Karnataka High Court
Gulagandi Shivappa vs Gulagandi Shivalingappa on 5 July, 2022
Bench: E.S.Indireshpresided Byesij
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RSA No. 5016 of 2010
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 05TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 5016 OF 2010 (PAR-)
BETWEEN:
Gulagundi Shivappa S/o. Gulagundi Basappa,
Since deceased by his LR's.
1(a). Smt. Parvatevva W/o. Gulagundi
Shivappa, Age: 72 Years, Occ: Agriculture,
R/o. Holalu village, Tq: Hadagali,
ist: Bellary.
1(b). Basavaraj S/o. Gulagundi Shivappa,
Age: 56 Years, Occ: Agriculture,
R/o. Holalu village, Tq: Hadagali,
ist: Bellary.
1(c). Parmeshwarappa S/o. Gulagundi Shivappa,
Age: 53 Years, Occ: Business,
R/o. C/o. T.A. Shivanandappa,
Door No. 1872, Teachers Colony,
Jail Nagar, Davanagere-6
Dist: Davanagere.
1(d). Chandrappa S/o. Gulagundi Shivappa,
Age: 50 Years, Occ: Agriculture,
R/o. Holalu village, Tq: Hadagali,
Dist: Bellary.
1(e). Suresh S/o. Gulagundi Shivappa,
Age: 40 Years, Occ: Business,
R/o. C/o. Sujir Marketing Pvt. Ltd.,
Door No. 118, B.T. Tavanappa Compound,
K.R. Road, Davanagere-1
Dist: Davanagere.
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RSA No. 5016 of 2010
1(f). Smt Renuka W/o. Mahadevappa Siddammanvar,
Since deceased by his LR's
A1F (a) Shri. Mahadevappa S/o Shivappa Siddammanavar,
Age: 68 Years, Occ: Agrl,
R/o: Kadakol,
Tq: Savanur, Dist: Haveri-581116
A1F (b) Smt. Uma @ Paravva W/o Ramappa Harigound,
Age: 38 Years, Occ: Household work,
R/o: Shiggon,
Tq: Shiggon, Dist: Haveri-581116
A1F (c) Shri. Manjunath S/o Mahadevappa Siddammanavar,
Age: 35 Years, Occ: Private Service,
R/o: Kadakol,
Tq: Savanur, Dist: Haveri-581116
A1F (d) Chetana @ Gouramma W/o Ravi Negalur,
Age: 33 Years, Occ: Household work,
R/o: Buchihalli,
Tq: Hangal, Dist: Haveri-581116
A1F (e) Basavaraj S/o Mahadevappa Siddammanavar,
Age: 30 Years, Occ: Agrl,
R/o: Kadakol,
Tq: Savanur, Dist: Haveri-581116
1(g). Smt Annapurnamma W/o.
Mahadevappa Siddammanvar,
Age: 48 Years, Occ: Household Work,
R/o. Chalageri village, Tq: Ranebennur,
Dist: Haveri.
1(h). Smt Gangamma W/o. Veerabhdrappa Doddamani,
Age: 44 Years, Occ: Household Work,
R/o. Karwadi village, Tq: Byadgi,
Dist: Haveri.
1(j). Smt Savitramma W/o. Shivanand Halemani,
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RSA No. 5016 of 2010
Age: 37 Years, Occ: Household Work,
R/o. Nayakan Kerur village, Tq: Savanur,
Dist: Haveri.
1(k). Smt Mangala W/o. Mallikarjun Halemani,
Age: 35 Years, Occ: Household Work,
R/o. Nayakan Kerur village, Tq: Savanur,
Dist: Haveri.
2. Gulagundi Anusuyamma W/o. Mahadevappa,
Gulagundi Shivappa
D/o. Mallappa Hyarada,
R/o. 662/1 Bailuholada,
Shiddalingappanavar Chouki,
Davanagere, Presently residing at Holalu
Village, Hadagali Taluk.
...Appellants
(Sri.Laxman T Mantagai, Advocate)
AND:
1. Gulagundi Shivalingappa
S/o. Gulagundi Basappa,
69 Years, Agriculturist,
R/o. Holalu village,
Hadagali Taluk,Bellary District.
2. Gulagundi Basavaneppa S/o. Gulagundi Basappa,
Since deceased by his LR's.
2(a). Smt Nagamma W/o. Gulagundi Basavaneppa,
Age: 60 Years, Occ: Household Work,
R/o. Holalu village, Tq: Hadagali,
Dist: Bellary.
2(b). Smt Manjula D/o. Gulagundi Basavaneppa,
Age: 40 Years, Occ: Household Work,
R/o. Holalu village, Tq: Hadagali,
Dist: Bellary.
2(c). Smt Shashikala W/o. Gulagundi Basavaneppa,
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RSA No. 5016 of 2010
Age: 37 Years, Occ: Household Work,
R/o. Holalu village, Tq: Hadagali, Dist: Bellary.
2(d). Kuruvanteppa S/o. Gulagundi Basavaneppa,
Age: 34 Years, Occ: Agriculture,
R/o. Holalu village, Tq: Hadagali,
Dist: Bellary.
2(e). Vijayalaxmi D/o . Gulagundi Basavaneppa,
Age: 34 Years, Occ: Agriculture,
R/o. Holalu village, Tq: Hadagali,
Dist: Bellary.
3. Gulagundi Neelamma
W/o. Ningappa, D/o. Gulagundi Basappa,
Age: 66 Years, Agriculturist,
R/o. Holalu village,
Hadagali Taluk, Bellary District.
4. Gulagundi Shivaputrappa
S/o. Gulagundi Basappa,
Age: 61 Years, Agriculturist,
R/o. Holalu village,
Hadagali Taluk, Bellary District.
...Respondents
(By Sri. M. H. Patil, Advocate for R1, R2(A to E), R3 & 4)
This Regular Second Appeal is filed Under Section 100 of CPC
against the judgment & decree dtd:26/10/2009 passed in
R.A.No.75/2008 on the file of the Fast Track Court-III, Hospet,
allowing the appeal and modifying the judgment and decree passed
in O.S.No.55/2007 dated 10-04-2008 on the file of the Addl. Civil
Judge (Sr.Dn), Hospet, filed for partition and possession.
This Appeal coming on for Admission this day, the Court
delivered the following.
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RSA No. 5016 of 2010
JUDGMENT
1. This appeal is filed by the defendant Nos.1 and 2,
challenging the judgment and decree dated 26/10/2009 in
R.A.No.75/2008, setting aside the judgment and decree dated
10/4/2008 in O.S.No.55/2007 on the file of the Addl. Senior Civil
Judge, Hospet, modifying the shares of the parties.
2. For the sake of convenience, the parties to this appeal
are referred to with their rank before the trial Court.
3. The relevant facts for adjudication of this appeal are that,
the defendant No.1 and the plaintiffs are the children of Gulagundi
Basappa and Gulagundi Kamalamma. Defendant No.2 is the
daughter in law of the defendant No.1. It is the case of the plaintiffs
that the suit schedule properties are the joint family properties of
the plaintiffs and the defendant No.1 and after the death of father of
the plaintiffs and the defendant No.1, mutation entries were
changed in the name of the defendant No.1 as a Kartha of the joint
family. It is further stated in the plaint that the defendant No.1 was
looking after the entire joint family properties and as such he made
an application under the tenancy right in respect of the item No.5
and 6 of suit schedule properties and as such occupancy right was
RSA No. 5016 of 2010
confirmed to the defendant No.1 and therefore, the said properties
also the joint family properties of the plaintiffs and the defendants
and therefore, the plaintiffs have filed O.S.No.55/2007 on the file of
the trial Court seeking partition and separate possession in respect
of the suit schedule properties.
4. On service of notice, defendants entered appearance and
filed detailed written statement denying the averments made in the
plaint insofar as item No.5 and 6 of the suit schedule properties. It
is the defence of the defendants that the item No.5 and 6 of the suit
schedule properties were the self acquired properties of the
defendant Nos.1 and 2 as the defendant Nos.1 and 2 had filed
application before the land tribunal seeking occupancy rights insofar
as the item No.5 and 6 of the suit schedule properties and
therefore, sought for dismissal of the suit in respect of the item No.
5 and 6 of the suit schedule properties.
5. Based on the pleadings on record, the trial Court framed
the issues for its consideration. In order to prove their case, the
plaintiffs have examined three witnesses as PW.1 to PW.3 and
produced thirty five documents and same were marked as EX.P.1 to
Ex.P.35. Defendants examined two witnesses as DW.1 and D.W.2.
RSA No. 5016 of 2010
and marked six documents as Ex.D.1 to Ex.D.6. The trial Court after
considering the material on record, by its judgment and decree
dated 10/4/2008 held that the plaintiffs are entitled for 1/5th share
in the suit schedule properties viz; item No.1 to 4 and 7 to 9 by
meets and bounds and claim of the plaintiffs in respect of the item
No.5 and 6 of the suit schedule properties was rejected. Feeling
aggrieved by the judgment and decree passed by the trial Court, the
plaintiffs have preferred R.A.No.75/2008 on the file of the First
Appellate Court and the said appeal was resisted by the defendant
No.1. The First Appellate Court after re-appreciation of the material
on record by its judgment and decree dated 26/10/2009 allowed the
appeal, consequently, modified the judgment and decree passed by
the trial Court. Feeling dissatisfied with the judgment and decree
passed by the First Appellate Court, defendant Nos.1 and 2 have
presented this Regular Second Appeal.
6. This Court by its order dated 4/6/2010 formulated the
following substantial questions of law.
1) Whether the Lower Appellate Court is justified in
reversing the judgment and decree of the trial
Court in respect of item No.5 and 6 properties
RSA No. 5016 of 2010
though its was contended that occupancy rights
have been granted in favour of the appellant?
2) Whether the Lower Appellate Court is justified in
considering item No.5 and 6 properties as joint
family, ancestral properties?
3) Whether the Lower Appellate Court is justified in
reversing the judgment and decree of the trial
Court in the absence of any material to show that
item No.5 and 6 properties are the ancestral
properties?
7. I have heard Sri.Laxman T Mantagani, learned counsel
appearing for the appellants and Sri.M.H.Patil, learned counsel
appearing for the respondents.
8. Learned counsel appearing for the appellant contended
that the finding recorded by the First Appellate Court reversing the
finding recorded by the trial Court on issue No.1 requires to be
interfered with in this appeal as the defendant Nos.1 and 2 have
proved before the trial Court that the item No. 5 and 6 of the suit
schedule properties were granted by the land tribunal in favour of
RSA No. 5016 of 2010
the defendant Nos. 1 and 2 based on the application filed by the
defendant Nos.5 and 6 on 21/6/1976 as per Ex.D.6 and accordingly,
he argued that the finding recorded by the First Appellate Court
requires to be set aside in this appeal.
9. Per contra, learned counsel appearing for the respondents
sought to justify the impugned judgment and decree passed by the
First Appellate Court and canvassed the argument that the entire
suit schedule properties are the joint family properties and as there
was no devolution of the properties by the children of the Gulagundi
Basappa on his demise and as such, he contended that the First
Appellate Court was rightly interfered with the finding recorded by
the trial Court on issue No.1. Accordingly, he sought for dismissal of
the appeal.
10. Having heard the learned counsel appearing for the
parties, I have given my anxious consideration with regard to the
arguments advanced by the learned counsel appearing for the
parties and perused the original records.
11. Learned counsel appearing for the appellant has
filed application under Order XLI Rule 27 of CPC and sought to
produce the additional documents namely application made by the
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RSA No. 5016 of 2010
appellants in respect of claiming of rights over the property bearing
Sy.No.318 and the same is accepted as there is no objection by the
learned counsel appearing for the respondents.
12. Perusal of the finding recorded by both the courts
below would indicate that there is no dispute with regard to the
relationship between the parties. Gulagundi Basappa died leaving
behind his five children namely Gulagundi Shivappa (Defendant
No.1), Gulagundi Shivalingappa (plaintiff No.1), Gulagundi
Basavanneppa (plaintiff No.2), Gulagundi Neelamma (plaintiff No.3)
and Gulagundi Shivaputrappa (plaintiff No.4). Defendant No.2 is the
daughter in law of the defendant No.1. The core question to be
answered in this appeal is with regard to re-appreciating the entire
material with regard to item No. 5 and 6 of the suit schedule
properties. In this regard, I have carefully examined the order sheet
maintained by the land tribunal as per Ex.D.6. On verification,
Ex.D.6 reveals that the land tribunal, Hadagali in case No.984-75-
79, dated 5/11/1977 held that, the owner of the property-trustee of
Anjaneyaswami Holalu village, taluka Hadgali submitted that, he has
no objection for grant of occupancy rights in respect of Sy.No.202 in
favour of the defendant No.1 under the Karnataka Land Reforms
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RSA No. 5016 of 2010
Act, 1961. In this regard, application under Form No.7 was filed
before the land tribunal on 21/6/1976 as per Ex.D.6. Perusal of the
observation made by the land tribunal at Ex.D.6 would reveals that
the applicant-defendant No.1 has obtained lease right of Sy.No.202
of Holalu village to an extent of 5.58 cents in the public auction sale
held on 22/5/1971, for four years, on condition of paying rent of
Rs.150/- per annum and that the defendant No.1 was paying the
rent and he is in cultivation of the land as per the order passed by
the land tribunal and therefore, I find force in the submission made
by the learned counsel appearing for the appellants that Sy.No.202
measuring 5.5 cents of Holalu village was granted in favour of the
defendant No.1 as a tenant under the Karnataka Land Reforms Act.
In order to ascertain whether the suit properties are the ancestral or
self acquired properties of the defendant No.1, defendant No.1 has
produced voters list as per Ex.D.4 of Davangere taluk, Chitradurga
district for the period 1/1/1975. The name of the plaintiffs are
reflected in the voters list as residents of Davangere taluka of
Chitradurga district during the year 1975 and therefore, the
contention raised by the respondents that the respondents-plaintiffs
were also entitled for share in the land granted by the land tribunal
in respect of the item No.5 and 6 of the suit schedule properties
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RSA No. 5016 of 2010
cannot be accepted as the plaintiffs were residing in Holalu village at
the relevant period and defendant No.1 alone cultivating the land.
13. Insofar as land bearing Sy.No.318 measuring 5.3
cents, the defendants has filed an application under Order XLI Rule
27 of CPC to prove that the defendant No.1 has made an application
before the competent authority claiming the registration of the
occupancy right under Section 4 of the Karnataka Certain Inams
Abolition Act, 1977 and also filed Form No.1 seeking occupancy right
insofar as land bearing Sy.No.318. In that view of the matter, I am
of the opinion that the trial Court after appreciating the entire
material on record, has rightly come to a conclusion while answering
the issue No.1 that the defendant No.1 alone was cultivating the
land in question insofar as item No. 5 and 6 of suit schedule
properties and further rightly come to a conclusion that item No.5
and 6 are the self acquired properties of the defendant Nos. 1 and 2
and in this regard, I have carefully considered the finding recorded
by the First Appellate Court, wherein the First Appellate Court, has
erroneously answered the point Nos. 1 and 2 and come to a
conclusion that the item No. 5 and 6 are the ancestral properties of
the plaintiffs without appreciating Exs.D.4 and 6 in the right
prospective and therefore, I am of the view that, the substantial
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RSA No. 5016 of 2010
questions of law framed by this Court favours the appellants herein
holding that the First Appellate Court has erroneously read the
evidence on record and misconstrued the documents namely
Exs.D.4 and 6 and modified the well reasoned judgment and decree
passed by the trial Court.
14. In the result, I pass the following:
ORDER
i) Appeal is allowed;
ii) Judgment and decree dated 26/10/2009 passed in
R.A.No.75/2008 on the file of the Fast track-III,
Hospet is set aside;
iii) Judgment and decree dated 10/4/2008 in
O.S.No.55/2007 on the file of the Additional Civil
Judge, Hospet is confirmed.
Sd/-
JUDGE
VB
