Karnataka High Court
Shankrappa S/O. Basappa ... vs Basavva W/O. Irappa Unajkal on 24 January, 2022
Bench: Sachin Shankar Magadum
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 24TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A.NO.5937 OF 2011
BETWEEN:
SHANKRAPPA S/O BASAPPA HALUNAVAR
AGE: 59 YEARS
R/O MISHRIKOTI,
TQ: KALAGHATAGI, DIST: DHARWAD-581226.
...APPELLANT
(BY SRI. J. S. SHETTY, ADVOCATE)
AND:
1. BASAVVA W/O IRAPPA UNAKAL
AGE: 47 YEARS, R/O DURGADBAIL,
OLD HUBLI, HUBLI-580024.
2. SAVAKKA W/O VIRUPAXAPPA UGARGOL
AGE:44 YEARS, R/O DURGADBAIL,
OLD HUBLI, HUBLI-580024.
3. MANJULA D/O IRAPPA UNAKAL
AGE: 30 YEARS, R/O DURGADBALI,
OLD HUBLI, HUBLI-580024.
...RESPONDENTS
(BY SRI. SANTOSH B. MANE, ADV., FOR R1 TO R3;
SRI. S. S. KHATEEB, ADV., FOR R1)
2
THIS RSA IS FILED UNDER SECTION 100 OF THE CIVIL
PROCEDURE CODE PRAYING THE JUDGMENT AND DECREE DATED
24.02.2010 PASSED BY THE II ADDL.DISTRICT AND SESSION
JUDGE AT DHARWAD IN R.A.128/09 AND THE JUDGMENT AND
DECREE DATED 27/06/2009 PASSED BY II ADDITIONAL CIVIL
JUDGE SENIOR DIVISION DHARWAD SITTING AT KALAGHATAGI IN
O.S.NO.262/02, MAY KINDLY BE SET ASIDE BY ALLOWING THIS
APPEAL WITH COST THROUGH OUT IN THE ENDS OF JUSTICE AND
EQUITY.
JUDGMENT
The captioned second appeal is filed by the defendant
No.1 questioning the concurrent judgment and decree of the
Courts below in granting 1/3rd share each to the
respondents/plaintiffs.
2. The facts leading to the case are as under:
The respondents/plaintiffs filed a suit for partition and
separate possession. The respondents/plaintiffs specifically
contended that they along with the present
appellant/defendant No.1 constituted a Hindu Undivided Joint
family and they are the children of Basappa and Smt.
Fakiravva. The respondents/plaintiffs contended that the suit
schedule properties are the self acquired properties and
therefore, the appellant/defendant No.1 cannot assert and
claim exclusive right over the suit schedule properties. The
respondents/plaintiffs further alleged that the present
appellant/defendant No.1 is asserting exclusive right on the
basis of revenue entries in respect of the suit property and
therefore, the respondents/plaintiffs were compelled to file the
present suit for partition.
3. The appellant/defendant No.1, on receipt of
summons, filed written statement and stoutly denied the
entire averments made in the plaint. The appellant/defendant
No.1 specifically contended that after the death of Basappa
somewhere in 1980, the appellant/defendant No.1 is enjoying
the suit properties continuously and without obstruction to the
exclusion of deceased Fakirappa and therefore, he contended
that he has perfected his title to the suit properties by way of
adverse possession. The appellant/defendant No.1 also
contended that propositus of the plaintiffs namely Basappa
and Thimakka were given in marriage and they are settled at
Hubli and therefore, the appellant/defendant No.1 claimed
exclusive possession and enjoyment over the suit properties.
4. The Trial Court having assessed oral and
documentary evidence though answered issue No.1 in the
negative by holding that the respondents/plaintiffs have failed
to prove that the suit properties are self acquired properties of
deceased Basappa, however, having assessed oral and
documentary evidence, the Trial Court has come to conclusion
that the suit schedule properties are joint family ancestral
properties. The Trial Court while arriving at this conclusion
has taken note of the admissions given by the
appellant/defendant No.1 in cross-examination where he has
admitted in unequivocal terms that he along with his father
purchased suit land out of the sale proceeds of ancestral
property. The Trial Court also took note of the fact that the
appellant/defendant No.1 in earlier proceedings in
O.S.No.50/1992 filed written statement and at page 5 has
admitted in unequivocal terms that all the suit schedule
properties are joint family ancestral properties of deceased
Basappa and that the suit properties are purchased out of the
income of joint family properties. The Trial Court having taken
note of the earlier pleadings has come to conclusion that the
suit schedule properties are joint family ancestral properties of
propositus Basappa and therefore, the respondents/plaintiffs
being the daughters are entitled for equal share. The Trial
Court has also come to conclusion that appellant/defendant
No.1 has failed to establish his title by way of adverse
possession.
5. Being aggrieved by the concurrent judgment and
decree of the Trial Court, the present appellant preferred
appeal before the First Appellate Court. The Appellate Court
having independently assessed the oral and documentary
evidence has concurred with the finding of the Court below
and has also come to conclusion that suit schedule properties
are joint family ancestral properties and after death of
Basappa, plaintiffs being the daughters are entitled for equal
share in the suit schedule properties. On these set of
reasonings, the First Appellate Court has concurred with the
findings and conclusions arrived by the Trial Court.
6. It is on these concurrent judgments of the Courts
below, the appellant/defendant No.1 is before this Court.
7. Both the Courts have concurrently held that the suit
schedule properties are joint family ancestral properties of the
appellant/defendant No.1 and the respondents/plaintiffs. Both
the Courts have examined the stand taken by the
appellant/defendant No.1 in O.S.No.50/1992. In the said suit,
the present appellant/defendant No.1 has filed written
statement and has admitted in unequivocal terms that all the
suit schedule properties are joint family ancestral properties of
deceased Basappa and that the suit schedule properties are
purchased out of the joint family corpus. Both the Courts
have come to conclusion that this categorical admission is
conclusive in nature and it would go to the root of the case
and therefore, the appellant/defendant No.1 is estopped from
taking a contrary stand in the present suit. Both the Courts
have concurrently held that the appellant/defendant No.1 has
failed to prove that he has perfected his title by way of
adverse possession. Both the Courts were of the view that the
material on record would clearly indicate that the suit schedule
properties are joint family ancestral properties. If the suit
schedule properties are joint family ancestral properties,
possession of one family member is a deemed possession of
all the family members and unless there is an ouster, a joint
family member cannot assert exclusive possession over the
suit schedule properties.
8. In absence of rebuttal evidence led in by the
appellant/defendant No.1 to indicate that he is in exclusive
possession of the suit schedule property, the ingredients of
hostile animus which is essential component to establish title
by way of adverse possession, both the Courts have rightly
negatived the defence set up by the appellant/defendant No.1.
Both the Courts have concurrently held that the suit schedule
properties are joint family ancestral properties and that there
is no severance in the family. By extending the benefit of
amended provisions of Section 6 of the Hindu Succession Act,
both the Courts by treating the respondents/plaintiffs as co-
parceners have granted equal share. The judgment and
decree of the Courts below is strictly in consonance with the
principles laid down by the Hon'ble Apex Court in the latest
judgment rendered in the case of Vineeta Sharma vs.
Rakesh Sharma and Others1.
9. I do not find any substantial questions of law that
would arise for consideration in the present case on hand.
Accordingly, the appeal, even on merits, stands dismissed.
Sd/-
JUDGE
CA
(2020) 9 SCC 1
