Karnataka High Court
Thyappa S/O. Hosagerappa vs Anklappa S/O. Hosagerappa on 15 February, 2022
Bench: Sachin Shankar Magadum
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 15TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A.NO.100163/2014 (PAR-POS)
BETWEEN
1. SRI THAYAPPA S/O HOSAGERAPPA,
AGE: 60 YEARS, OCC: RETD.RAILWAY EMPLLYEE,
AND AGRICULTURIST, R/O VADDARAHALLI,
HOSAPET, DIST: BELLARY-583201.
2. SRI ANKLESH S/O THAYAPPA,
AGE : 31 YEARS, OCC: AGRICULTURIST,
R/O VADDARAHALLI, HOSPET,
DIST: BELLARY-583201.
3. SRI HOSAGERAPPA S/O THAYAPPA,
AGE : 29 YEARS, OCC: AGRICULTURIST,
R/O VADDARAHALLI, HOSPET,
DIST: BELLARY-583201.
...APPELLANTS
(BY SRI HANUMANTHAREDDY, SAHUKAR, ADV.)
AND
SRI ANKLAPPA S/O HOSAGERAPPA
AGE : 64 YEARS, OCC: AGRICULTURIST,
R/O VADDRAHALLI, HOSPET,
DIST: BELLARY-583201.
.... RESPONDENT
(BY S.S.KOLIWAD, ADV.)
THIS RSA IS FILED UNDER SECTION 100 OF THE CODE
OF CIVIL PROCEDURE, 1908 PRAYING THIS COURT TO SET
ASIDE THE JUDGEMENT & DECREE DATED 28.08.2013 PASSED
IN R.A.NO.10/2013 PASSED BY THE LEARNED PRL.SENIOR
CIVIL JUDGE & JMFC, HOSPET AND SET ASIDE THE JUDGMENT
AND DECREE DATED 12.12.2012 PASSED IN O.S.NO.57/2010
BY THE LEARNED ADDL. CIVIL JUDGE, HOSPET AND DISMISS
THE SUIT BY ALLOWING THE ABOVE APPEAL WITH COSTS, IN
THE INTEREST OF JUSTICE AND EQUITY.
2
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
: JUDGMENT :
The captioned regular second appeal is filed by
unsuccessful defendants who are questioning the
concurrent judgment and decree of the Courts below
in decreeing the suit filed by the respondent-plaintiff
declaring him as absolute owner of Schedule-B
property.
2. Facts leading to the above said case are as
under:
The respondents-plaintiffs filed a suit against the
present appellants-defendants. The respondent-
plaintiff claims that his father by name Hosagerappa
was serving in the Railway Department and died while
he was in service. Respondent-plaintiff further
contended that out of the said death benefits, the
mother of respondent-plaintiff and appellant No.1-
defendant No.1 purchased Sy.No.122 on 17.06.1982
in the name of appellant No.1-defendant No.1, who is
none other than the brother of respondent-plaintiff.
Thereafter due to differences in the family, their
mother effected partition on 23.12.1992. Wherein
Schedule-B property was allotted to the share of
respondent-plaintiff and remaining extent measuring 7
acres 18 cents which is referred as Schedule-A
property was allotted to the share of appellant No.1-
defendant No.1. Based on the Ex.P.1-Palupatti,
respondent-plaintiff sought relief of declaration and
injunction.
3. On receipt of summons, the present
appellants-defendants appeared through counsel.
However contended that Schedule-A property is self
acquired property of appellant No.1.
4. The respondent-plaintiff to substantiate his
claim has placed reliance on Ex.P.1-Palupatti dated
23.12.1992 and has also examined his mother as
PW.2 who has deposed that on account of differences
among the family members, she took the lead and
effected partition between two sons and herself.
5. Per contra, the appellants-defendants
though contended Schedule-A property is their self
acquired property, however they have not chosen to
lead any evidence to substantiate their claim that it is
their self acquired property.
6. Both the Courts have concurrently held that
the respondent-plaintiff was allotted Schedule-B
property in a family partition dated 23.12.1992. Both
the Courts have concurrently held that the appellant
No.1-defendant No.1 has failed to prove that
Schedule-A property is his self acquired property. On
these set of reasonings, both the Courts have
concurrently held that the respondent-plaintiff has
succeeded in proving that he is the absolute owner of
Schedule-B property and the same was allotted to him
in the family partition dated 23.12.1992.
7. Heard learned counsel appearing for the
appellants-defendants and learned counsel appearing
for the respondent-plaintiff. Perused the judgment
under challenge and also Ex.P.1-Palupatti.
8. Appellant No.1 claims that Schedule-A
property is his self acquired property and therefore, he
is denying the family partition which has taken place
in the year 1992 as per Ex.P.1. On perusal of Ex.P.1,
this Court would find that Schedule-A property
measuring 7 acres 18 cents was allotted to appellant
No.1-defendant No.1. In-fact under the said family
partition, he has taken more share. The respondent-
plaintiff is allotted only 2 acres 59 cents which is
referred as Schedule-B which is a part of Sy.No.122.
whereas appellant No.1-defendant No.1 is allotted
7.18 acres in Sy.No.122. Having claimed that
Sy.No.122 is self acquired property of appellant No.1-
defendant No.1 has not entered witness box, in
absence of rebuttal evidence, both the Courts were
justified in answering Issue No.2 in the negative. If
appellant No.1-defendant No.1 asserts and claims that
Sy.No.122 is his self acquired property, the
appellants-defendants ought to have led in rebuttal
evidence to prove that he had independent earning
and out of his independent earning he purchased
Sy.No.122. The ocular evidence of mother who is
examined as PW.2 would clinch the issue coupled with
Ex.P.1-Palupatti
9. Both the Courts have come to conclusion
that the property which was purchased in the name of
appellant No.1-defendant No.1 was in-fact purchased
by utilizing the death benefits of father of appellant
No.1-defendant No.1 and respondent-plaintiff and this
is corroborated by mother who is examined as PW.2,
who has stated in unequivocal terms that, the death
benefits of her husband was utilized to purchase the
property in the name of appellant No.1-defendant
No.1. Therefore, the concurrent judgments recorded
by both the Courts below are based on legal evidence
led in by respondent-plaintiff. In absence of rebuttal
evidence, both the Courts were justified in answering
Issue No.2 in the negative. No substantial question of
law arises. The appeal is devoid of merits and
accordingly the same stands dismissed.
SD/-
JUDGE
EM
