Karnataka High Court
Smt Gangavva vs Smt Neelamma on 28 June, 2022
Bench: E.S.Indireshpresided Byesij
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RFA No.616 of 2006
C/w. RFA No.743 of 2006
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 28TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR JUSTICE E.S.INDIRESH
REGULAR FIRST APPEAL NO. 616 OF 2006 (PAR)
C/w.
REGULAR FIRST APPEAL NO.743 OF 2006 (PAR)
IN RFA NO.616 OF 2006
BETWEEN:
1. SMT. GANGAVVA,W/O SHIDDAPPA MASANAGI
AGED ABOUT 56 YEARS
OCC: HOUSEHOLD
R/AT DEVAGIRI, TQ AND DIST HAVERI 581132
2. SHIVAKUMAR, S/O SHIDDAPPA MASANAGI
AGED ABOUT 42 YEARS
OCC: AGRICULTURE
R/AT DEVAGIRI, TQ AND DIST HAVERI 581132
3. NINGAPPA, S/O SHIDDAPPA MASANAGI
AGED ABOUT 38 YEARS
OCC: AGRICULTURE
R/AT DEVAGIRI TQ AND DIST HAVERI 581132
4. SMT. GEETA W/O SHAMBU TOTAD
AGED ABOUT 32 YEARS
OCC: HOUSEHOLD
R/AT DEVAGIRI, TQ. AND DIST. HAVERI 581132
...APPELLANTS
(BY SRI. M S HARAVI, ADVOCATE)
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RFA No.616 of 2006
C/w. RFA No.743 of 2006
AND:
1. SMT NEELAMMA
W/O RAMAPPA KATENAHALLI
AGED ABOUT 42 YEARS
OCC: HOUSEHOLD
R/AT ANGARAKATTI,
TQ. BYADAGI, DIST HAVERI
SINCE DECEASED BY HER LRS.
1(a) SANGAPPA S/O.RAMAPPA KATENAHALLI
AGE: 38 YEARS, OCC: AGRICULTURE
R/O. ANGARAGATTI, TQ. BYADAGI, DIST. HAVERI
1(b) SMT. CHANABASAVVA
W/O. MAHADEVAPPA BEDARI
AGE: 36 YEARS, OCC: HOUSEWIFE
R/O. HOSASIDANUR, TQ. BYADAGI, DIST. HAVERI
1(c) SMT. KAMALAVVA W/O. NINGAPPA LINGADALLI
AGE: 34 YEARS, OCC: HOUSEWIFE
R/O. ALADAKATTI, TQ. RANEBENNUR,
DIST. HAVERI
1(d) NINGAPPA S/O. RAMAPPA KATENAHALLI
AGE: 28 YEARS, OCC: SERVICE
R/O. ANGARAGATTI, TQ. BYADAGI, DIST. HAVERI
1(e) SMT. LALITA W/O. SHIVAPUTRAPPA MASANAGI
AGE: 28 YEARS, OCC: HOUSEWIFE
R/O. ANGARAGATTI, TQ. BYADAGI, DIST. HAVERI
1(f) SMT. LEELA W/O. RAMAPPA KATENAHALLI
AGE: 22 YEARS, OCC: HOUSEWIFE
R/O. ANGARAGATTI, TQ. BYADAGI, DIST. HAVERI
2. SMT MAHADEVAKKA
W/O MANASHIDDAPPA DANAPPANAVAR
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RFA No.616 of 2006
C/w. RFA No.743 of 2006
AGED ABOUT 35 YEARS
R/AT HALAGERI, TQ RANIBENNUR
DIST HAVERI
3. KUM. PRAMILAVVA,
D/O MALLAPPA MASANAGI
AGED ABOUT 25 YEARS
OCC: HOUSEHOLD
R/AT ANGANAKATTI
TQ. BYADAGI, DIST.HAVERI
4. SRI. GUDDAPPA
S/O MALLAPPA MASANAGI
AGED ABOUT 48 YEARS
OCC: AGRICULTURE
R/AT ANGARAKATTI
TQ. BYDAGI, DIST. HAVERI
SINCE DECEASED BY HIS LRS.
4(a) SMT. MAHADEVAKKA
W/O. GUDDAPPA MASANAGI
AGE: 65 YEARS, OCC: NIL
R/O. ANGARAGATTI, TAL: BYADAGI
DIST: HAVERI.
4(b) SRI. NAGARAJ, S/O. GUDDAPPA MASANAGI
AGE: 45 YEARS, OCC: PRIVATE WORK
R/O. M. B. NAGAR, 4TH CROSS, SIADAPUR
DHARWAD.
4(c) SHEKHAPPA S/O. GUDDAPPA MASANAGI
AGE: 44 YEARS, OCC: AGRI,
R/O. ANGARAGATTI, TAL: BYADAGI
DIST: HAVERI.
4(d) SMT. SHOBHA W/O. PARAMAGOUDA
KENCHANAGOUDAR
AGE: 65 YEARS, OCC: NIL,
R/O. SHANKRIKOPPA, POST: MALLUR
TQ. BYADAGI, DIST: HAVERI.
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RFA No.616 of 2006
C/w. RFA No.743 of 2006
5. SRI. SHIVAPUTRAPPA
S/O. MALLAPPA MASANAGI
AGED ABOUT 52 YEARS, OCC: AGRICULTURE
R/AT ANGANAKATTI, TQ. BYADAGI, DIST.HAVERI
6. BASAVARAJ, S/O ADIVEPPA KAKOL
AGED ABOUT 38 YEARS, OCC: AGRICULTURE
R/AT ANGARAKATTI, TQ. BYDAGI, DIST. HAVERI
7. SMT. GOURAVVA, W/O. BASAYYA HIREMATH
AGED ABOUT 45 YEARS, OCC: HOUSEHOLD
R/AT ANGARAKATTI, TQ. BYADAGI, DIST. HAVERI
...RESPONDENTS
(BY SRI. K. L. PATIL, ADVOCATE FOR R1-(A-F);
SRI. B. RUDREGOUDA, ADVOCATE FOR R2 & R3;
SRI. B. N. SHETTY, ADVOCATE FOR R4;
SRI. I. Y. PATIL, ADVOCATE FOR R4 (A TO D) & R6;
NOTICE TO R7 & R6 - SERVED;
SRI. PRASHANT S. KADADEVAR, ADVOCATE FOR R7)
THIS RFA IS FILED U/S.96 OF CPC AGAINST THE
JUDGMENT AND DECREE DT.19.01.2006 PASSED IN
O.S.NO.42/1992 ON THE FILE OF THE CIVIL JUDGE (SR.DN)
AND PRL JMFC AT RANEBENNUR, DECREEING THE SUIT FOR
PARTITION & SEPERATE POSSESSION.
IN RFA NO.743 OF2006
BETWEEN:
1. SMT NEELAMMA W/O RAMAPPA KATENAHALLI
AGED ABOUT 62 YRS,
OCC: AGRICULTURE AND HOUSEHOLD WORK
R/O. ANGARGATTI, TQ.BYADAGI,
DIST.HAVERI 581106
SINCE DECEASED BY HER LRS.
1(a) SANGAPPA S/O.RAMAPPA KATENAHALLI
AGE: 38 YEARS, OCC: AGRICULTURE
R/O. ANGARAGATTI, TQ. BYADAGI, DIST. HAVERI
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RFA No.616 of 2006
C/w. RFA No.743 of 2006
1(b) SMT. CHANABASAVVA
W/O. MAHADEVAPPA BEDARI
AGE: 36 YEARS, OCC: HOUSEWIFE
R/O. HOSASIDANUR, TQ. BYADAGI, DIST. HAVERI
1(c) SMT. KAMALAVVA W/O. NINGAPPA LINGADALLI
AGE: 34 YEARS, OCC: HOUSEWIFE
R/O. ALADAKATTI, TQ. RANEBENNUR,
DIST. HAVERI
1(d) NINGAPPA S/O. RAMAPPA KATENAHALLI
AGE: 28 YEARS, OCC: SERVICE
R/O. ANGARAGATTI, TQ. BYADAGI, DIST. HAVERI
1(e) SMT. LALITA W/O. SHIVAPUTRAPPA MASANAGI
AGE: 28 YEARS, OCC: HOUSEWIFE
R/O. ANGARAGATTI, TQ. BYADAGI, DIST. HAVERI
1(f) SMT. LEELA W/O. RAMAPPA KATENAHALLI
AGE: 22 YEARS, OCC: HOUSEWIFE
R/O. ANGARAGATTI, TQ. BYADAGI, DIST. HAVERI
2. MAHADEVAKKA
W/O MARASHIDDAPPA DANAPPANAVAR
AGED ABOUT 54 YEARS
OCC: AGRICULTURE AND HOUSEHOLD
R/O HALAGERI, RANEBENNUR TALUK
HAVERI DIST. 581106
3. PRAMILAVVA
D/O. MALLAPPA
AGED ABOUT 42 YEARS
R/O ANGARGATTI, BYADGI TALUK
HAVERI DIST. 581106
...PETITIONERS
(BY SRI. K L PATIL, ADVOCATE)
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RFA No.616 of 2006
C/w. RFA No.743 of 2006
AND:
1. GUDDAPPA MALLAPPA MASANAGI
AGE: MAJOR, OCC: AGRICULTURE,
R/O ANGARGATTI, BYADGI TALUK
HAVERI DIST. 581106
SINCE DECEASED BY HIS LRS.
1(a) SMT. MAHADEVAKKA
W/O. GUDDAPPA MASANAGI
AGE: 65 YEARS, OCC: NIL
R/O. ANGARAGATTI, TAL: BYADAGI
DIST: HAVERI.
1(b) SRI. NAGARAJ, S/O. GUDDAPPA MASANAGI
AGE: 45 YEARS, OCC: PRIVATE WORK
R/O. M. B. NAGAR, 4TH CROSS, SIADAPUR
DHARWAD.
1(c) SHEKHAPPA S/O. GUDDAPPA MASANAGI
AGE: 44 YEARS, OCC: AGRI,
R/O. ANGARAGATTI, TAL: BYADAGI
DIST: HAVERI.
1(d) SMT. SHOBHA W/O. PARAMAGOUDA
KENCHANAGOUDAR
AGE: 65 YEARS, OCC: NIL,
R/O. SHANKRIKOPPA, POST: MALLUR
TQ. BYADAGI, DIST: HAVERI.
2. SHIVAPUTRAPPA MALAPPA MASANAGI
AGED ABOUT 48 YEARS
OCC: AGRICULTURE
R/O ANGARGATTI, BYADGI TALUK,
HAVERI DIST. 581 106.
3. SMT.GANGAVVA
W/O SHIDDAPPA MASANAGI
AGE: 50 YEARS, OCC: HOUSEHOLD
R/O DEVAGIRI, HAVERI TALUK AND DIST. 581110
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RFA No.616 of 2006
C/w. RFA No.743 of 2006
4. SHIVAKUMAR, S/O SHIDDAPPA MASANAGI
AGE: 28 YEARS, OCC: HOUSEHOLD
R/O. DEVAGIRI, HAVERI TALUK AND DIST. 581110
5. NINGAPPA SHIDDAPPA MASANAGI
AGE: 26 YEARS, OCC: HOUSEHOLD
R/O DEVAGIRI, HAVERI TALUK AND DIST.581110
6. GEETA W/O SHAMBU TOTAD
AGE: 25 YEARS, OCC: HOUSEHOLD
R/O DEVAGIRI, HAVERI TALUK AND DIST.581110
7. BASAVARAJ ADIVAPPA KAKOL
AGE: 35 YEARS, OCC: AGRICULTURE
R/O ANGARAKATTI, HAVERI TALUK AND DIST.581106
8. SMT.GOURAVVA
W/O. BASAYYA HIREMARA
AGE: 34 YEARS, OCC: HOUSHEOLD WORK
R/O. ANGARGATTI, BYADGI TALUK
HAVERI DISTRICT 581106
...RESPONDENTS
(BY SRI. I. Y. PATIL, ADVOCATE FOR R1(A & B);
NOTICE TO R2, R3, R4, R5 & R6 - SERVED;
SRI. PRASHANT S. KADADEVAR, AVOCATE FOR R7 & R8)
---
THIS RFA IS FILED U/S.96 OF CPC AGAINST JUDGMENT
AND DECREE DT.19.1.2006 PASSED IN O.S.NO.42/1992 ON
THE FILE OF THE CIVIL JUGDE (SR.DN) & PRL. JMFC,
RANEBENNUR, DECREEING THE SUIT FOR PARTITION &
SEPARATE POSSESSION.
THESE APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 17.06.2022, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
RFA No.616 of 2006
C/w. RFA No.743 of 2006
COMMON JUDGMENT
These appeals are arising out of the judgment and decree
dated 19.01.2006 in O.S.No.42/1992 on the file of the Civil Judge
(Sr.Dn.) and Principal JMFC, Ranebennur ((hereinafter referred to
as 'the trial Court', for brevity), decreeing the suit in part. RFA
No.616/2006 is filed by the defendant No.3 to 6 in O.S.
No.42/1992. RFA No. 743/2006 is filed by the plaintiff No.2, 3 and
2. The relevant facts for adjudication of these appeals are
that, it is the case of the plaintiffs that, the original propositus
Guddappa had two children namely, Ningappa and Mallappa.
Mallappa died in the year 19.12.1981 leaving behind his wife
Puttavva (plaintiff No.1) and children namely, defendant No.1,
defendant No.2 and plaintiffs No.2 to 4. Brother of Mallappa -
Ningappa, died in the year 14.01.1978 leaving behind his adopted
son - Siddappa, who died leaving behind his wife - Gangavva
(defendant No.3) and their children defendants No.4 to 6. It is the
case of the plaintiffs that, after the death of Guddappa, deceased
Ningappa was managing the affairs of the joint family and as such,
RFA No.616 of 2006
C/w. RFA No.743 of 2006
the said Ningappa entered his name in the Gram Panchayat
records as well as the revenue records with regard to joint family
properties. It is also stated in the plaint that there was partition in
the year 1960 between the deceased Ningappa and Mallappa and
in terms of the said partition, they severed and enjoying the suit
schedule properties and became exclusive owners. It is further
stated in the plaint that, schedule property-A was exclusively given
to Mallappa. Schedule-B property consisting of two items, wherein,
item No.1 of Schedule-B property was kept in the joint family and
both the families enjoying the same as joint owners. It is further
stated in the plaint that, item No.2 of schedule B property is a
tenanted land and the said Ningappa made an application to the
Land Tribunal seeking occupancy rights and the said property was
allotted to the Ningappa conferring occupancy rights by the
Tribunal. It is the grievance of the plaintiffs that, the item No.2 of
schedule property, though application has been filed by Ningappa
seeking occupancy rights, however, the said property is joint family
properties of both Mallappa and Ningappa. Therefore, the plaintiffs
and defendants No.1 and 2 have legitimate share over item No.2 of
B schedule property. It is further sated in the plaint that, as the 'C'
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RFA No.616 of 2006
C/w. RFA No.743 of 2006
schedule property is the ancestral and joint family properties of the
plaintiffs and defendants and accordingly, the plaintiffs are having
share in the C schedule properties. The plaintiffs have further
narrated that, the said Mallappa died in the year 1981 and taking
the advantage of the situation, defendants No.1 and 2 in collusion
with the revenue authorities, without the knowledge of the plaintiffs
got mutated the suit schedule properties ('C' schedule property),
into their names and therefore, the plaintiffs requested defendants
No.1 and 2 to part with share in the suit schedule properties and
the same was denied and accordingly, the plaintiffs have filed
O.S.No.42/1992 seeking partition in respect of the suit schedule
properties.
3. On service of notice, defendants No.1 and 2 entered
appearance and filed written statement separately denying the
averments made in the plaint. Defendants No.3 to 6 have filed
separate written statement denying the averments made in the
plaint with regard to B and C schedule properties. It is the case of
the defendants No.3 to 6 that, Schedule B(2) property was not
included in the partition held on 02.12.1960 as the said property is
exclusively the self-acquired property of late Ningappa, as the
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RFA No.616 of 2006
C/w. RFA No.743 of 2006
Land Tribunal granted occupancy rights in favour of Ningappa and
therefore, defendants No.3 to 6 denied the rights of the plaintiffs
and defendants No.1 and 2 in respect of suit schedule property
B(2). Defendants No.3 to 6 have amended the written statement
and as per paragraph 4(a) of the amended written statement,
defendants No.3 to 6 have pleaded that, the property bearing
No.72 and 102 is in possession of Ningappa and property No.73
and 103 was in possession of Mallappa and they are in exclusive
possession of schedule properties and these four properties are
the ancestral property of late Guddappa and as such, defendants
No.3 to 6 sought for dismissal of the suit. Defendants No.7 and 8
have filed written statement contending that, defendants No.7 and
8 have purchased item No.1 and 2 of 'C' schedule properties from
defendants No.3 to 6 in the year 2001 through a registered Sale
Deed dated 11.07.2001 and therefore, denied the claim made by
plaintiff and defendant No.1 in respect of 'C' schedule property.
4. Based on the pleadings on record, the trial Court
formulated the following issues and Addl. Issues 1 and 2:
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RFA No.616 of 2006
C/w. RFA No.743 of 2006
i) Whether the plaintiffs prove that suit schedule ABC
properties were being enjoyed as property of joint family till
the year 1960 by deceased Mallappa and Ningappa?
ii) Whether the plaintiffs prove that name of Ningappa
remained as Manager of Joint family on records A and F?
iii) Whether the Plaintiffs are entitled to partition and
possession of their share in the suit property?
iv) Whether the plaintiffs are entitled to mense profits?
v) What order or Decree?
Addl. Issue No. 1:
Whether deft. No. 7 and 8 prove, that they are Bonafide
purchaser of the property for value and without notice
as contended?
Addl. Issue No. II:
i) Whether defendants No.1 and 2 proves that, they are
entitled for share in the suit schedule property as prayed
for?
5. In order to establish their case, plaintiffs examined
plaintiff No.2 as PW1 and produced 21 documents and the same
were marked as Exs.P1 to P21. On the other hand, defendants
have examined 6 witnesses as DWs.1 to 6 and got marked 15
documents as Exs.D1 to D15. The trial Court after considering the
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RFA No.616 of 2006
C/w. RFA No.743 of 2006
material on record by its judgment and decree dated 19.01.2006,
decreed the suit in part and the operative portion of the order reads
as under:
"The suit of the plaintiff is decreed. The plaintiffs and
defendants 1 and 2 are entitled for 8/15th shares in land
bearing survey No.65/1+2 measuring about 17 acres one
gunta and R.S.No.68/2 measuring about 3 acres 35 guntas,
and 4/15th in land bearing survey No.51/2 measuring about 3
acres 24 guntas jointly. The plaintiffs are not entitled for any
partition and separate possession in respect of the suit
schedule-C properties, because the said properties are
allotted in the name of defendants 3 to 6 and confirmed the
registered sale deed executed by the defendants 4 and 5 in
favour of defendants 7 and 8. The plaintiff is directed to
appoint the court commissioner to effect the partition and
separate possession U/S 54 of Code of Civil Procedure.
Both parties to bear their own cost.
Draw decree accordingly."
6. Feeling aggrieved by the impugned judgment and
decree passed by the trial Court, the plaintiffs have preferred RFA
No.743/2006 and defendants No.3 to 6 have filed RFA
No.616/2006.
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RFA No.616 of 2006
C/w. RFA No.743 of 2006
7. I have heard Sri. K. L.Patil, learned counsel appearing
for the plaintiffs/appellants in RFA No.743/2006, M. S. Haravi,
learned counsel appearing for the defendants No.3 to 6 / appellant
in RFA No.616/2006 and Sri. Prashant S. Kadadevar, learned
counsel appearing for respondents No. 7 and 8.
8. Sri. K. L. Patil, learned counsel appearing for the
appellants/plaintiffs 2 to 4 argued that, depriving the share of the
plaintiffs in respect of the 'C' schedule property by the trial Court is
contrary to records. He further contended that, the trial Court has
rightly come to the conclusion that, the late Ningappa has adopted
Sri.Siddappa and therefore, Ningappa and the Mallappa had equal
share in all the schedule properties including the agricultural lands.
He further contended that, execution of the sale deed by the
contesting defendants in favour of defendants No.7 and 8 are
sham documents and therefore, the same is not binding on the
plaintiffs. He further contended that, the trial Court failed to
consider that the Khata stands jointly in the name of plaintiffs and
defendants and therefore, trial Court ought to have considered that
the plaintiffs have equal share in all the schedule properties. He
further contended that schedule B(2) is the joint family property as
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RFA No.616 of 2006
C/w. RFA No.743 of 2006
the same is granted to Ningappa as a member of the joint family.
Accordingly, he sought for interference of this Court in the
impugned judgment and decree passed by the trial Court in RFA
No.743/2006.
9. Per contra, Sri. M. S. Haravi, learned counsel
appearing for the respondents/defendants 3 to 6 argued that, the
plaintiffs have suppressed the material before the trial Court with
regard to Schedule B(2) property and therefore, he sought for
interference of this Court. Emphasizing on these aspects, Sri.M. S.
Haravi argued that, Schedule B (II) is the self-acquired property of
deceased Ningappa as he alone filed application before Land
Tribunal and therefore, the finding recorded by the trial Court that
the Schedule B(2) is the joint family property is contrary to the
records as the said property was granted to the late Ningappa by
the Land Tribunal, Byadagi, in the year 1972. He further
contended that, the trial Court has committed an error to hold that
there was no partition in the family. But it is the case of the plaintiff
that there was partition in the year 1960 itself and certain properties
have been demarcated between Ningappa and Mallappa and said
aspect was not disputed in the suit. That apart, Schedule B(2)
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RFA No.616 of 2006
C/w. RFA No.743 of 2006
was sold to Smt. Shantavva, W/o. Siddayya Hiremath and the said
aspect was not brought to the notice of the trial Court by the
plaintiff and therefore, he contended that the impugned judgment
and decree passed by the trial Court requires modification and
hence prayed for interference of this Court.
10. Having heard the learned counsel appearing for the
parties and on consideration of the finding recorded by the trial
Court, I have carefully examined the original records.
11. Having taken note of the arguments advanced by the
learned counsel appearing for the parties, the following points are
required to be answered in these appeals:
i. Whether the trial Court is justified in granting
share to the plaintiffs in respect of Schedule
B(2) property?
ii. Whether the impugned judgment and decree
passed by the trial Court requires interference in
these appeals?
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RFA No.616 of 2006
C/w. RFA No.743 of 2006
12. In the light of the aforementioned facts and in order to
adjudicate the appeal on merits, it is relevant to deduce the
genealogical tree of joint family of late Guddappa:
Guddappa (died)
Ningappa (Died) Mallappa (Died)
Siddappa (Adp. Son) Died Puttavva (Died)
(Pltf No.1)
Gangavva (3rd Deft)
Shivakumara Ningappa Geetha
(4th Deft) (5th Deft) (6th Deft)
Guddappa Shivaputrappa Neelavva Mahadevakka Prameelavva
st nd nd
(1 Detf) (2 Detf) (2 Pltf) (3rd Pltf) (4th Pltf)
13. The original propositus Guddappa died leaving behind
Ningappa and Mallappa. Mallappa died leaving behind plaintiff
No.1(died during the pendency of the proceedings) and plaintiffs
No.2 to 4. Third defendant is the wife of Siddappa, who has been
adopted by Ningappa. Defendants No.4 to 6 are the children of
defendant No.3 - Gangavva and late Siddappa. The said Ningappa
got adopted the son of Mallappa - Siddappa and therefore, the
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RFA No.616 of 2006
C/w. RFA No.743 of 2006
plaintiffs and defendants constitute the Hindu joint family and the
original propositus - Guddappa died in the year 1943. The records
reveals that there was partition in the family on 02.12.1960. As per
the said partition, the deceased Mallappa and Ningappa separately
enjoying the suit schedule properties and during the said partition
schedule 'A' property was exclusively allotted to Mallappa and
therefore, plaintiffs 1 to 4 and defendant No.1 and 2 succeed to the
estate as the member of joint family of late Mallappa. Insofar as
Schedule 2B(1) property was kept in the joint family stock and both
the plaintiffs and defendants are jointly enjoying the said property.
Therefore, the plaintiffs and defendants are equally entitled for
equal share in the Schedule 2B(1). However, in respect of the
schedule B(2) - land bearing survey No.51/2 of Angaragatti Village
was granted to late Ningappa by land Tribunal, Byadagi as the said
Ningappa filed Form No.7 before the Land Tribunal. It is not in
dispute that the said Ningappa died on 14.01.1978 and after his
death, the Schedule B(2) property was mutated in favour of
defendants No.4 and 5. As per the partition effected on
02.12.1960, Schedule B(2) was not granted to Ningappa and
granted later. A Schedule property was allotted in favour of
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RFA No.616 of 2006
C/w. RFA No.743 of 2006
Mallappa i.e., land bearing survey Nos. 65/1+2 and 68/2 and
Mallappa died on 19.12.1981.
14. Insofar as item No.2 in C Schedule property as per
Ex.D7 stands in the name of Ningappa i.e., property bearing
No.102. It is also forthcoming from Ex.P21 that the property
bearing No.72 stands in the name of Ningappa and therefore, both
the properties of suit 'C' schedule properties, namely, 72 and 102,
being owner of the properties in question, defendants 4 and 5 sold
the same in favour of defendant No.7 and 8 and therefore,
contentions raised by the learned counsel appearing for the
plaintiffs / appellant in RFA No.743/2006 cannot be accepted. That
apart, two houses bearing No.73 and 103 were allotted to Mallappa
during the partition and therefore, plaintiffs cannot claim the
property No.72 and 102, which had been allotted to Ningappa.
15. Insofar as Item No.2 of the Schedule B property, the
said land bearing survey No.51/2 was granted in favour of the
Ningappa by conferring occupancy rights by the Land Tribunal as
the said Ningappa filed Form No.7 claiming occupancy rights in
respect of the said property. On careful examination of the material
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RFA No.616 of 2006
C/w. RFA No.743 of 2006
on record the plaintiffs have failed to prove that the said land
granted in favour of Ningappa was the part of joint family property
of Ningappa and Mallappa together and the said Ningappa was
cultivating the same independently as a tenant and as such, the
said property is the exclusive property of the said Ningappa and in
this regard, I find force in the submission made by Sri.M. S. Haravi,
learned counsel appearing for the appellant RFA No.616/2006. If
at all the plaintiffs are aggrieved by the order of the Land Tribunal
conferring occupancy rights in favour of Ningappa, the plaintiffs
ought to have challenged the same before the competent Court
seeking occupancy rights and further have not impleaded before
the Land Tribunal. Undisputably, the suit was filed in the year 1992
and the conferment of right was on account of the amendment to
Karnataka Land Reforms Act on 01.03.1974. Therefore, the
contention raised by Sri. K. L. Patil, learned counsel appearing for
the plaintiff/appellants in RFA No.743/2006 that the plaintiffs have
right in respect of Schedule B(2) property cannot be accepted. It is
also forthcoming from the evidence of PW1 that PW1 admits that
the Children of Mallappa have not filed Form No.7 before the Land
Tribunal and therefore, it is hereby declared that the
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RFA No.616 of 2006
C/w. RFA No.743 of 2006
defendants/appellants in RFA No.616/2006 are the absolute owner
in possession of the land bearing survey No.51/2.
16. I have also carefully examined the evidence of PW1.
PW1 in the examination-in-chief at paragraph 5 deposed as
follows:
"ªÀ¸ÀĹ
Û Üw »ÃVgÀÄwÛg°
À PÉÌ ¸Àzg
À À ªÀÄÈvÀ ¸ÀAUÀ¥Àà ªÀÄvÀÄÛ ªÀÄ®è¥Àà E§âgÆ
À ªÉÄïÉ
ºÉýzÀ ¥ÀPæ ÁgÀ ¸À£ï 1960 £Éà E¹éAiÀÄ°è vÀªÀÄä ¦ügÁtzÀ WÀgÁtzÀ D¹ÛU¼
À £
À ÄÀ ß
«¨sÁUÀ ªÀiÁrPÉÆAqÀÄ CzÀg°
À è zÁªÁzÀ C£ÀĸÀÆa © AiÀÄ°è D¹ÛAiÀÄ£ÀÄß 2£ÉÃ
D¹ÛAiÀÄ£ÀÄß ¸ÁªÀÄÆ»PÀªÁV ªÀÄÈvÀ ¸ÀAUÀ¥Àà ªÀÄvÀÄÛ ªÀÄ®è¥Àà ElÄÖPÉÆAqÀÄ §A¢zÀÄÝ
EgÀÄvÀz
Û .É ¸Àzg
À À © 2£Éà d«ÄãÀÄ ¯ÁªÀt d«ÄãÀÄ EzÀÄÝzj
À AzÀ ¸Àzg
À À
d«ÄãÀÄ ªÀÄÈvÀ ¤AUÀ¥Àà£À ºÉ¸g
À ¯
À ÃÉ ¦ügÁtÂÃzÀªw
À ¬ÄAzÀ WÀgÁtÂÃzÀªw
À ¬ÄAzÀ
zÁR¯ÉU¼
À ¯
À Éè ¸ÀªÀÄÆzÁVzÀÄÝ EgÀÄvÀz
Û .É CªÀ£ÀÄ ¥ÉÆÃwAiÀiÁzÀ £ÀAvÀgÀ PÉêÀ®
CªÀ£À ªÁgÀ¸ÀÄzÁgÀgÀÄ CAvÁ 4 jAzÀ 5£Éà ¥Àw
æ ªÁ¢AiÀÄgÀ ºÉ¸g
À ÄÀ ªÀiÁvÀæ
¸ÀªÀÄÆzÁVzÀÄÝ FUÀ w½zÀÄ §A¢gÀÄvÀz
Û .É AiÀiÁPÉAzÀgÉ ¸Àzg
À À ¤AUÀ¥àÀ FvÀ£ÄÀ
1976£Éà ¸Á°£À°è ¥ÉÆÃwAiÀiÁVzÀÄÝ EgÀÄvÀz
Û .É PÁgÀt ¨ÁåqÀV ¨sÀÆ £ÁåAiÀÄ
ªÀÄAqÀ½AiÀÄ°è DvÀ£À ºÉ¸g
À ÃÉ PÀ§eÁzÁgÀgÀÄ CAvÁ ªÀÄAdÆgÁVzÀÄÝ EgÀÄvÀz
Û .É
DvÀ£ÀÄ ¥ÉÆÃwAiÀiÁzÀ £ÀAvÀgÀ ¥Àw
æ ªÁ¢ 4£Éà ªÀÄvÀÄÛ 5£ÉÃzÀªg
À À ºÉ¸g
À ÄÀ ªÀiÁvÀæ
£ÀªÀÄÆzÀ DVzÀÄÝ EgÀÄvÀz
Û .É PÁgÀt ªÁ¢AiÀÄjUÉ ºÁUÀÆ 1-2 £ÉÃ
¥Àw
æ ªÁ¢AiÀÄjUÉ ¸ÁªÀÄÆ»PÀ 1-2 »¸Éz
ì À ºÀPÀÄÌ ¥Á楪
ÀÛ ÁVzÀÄÝ EgÀÄvÀz
Û .É "
17. I have also examined the cross-examination of DW2
who is conversant with the family members of plaintiffs and
defendants. He deposed about the partition in the year 1960
between the parties. In similar lines, DW3 deposed before the trial
- 22 -
RFA No.616 of 2006
C/w. RFA No.743 of 2006
Court, stating about the partial partition in the year 1960 and
partially acted upon thereafter.
18. Having re-appreciated the evidence on record, inter
alia pleadings by the parties, I am of the view that the judgment
and decree passed by the trial Court requires reconsideration and
the appellants in RFA No.743/2006 have not made out a case for
interference in respect of the finding recorded by the trial Court in
respect of Schedule B (2) and C schedule properties.
19. In the result, I pass the following order:
ORDER
I. RFA No.616/2006 is allowed. RFA No.743/2006 is
dismissed.
II. Judgment and decree dated 19.01.2006 passed in
O.S.No.42/1992 is modified in terms of observation
made above.
III. Registry is directed to draw the decree accordingly.
Sd/-
JUDGE
gab
