- 1 - NC: 2025:KHC-D:3940 RSA No. 5977 of 2010 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 27TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 5977 OF 2010 (PAR-) BETWEEN: 1. SMT. WALABAI W/O. KALLAPPA BELWATKAR, AGE: 60 YEARS, OCC: HOUSEHOLD, R/O: MACHHE VILLAGE, TQ and DIST: BELGAUM. SINCE DECEASED BY HIS LRS. 1A. SHRI. KALLAPPA NAGO PATIL, AGE: 60 YEARS, OCC: AGRICULTURE, R/O. MACCHE, TALUK AND DISTRICT: BELGAVI (HUSBAND OF DECEASED APPELLANT NO.1) 1B. SHRI. KRISHNA S/O. KALLAPPA PATIL, AGE: 35 YEARS, OCC: AGRICULTURE, R/O. MACCHE, TALUK AND DISTRICT: BELGAVI (SON OF DECEASED APPELLANT NO.1) 2. SMT. SUMAN W/O. MARUTI DESURKAR, AGE: 55 YEARS, OCC: HOUSEHOLD, R/O: BAILUR VILLAGE, TQ: KHANAPUR, DIST: BELGAVI. 3. SMT. BHOMAKKA W/O. SAHADEV ANGOLKAR, AGE: 45 YEARS, OCC: HOUSEHOLD, R/O: YELLUR VILLAGE, TQ and DIST: BELGAUM. Digitally signed by V N BADIGER Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:3940 RSA No. 5977 of 2010 4. MISS. SUREKHA D/O. DEVAPPA YALLURKAR, AGE: 33 YEARS, OCC: AGRICULTURE, R/O: MACHHE VILLAGE, TQ and DIST: BELGAVI. …APPELLANTS (BY SRI. H. R. DESHPANDE, SMT. USHA H. DESHPANDE AND SRI. SHIRKANT R. SATTIGERI, ADVOCATES) AND: 1. SMT. AVVAKKA W/O. BHOMANI PATIL, AGE: 60 YEARS, OCC: HOUSEHOLD WORK, R/O: ANAND GALLI, MACHHE, TQ and DIST: BELGAVI. 2. SHRI. BHARMA S/O. BHOMANI PATIL, AGE: 35 YEARS, OCC: AGRICULTURE, R/O: ANAND GALLI, MACHHE, TQ and DIST: BELGAVI. 3. SMT. DEVAKKA W/O. VITHAL GADAKATI, AGE: 65 YEARS, OCC: HOUSEHOLD, R/O: KHANAPUR ROAD, BRAMHA NAGAR, BELGAVI. 4. SMT. LATA W/O. SHANKAR PATIL AGE: 40 YEARS, OCC: HOUSEHOLD WORK, R/O: KHANAPUR ROAD, BRAMHA NAGAR, BELGAVI. 5. SMT. RATNA W/O. SUBHASH BALEKUNDRI, AGE: 50 YEARS, OCC: HOUSEHOLD WORK, - 3 - NC: 2025:KHC-D:3940 RSA No. 5977 of 2010 R/O: KHANAPUR ROAD, BRAMHA NAGAR, BELGAVI. 6. SMT. MALLAWWA W/O. GANAPATI LAD, AGE: 48 YEARS, OCC: HOUSEHOLD WORK, R/O: YADOGA VILLAGE, TQ: KHANAPUR, DIST: BELGAVI. 6A. SMT. DEVAKABAI W/O. REMAIN KARDI, AGE: 70 YEARS, OCC: HOUSEWORK, R/O: KASBA NANDGAD, TALUK KHANAPUR, DIST: BELAGAVI. 6B. SMT. GANGU PATIL, AGE: 60 YEARS, OCC: HOUSEWORK, R/O.TORALI, TQ: KHANAPUR, DIST: BELAGAVI. 6C. SMT. SULABAI W/O BALU PATIL, AGE: 45 YEARS, OCC: HOUSE WORK, R/O. KUDAREMANI, TQ: BELAGAVI, DIST: BELAGAVI. 6D. SMT. SUNANDA W/O. MADHUKAR GURAV, AGE: 45 YEARS, OCC:HOUSEWORK, R/O. YADOGA, TQ: KHANAPUR, DIST: BELAGAVI. 6E. SHRI. MOHAN S/O. GANAPATI LAD, AGE: 35 YEARS, OCC: HOUSEWORK, R/O. KUKKARWADI, TQ: KHANAPUR, DIST: BELAGAVI. - 4 - NC: 2025:KHC-D:3940 RSA No. 5977 of 2010 6F. SHRI. MOHAN S/O. GANAPATI LAD, AGE: 35 YEARS, OCC: AGRICULTURE, R/O. YADOGA, TQ: KHANAPUR, DIST: BELAGAVI. 7. SHRI. CHANGAPPA @ BALU S/O. HUVAPPA INGALE, AGE: 42 YEARS, OCC: AGRICULTURE, R/O: KALLUR, AT PRESENT OF GANAPAT GALLI, MAJAGAON, TQ and DIST: BELGAVI. …RESPONDENTS (BY SRI. SUNIL S. DESAI, ADVOCATE FOR R1-R5; R6(A)(B) AND R6(E) – HELD SUFFICIENT; R6(C), (D), (E), (F) AND R7 ARE SERVED UNREPRESENTED) ------ THIS RSA IS FILED UNDER SECTION 100 OF C.P.C., PRYAING TO SET ASIDE THE IMPUGNED JUDGMENT AND DECREE DATED 09.12.2003 PASSED BY THE LEARNED III ADDITIONAL CIVIL JUDGE JUNIOR DIVISION BELGAUM IN O.S.NO.220/1998 AND CONFIRMED BY THE LEARNED PRESIDING OFFICER, FAST TRACK COURT-III, AND ADDL. MACT, BELGAUM, IN R.A.NO.208/2007 DATED 21.09.2010 AND DISMISSING THE SUIT OF THE RESPONDENTS/PLAINTIFFS AS PRAYED FOR BY ALLOWING THIS REGULAR SECOND APPEAL WITH COSTS TO PROMOTE THE ENDS OF JUSTICE. THIS APPEAL COMING ON FOR FURTHER HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING: - 5 - NC: 2025:KHC-D:3940 RSA No. 5977 of 2010 CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT This appeal is preferred by defendant No.2 to 5, challenging the judgment and decree dated 21.09.2010 in R.A.No.208/2007 on the file of Presiding Officer, Fast Track Court-III and Additional M.A.C.T., Belgaum (for short “the First Appellate Court”) dismissing the appeal and confirming the judgment and decree dated 09.12.2003 in O.S.No.220/1998 on the file of III-Additional Civil Judge (Jr.Dn), Belgaum (for short “the Trial Court”) decreeing the suit of the plaintiff. 2. For the sake of convenience, parties are referred to as per their rank before the Trial Court. 3. It is the case of the plaintiff that the land bearing Sy.No.495/7 measuring 24 Guntas, land bearing Sy.No.495/10 measuring 31 Guntas and land bearing Sy.No.425 measuring 2 Acres 32 guntas situate at Desur village, Belagavi Taluk and District are the suit schedule properties. It is stated in the plaint that the father of the plaintiff-Gavadu had three children viz., Devappa (husband of defendant No.1 and father of defendant No.2 to 5), Bhomani (plaintiff) and Smt.Mallawwa (defendant No.6). It is stated that the suit schedule ‘A’ and ‘B’ - 6 - NC: 2025:KHC-D:3940 RSA No. 5977 of 2010 properties are tenanted properties and belonged to the joint family of plaintiff and defendants. It is stated that the land Tribunal, by its order dated 20.11.1979, granted occupancy right in favour of deceased Devappa and therefore, the said property is the joint family property of plaintiff and defendants. It is also stated that the land bearing Sy.No.425 (Schedule ‘C’ property) was purchased by the defendant No.7 and deceased Devappa and therefore, sought for half share in the property. Hence, plaintiff filed O.S.No.220/1998 seeking relief of partition and separate possession in respect of suit schedule properties. 3.1. On service of notice, defendant No.1 to 5 entered appearance and contested the matter. Defendant No.6 served remained absent. Defendnat No.7 died during the pendency of the suit and his legal representative/Defendant No.7A has filed written statement contending that the deceased Devappa had no right over land bearing Sy.No.425 except 20 guntas of land. It is stated that the said property was purchased by Devappa and defendant No.7. Hence, sought for dismissal of the suit. 3.2. Defendant No.1 to 4 adopted the written statement of defendant No.5 wherein it is stated that the tenanted land - 7 - NC: 2025:KHC-D:3940 RSA No. 5977 of 2010 was granted to the Devappa as he alone was cultivating the land in question and therefore, sought for dismissal of the suit. 3.3. The Trial Court, based on pleadings on record, formulated issues for its consideration. In order to establish their case, plaintiff has examined two witnesses as PW1 and PW2 and produced 8 documents and same were marked as Ex.P1 to Ex.P8. Defendants have examined 5 witnesses as DW1 to DW5 and produced 15 documents and same were marked as Ex.D1 to Ex.D15. 3.4. The Trial Court, after considering the material on record, by its judgment and decree dated 09.12.2003 held that the plaintiff is entitled for half share in suit schedule ‘A’ and ‘B’ properties and also half share in land bearing Sy.No.425 out of half share of the late Devappa. Feeling aggrieved by the same, the defendant No.1 to 5 preferred R.A.No.208/2007 before the First appellate Court and same was contested by the plaintiff. The First Appellate Court, after re-appreciating the material on record, by its judgment and decree dated 21.09.2010 dismissed the appeal, consequently, confirmed the judgment - 8 - NC: 2025:KHC-D:3940 RSA No. 5977 of 2010 and decree in O.S.No.220/1998. Feeling aggrieved by the same, the defendants No.1 to 5 have preferred this appeal. 4. This Court, vide order dated 03.03.2017, formulated the following substantial questions of law. “Whether in the facts and circumstances of the case the Courts below have erred in law in holding that grant of A and B schedule lands to the name of Devappa enures to the benefit of the joint family, and hence, those two properties can be partitioned?” 5. I have heard Sri.H.R.Deshapande, learned counsel appearing for the appellant and Sri.Sunil S Desai, learned counsel appearing for the respondents. 6. It is contended by Sri.H.R.Deshpande, learned counsel appearing for the appellant, that the land bearing Sy.No.495/7 and land bearing Sy.No.495/10 were tenanted lands granted to the father of the defendant No.2 to 5–Devappa as per the Land Tribunal Order at Ex.D5 and also contended by referring to Ex.D12 that late Devappa was in cultivation of the land during 1964-65 onwards and therefore, submitted that both the Courts below have committed an error in - 9 - NC: 2025:KHC-D:3940 RSA No. 5977 of 2010 misconstruing Ex.D12 and Ex.D5. Accordingly, sought for interference of this Court. 7. Per contra, learned counsel appearing for the respondents sought to justify the impugned judgment and decree passed by both the Courts below. 8. Having taken note of the submission made by the learned counsel for the parties, I have carefully examined the findings recorded by both the Courts below and perused the material on record. It is relevant to extract the genealogy of the parties to understand the relationship and the same is as under: Gavadu (Dead) = Konatai (Died in 1975) Devappa Bhomani Mallawwa (Plaintiff) Changubai (wife) Defendant No.1 Awalabai Suman Bhomakka Surekha (Def.No.2) (Def.No.3) (Def.No.4) (Def.No.4) - 10 - NC: 2025:KHC-D:3940 RSA No. 5977 of 2010 9. It is not in dispute that the original propositus- Gavadu had three children viz., Devappa (husband of defendant No.1 and father of defendant No.2 to 5), Bhomani (plaintiff) and Smt.Mallawwa (Defendant No.6). Late Devappa and defendant No.7 had purchased the land bearing Sy.No.425 jointly as per the registered sale deed dated 01.04.1968 (Ex.P1). Therefore, I am of the opinion that both Devappa and Defendant No.7 are entitled for half share each in respect of land bearing Sy.No. 425. Insofar as land bearing Sy.No.495/7 and land bearing Sy.No.495/10 measuring 24 Guntas and 31 Guntas, respectively, are situate at Machche village. This was also admitted by the plaintiff that the father of the plaintiff, was a coolie and has migrated to Machche village from Desur. In the backdrop of these aspects, these two items of properties, as per Ex.D12-RTC extract, shows that late Devappa was in cultivation of the land since 1964-65. Order dated 20.01.1979 (Ex.P2 & Ex.D5) by the Land Tribunal shows that Devappa was cultivating the land personally and the land Tribunal granted occupancy right insofar as lands bearing Sy.No.495/7 and Sy.No.495/10. - 11 - NC: 2025:KHC-D:3940 RSA No. 5977 of 2010 10. Taking into consideration the deposition of PW1, in the cross-examination dated 09.10.2002, as it is admitted by the PW1 that her father-Gavadu did not acquire any property during his lifetime and the plaintiff has not shown any document to substantiate that PW1 was cultivating the land as a tenant and in that view of the matter, following the declaration of law made by the Division Bench of this Court in the case of Channappa Moolya v. Seju Moolya land others1 wherein this Court held that, clear admission in Form No.7 filed by one of the brothers that land was cultivated, would substantiate the cultivation of land in question and in that view of the matter, the Trial Court has committed and error in arriving at a conclusion to grant half share in suit schedule ‘A’ and ‘B’ properties as well as 1/4th share in the land bearing Sy.No.425. The said error, which is glaring on record, has not been considered by the First Appellate Court by re-appreciating the material on record as required under Order XLI Rule 31 of the Code of Civil Procedure, 1908 (for short “CPC”). In that view of the matter, both the Courts below have committed an error in misconstruction of Ex.D12 and Ex.D5 and therefore, 1 2013 (4) KCCR 3266 - 12 - NC: 2025:KHC-D:3940 RSA No. 5977 of 2010 the substantial question of law framed above favour defendant No.1 to 5. Accordingly, I pass the following: ORDER i) The appeal is allowed. ii) The judgment and decree dated 26.09.2010 in R.A.No.208/2007 on the file of Presiding Officer, Fast Track Court- III and Additional M.A.C.T., Belgaum and the judgment and decree dated 09.12.2003 in O.S.No.220/1998 passed by the III-Additional Civil Judge (Jr.Dn), Belgaum are hereby set aside. iii) Suit in O.S.No.220/1998 on the file of III- Additional Civil Judge (Jr.Dn), Belgaum is hereby dismissed. Sd/- (E.S.INDIRESH) JUDGE YAN List No.: 1 Sl No.: 25