Karnataka High Court
Shri Nagaraju @ Puttappa vs Shri K Shivamallaiah on 6 July, 2022
Bench: Ravi V Hosmani
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RSA No. 736 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 06TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
REGULAR SECOND APPEAL NO.736 OF 2014 (PAR)
BETWEEN:
SHRI NAGARAJU @ PUTTAPPA
S/O LATE CHIKKAKALAIAH
AGED ABOUT 47 YEARS
R/O KONDADAMMANAPURA
(MALLIKYAMANAHALLI) B.G.PURA HOBLI
MALAVALLI TALUK,MANDYA DISTRICT-571 430.
...APPELLANT
[BY SRI G.B.NANDISH GOWDA, ADVOCATE FOR
SRI R.B.SADASHIVAPPA, ADVOCATE ]
AND:
1. SHRI K SHIVAMALLAIAH
S/O LATE CHIKKAKALAIAH
AGED ABOUT 54 YEARS
2. SHRI K. KALAIAH
S/O LATE CHIKKAKALAIAH
AGED ABOUT 63 YEARS
Digitally signed by
BOTH ARE R/O KADANAPURADA DODDI
VEENA KUMARI B C.A KERE HOBLI, MADDUR TALUK
Location: High Court
of Karnataka MANDYA DISTRICT-571 428. ...RESPONDENTS
[BY SMT. KAVYA ANIL KUMAR, ADVOCATE FOR R1;
SRI A.MANJUNATHA, ADVOCATE FOR R2]
THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 01.03.2014 PASSED IN
R.A.NO.28/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC.,
MALAVALLI, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 10.08.2012 PASSED IN
O.S.NO.142/2009 ON THE FILE OF THE PRL.CIVIL JUDGE,
MALAVALLI.
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RSA No. 736 of 2014
THIS RSA COMING ON FOR DICTATING JUDGMENT THIS DAY,
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Challenging judgment and decree dated 01.03.2014
passed by Senior Civil Judge and JMFC., Malavalli in R.A.
no.28/2012 and judgment and decree dated 10.08.2012 passed
by Principal Civil Judge, Malavalli in O.S.no.142/2009, this
appeal is filed.
2. Appellant herein was plaintiff in original suit and
appellant in first appeal. While, respondents herein were
defendants no.1 and 2 in suit and respondents no.1 and 2 in
first appeal. For sake of convenience parties shall hereinafter
be referred to as per their ranks in original suit.
3. O.S. no.142/2009 was filed by plaintiff seeking relief of
partition and separate possession of plaintiffs 1/3rd share in
immovable property bearing Sy.no.370/P80 measuring 04
acres 19 guntas (including 20 guntas of kharab) situated at
Belakavadi village, B.G. Pura Hobli, Malavalli Taluk, Mandya
District (hereinafter referred to as 'suit property').
RSA No. 736 of 2014
4. In plaint, it was stated that plaintiffs and defendants
were brothers and sons of Chikkakalaiah, who had six children
namely, (1) Gangamma, (2) K. Kalaiah (defendant no.2)
3) Chikkatayamma (4) Gowramma (5) K. Shivamallaiah
(defendant no.1) and (6) Nagaraju @ Puttappa (plaintiff). It
was stated that all three daughters were married and living
with their husbands since 1981. Suit property was under joint
possession and cultivation of plaintiff and defendants. At that
time, defendant no.1 acting as manager of joint family filed
application for grant to Tahasildar, on 06.09.1991. Thereafter
all three brothers paid 'Kimmat' of Rs.1,470/- and other
charges equally in name of defendant no.1, on 30.07.1993.
Thereafter, Tahasildar issued Saguvali Chit in favour of
defendant no.1 with condition of non-alienation for 15 years. It
was further stated that during lifetime of their father, plaintiff
and defendants divided ancestral properties on 06.06.1994, but
suit property was left out, in view of bar against alienation.
Upon completion of prohibition period, when plaintiff
approached defendants for partition, an agreement was arrived
at in presence of panchayatdars, wherein defendant no.1
agreed to pay Rs.1.00 lakh to plaintiff. Thereafter defendant
RSA No. 736 of 2014
no.1 did not pay amount. Even to a legal notice got issued by
plaintiff claiming partition, defendant no.1 replied claiming it to
be his self-acquired property giving rise for cause of action for
filing suit.
5. Upon service of suit summons, though both defendants
entered appearance, only defendant no.1 filed written
statement. In his written statement, defendant no.1 denied
plaint averments, but admitted relationship. He claimed suit
property to be self-acquired property, apart from denying to
have acted as Manager of joint family. Even allegation
regarding defendant no.1 having filed application on behalf of
joint family obtaining grant for joint family and all brothers
being in joint possession of suit property were vehemently
denied. Defendant no.1 asserted that there was oral partition
between brothers during life time of their father in 1980.
Therefore, partition alleged to have taken place on 06.06.1994
was denied. Even alleged agreement said to have been
executed before panchayatdars was also denied as being
concocted story. It was alleged that plaintiff in collusion with
defendant no.2 and his son-in-law had filed false and frivolous
suit without arraying sisters as parties to suit.
RSA No. 736 of 2014
6. Based on pleadings, trial Court framed following
issues:
1. Whether the plaintiff proves that, he and
the defendants constitutes Hindu joint
family?
2. Whether the plaintiff further proves that,
he and defendants are in joint possession
and enjoyment of the schedule property?
3. Whether the suit is bad for non-joinder of
necessary parties?
4. Whether the plaintiff is entitled for
partition & separate possession as prayed
for?
5. What order or decree?
7. To establish his case, plaintiff examined himself as
PW.1 and two other witnesses as PWs.2 and 3. Exs.P.1 to P.21
were marked. On behalf of defendants, defendant no.1 was
examined as DW.1 and another witness as DW.2. Exhibits D.1
to D.88 were marked. Trial Court answered issue nos.1, 2 and 4
in negative; issue no.3 in affirmative and issue no.5 by
dismissing suit. Aggrieved thereby, plaintiff filed
R.A.no.28/2012 on several grounds.
RSA No. 736 of 2014
8. It was contended that judgment and decree passed by
trial Court was illegal, unlawful, arbitrary and contradictory to
law. It was stated that trial Court failed to appreciate pleadings,
especially, specific case of plaintiff that there was prior partition
in 1994 as admitted by defendant no.1. As acquisition of suit
property was prior to partition, plaintiff was entitled for share
and due to non-alienation period, it was not subjected to
partition earlier. It was also contended that defendant no.1 had
filed application on behalf of joint family. As defendant no.1 was
contending that suit property was self-acquired property,
burden lie on him to establish same. Even assumption by trial
Court regarding 'karta' were erroneous. It was contended that
trial Court failed to consider circumstances under which
defendant no.1 agreed to compensate plaintiff in lieu of his
share in suit property, which would be admission of fact that
suit property was joint family property. Hence, sought for
allowing appeal.
9. Based on contentions first appellate Court framed
following points for consideration:
1. Whether the judgment and decree of the
trial Court call for any interference by this
Court?
2. What order?"
RSA No. 736 of 2014
10. On re-appreciation of evidence and reasons assigned
by trial Court, first appellate Court answered point no.1 in
negative and point no.2 by dismissing appeal. Against
concurrent finding, plaintiff is in second appeal.
11. Sri G.B.Nandish Gowda, advocate for
Sri R.B.Sadashivappa, learned counsel appearing for appellant
submitted that plaintiff had filed suit for partition and separate
possession of his 1/3rd share in suit property bearing
Sy.No.370/P80, measuring 04 acres 19 guntas. Learned
counsel further submitted that defendant no.1 had filed an
application on 06.09.1981 for regularisation of his unauthorised
occupation of suit land on behalf of joint family. It was stated in
application that defendant no.1 was in unauthorised occupation
of land from 1981. Tahsildar, passed order grant 27.07.1993.
In pursuance of order, plaintiff, defendants no.1 and 2 together
paid kimmath sharing it equally.
12. It was further submitted that on 06.06.1994 there
was oral partition between plaintiff and defendants no.1 and 2
dividing other lands except suit land. Only reason for excluding
same was non-alienation period. It was also submitted that
RSA No. 736 of 2014
despite oral partition mutation was effected only in 2005.
Immediately after expiry of non-alienation period on
20.01.2008, plaintiff got issued legal notice on 19.05.2009
claiming share. Notice was replied by defendant no.1 on
05.06.2009 denying share. Defendant no.1 claimed to be
exclusive owner of suit property. In view of same, suit was filed
on 19.06.2009. In said suit, defendant no.1 entered
appearance and contended that grant was made in favour of
defendant no.1 individually and not for joint family. On
consideration, trial Court dismissed suit. It was submitted that
reasons assigned by trial Court for dismissal were:
• Grant of suit property to defendant no.1
was illegal.
• Defendant no.1 was not 'karta' of family.
• Female heirs were not arrayed as parties
to suit.
13. Aggrieved by same, plaintiff filed appeal. Even first
appellate Court confirmed judgment and decree passed by trial
Court without proper appreciation of contentions.
14. Learned counsel submitted that since as per
defendant no.1 himself, he was in unauthorised cultivation of
suit land from 1981, when family was joint and a house was
RSA No. 736 of 2014
constructed by their father on granted land, wherein all parties
viz., plaintiff, defendants no.1 and 2 were residing together
indicated that suit property was joint family property. Drawing
attention to pleading in para 7 of written statement of
defendant no1, wherein it was stated that there was prior
partition in 1980, which he failed to establish, led credence to
plaintiff's contention that there was partition in 1994. Learned
counsel further submitted that claim of partition during 1980
was untenable, as parties would be minors at that time. He
strenuously submitted that immediately after lapse of non-
alienation period, a panchayat was convened for considering
claim of plaintiff for share in suit property. On indulgence of
panchayatdars, an agreement was arrived at wherein
defendant no.1 agreed to pay Rs.1,00,000/- to plaintiff towards
his share. An agreement was drawn to said effect. Thereafter,
however, defendant no.1 neither paid amount nor effected
partition. Insofar as observation of trial Court about defendant
no.1 acting as 'karta', learned counsel submitted that
defendant no.1 had admitted in his cross-examination that he
was more educated than other sons of his father. This
substantiated contention of plaintiff that other sons were not
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RSA No. 736 of 2014
worldly-wise, therefore, defendant no.1 was assigned task of
managing affairs of family. Relying upon decision of Hon'ble
Supreme Court in the case of 'Nopany Investments (P) Ltd.
Vs. M/s Santokh Singh (HUF)1, it was contended that there
was no prohibition for junior member in a joint family acting as
'karta'. Therefore, observation of trial Court and first appellate
Court contrary to above ratio called for interference. He further
submitted that though sisters of plaintiff and defendants were
not arrayed as parties it would not have justified rejection of
plaintiff's claim. On above grounds learned counsel sought for
allowing appeal.
15. On other hand, Smt. Kavya Anil Kumar, learned
counsel appearing for respondent no.1, at the outset,
submitted that there was no dispute regarding relationship. And
though both plaintiff and defendants admitted prior partition,
only dispute was regarding date. She would submit that
plaintiff's stand regarding partition was highly contradictory,
while in plaint, it was stated that partition was in 1994. During
evidence, it was sought to be in 2008, while in additional
evidence agreement dated 28.06.2004 drawn, sought to be
AIR 2008 SC 673
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RSA No. 736 of 2014
produced along with additional evidence, which was highly
objectionable and signature of defendant no.1 on same was
disputed.
16. Relying upon decision of Hon'ble Supreme Court in
the case of V.N. Sarin Vs. Ajit Kumar Poplai,2 and in Mohar
Singh Vs. Devi Charan3, learned counsel submitted that
partition would not violate non-alienation period stipulated
under Land Grant Rules and burden always lie on plaintiff.
17. To prove that properties were joint family properties,
relying on decision of Hon'ble Supreme Court in the case of
Union of India Vs. Ram Bohra4, learned counsel submitted
that during lifetime of elder members in joint family, younger
member could not act as 'karta'. She would submit that burden
lie on plaintiff to establish that though elder member was alive,
he was unable to discharge or act as 'karta' and only then it
could be contended that junior member was acting as 'karta'.
In this case, except making suggestion to DW.1 that, he was
more educated than other brothers, which was denied, there
AIR 1966 SC 432
1988 SC 1365
AIR 1965 SC 1531 SC 1965
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RSA No. 736 of 2014
was no other basis. On above grounds learned counsel sought
for dismissal of appeal.
18. Along with appeal an application under Order XLI
Rule 27 of CPC is filed seeking production of additional evidence
i.e., certified copy of agreement dated 28.06.2004 executed by
defendants no.1 and 2 agreeing to divide suit property after
completion of non-alienation period. Learned counsel
submitted that plaintiff was not able to produce document, as it
was in possession of defendant no.2. It was stated that when
plaintiff had lodged police complaint against defendant no.1,
about cutting and removing of 09 teakwood trees over suit
land, defendant no.2 appeared before police station and
produced copy of partition deed. Therefore, agreement was not
available with him, hence same could not be produced. As said
document proved that plaintiff and defendants no.1 and 2
admitting suit property as joint family property and agreeing
for partition after expiry of period of non-alienation clause,
same was relevant and required for proper disposal of appeal,
therefore, sought for allowing application.
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RSA No. 736 of 2014
19. Application is opposed on ground that additional
evidence sought to be led was contrary to plaint pleadings. It
was also contended though suit was of 2009, whereas said
document was produced before police during 2004. As plaintiff
had led evidence on all contentions and as signature on
document itself were disputable. Hence sought for rejection of
application.
20. Appeal was admitted on 25.06.2019 to consider
following questions of law:
1. Whether the grant of land in
Sy.No.370/P80 to the extent of 4 acres 19
guntas of Belakavadi, Malavalli Taluk was
made in favour of first respondent
exclusively for the benefits enured to the
interest of all the joint family members?
2. Whether the present suit for partition is
maintainable in the light of partition dated
06.06.1994?
21. From above submission, it is not in dispute that suit
property bearing 370/P80 measuring 04 acres 19 guntas
situated at Belakavadi village was granted to defendant no.1 by
Tahsildar on 27.07.1993 in pursuance of application for
regularisation of unauthorised occupation and saguvali chit -
Ex.D.1 was issued. However, while plaintiff contends that grant
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RSA No. 736 of 2014
was in favour of entire joint family, defendant no.1 contends
that since grant was as per regulations of unauthorised
cultivation of defendant no.1, it was an individual grant.
22. To substantiate his claim, learned counsel drawn
attention of this Court to pleadings, wherein it is stated that
defendant no.1, while acting as manager of joint family from
1981 had applied for grant with consent of plaintiff and
defendants no.2 and Tahsildar regularised unauthorised
occupation by issuing saguvali chit on 06.09.1981. Plaintiff has
further pleaded that in pursuance of order of Tahsildar, all three
brothers viz., plaintiff, defendants no.1 and 2 were in joint
possession and paid kimmath of Rs.1,470/- in name of
defendant no.1. It is their assertion that at time of partition of
joint family property on 06.06.1994, since there was condition
for non-alienation clause coming in the way, there was partition
of all other properties except suit property. Immediately after
lapse of non-alienation period, they demanded defendant no.1
to effect partition on 20.01.2008. Defendant no.1 refused to
effect partition, but, agreed to pay Rs.1.00 lakh to plaintiff as
consideration and executed a document in presence of
panchayatdars. Thereafter, he neither paid consideration nor
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RSA No. 736 of 2014
effected partition. Said assertion is reiterated in deposition of
PW1.
23. During cross-examination, to a suggestion that there
was partition in 1980, PW1 states that there was oral partition
in 1994. He further admits that there was panchayat held in
relation to suit property in which panchayatdars namely
Nijaveeraiah, Venkataraju and Muniraju were present. He also
admits that defendant no.1 had borrowed loan from PLD bank,
on suit property. He however denies suggestion that only
defendant no.1 had paid premium. There is also an admission
elicited that defendant no.1 had borrowed loan of Rs.50,000/-
from VSSBN Bank. In re-examination he further states that in
relation to suit property defendant no.1 had agreed to pay
Rs.1.00 lakh to plaintiff and executed an agreement in
presence of Shivamallaiah and Nagaraju and panchayatdars.
24. Sri G.T. Muniraju, examined as PW.2 also stated that
defendant no.1 had executed an agreement which was written
by him in presence of other panchayatdars. In cross-
examination, he admits that panchayat was held in the house
of PW.3 - P.D.Nijabeerappa Hegde three years earlier. He
stated that during 2008, to resolve dispute between plaintiff
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RSA No. 736 of 2014
and defendants panchayat was held, wherein defendant no.1
had agreed to pay Rs.1.00 lakh to plaintiff by executing an
agreement. During cross-examination, he admits that he is
relative of plaintiff.
25. Material documentary evidence led by plaintiff
namely, Ex.P.2 certificate issued by Extension Officer
Sericulture certifying that plaintiff was rearing silk worms in
Sy.No.370 from 2000-01 to 2007-08. Certificate is dated
09.03.2010. Exs.P.3 to P7 are receipts for having paid amount
to Sericulture department. Ex.P.14 is legal notice got issued on
19.05.2009, wherein it is asserted that suit property was
granted to defendant no.1 on behalf of joint family and that all
three brothers had contributed equally towards kimmath. In
legal notice, it is also asserted that ancestral properties were
divided on 20.01.2008, but as defendant no.1 denied to effect
partition of suit property, but has agreed to pay Rs.1.00 lakh to
plaintiff as consideration and executed agreement in favour of
plaintiff. Ex.P15n - reply to notice issued by defendant no.1 to
plaintiff asserting that already oral partition taken place prior to
1993 for dividing all ancestral properties and suit property was
granted to him alone. Partition as claimed in 2008 and also
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RSA No. 736 of 2014
agreement to pay Rs.1.00 lakh were denied. Ex.P.17 is notice
by taluk Magistrate under Section 107 r/w Section 111 Cr.P.C.;
Ex.P.18 - sale deed executed by father of plaintiff and
defendants, wherein they were witnesses. Exs.P.20 and P.21
are residence certificate issued by Grama panchayat during
2012 and certificate issued by fair price depot respectively.
These documents shows that defendant no.1 was not residing
in Belakavadi village.
26. From above, it is evident that there is dispute
regarding date of prior partition between parties. While
according to defendant no.1 it was in 1980; plaintiff pleaded
prior partition was in 1994. But he has also stated it to be in
2004 and 2008. As it is plaintiff's case that grant of suit
property to defendant no.1 during existence of joint family
status, burden lie on him to substantiate same. However,
evidence on record is gravely contradictory. While it is asserted
in plaint that partition in 1994 was in respect of properties
other than suit property, whereas with regard to suit property,
it was in 2004 substantiated by agreement sought to be
produced as additional evidence. But both pleading and
evidence regarding partition, about panchayat being held to
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RSA No. 736 of 2014
resolve partition dispute are consistent that it was in 2008,
when agreement was executed by defendant no.1. Strangely,
document sought to be produced along with I.A. for additional
evidence claims agreement was executed by defendant no.1 on
28.06.2004.
27. Plaintiff has sought to explain exclusion of suit property
from partition of 1994 on ground of non-alienation clause in
grant. However, Hon'ble Supreme Court in V.N. Sarin and in
Mohar Singh's case (supra) has held that partition within
family members would not amount to alienation. Hence,
plaintiff's explanation would be unacceptable. In the light of
above and grave contradictions about date of prior partition
and in light of evidence placed on record by plaintiff, it would
not be possible to hold that grant of suit land in favour of
defendant no.1 would enure to benefit of joint family.
28. Decisions relied upon by learned counsel for
appellant/plaintiff in respect of grant of occupancy rights are
under provisions of Land Reforms Act. Whereas, in instant case,
it is regularisation of unauthorised cultivation. Plaintiff has
failed to lead any evidence to establish that he was also in joint
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RSA No. 736 of 2014
unauthorised cultivation. Ex.P.2, issued by Sericulture
extension officer is not corroborated by any other evidence.
29. In view of admitted prior partition of all ancestral
joint family properties by both parties, instant suit would not be
tenable. Trial Court as well as first appellate Court on proper
appreciation of evidence on record have arrived at conclusion
that plaintiff had failed to establish that grant to suit land in
favour of defendant no.1 would enure to members of joint
family, which is fully justified. Deliberate non-arraying sisters,
who would have spoken about nature of family arrangements
and making highly inconsistent and contradictory assertions
about partition and family arrangements, indicate that plaintiff
has taken a chance in filing this suit.
30. Indeed as pointed out, it is pleaded by defendant no.1
that prior partition was in 1980. Merely on ground that
defendant no.1 failed to lead evidence to establish that such
partition was prior to defendant no.1 coming into unauthorised
cultivation of suit land, plaintiff's case cannot stand established.
Hon'ble Supreme Court in the case of Union of India Vs.
Vasavi Co-operative Housing Society Ltd. & Ors.5, held
AIR 2014 SC 937
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RSA No. 736 of 2014
that plaintiff cannot succeed on weakness of defendant and
plaintiff has to establish his case independently.
31. In view of above discussion, wherein I have held that
plaintiff has failed to establish that grant of suit land would
enure to benefit of joint family members, neither of substantial
questions of law arise for consideration.
In the result, I pass following:
ORDER
Appeal is dismissed.
Sd/-
JUDGE
Psg*
