Kehsav Narayan Naik vs Janaki Kom. Nagappa Naik
2022 Latest Caselaw 17 Kant

               IN THE HIGH COURT OF KARNATAKA
                       DHARWAD BENCH

            DATED THIS THE 3RD DAY OF JANUARY 2022

                              BEFORE

      THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                    RSA NO.6038/2012 (PAR)
BETWEEN

SHRI.KEHSAV NARAYAN NAIK
AGE: 53 YEARS, OCC: AGRICULTURE
R/O. ANGADIBAIL,TQ:ANKOLA
                                                 ... APPELLANT
(BY SRI.V.P.KULKARNI, ADV.)

AND

1.    SMT.JANAKI KOM. NAGAPPA NAIK
      AGE: 61 YEARS, OCC: HOUSEHOLD WORK
      R/O. ANGADIBAIL, POST: ACHAVETQ: ANKOLA

2.    SMT.NARMADA KOM. MADHUKAR NAIK
      AGE: 34 YEARS, OCC: HOUSEHOLD WORK
      R/O. ANGADIBAIL, POST: ACHAVE, TQ:ANKOLA

3.    SMT.MEENAKSHI D/O. NAGAPPA NAIK
      AGE: 32 YEARS, OCC: HOUSEHOLD WORK
      R/O. ANGADIBAIL, POST: ACHAVE, TQ:ANKOLA

4.    MANJULA D/O. NAGAPPA NAIK
      AGE: 31 YEARS, OCC: HOUSEHOLD WORK
      R/O. ANGADIBAIL, POST: ACHAVE, TQ:ANKOLA

5.    SMT.RENUKA KOM. RAVI NAIK
      AGE: 29 YEARS, OCC: PVT. SERVICE
      R/O.HEGDE, TQ:KUMTA

6.    SHRI.SURESH NARAYAN NAIK
      AGE: 48 YEARS, OCC: AGRICULTURE
      R/O. ANGADIBAIL, POST: ACHAVE, TQ:ANKOLA
                                2




7.   SHRI.MOHAN NARAYAN NAIK
     AGE: 36 YEARS, OCC: AGRICULTURE
     R/O. ANGADIBAIL, POST: ACHAVE, TQ:ANKOLA

8.   SHRI.ISHWAR NARAYAN NAIK
     AGE: 31 YEARS, OCC: AGRICULTURE
     R/O. ANGADIBAIL, POST: ACHAVE,, TQ:ANKOLA

9.   SHRI.VINAYAK NARAYAN NAIK
     AGE: 28 YEARS, OCC: AGRICULTURE
     R/O. ANGADIBAIL, POST: ACHAVE, TQ:ANKOLA

10 . SMT.VEDAVATI KOM. MAHADEV NAIK
     AGE: 56 YEARS, OCC: AGRICULTURE
     R/O. ANGADIBAIL, POST: ACHAVE, TQ:ANKOLA

11 . SMT.SAVITRI KOM. VENKATRAMAN NAIK
     AGE: 51 YEARS, OCC: AGRICULTURE
     R/O. ANGADIBAIL, POST: ACHAVE,, TQ : ANKOLA

12 . SMT.MOHINI KOM. RAMACHANDRA NAIK
     AGE: 38 YEARS, OCC: AGRICULTURE
     R/O. ANGADIBAIL, POST: ACHAVE, TQ : ANKOLA

13 . SMT.LAXMI KOM. NARAYAN NAIK
     AGE: 78 YEARS, OCC: AGRICULTURE
     R/O. ANGADIBAIL, POST: ACHAVE, TQ : ANKOLA

                                               ... RESPONDENTS
(BY SRI.NARAYAN V.YAJI, ADV. FOR R1, R2, R6-R9 & R13,
    R3, R4, R10 & R12 ARE SERVED;
    APPEAL STANDS DISMISSED AGAISNT R5 & R11)

      THIS APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING
TO SET ASIDE THE JUDGMENT AND DECREE DATED 15.02.2003 IN
O.S.NO.32/2000 PASSED BY THE CIVIL JUDGE (JR.DN.) ANKOLA AND
THE JUDGMENT AND DECREE DATED 12.04.2012 IN R.A.NO.355/2006
PASSED BY THE SENIOR CIVIL JUDGE (ITINERARY COURT) SITTING
AT ANKOLA.
                                  3




     THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                          JUDGMENT

Though the matter is listed for admission, with

consent of the learned counsel appearing for the parties, it

is taken up for final disposal

2. The captioned Regular Second Appeal is filed by

defendant No.1 assailing the concurrent judgment and

decree of the courts below in decreeing the suit in

O.S.No.32/2000 and granting 1/10th share in Schedule-A

property and 1/7th share in Schedule-B property.

Respondents/plaintiffs filed suit for partition by specifically

contending that the plaintiffs and defendants constitute

undivided joint Hindu family and one Narayan was the

manager of the joint family. The respondents/plaintiffs

further contended that the present appellant/defendant

No.1 was assisting his father Narayan in the management

of the family. It was also specifically contended that, from

the income generated in item No.2, the propositus Narayan

started cultivating land in Sy.No.214 totally measuring 8

acres 31 guntas as an unauthorized occupant and

subsequently, moved an application in his name and also in

the name of the appellant herein requesting for grant of 4

acre 38 guntas in favour of the present appellant on behalf

of the joint family and remaining 3 acre 29 guntas in his

favour. The respondents/plaintiffs further contended that

the authority granted the land in favour of the appellant

and their father Narayan and therefore, the

respondents/plaintiffs claim that suit schedule properties

are joint family ancestral properties. Since the

appellant/defendant No.1 was not giving any heed to the

request made by the respondents/plaintiffs to allot their

legitimate shares by effecting partition by metes and

bounds, they were constrained to file the present suit for

partition.

3. The present appellant on receipt of summons

contested the proceedings by stoutly denying the entire

averments made in the plaint. The present appellant in his

written statement specifically contended that insofar as 4

acre 38 guntas in Sy.No.214 is concerned, he had sought

grant in his individual capacity and therefore, the said

property is not at all available for partition. The appellant

during the trial contended that the present suit for partial

partition is not maintainable and also tried to demonstrate

to the court that the plaintiffs have deliberately not

included Sy.No.213 which was also granted in favour of

plaintiff No.1. Therefore, while addressing his arguments

contended that the suit for partial partition is not

maintainable. The trial court having appreciated the oral

and documentary evidence answered issue No.1 in the

affirmative by holding that the suit schedule properties are

joint family properties of the plaintiffs and defendants.

While considering issue No.2, the trial court held that the

present appellant has failed to prove that the suit

properties are his self-acquired properties. The contention

of the appellant was also not acceded by the trial court in

regard to plea of prior partition. The said contention was

also negatived by the trial court by recording a finding that

in the absence of the pleadings and documentary evidence

to that effect, the said contention cannot be entertained.

With these set of reasoning, the trial court proceeded to

decree the suit by holding that respondents/plaintiffs being

the joint family members and in the absence of severance

in the family are entitled for share and accordingly,

decreed the suit. The same is confirmed by the first

appellate court. Assailing the concurrent findings,

defendant No.1 is before this court.

4. Learned counsel for the appellant strenuously

argued and contend before me that the judgment and

decree of the courts below are contrary to clinching

evidence on record and therefore, the same suffers from

perversity and the same would warrant interference at the

hands of this court. Reiterating the grounds urged in the

appeal memo, he would submit to this court that Ex.D1

clearly establish that 4 acre 38 guntas in Sy.No.214 was

infact granted in favour of the appellant herein in his

individual capacity. Therefore, 4 acre 38 guntas in item

No.1 cannot be the subject matter of the partition.

Therefore, both the courts below erred in granting share

even in respect of 4 acre 38 guntas, which was exclusively

granted in favour of the present appellant herein. He would

vehemently argue and contend before this court that, it is

elicited in the cross-examination of P.W.1 wherein he has

admitted in unequivocal terms that Sy.No.213 was granted

to him. Therefore, he would submit to this court that

plaintiff No.1 has not included Sy.No.213 and the suit has

to fail on account of non-inclusion of all the properties held

by the family.

5. Per contra, learned counsel appearing for the

respondents/plaintiffs supporting the reasons assigned by

the courts below would submit to this court that both the

courts below concurrently held that suit schedule

properties are joint family ancestral properties and in the

absence of rebuttal evidence, the present case on hand

does not give rise to any substantial question of law and

therefore, the same is liable to be dismissed.

6. Heard the learned counsel for the appellant and

learned counsel for the respondents. Perused the

judgments under challenge.

7. The present appellant's principal contention is

that, an extent of 4 acre 38 guntas in Sy.No.214 which is

item No.1 in Schedule-A is self-acquired property of the

appellant. To establish the same, the appellant except

relying on Ex.D1 which is Kabulayath, no documents are

produced. Though appellant contends that 4 acre 38

guntas in Sy.No.214 was granted by the authority in his

individual capacity during the lifetime of his father

Narayan, this court would find that for the reasons best

known to the appellant, he has not produced the grant

order. The appellant has conveniently withheld the

production of grant order and therefore, adverse inference

has to be drawn against the appellant. This aspect has

been rightly dealt by both the courts below and rightly

answered issue No.1 in the affirmative holding that the suit

schedule properties are joint family ancestral properties in

the absence of clinching adduced by the appellant.

8. The second contention of the appellant is that

the suit is liable to be dismissed for non-inclusion of

Sy.No.213. The appellant contends that he has succeeded

in eliciting from the mouth of P.W.1 in the cross-

examination that Sy.No.213 was granted in favour of

plaintiff No.1. The appellant contends that this is also joint

family ancestral property. If that is so, nothing prevented

the appellant in setting up a counter claim seeking share in

Sy.No.213 by including the said property in the counter

claim. Even the said recourse is not adopted by the

appellant herein. Merely because, there is admission that

there is grant in favour of plaintiff No.1 in regard to

Sy.No.213 in itself cannot establish that this property is

also joint family ancestral property. The appellant further

required to establish that this is also joint family ancestral

property and nothing is elicited in the cross-examination in

regard to the nature of the property. No details are

furnished relating to Sy.No.213. Therefore, both the courts

below have rightly negatived this contention and have not

acceded to the contention canvassed by the appellant

during trial. On meticulous examination of both the

judgments under challenge, I do not find any substantial

question of law involved in the present case on hand.

9. The appeal is devoid of any merits and is

accordingly, dismissed.

Sd/-

JUDGE MBS/-