK MANDYA DISTRICT-571438 …RESPONDENTS (BY SRI VIJAY KUMAR.R, FOR SRI K.S.RAMASWAMY IYENGAR, ADVOCATE FOR R1, R3 TO R6;
SRI B.S.NAGARAJ, ADVOCATE FOR R10;
R7(A), R8 AND R9 ARE SERVED AND UNREPRESENTED;
VIDE ORDER DATED 09.08.2012, R2 IS DELETED)
THIS RFA IS FILED UNDER SECTION 96 OF CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND DECREE DATED 29.09.2005 PASSED IN O.S.NO.139/1997 ON THE FILE OF THE PRL.CIVIL JUDGE (SR.DN.) & JMFC., SRIRANGAPATNA, DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION. - 4 -
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IN RFA NO. 1921/2005 BETWEEN:
1. GOPALA GOWDA S/O LATE HUTCHEGOWDA (DIED ON 03.12.2023 DEAD BY HIS LRS)
1(a) SMT.RATHNAMMA AGE 60 YEARS W/O LATE GOPALAGOWDA
1(b) SRI C.G.GIRISH AGE 34 YEARS S/O LATE GOPALAGOWDA
BOTH ARE R/AT NO.314/2, RANGADA STREET, CHINAKURALI VILLAGE AND POST PANDAVAPURA TALUK MANDYA DISTRICT-571 455
1(c) SMT.SOUMYA C.G AGE 30 YEARS W/O CHALUVARAJU D/O LATE GOPALAGOWDA R/AT GIRIYARAHALLI VILLAGE AND POST CHINAKURALI HOBLI PANDAVAPURA TALUK MANDYA DISTRICT- 571 427
1(d) SMT.RAMYA C.G AGED ABOUT 29 YEARS W/O SRI PRASANNA D/O LATE GOPALAGOWDA R/AT ARALAKUPPE VILLAGE CHINAKURALI HOBLI PANDAVAPURA TALUK MANDYA DISTRICT-571 812
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2. SMT THAYAMMA D/O LATE HUTCHEGOWDA (DIED ON 26.02.2015 NO ISSUES)
3. SMT MANGALA GOWRAMMA D/O LATE HUTCHEGOWDA AGED ABOUT 42 YEARS, R/AT CHINAKURALI VILLAGE & POST PANDAVAPURA TALUK MANDYA DISTRICT- 571 434 ...APPELLANTS (BY SRI. B S NAGARAJ, ADVOCATE FOR LRS OF A1 AND OTHER APPELLANTS;
VIDE ORDER DATED 08.01.2024, A2 DELETED WITHOUT LEAVING ANY LRS AND REMAINING APPELLANTS ARE HIS LRS.) AND:
1. SMT MANCHAMMA W/O LATE MARI GOWDA @ GIRIGOWDA (DIED ALREADY ON RECORD LRS. OF R2 TO R5)
2. SRI NAVEEN S/O LATE SRINIVASA AGED ABOUT 25 YEARS,
3. ARUNA AGED ABOUT 20 YEARS, S/O LATE SRINIVASA
4. SMT BHAGYAMMA AGED ABOUT 36 YEARS SECOND WIFE OF LATE SRINIVASA
5. C M RAMAKRISHNE GOWDA AGED ABOUT 50 YEARS S/O LATE MARI GOWDA @ GIRIGOWDA
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6.
SRI GIRIGOWDA S/O LATE HUTCHE GOWDA (DIED ON 28.02.2021 DEAD BY HIS LRS)
6(a) SMT.VEENA, JAGADEESHA AGED ABOUT 35 YEARS W/O JAGADISHA R/AT NO.160, NORTHERN EXTENSION CHANNARAYAPATNA TOWN-573 116 HASSAN DISTRICT
7. PUTTSWAMY GOWDA AGED ABOUT 56 YEARS, S/O PADDAMMANA ANKE GOWDA
RESPONDENT NOs.1, 4, 5 AND 7 ARE RESIDING AT CHINAKURALI VILLAGE AND POST PANDAVAPURA TALUK MANDYA DISTRICT-571 434
RESPONDENTS NO.2 AND 3 ARE RESIDING AT GENDE-HOSAHALLI VILLAGE ARAKERE HOBLI SRIRANGAPATNA TALUK MANDYA DISTRICT-571 438 ...RESPONDENTS (VIDE ORDER DATED 18.01.2024, R1 IS DEAD AND LRS ARE ALREADY ON RECORD;
VIDE ORDER DATED 18.01.2024, SRI VIJAY KUMAR.R, ADVOCATE FOR R2 TO R5(VAKALATH NOT FILED;
R6(A) SERVED AND UNREPRESENTED;
SRI P.NATARAJU, ADVOCATE FOR R7;
VIDE ORDER DATED 08.01.2024, R2 AND R3 ARE SERVED;
VIDE ORDER DATED 18.01.2024, R4 AND R5 ARE SERVED BY WAY OF COURT NOTICE)
THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 29.9.2005 PASSED IN
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O.S.NO.139/97 ON THE FILE OF THE PRL. CIVIL JUDGE (SR.DN) AND JMFC, SRIRANGAPATNA, DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION. THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE V SRISHANANDA
ORAL JUDGMENT Heard Sri B.S. Nagaraj, learned counsel for the appellants in RFA No.1921/2005 and for respondent No.10 in RFA No.1118/2006 and Sri Vijay Kumar, learned counsel for respondent Nos.2 to 5 in RFA No.1921/2005 and respondent Nos.1, 3 to 6 in RFA No.1118/2006.
2. RFA No.1921/2005 is filed by defendant Nos.2 to 4 and RFA No.1118/2006 is filed by defendant No.5, challenging the judgment and decree passed in O.S.No.139/1997, on the file of Principal Civil Judge (Sr.Dn) and JMFC., Srirangapatna.
3. Parties are referred to as plaintiffs and defendants for the sake of convenience as per their original ranking before the trial Court.
4.
Facts in the nutshell which are utmost necessary for disposal of the present appeal are as under. - 8 -
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A suit for partition and separate possession came to be filed in O.S.No.139/1997 in respect of the following properties (hereinafter referred to as suit properties): SCHEDULE Properties situated at Honaganahalli Village, Pandavapura Taluk:-
1. Land bearing Sy.No.13, extent 0-34 acres bounded on the East Land of Marigowda, West-Land of Laxmegowda, North-Land of Papegowda, South-Land of Ningegowda: Following lands and House Situated at Chinakurali Village, Pandavapura Taluk:-
2. Sy.No.87, measuring 1 hectare 4 acres, bounded on the East-Land of Post Venkategowda, West-land of Mahadevu and others, North-Land of Post Madegowda, South-Tank (Kere);
3. Sy.No.88/3, extent 0-32 acres, bounded on the East- Land of post Venkategowda, west-sy.No.87 of suit shchedule property, North-Land of Post Venkategowda, South Tank(kere);
4. Sy.No.129, extent 0-10 acres, bounded on the East - Road, West-Road, North-Land of Halina Singegowda, South-Land of C.S.Puttaraju;
5. Sy.No.134, extent 0-53 acres bounded on the East- Road, West-Land of Puttaswamy, North-Land of Sannabydegowda, South-land of Tayanma;
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6. House situated at Chinakurali village, bounded on the East-Road, West-House of Basavaiah, North - House of Venkategowda, South- House of Halina Kempegowda;
7. Sy.No.137/1, extent 0-90 acres, bounded on the East- Tank Road, (Kere raste), West-land of Pakrana Channe- gowda, North-Land of Pakrana Channegowda, South- Tank. 8. Sy.No.139/3, extent 0-35 acres, bounded on the East- Land of Pakrana Channegowda, West-Road, North-Land of Ankegowda, South-Land of Kalaiah;
9. Sy.No.144/2, extent 0-53 acres, bounded on the East- Land of Ramegowda, West-Land of Papegowda, North- Road, South-Land of Kalegowda.”
5. Plaintiff contended that plaintiffs and defendant Nos.1 to 4 are the joint family members, Sri Venkategowda was common prepositus of the family. Said Venkategowda had two sons namely, Huchegowda and Marigowda. Wife of Venkategowda, Smt. Kalamma pre-deceased Venkategowda and his sons Huchegowda and Marigowda are also no more. 6. Huchegowda had a son by name Girigowda, who is defendant No.1 through his first wife Ankamma.
Huchegowda had a second wife by name Mariyamma and in the said wedlock, he had a son and two daughters who are none other
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than defendant Nos.2 to 4 in the suit. Second son of Venkategowda namely, Marigowda died leaving behind his wife Manchamma and two sons who are plaintiff Nos.1 to 3. Defendant No.5 is the husband of defendant No.4. 7. Plaintiff further contended that suit properties are ancestral and joint family properties. After death of Venkategowda, suit properties were managed by Huchegowda and after his death, it is being managed by Gopalagowda, defendant No.2. Suit item Nos.1, 3, 5 to 7 are the ancestral properties and suit item No.2 and 4 are the lands which were cultivated as tenants by the joint family. In view of the Karnataka Land Reforms Act coming into force, Form No.7 came to be filed by Gopalagowda – defendant No.2, for and on behalf of the joint family and it was granted in his name. Therefore, all the suit items are the joint family properties and they laid their claim for their half share being the legal representatives of deceased Marigowda who is the second son of common prepositus Venkategowda. - 11 -
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8. When there was a demand of partition and separate possession, same was denied which necessitated the plaintiffs to file the suit. 9. Pursuant to the suit summons, defendant Nos.2 to 5 filed joint written statement, denying the plaint averments, except admitting the relationship among the parties and suit item Nos.1, 3, 5 and 7 being the ancestral properties. 10.
It is specific contention of defendant Nos.2 to 4 that item Nos.2 and 4 are the self-acquired properties of defendant No.2 inasmuch as those properties are granted by the Land Tribunal in the name of defendant No.2 pursuant to the Form No.7 filed by defendant No.2 in his individual capacity. 11. Apart from contending that suit item Nos.2 and 4 are the self-acquired properties, defendant Nos.2 to 4 also maintained that in the event the Court holds that all the properties are joint family properties, a RCC house constructed by the defendant No.1 Girigowda at Channarayapattana is also to be treated as joint family property and share is to be granted to these defendants also in the said properties which is more
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fully described in the written statement schedule property, which reads as under:
“R.C.C.Building with Terrace in an area of 100’x50’, 43’x45’ and 17¾’ x13¾’ in assessment no.2144/1608 within the Town Municipal Limits of Channarayapattana.”
12. Defendant No.1 filed independent written statement admitting the plaint averments in toto. In other words, defendant No.1 sailed with the plaintiffs. 13. Based on the rival contentions of the parties, learned trial Judge raised following issues. “ 1. Whether the plaintiffs prove that they have got ½ share in the suit schedule properties? 2. Whether defendants 2 to 5 prove that item Nos.2 and 4 are self acquired properties of second defendant? 3. Whether defendant Nos.2 to 5 prove that written statement schedule property constructed out of the family income and omitted to include the same in the plaint schedule with dishonest and oblique motive? - 13 -
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4. Whether 2nd defendant proves that he sold item No.4 of the suit schedule as per the registered sale deed dated 31-3-1997 for family necessity? 5.
Whether defendants 2 to 5 prove that there was partition between Huchegowda and Marigowda and each of them ½ share in the ancestral and joint family properties then available as per Palupatti and the plaintiffs sold their share to one Kempegowda under the Registered Sale Deed dated 26.5.1978, as averred in Para-4 of the written statement? 6. Whether plaintiffs are entitled for the relief claimed in the suit? 7. What order or decree?”
14. In order to establish the case of plaintiffs, on behalf of the plaintiffs, Ramakrishnegowda who is plaintiff No.3 is examined as P.W.1 and two more witnesses were examined namely, Govindegowda and Rajegowda. As many as 15 documentary evidence were placed on record which were exhibited and marked as Exs.P1 to P15 comprising of, RTC extracts, demand register extracts, sale deed, examination-in- chief of P.W.2 and P.W.3 and RTC extracts. 15. On behalf of the defendants, Mangalagowramma, who is defendant No.4 is examined as D.W.1, defendant No.5 –
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Puttaswamygowda is examined as D.W.2 and four more witnesses namely, Sannaningegowda, Krishnegowda, Lakshmegowda and S. Chikkegowda are examined as D.Ws.3 to 6. 16. On behalf of the defendants, eighteen documentary evidence were placed on record which were exhibited and marked as Exs.D1 to D18. 17. Among them, Ex.D1 is the tax paid receipt, Exs.D2 and D3 are the acknowledgements given by the Tahasildar, Exs.D4 to D6 are the copies of the sale deeds, Ex.D.7 is the mutation register extract, Exs.D.8 to D.10 are the RTC extracts, Exs.D11 and D12 are the demand register extracts, Ex.D13 is the ‘palupatti’ and Exs.D14 to D18 are the examination-in-chief by way of affidavits of D.Ws.2 to 6. 18.
Thereafter, learned trial Judge heard the arguments of the parties and on cumulative consideration of oral and documentary evidence placed on record, decreed the suit of the plaintiffs, granting half share in the suit schedule properties. - 15 -
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19. Operative portion of the trial Court judgment in O.S.No.139/1997 reads as under:
“The suit of plaintiffs is hereby decreed. The plaintiffs are entitled to get half share in the suit schedule properties by way or partition and separate possession. Under the circumstances of the case, I direct both the parties to bear their own costs. Draw preliminary decree accordingly.”
20. Pertinently, there was no order with regard to the granting of share in the written statement schedule property as referred to supra. 21. Being aggrieved by decreeing of the suit, granting of half share to the plaintiffs, defendant Nos.2 to 4 have preferred the appeal in RFA No.1921/2005 and defendant No.5 has preferred the appeal in RFA No.1118/2006 on the following: Grounds in RFA 1921/2005 The judgment and decree under appeal are opposed to law, facts and evidence in the case. - 16 -
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The court below has failed to properly consider both, documentary and oral evidence in a proper perspective. The court below has failed to draw proper inferences from admitted and proved facts and those drawn are erroneous. The court below failed to properly consider the Evidence on record; the oral evidence of PW1 admitting the factual aspects, touching the property in possession and sold by them, through by Regd. Sale-deed dated 26-05-1978 in favour of one Kempegowda, copy marked as ex.D.5. These aspects clearly prove that there was a partition during the life time of Hutchegowda. The Trial Court has Erred in not relying upon the Memorandum of partition (Palu Patti) dated 03-05-
1976.
The aforesaid memorandum of partition records the memorandum of partition already held before Panchayathdars. The partition deed (Palu Patti) dated 03-05-1976 is a partition deed by itself. It clearly refers to a partition affected before Panchayathdars earlier. In the said circumstances, the lower court has erred in holding that the memorandum of partition is not admissible in evidence, since it is not registered so as to prove the partition and the allotment of shares in Separate Sy.No.'s The Trial court has failed to consider that after the partition, the plaintiff's have sold the property by Regd. Sale - deed dated 26-05-1978 to one
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Kempegowcda; but court below holds that the said property is not a Joint Family property. Whereas the P.W.1 in his cross-examination admitted that he is cultivating the land measuring 2-00 acres; which belongs to other and he had no property, except the suit schedule property. If such is the case whose property, they have sold by Regd. Sale- deed dated 26-05-1978 is no answer. Therefore the impugned order is un-sustainable in law, hence the Judgement and decree is liable to be set aside by this Hon`ble Court. Whereas the trial court in case of the properties sold by the Defendant No.2 to 4 by Regd. Sale deed dated 31-03-1997 Ex.D.6 in favour of Def No.5. holds that the said property is a Joint family property and the plaintiffs are not binding for the said sale deed; and whereas the properties are sold by the plaintiff in the year 1978 are holds as not a Joint family property. And, further holds that no one questioned the said sale and the same is barred by limitation.
Therefore, it is very clear the findings of the trial court are un- sustainable in law and the same is liable to be set aside by this Hon'ble court. The suit schedule item No.2 and 4 is independently granted to the Dafendant No.2 under the Provision of Land Reforms Act, because it was personally cultivated independently by his father Hutchegowda and after the death of Hutchegowda, the Defendant
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No.2 was cultivating independently. Therefore it is very clear the aforesaid property is self-acquired property of defendant No.2 in the said circumstances, the lower court has erred in holding that the aforesaid property as a Joint family property. The Trial court has committed grave error, in holding that Ex.D.4 Sale-deed Executed by Plaintiff's father Marigowda and defendants father Hutchegowda in favour of Defendant No.3, by Regd. Sale-deed dated 17-02-1975, is not for legal necessity and the genuineness of the sale deed is also doubtful and holds that the said alienation is also not binding on the share of plaintiff. Therefore aforesaid findings of the trial court is contrary to the finding given in respect he property sold by the plaintiff in the year 1978. Therefore, the Judgment and decree of the trial court is liable to be set aside by this Hon'ble Court. The Defendant No.1 Girigowda has not given any Evidence who is one of the signatory of Ex.D.13 Palu Patti (Partition deed) and he made house property worth of Rs.25 lakh at channarayanapatna and the same was made in his name as karth; and the said property was not included in the suit and the demand etract of the said property is produced and Marked as Ex-D.11 And 12. Under the said circumstances the plaintiff's are not entitled to maintain a suit for partition at all.
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In any angle the Judgement and decree of the Trial Court in decreeing the suit is un-sustainable in law and the same is liable to be set aside by this Hon’ble Court. The judgement and decree of the Trial court is very clear arbitrary, capricious and wholly un-sustainable in law, since the court below instead of dismissing the suit; decreed the suit. The trial court fails to appreciate, that the defendant No.3, after death of her husband, she came and settled at her parents house, by purchasing the item No.6 & 8 of the suit schedule property, from the father of 2nd plaintiff Marigowda and his brother Hutchegowda; but the court below without any evidence whatsoever, held that the sale is not for legal necessity and further holds that the plaintiff are not binding for the said sale deed And, the defendant No.3, have no income of her own to purchase the said property. Therefore the impugned
judgment and decree is liable to be set-aside by this Hon`ble court. The Judgement and decree of the learned Principal Civil Judge (Sr.Divn) and J.M.F.C at Srirangapatna are otherwise opposed to law,;
facts and probabilities of the case and the appreciation of evidence, both oral and documentary in this behalf is also erroneous.
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Grounds in RFA 1118/2006 The Judgment and Decree passed by the court below is contrary to law, facts and evidence on record. The Judgment and Decree passed by the court below suffers from infirmities & illegalities. The court below failed to properly consider the fact that the Appellant is the bonafide purchaser of the suit item No.4 for valuable consideration through a registered sale deed dtd.31/03/1997. The court below failed to properly consider the fact that suit item No.4 is the exclusive property of Respondent No.5 and he has sold the said property in favour of the Appellant for legal necessity. The court below failed to properly consider the fact that the Appellant has perfected his title over suit item No.4 by way of adverse possession. The Judgment & Decree passed by the court below is perverse.”
22. On behalf of defendant Nos.2 to 4, Sri B.S.Nagaraj,
learned counsel for the appellants, reiterating the grounds urged in the appeal memorandum vehemently contended that the impugned judgment is perverse inasmuch as the learned trial Judge did not notice the fact that there was a partition in
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the year 1976 as per Ex.D13. Thereafter, the Land Tribunal has granted the share in respect of item Nos.2 and 4 in favour of defendant No.2 – Gopalagowda. Therefore, decreeing the suit in respect of all the suit items has resulted in miscarriage of justice.
23. He would further contend that there were alienations made earlier to Ex.D13 which shows that the parties had independent right, title, interest and sale made in favour of the defendant No.5 is alone questioned by the plaintiffs and not the sale made by them.
24. Therefore, the appeal needs to be allowed in part by denying the share of the plaintiffs in item Nos.2 and 4 of the suit properties.
25. He would also contend that non-granting of share in respect of the written statement schedule property shows that the suit is improperly decided and judgment rendered by the trial Court is thus perverse in nature and sought for allowing the appeal.
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26. Admittedly, defendant No.5 who is the appellant in RFA No.1118/2006 did not appear and pursue the matter.
27. Since common written statement has been filed by defendants Nos.2 to 5. Among them defendant No.2 to 4 are the appellants in RFA No.1921/2005 and defendant No.5 is the appellant in RFA No.1118/2006, this Court is of the considered opinion that both the appeals can be disposed of on the merits, as the alienation made by defendant No.4 is in favour of defendant No.5.
28. Per contra, Sri Vijaykumar,
learned counsel representing the respondents, supports the impugned
judgment by contending that Ex.D13 is not proved by defendant Nos.2 to 4 to establish that after Ex.D13, suit item Nos.2 and 4 have been granted in the individual capacity of defendant No.2 and thus, sought for dismissal of the appeal. 29. He would further contend that suit properties are the joint family properties of Venkategowda which was cultivating by Venkategowda and later on his son Huchegowda and Marigowda and subsequent to their death, their legal representatives who were cultivating the land, though for
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convenience it was defendant No.2, manager of joint family, was cultivating the land, filed Form No.7, in view of the coming into force of Karnataka Land Reforms Act. 30. It is further contended that it is settled principles of law and requires no emphasis that when a property is being cultivated by joint family and pursuant to Form No.7, if occupancy rights are granted even though in any one of the members of the joint family, the benefit thereof should accrue to the entire joint family, though order of the Land Tribunal may say that it is granted in a particular member of the joint family and thus, sought for dismissal of the appeal. 31. Having heard the arguments of both sides, this Court perused the material on record meticulously. 32. In the light of above, this Court perused the material on record meticulously. 33. On perusal of the material on record, following points would arise for consideration:
1. Whether the finding recorded by the trial Court that all the suit properties are
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available for partition is incorrect and opposed to law? 2. Whether the defendants have successfully established that suit item Nos.2 and 4 were not available for partition and thus, the finding recorded by the trial Court on issue No.2 has resulted in perversity? 3. Whether the impugned judgment is suffering from legal infirmity and perversity and thus calls for interference? 4. What order? 34. Regarding point Nos.1 to 3: These points are taken up for consideration together in order to avoid repetition of discussion of the material facts and for convenience. 35. In the case on hand, relationship is not in dispute.
Admittedly, defendant No.5 who is the husband of defendant No.4 who has purchased one of the item of the suit properties. 36. With regard to item No.1, 3, 5 to 7, there is no dispute as per the written statement filed by defendant Nos.2 to 5 and defendant No.1. Therefore, the only point for
consideration before the trial Court or before this Court is:
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Whether granting of half share in the suit item Nos.2 and 4 to the plaintiffs is just and proper? 37. In regard to the same, this Court bestowed its best attention to the rival contentions of the parties and also the oral evidence on record. 38. Issue No.2 before the trial Court was required to be proved by the defendants. In other words, if the defendant Nos.2 to 4 were to establish that suit item Nos.2 and 4 are the self acquired properties of defendant No.2, then decreeing of the suit, granting of half share in all items of the suit properties is to be held incorrect. 39. In that regard, pertinently, defendant No.2 Gopalagowda did not step into the witness box to depose that suit item Nos.2 and 4 are his self acquired property. It is the defendant No.4 Mangalagowramma, who has been examined as D.W.1 who has filed an affidavit in lieu of examination-in-chief. 40. Admittedly, Mangalagowramma is an illiterate lady and knows only to subscribe her signature in Kannada language. In other words, the written statement contents
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which are reiterated in verbatim in the examination-in-chief affidavit, has no probative value at all. 41. Nevertheless, according to the oral testimony of D.W.1, item Nos.2 and 4 are the self acquisition of defendant No.2. In that regard, there is no documentary evidence placed on record by D.W.1. 42. In fact, in her cross-examination she has specifically admitted that the Land Tribunal order or Form No.7 filed by Gopalagowda is not produced. At another breathe, in her further cross-examination she has stated that she has produced the Land Tribunal order. But no such order is forthcoming on record. 43. For the sake of arguments, assuming for a moment, the occupancy rights in respect of suit item Nos.2 and 4 are granted in the name of Gopalagowda - defendant No.2, same cannot be treated as his individual property only on the ground that Form No.7 is filed by him and Land Tribunal mentions his name. - 27 -
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44.
Theory of previous partition, earlier to the grant of occupancy rights in respect of the suit property is no doubt propounded by defendant Nos.2 to 4. But there is no proof in that regard. The only document on which the defendants want to rely upon to establish the previous partition so as to advance their contention with regard to suit item Nos.2 and 4 are the self acquisition of Gopalagowda Ex.D13 which is the ‘palupatti’. Admittedly, the same is not registered. Except producing Ex.D.13, there is no material evidence on record to prove the same. 45. Admittedly, D.W.1 has stated in her cross- examination that she does not know the contents of Ex.D13 nor she is aware of among whom the said partition has taken place. 46. No witnesses are examined nor scribe is examined to prove Ex.D.13. Admittedly, Girigowda is one among them who could have been summoned for proving Ex.D.13. 47. Further, it is defendant No.2 - Gopalagowda who is yet another person in Ex.D.13, as a party to ‘palupatti’. He did not step into the witness box for the reasons best known to him. - 28 -
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48. The husband of the first plaintiff and father of plaintiff Nos.2 and 3 has subscribed his ‘LTM’ (left thumb impression) as could be seen from Ex.D13. 49. In order to prove his left thumb impression, at least scribe or any of the witnesses had to be examined to establish the previous partition. 50. As such, the learned Trial Judge, if not in so many happy words not accepting the probative value of Ex.D13 cannot be faulted with as best evidence in shut out from the Court by defendant Nos.2 to 5. 51.
Even assuming that the partition has taken place and the order of the Land Tribunal came to be passed subsequent to the alleged oral partition vide Ex.D.13, the occupancy right that has been granted in respect of the item Nos.2 and 4 of the suit properties would be for and on behalf of the entire joint family. 52. Principles of law enunciated in this regard is no longer res integra. Hon’ble Apex Court in the case of Thimmappa Rai vs. Ramanna Rai and others, reported in
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(2007) 6 S.C.R. has clearly held that occupancy rights granted in favour of one of the members of joint family would enure to the benefit of the entire joint family. 53. Full Bench of this Court in the case of Booda Poojary vs. Thomu Poojarthy, reported in ILR 1992 KAR 1359, enunciated the same principles of law. 54. Thus, contentions urged on behalf of the appellants that in the absence of proper proof with regard to the previous partition and non production of the order of the Land Tribunal or Form No.7, it cannot be construed that the grant of occupancy rights in favour of Gopalagowda – defendant No.2 in respect of item Nos.2 and 4 in his individual capacity cannot be countenanced in law. 55. With regard to the remaining items of the suit properties, since there is an admission in the written statement itself, the grant of half share in the suit properties cannot be faulted with. 56. Sri B.S. Nagaraj, learned counsel, however made a feeble attempt during the course of arguments that non grant of share in the written statement property which is the RCC
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house at Channarayapattana standing in the name of defendant No.1 has resulted in miscarriage of justice. 57. Defendant No.1 is not represented before this Court.
No separate appeal is filed by appellant denying the share in the written statement schedule property. Therefore, the said contention would also not merit for further
consideration.
58. Since defendant No.5 is none other than the husband of defendant No.4 who has purchased item No.4 of the suit property, may work out his remedy in the Final Decree Proceedings, in seeking equitable partition.
59. In view of the foregoing discussion, point Nos.1 to 3 are answered in the negative and against the appellants.
60. Regarding point No.4: In view of finding of this Court on point Nos.1 to 3, following order is passed:
ORDER (i) Appeals are meritless and hereby dismissed. (ii) No order as to costs. Sd/- (V SRISHANANDA) JUDGE MR