Karnataka High Court
Basavaraj S/O Sharanappa ... vs Virupakshappa S/O Sharanappa ... on 6 July, 2022
Bench: E.S.Indireshpresided Byesij
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RSA No. 5620 of 2012
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 06th DAY OF JULY, 2022
BEFORE
THE HON'BLE MR JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 5620 OF 2012 (DEC/INJ-)
BETWEEN:
BASAVARAJ S/O SHARANAPPA JANTAKAL
AGE ABOUT 49 YEARS, OCC: AGRICULTURE,
R/O HULAGI, TQ. and DIST: KOPPAL-581021
...APPELLANT
(BY SRI. B SHARANABASAWA, ADVOCATE)
AND:
1. VIRUPAKSHAPPA S/O SHARANAPPA JANTAKAL
DECEASED BY LRS,
1(a) SHARADHAMMA W/O VIRUPAKSHAPPA JANTAKAL,
AGED ABOUT 57 YRS, OCC: HOUSEHOLD,
R/O HULAGI, TQ. & DIST: KOPPAL-581021
1(b) MALLIKARJUN S/O. VIRUPAKSHAPPA JANTAKAL
AGE: 42 YRS, OCC: AGRICULTURE,
R/O HULAGI,TQ. & DIST: KOPPAL-581021
1(c) JAYAMMA W/O. MANJUNATH NALWADI
AGE: 41 YRS, OCC: AGRICULTURE,
R/O HULAGI, TQ. & DIST: KOPPAL-581021
1(d) MAHESH S/O. VIRUPAKSHAPPA JANTAKAL
AGED ABOUT 40 YEARS, OCC: AGRICULTURE,
R/O HULAGI, TQ. & DIST: KOPPAL-58021
1(e) MANOHAR S/O. VIRUPAKSHAPPA JANTAKAL
AGED ABOUT 38 YEARS, OCC: AGRICULTURE,
R/O HULAGI, TQ. & DIST: KOPPAL
2. GANGADHARSA S/O SUKARAMASA RAIBAIG
AGED ABOUT 75 YEARS, OCC: AGRICULTURE,
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RSA No. 5620 of 2012
R/O HULAGI,TQ. & DIST: KOPPAL
SRI. MTHILALASA S/O. GANGADHARSA RAIBAG, REPTD.
BY GPA HOLDER RESPONDENT NO.2
2(a) SRI. MOTI S/O. GANGADHARSA RAIBAGI,
AGED ABOUT 60 YEARS, OCC: KIRANI BUSINESS,
R/O. HULAGI - 583234, TQ. AND DIST. KOPPAL.
2(b) SRI RAMANNA S/O. GANGADHARSA RAIBAGI, AGED
ABOUT 55 YEARS, OCC: KIRANI BUSINESS,
R/O. HULAGI -583234, TQ. AND DIST. KOPPAL.
2(c) SRI. KRISHNASA @ KITTAPPA S/O. GANGADHARSA
RAIBAGI, AGED BOUT 52 YEARS, OCC: KIRANI
BUSINESS, R/O. HULAGI - 583234,
TQ. AND DIST. KOPPAL
...RESPONDENTS
(SRI. ARAVIND D. KULKARNI, ADVOCATE FOR R1(A TO C);
SRI. S.A.SONDUR, ADVOCATE FOR R2(A TO C))
THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 24.03.2012, PASSED IN
R.A.NO.54/2011 ON THE FILE OF THE PRESIDING OFFICER, FAST
TRACK COURT - II, KOPPAL, ALLOWING THE APPEAL, FILED
AGAINST THE JUDGMENT DATED 12.04.2011 AND THE DECREE
PASSED IN O.S.NO.50/2007 ON GTHE FILE OF THE SENIOR CIVIL
JUDGE AT KOPPAL, DECREEING THE SUIT FILED FOR DECLARATION
AND INJUNCTION.
THIS APPEAL COMING ON FOR FURTHER HEARING, THIS DAY
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 5620 of 2012
JUDGMENT
This Regular Second Appeal is filed by the plaintiff,
challenging the Judgment and Decree dated 24.03.2012
passed in R.A.No.54/2011 on the file of the II Fast Track
Court, Koppal, (hereinafter referred to as 'the First
Appellate Court', for brevity), setting aside the Judgment
and decree dated 12.04.2011 passed in O.S.No.50/2007
on the file of the Senior Civil Judge, Koppal (hereinafter
referred to as 'the trial Court', for brevity) , decreeing the
suit of the plaintiff.
2. For the sake of convenience, the parties to this
appeal shall be referred to in terms of their status and
ranking before the trial Court.
3. The relevant facts for adjudication of this appeal
are that, it is the case of the plaintiff that, the father of the
plaintiff and defendant No.1 was Sharanappa. Sharanappa
had six children, namely, Virupaxappa (Defendant No.1),
Channabasappa, Markandappa, Basavaraj (Plaintiff -
RSA No. 5620 of 2012
Appellant), Nagaraj and Jambanna. It is the case of the
plaintiff that, the father of the plaintiff and defendant No.1
- Sharanappa died in the year 1977 leaving behind 6
house properties and other agricultural properties at
Ginigera Seema and Shivapura Seema. It is further
averred in the plaint that, the suit schedule properties are
the ancestral properties of the plaintiff and defendant
No.1. It is further averred that, in the year 1983,
defendant No.1 and Markandeppa - third son of
Sharanappa, severed from the joint family as per the
partition and property bearing No.820 and 821 was
allotted to defendant No.1 and property No.66 was allotted
to Markandeppa. It is further stated in the plaint that, the
remaining 4 children of Sharanappa continued to be in
joint till 1986 and during 1986, four brothers effected
partition among themselves and as such, property No.56
was allotted to Channabasappa (2nd Son), property No.68
was allotted to Nagaraj and Jambanna together and the
suit schedule property bearing No.822 was allotted to the
RSA No. 5620 of 2012
plaintiff and as such, all the children of the Sharanappa
got house properties from their father. It is further
averred in the plaint that the suit schedule property had
been purchased by the father of the plaintiff through
registered sale deed dated 05.03.1975 in the name of
defendant No.1 out of the joint family nucleus and
therefore, the suit schedule property is the joint family
property of Sharanappa, plaintiff and defendant No.1.
Therefore, it is the contention of the plaintiff that the suit
schedule property is the joint family properties of the
plaintiff. It is further averred in the plaint that the
defendant No.1 sold the property bearing No. 820 and 821
in favour of son of defendant No.2 on 19.03.1987. It is
further averred in the plaint that, the defendant No.1,
taking advantage of the revenue records which stands in
his name in respect of the suit schedule property, in
favour of defendant No.2 on 22.10.2003, undertaking with
the suit schedule property undertaking with the suit
schedule property. It is further stated that, in respect of
RSA No. 5620 of 2012
the agricultural immovable properties, the same is
devolved among the children of Sharanappa as per the
registered partition deed dated 08.02.1993. Being
aggrieved by the alienation of the suit schedule property,
by the defendant No.1 in favour of defendant No.2,
plaintiff has filed O.S.No.50/2007 on the file of the trial
Court seeking relief of declaration and injunction.
4. On service of notice, the defendants entered
appearance and filed detailed written statement, denying
the averments made in the plaint.
5. Defendant No.1 in his separate written
statement, admitted the oral partition held during 1983
and further contended that, apart from the house property
No.820 and 821, schedule property 822 was also allotted
to the defendant No.1 in the said partition. It is the
specific defence of defendant No.1 that, the property
bearing survey No.822 was purchased by him through a
registered sale deed and therefore, the defendant No.1 is
the owner of the property in question. It is further
RSA No. 5620 of 2012
averred in the written statement that the property No.820
and 821 form a single house and the said property was let
out to the 2nd defendant on a monthly rent. Therefore, the
defendant No.1 has exercised his ownership in respect of
the suit schedule properties. It is further averred in the
written statement that as the defendant No.1 had
borrowed money from the 2nd defendant for construction
of his house and accordingly, sold in favour of the son of
the 2nd defendant and therefore, sought for dismissal of
the suit.
6. The 2nd defendant in a separate written
statement contended that, the 2nd defendant had
purchased the suit schedule property from the 1st
defendant by way of registered sale deed dated
22.10.2003 and he is a bona fide purchaser for value and
prior to the execution of the sale deed, he was in
possession of the suit schedule property as a tenant and
therefore, sought for dismissal of the suit.
RSA No. 5620 of 2012
7. Based on the pleadings on record the trial Court
framed the issues for its consideration. In order to
establish their case, plaintiff got examined 7 witnesses as
PWs. 1 to 7 and produced 19 documents as Exs.P1 to P19.
ON the other hand, defendants have examined two
witnesses as DWs.1 and 2 and produced 6 documents as
Exs.D1 to D6.
8. The trial Court after considering the material on
record by its judgment and decree dated 12.04.2011,
decreed the suit holding that the plaintiff is the owner in
possession of the suit schedule property and further held
that the sale deed dated 22.10.2003 is not binding on the
plaintiff. Feeling aggrieved by the same, the 2nd defendant
has preferred RA No.54/2011 before the First Appellate
Court and the same was resisted by the plaintiff. The First
Appellate Court after considering the material on record by
its judgment and decree dated 24.03.2012, allowed the
appeal, consequently, set aside the judgment and decree
in O.S.No.50/2007, inter alia dismissed the suit. Feeling
RSA No. 5620 of 2012
dissatisfied with the judgment and decree passed by the
First Appellate Court, in R.A.No.54/2011, plaintiff has
presented this Regular Second Appeal.
9. This Court by order dated 19.01.2018,
formulated the following substantial question of law:
"Whether the plaintiff has established the oral
partition entered into by the parties in the year 1986
so as to declare the sale deed dated 22.10.2003 as
null and void?"
10. I have heard Sri. B. Sharanabasava, learned
counsel appearing for the appellant, Sri. Aravind D.
Kulkarni, learned counsel for respondent No.1 (a to c) and
Sri.K. L. Patil, learned counsel for respondent No.2 (a to
c).
11. Sri. B. Sharanabasava, learned counsel
appearing for the appellants contended that, the finding
recorded by the First Appellate Court is contrary to the
facts on record. The First Appellate Court failed to
consider the fact that the suit schedule property was
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RSA No. 5620 of 2012
purchased by the father of the plaintiff and the
defendants, however, the registration of the property was
made in the name of the defendant No.1. He further
contended that, the First Appellate Court overlooked the
fact that defendant No.1 had severed from the member of
the joint family during 1983 partition and the properties
were settled in respect of defendant No.1 by allotting
property No.820 and 821 and therefore, he contended
that, the said aspect of the matter was not properly
appreciated by the First Appellate Court.
12. Learned counsel appearing for the appellant
invited the attention of the Court to the evidence of PWs.4
to 7 and argued that, the finding recorded by the trial
Court interfering with the well reasoned judgment and
decree passed by the trial Court is non est and requires to
be interfered in this appeal.
13. Per contra, learned counsel appearing for the
respondent sought to justify the impugned judgment and
decree passed by the First Appellate Court.
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RSA No. 5620 of 2012
14. Having heard the learned counsel appearing for
the parties, I have carefully examined the records. In
order to understand the relationship between the parties,
it is relevant to deduce the genealogical tree which reads
as under:
Sharanappa
(Died in the year 1977)
Virupaxappa Markhandeppa Nagaraj
Def.No.2
Channabasappa Basavaraj Jambanna
(Plff.)
15. Perusal of the genealogical tree would indicate
that the father of the plaintiff - Sharanappa had six
children, namely, Virupaxappa (defendant No.1),
Channabasappa, Markendappa, Basavaraj (Plaintiff),
Nagaraj and Chambanna. Sharanappa died in the year
1977 leaving behind five houses and other immovable
agricultural lands. It is not in dispute that the defendant
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RSA No. 5620 of 2012
No.1 and 3 got partitioned from the joint family of late
Sharanappa during 1983 and pursuant to the same, house
properties No.820 and 821 were allotted to him. Property
No.66 was allotted to the defendant No.3. However, the
joint family continued till 1986 as the remaining four sons
were residing together. In the year 1986, four sons of
Sharanappa got partitioned the joint family properties and
thereby property No.56 was allotted to the second son,
property No.68 was allotted to 5th and 6th sons of
Sharanappa. Property No.822 (Schedule property) was
allotted to the plaintiff. The core question to be answered
in this appeal is to whether the suit property is the joint
family properties of late Sharanappa and his children and
same has been allotted to the plaintiff in the year 1986.
In this regard, I have carefully examined the finding
recorded by the trial Court. Undisputably, late
Sharanappa got five houses and six children. Property
No.68 was allotted to fifth and sixth son of the late
Sharanappa. It is not in dispute that the defendant No.1
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RSA No. 5620 of 2012
and the third son of Sharanappa - Markandeppa came out
from the joint family in the year 1983 and the defendant
No.1 got property bearing No.820 and 821. It is also
forthcoming from the records as per Ex.P1 dated
05.03.1975, subject matter of the suit was purchased in
the name of defendant No.1. Perusal of Ex.P1 would
indicate that the sale consideration was Rs.7,000/- and
the defendant No.1 was aged about 21 years. It is also
not disputed by the parties that the partition took place
between the joint family of Sharanappa of defendant No.1
in the year 1983 and till the partition took place in the
year 1983, plaintiffs and defendants constitute joint family
of late Sharanappa and there is no material produced by
the defendant No.1 to prove that he was having sufficient
means to purchase the said property at the time of
relevant period as per Ex.P1. It is also not disputed that
Ex.P1 was in the custody of the plaintiff. In this regard, I
have carefully considered the cross-examination of D.W.1
at page 6 he deposed as follows:
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RSA No. 5620 of 2012
"ªÀÄ£É £ÀA§gÀ 822 EzÀÄ ªÁ¢AiÀÄ ¥Á°UÉ ºÉÆÃzÀ PÁgÀt
CzÀgÀ ªÀÄÆ® Rjâ ¥Àvª
Àæ £
À ÀÄß ªÀÄ£ÉAiÀÄ°èAiÉÄà ©lÄÖ ºÉÆÃVgÀÄvÉÛãÉ
C£ÀÄߪÀÅzÀÄ ¤d."
16. Perusal of the cross-examination of D.W.1 at
page 5, reads as under:
"ªÀÄ£É £ÀA§gÀ 822 £ÀªÀÄä PÀÄlÄA§zÀ D¹Û C£ÀÄߪÀÅzÀÄ ¤d."
17. It is evident from the aforementioned admission
made by the D.W.1, the plaintiff has proved that, the suit
schedule property is the joint family properties of plaintiff
and defendants and the same has been purchased by the
defendant No.1 out of the income derived from the joint
family property and therefore, the trial Court has rightly
held that the suit schedule property is the joint family
property of the plaintiff and defendants. In this regard, it
is relevant to cite the law declared by the Apex Court in
the case of D.S.Lakshmaiah and another Vs. L.
Balasubramanyam and another, reported in AIR 2003
SC 3800. At paragraph Nos.12, 13 and 18 of the
Judgment, the Apex Court held as follows:
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RSA No. 5620 of 2012
"12. In Baikuntha Nath Paramanik (dead)
by his L.Rs. and Heirs Vs. Sashi Bhusan Pramanik
(dead) by his L.Rs. and others (1973) 2 SCC 334) :
AIR 1972 SC 2531 this Court again held that, when
a joint family is found to be in possession of necleus
sufficient to make the impugned acquisitions then a
presumption arises that the acquisitions standing in
the names of the person who were in the
management of the family properties are family
acquisitions.
13. In Surendra Kumar v. Phoolchand (dead)
through L.Rs. and another ((1996) 2 SCC 491): AIR
1996 SC 1148: 1996 AIR SCW 695 this Court held
that where it is established or admitted that the
family which possessed joint property which from
its nature and relative value may have formed
sufficient nucleus from which the property in
question may have been acquired, the presumption
arises that it was the joint property and the burden
shifts to the party alleging self acquisition to
establish affirmatively that the property was
acquired without the aid of the joint family funds.
18. The legal principle, therefore, is that
there is no presumption of a property being joint
family property only on account of existence of a
joint Hindu family. The one who asserts has to
prove that the property is a joint family property.
If, however, the person so asserting proves that
there was nucleus with which the joint family
property could be acquired, there would be
presumption of the property being joint and the
onus would shift on the person who claims it to be
self-acquired property to prove that he purchased
the property with his own funds and not out of joint
family nucleus that was available."
18. It is also relevant to mention here that, if
defendant No.1 has not made any efforts to change the
mutation entries in respect of the suit schedule property
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RSA No. 5620 of 2012
immediately after the execution of the sale deed - Ex.P1
and the suit schedule property was continued to be
enjoyed by plaintiffs and defendants as the joint family
properties and in that view of the matter I find force in the
submission made by the learned counsel appearing for the
appellants. Applying the law declared by the Apex Court
referred to above, taking into account the finding recorded
by both the Courts below, I am of the view that, the trial
Court rightly decreed the suit in favour of the plaintiff and
First Appellate Court, without re-appreciating the material
as required under Order 41 Rule 31 of Code of Civil
Procedure, interfered with the finding of fact by the trial
Court, which requires to be set right in this appeal and
therefore, substantial question of law framed by this Court
favours the plaintiff and the plaintiff has established that
the suit schedule property has been purchased in the
name of the defendant No.1 out of the nucleus of the joint
family of plaintiffs and defendants and therefore, I find
perversity in the Judgment and Decree passed by the First
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RSA No. 5620 of 2012
Appellate Court and accordingly, impugned Judgment and
Decree passed by the First Appellate Court is set aside and
the Judgment and decree of the trial Court is hereby
confirmed. Resultantly, the appeal is allowed.
19. In the result, I pass the following order:
(i) The appeal is allowed;
(ii) The Judgment and Decree dated
24.03.2012 in R.A.No.54/2011 on the file
of the II Fast Track Court, Koppal is set
aside.
(iii) The Judgment and Decree dated
12.04.2011 in O.S.No.50/2007 on the file
of the Senior Civil Judge, Koppal, is
confirmed. Accordingly, the suit is decreed.
Sd/-
JUDGE
Gab/Svh/-
