Karnataka High Court
Gajanan Krishna Bhatta vs A.Ku.Me. Sadashiva Ramakrsihna ... on 11 March, 2022
Bench: K.S.Hemalekhapresided Bykshj
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 11TH DAY OF MARCH, 2022
PRESENT
THE HON'BLE MRS.JUSTICE K.S. HEMALEKHA
RSA NO.100684 OF 2015
BETWEEN:
1. GAJANANA KRISHNA BHATTA,
AGED ABOUT 86 YEARS, OCC: AGRICULTURE.
2. SHRI MAHABALESHWAR KRISHNA BHATTA,
AGED ABOUT 73 YEARS, OCC: AGRICULTURE,
BOTH ARE R/O. KADATOKA PAIKI HOSAHAKL. U,
TALUK HONNAVAR, DISTRICT KARWAR, PINCODE:581 334.
....APPELLANTS
(BY SRI.MAHESH WODEYAR, ADVOCATE)
AND:
1. A.KU.ME. SADASHIVA RAMAKRISHNA BHATTA,
AGED ABOUT 70 YEARS, OCC: AGRICULTURE AND PENSIONER,
R/O. IDIGAMANE, C/O. 'MALENADU MALLIGE',
WEEKLY PAPER, KARYALAYA, SAGAR,
DIST:SIVAMOGGA, PINCODE-577401.
2. SHRI. CHANDRASHEKAR TIMMANNA BHATTA,
AGED ABOUT 58 YEARS, OCC: AGRICULTURE.
3. SHRI. SATYANARAYANA KESHAVA BHATTA,
AGED AOBUT 58 YEARS, OCC: AGRICULTURE.
4. SHRI. VENKATRAMANA RAMACHANDRA BHATTA,
AGED ABOUT 58 YEARS, OCC: AGRICULTURE.
5. SMT. MAHALAXMI, W/O. UMAMAHESHWAR BHATTA,
AGED ABOUT 53 YEARS, OCC: NIL/
6. SHRI. NAGESH RAMAKRISHNA BHATTA,
AGED ABOUT 69 YEARS, OCC: AGRICULTURE.
ALL ARE R/O. KADATOKA PAIKI SANKOLLI,
TALUK HONNAVAR, DISTRICT UTTAR KANNADA.
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7. SHRI. KRISHNAMURTHY RAMAKRISHNA BHATTA,
AGED ABOUT 67 YEARS, OCC: AGRICULTURE
AND WORKING IN TELEPHONE EXCHANGE OFFICE,
R/O. HONNAVAR, DISTRICT KARWAR, PINCODE-581334.
8. TRAYAMBAKA RAMAKRISHNA BHATTA,
AGED ABOUT 63 YEARS, OCC: ECONOMICS PROFESSOR,
ULAGA MAHASATI COLLEGE, KARWAR, PINCODE-581301.
9. SOMESHWAR RAMAKRISHNA BHATTA,
AGE:MAJOR, OCC: AGRICULTURE AND CLERK IN
HINDALAGA JAIL, BELAGAVI, PINCODE:590001.
10. SARASWATI HARIHARA HEGDE,
AGED ABOUT 68 YEARS, OCC:HOUSE WIFE,
R/O. HEGDE, KUMTA, PINCODE:591201.
11. VIJAYALAXMI BHASKAR KULKARNI,
AGED ABOUT 54 YEARS, OCC: HOUSE WIFE,
R/O. KADAKALATE, TALUK CHIKKODI,
DISTRICT BELAGAVI, PINCODE-591201.
12. PADMAVATHI, W/O. SHANTARAM HEGDE,
AGED ABOUT 50 YEARS, OCC: HOUSEHOLD,
R/O. KUNANAKOLALU, MUTTAHALLI,
BENGALURU, PINCODE-560001.
13. SHRINATH PARAMESHWAR BHATTA,
AGED ABOUT 44 YEARS, OCC:HOUSE WIFE,
R/O. KADATOKA, HONNAVAR,
DISTRICT KARWAR, PINCODE-581334.
14. SHYAMU PARAMESHWAR BHATTA,
AGED ABOUT 41 YEARS, OCC: HOUSE WIFE,
R/O. KADATOKA, HONNAVAR,
DISTRICT:KARWAR, PNCODE:581334.
15. SUSHILA, W/O. PARAMESHWAR BHATTA,
AGED ABOUT 68 YEARS, OCC: HOUSE WIFE,
R/O:KADATOKA, HONNAVAR,
DISTRICT:KARWAR, PINCODE:581334.
16. SHRI. TRAYAMBAKESHWAR DEVASTHANA,
NISHPATH ADALITADARARU,
GANAPATHI PARAMESHWARA BHATTA,
SINCE DECEASED BY HIS LRS.
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16.A. PARAMESHWAR GANAPATHI BHATTA,
AGED ABOUT 53 YEARS, OCC: AGRICULTURE,
R/O. KADATOKA, HONNAVAR,
DISTRICT: KARWAR, PINCODE:581334.
17. SHRI. TRAYAMBAKESHWAR DEVASTHANA,
NISHPATH ADALITADARARU,
KRISHNA PARAMESHWARA BHATTA,
YALAKKI, AGED ABOUT 88 YEARS, OCC: AGRICULTURE,
R/O. KADATOKA, HONNAVAR,
DISTRICT: KARWAR, PINCODE:581334.
18. SHRI. TRYAMBAKESHWAR DEVASTHANA,
NISHPATH ADALITADARARU,
DATTATRAYA VENKATRAMANA HEGDE,
AGED ABOUT 63 YEARS,
OCC: AGRICULTURE AND ADVOCATE,
R/O. OLD FISH MARKET, KUMTA, PINCODE-581354.
19. SHRI. TRAYAMBAKESHWAR DEVASTHANA,
NISHPATH ADALITADARARU,
DATTATRAYA AVADHANI, AGED ABOUT 87 YEARS,
RETIRED VILLAGE ACCOUNTANT,
R/O. AMSALLI PAIKI BADALLI,
HONNAVAR, DISTRICT:KARWAR, PINCODE-581334.
....RESPONDENTS
(R1 TO R4 BY SRI. A.S. PATIL, ADVOCATE)
(R5 BY SRI. S.V. YAJI, ADVOCATE)
(R18 AND R16(A) BY SRI. GANGADHAR S. HOSAKERI, ADVOCATE)
(R6 TO R15, R17 AND R19 SERVED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINS THE
JUDGMENT AND DECREE DATED 30.06.2015 PASSED IN R.A.
NO.25/2010, ON THE FILE OF THE SENIOR CIVIL JUDGE, HONNAVAR,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND
DECREE DATED 15.06.2010, PASSED IN OS. NO.7/2007 ON THE FILE
OF THE PRINCIPAL CIVIL JUDGE, HONNAVAR, DISMISSING THE SUIT
FILED FOR DECLARATION.
THIS COMING ON FOR ADMISSION THIS DAY, K.S.
HEMALEKHA J., DELIVERED THE FOLLOWING:
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JUDGMENT
2. The concurrent findings of the Courts below has
been challenged by the plaintiffs assailing the judgment
and decree dated 30.06.2015 in RA No.25/2010 on the file
of Prl. Civil Judge, Honnavar, confirming the judgment and
decree dated 15.06.2010 in O.S.No.7/2007 on the file of
the Prl. Civil Judge, Honnavar.
3. The parties herein are referred to as per their
ranks before the Trial Court.
4. Suit property bearing Sy. No.606 measuring 1
acre 30 guntas 11 anas.
5. The plaintiffs filed suit for declaration that the suit
property is the ancestral property of the plaintiffs and
defendant No.1 and claimed ½ share in the suit schedule
property. It is averred that the plaintiffs are the children of
the third son of the propositus Ramakrishna Shiva Bhatta
and after the death of the propositus the partition was
entered between the plaintiffs' father and 1st defendant's
father by partition deed dated 31.8.1953 and further
averred that it was stated in the partition deed that in the
event any of the properties have been left out then the
plaintiffs' father and 1st defendant's father would be
entitled to ½ share. It is further averred that the suit
property was left out at the time of partition as the suit
property was subject matter before the Land Tribunal and
as such, was not available for partition, and thus sought
for ½ share in the suit schedule property.
6. Defendant No.2 filed his written statement and
the same was adopted by defendant No.3. It is admitted
by the defendants that there was partition between the
plaintiffs' father and 1st defendant's father on 31.08.1953
and at the time of partition, the suit schedule property i.e.,
R.S. No.606 was measuring 2 acres 3 guntas, but the
family had ownership right to the extent of 6 guntas only
and the same was divided between the plaintiffs' father
and his brothers. It is further contended that the father of
defendant No.1 was granted 12 guntas in RS No.606 by
the Tribunal in view of the filing of Form No.7 by the father
of defendant No.1 and thus would contend that the suit
schedule property is the exclusive property of defendant
No.1 and thus, would contend that the plaintiffs have no
right title or interest over the suit schedule property.
7. The Trial Court on the basis of the pleadings
framed the following;
ISSUES
1. Whether the plaintiffs prove that the suit schedule
properties are joint family properties?
2. Whether the plaintiffs prove that due to oversight,
the suit schedule properties were not included in
Regd. Partition deed 31.08.1953?
3. Whether the plaintiffs prove that the genealogy
shown in the plaint is true and correct?
4. Whether the 2nd defendant proves that the suit is
bad for non joinder of necessary parties?
5. Whether the suit is barred by limitation?
6. Whether the 5th defendant proves that he is a
bonafide purchaser of suit schedule II property for
valuable consideration?
7. Whether the 5th defendant further proves that the
suit schedule Ii property shall be adjusted towards
the share of 3rd defendant in the event of partition?
8. Whether the plaintiffs are entitled for the relief as
prayed in para 9 of the plaint ?
9. What decree ?
8. The trial Court dismissed the suit of the plaintiffs
holding that the plaintiffs have failed to prove that the suit
schedule property is the ancestral joint family property.
Aggrieved by the judgment and decree of the trial Court
the plaintiffs preferred RA No.25/2010 before the Lower
Appellate Court.
9. In an appeal filed by the plaintiffs against the
judgment and decree of the Trial Court, the lower
Appellate Court on re-appreciation of the material on
record held that the plaintiffs have failed to prove that the
suit schedule property is the ancestral joint family property
and as such plaintiffs are entitled for ½ share in the suit
schedule property.
10. Heard Sri. Mahesh Wodeyar, learned counsel for
the appellants, Sri. Sabeel Ahmed learned counsel
appearing for Sri. A.S.Patil, Advocate for respondent Nos.1
to 4 and Sri. S.V.Yaji, learned counsel for respondent No.5
and perused the materials on record.
11. The plaintiffs contended that the suit property is
the ancestral joint family property of the plaintiffs and
defendant No.1. The sole contention of the plaintiffs is
that the suit property was excluded from the partition that
was effected on 31.8.1953 between the father of the
plaintiffs and father of defendant No.1 and that at the time
of partition it was stated that in the event any joint family
property is left out then plaintiffs father and 1st
defendant's father are entitled for ½ share. Perusal of the
records and the evidence of PWs1, 2 and evidence of
DWs.1 to 5 would establish that there was a partition
effected on 31.08.1953. As per the contention of the
plaintiffs that the suit property was excluded from the
partition needs to be looked into. Perusal of Ex.P3-the
copy of the partition deed which is a registered partition
deed would depict that the suit property was included in
the said deed. Thus, the contention of the plaintiffs that
the suit property was not included at the time of partition
is unacceptable. It is also relevant to note that father of
defendant No.1 had filed Form No.7 as per Ex.D4 seeking
occupancy rights in respect of the suit schedule property
and the land Tribunal has granted occupancy rights in
favour of father of defendant No.1. It is the another
contention of the plaintiffs that the land Tribunal has
granted occupancy right in favour of 1st defendant's father
on behalf of the joint family. This contention also does not
find place for the simple reasons that the pleadings are
silent regarding this aspect as the only contention that can
be gathered from the pleadings of the plaintiffs is that as
on the date of partition dated 31.08.1953 the suit property
was not included. The plaintiffs having not raised the
contention that granting of occupancy right in favour of the
father of the defendant No.1 enures to the benefit of the
plaintiffs also is not relevant in view of the facts and
circumstances of the case.
12. On the other hand, the joint family had 6 guntas
in RS No.606 and at the time of partition dated 31.8.1953
as per the cross examination of PW1 and perusal of Ex.P3
which reads as under:-
PW1 -Cross examination:
"¸À.£ÀA.54gÀ°è ªÁAlt DUÀĪÀ ¥ÀƪÀðzÀ°è
¸À.£ÀA.606 ¥ÀÆwð £ÀªÀÄä PÉëÃvÀæ £ÀªÀÄä CdÓ¤UÉ ¸ÉÃjzÀÄÝ
CAvÁ vÉÆÃj¸À®Ä ¤¦.5 ©lÄÖ ¨ÉÃgÉ zÁR¯É E®è, F D¹Û
§UÉÎ F CªÀ¢A
ü iÀÄ°è AiÀiÁªÀÅzÉà Dgï.n.¹. ºÁdgÀ ªÀiÁr®è.
1953gÀ°è £ÀªÀÄä PÀÄlÄA§zÀ J¯Áè D¹ÛU¼
À £
À ÀÄß
ªÁAlt ªÀiÁrPÉÆArzÉݪÀÅ CAzÀgÉ ¤d.
1953gÀ°è DzÀ ªÁAlt ¤¦ 11gÀ°è PÁt¹zÀ
D¹ÛU¼À £
À ÀÄß ºÉÆgÀvÀÄ ¥Àr¹ £ÀªÀÄä PÀÄlÄA§PÉÌ E£ÀÄß PÉ®ªÀÅ
D¹ÛU¼À ÀÄ EzÀݪÀÅ. D J®è G½zÀ D¹ÛU¼ À À ¸À.£ÀA. ªÀÄvÀÄÛ PÉëÃvÀæ
ºÉüÀ®Ä §gÀĪÀÅ¢®è.DzÀgÉ zÁªÁ D¹Û ªÀiÁvÀæ UÉÆvÀÄÛ.
1953gÀ°è gÁªÀÄPÀȵÀÚ ¨sÀlÖjUÉ vÉÆùzÀ 606 ¸À.£ÀA. 6
UÀÄAmÉ eÁUÁ £ÀªÀÄä PÀÄlÄA§zÀ ªÀiÁ°Ìà D¹Û DVvÀÄÛ, G½zÀ
PÉëÃvÀPæ ÉÌ £ÀªÀÄä PÀÄlÄA§PÉÌ AiÀiÁªÀ jÃwAiÀÄ ºÀPÀÄÌ EvÀÄÛ CAvÁ
UÉÆwÛ®è. CzÉà jÃw ªÀiÁ°ÌÃzÁgÀgÀ CrAiÀÄ°è AiÀiÁgÁågÀÄ
gÉÊvÀgÀÄ EzÀÝgÀÄ CAvÁ UÉÆwÛ®.è "
Ex.P3:
"F jÃw £ÁªÀÅ £ÀªÀÄä PÀÄlÄA§zÀ AiÀiÁªÀvÀÆÛ ªÀiÁ°Ì
ªÀÄÆ®UÉÃt D¹ÛAiÀÄ£ÀÄß ¸Àg¸
À À ¤gÀ¸À «UÀr¹PÉÆArzÀÄÝ EzÀÄÝ"
13. Though the plaintiffs has tried to contend that the
suit property is the joint family property of the plaintiffs
and defendants no evidence, material or corroborative
evidence was placed on record to show that the suit
property is the exclusive joint family property of the
plaintiffs and defendant No.1. On the other hand, on
perusal of material on record would clearly establish the
fact that the entire suit property occupancy right was
granted in favor of the father of the defendant No.1.
14. Thus the contention of the plaintiffs that suit
property was not included in the partition dated 31.8.1953
is unsustainable and the Courts below having concurrently
on facts have held that the plaintiffs have failed to prove
that the suit schedule property is the ancestral joint family
property of the plaintiffs and defendant No.1, no
substantial question of law arises for consideration in this
appeal.
In the result, this Court pass the following:-
ORDER
The appeal filed by the plaintiffs is devoid on merits
and the same is dismissed.
No order as to costs.
Sd/-
JUDGE
PJ/Vmb
