Smt G Basamma vs Channaveerappa
2022 Latest Caselaw 4891 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 16TH DAY OF MARCH, 2022

                          BEFORE

    THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                R.F.A. NO. 627 OF 2007(PAR)

BETWEEN:

SMT. G. BASAMMA
W/O M SHIVAPPA,
D/O CHANDAPPA
AGE:59 YRS
R/O ODEYARA HATTUR VILLAGE
BELAGUTTI HOBLI, HONNALI TALUK
DAVANAGERE DISTRICT-577 217.

                                               ...APPELLANT

(BY SMT.ANNAPOORNA, ADVOCATE FOR
SRI B.N.PRAKASH, ADVOCATE)

AND:

1. CHANNAVEERAPPA
S/O DODDAHALAPPA
AGE:80 YRS, AGRICULTURIST
R/O KURUVA VILLAGE, HONNALI TALUK
DAVANAGERE DISTRICT-577217

SHEKARAPPA DEAD BY L RS

2. SHIVAMMA,
W/O LATE SHEKARAPPA
AGE:60 YRS, HOUSEHOLD
                            2



DIVAKARAPPA DEAD BY LRS

3. SMT. MANJULAMMA
W/O LATE DIVAKARAPPA
AGE: 42 YRS, HOUSEHOLD

4. D G RAJASHEKARAPPA
S/O LATE DIVAKARAPPA
AGE:22 YRS,

5. D G VIJAYAKUMAR
S/O LATE DIVAKARAPPA
AGE:21 YRS

6. D G YUVARAJ
S/O LATE DEVAKARAPPA
AGE:17 YRS, MINOR
REPRESENTED BY HIS NATURAL GUARDIAN
MOTHER SMT. MANJULAMMA
RESPONDENT NO.(3)
ALL ARE R/O KURUVA VILLAGE,
HONNALI TALUK, DAVANAGERE DISTRICT-577217

RAMAPPA DEAD BY L RS

7. SMT.SUSHEELAMMA
W/O LATE RAMAPPA
AGED ABOUT 60 YEARS

8. SHEKARAPPA
S/O LATE RAMAPPA

9. MANJAPPA
S/O LATE RAMAPPA
AGED ABOUT 65 YEARS

10. BASAVALINGAPPA
S/O LATE RAMAPPA
AGED ABOUT 60 YEARS
                             3




ALL ARE R/O KURUVA VILLAGE,
HONNALI TALUK, DAVANGERE DISTRICT-577217

SIDDALINGAPPA DEAD BY LRS

11. SMT. HALAMMA
W/O SIDDALINGAPPA
AGED ABOUT 59 YEARS

12. SRI.KOTRAPPA
S/O SIDDALINGAPPA
AGED ABOUT 63 YEARS

13. SRI. RAJASHEKARAPPA
S/O SIDDALINGAPPA
AGED ABOUT 58 YEARS

ALL ARE R/O NANDIGAVI VILLAGE
HARIHAR TALUK, DAVANGERE DISTRICT-577601


14. SMT.HALAMMA
W/O BASAPPA, D/O DODDAHALAPPA
AGED ABOUT 50 YEARS
HOUSHOLD, R/O KURUVA VILLAGE
GOVINAKOVI POST, HONNALI TALUK
DAVANGERE DISTRICT-577217


15. SMT.GANGAMMA
W/O BASAPPA
D/O DODDAHALAPPA,
AGED ABOUT 49 YEARS
HOUSEHOLD, R/O ODEYARA HATTUR,
BELAGUTTI HOBLI, HONNALI TALUK
DAVANGERE DISTRICT-577217
                                 4



16. CHANDRAPPA
S/O CHANNAPPA
AGED ABOUT 45 YEARS

17. SOMASHEKARAPPA
S/O CHANNAPPA
AGED ABOUT 42 YEARS

BOTH ARE R/O ODEYARA HATTUR
BELGUTTI HOBLI, HONNALI TALUK
DAVANGERE DISTRICT-577217


18. SMT. G.P.SHANTHAMMA
W/O LATE G.S.PARAMESHWARAPPA
AGED ABOUT 72 YEARS

19. SRI.G.P. BASAVARAJAPPA
S/O LATE PARAMESHWARAPPA
AGED ABOUT 52 YEARS

20. SRI.G.P. MANJUNATHA PATEL
S/O LATE PARAMESHWARAPPA
AGED ABOUT 44 YEARS

RESPONDENTS NO.18 TO 20
ARE R/O KURUVA VILLAGE
GOVINAKOVI POST, HONNALI TALUK
DAVANGERE DISTRICT

AMENDED AS PER THE ORDER
OF THE HON'BLE COURT DATED 18.02.2010.

                                           ...RESPONDENTS

(BY SRI.B M SIDDAPPA, ADVOCATE FOR R1-6;
SRI K.K.VASANTH, ADVOCATE FOR IMPLEADING R18 TO 20;
R7 TO R14 ARE SERVED;
R15 TO R17 NOTICE OF SERVICE H/S)
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     THIS RFA IS FILED U/S 96 OF CPC AGAINST THE JUDGEMENT
AND DECREE DT.08.12.2006 PASSED IN OS.NO:198/02 (OLD
NO.46/00) ON THE FILE OF THE CIVIL JUDGE (SR.DN.) HARIHAR,
DECREEING THE SUIT FOR PARTITION, SEPARATE POSSESSION,
MESNE PROFITS AND FOR PERMANENT INJUNCITON.


     THIS APPEAL COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:


                          JUDGMENT

The captioned Regular First Appeal is filed by the plaintiff

questioning the judgment and decree of the Trial Court insofar

as denying the share in item Nos.1 to 3 of schedule 'A'

property as well as share in schedule 'B' and 'C' properties.

2. For the sake of convenience, the parties are

referred to as per their rank before the Court below.

3. The genealogical tree of the family is as under:

BASAPPA (DEAD)

HALAMMA (DEAD)

DODDAHALAPPA (SON) (DEAD)

RUDRAMMA (DEAD)

1. Shekharappa 2. Channamma 3. Ramappa 4. Chandrappa 5. Channaveerappa 6. Siddlingappa 7. Gangamma 8. Halamma (dead) W/o Mahadevappa (dead) (dead) (1st def) (dead) W/o Basappa W/o Basappa Def No.7 Def No.6

Wife Shivamma issueless Wife Susheeelamma Wife Deviramma a. Halamma Wife Halamma Df. 2(a) Df.3(a) (dead) (dead) Def 4(a)

Df.2(b) Divakarappa Shekharappa Df. 3(b) Basamma (Plaintiff) b. Hiriyamma Hanmakka Manjappa Df. 3(c) W/o Shivappa (dead) Premakka Basavalingappa Df3(d) Basavarajappa Kotrappa Defendant 4(b) Vishalakshamma Umakka Chandrappa c. Basamma Rajashekharappa Defendant 4(c) Vanajakshamma Meenakshi Nagappa Son Ramappa Renukamma Manjulamma Haleshappa Lalithamma Suresh Basetappa Sharanappa Asha Channappa Mallamma Kotreshappa Sureshappa Kamalamma Renukamma Df No.8 Parameshwarappa Chandrappa Df No.8(a) Somashekharappa

Children of Children of Gangamma Halamma

4. The facts leading to the case are as under:

The plaintiff has filed the present suit seeking relief of

partition and separate possession. As per the family tree,

plaintiff claims that one Dodda Halappa was the propositus

and he had five sons and three daughters. The plaintiff

claimed that she along with defendants constituted undivided

joint Hindu family and that there is no severance in the family.

The plaintiff further specifically pleaded that defendant No.1 in

active connivance and conspiracy with other family members

has excluded the plaintiff and got created and fabricated

certain documents with a malafide intention to deprive

legitimate share of plaintiff in the suit schedule property. The

plaintiff also alleged that defendants have illegally and without

her consent have alienated the joint family properties. The

plaintiff further pleaded that though she repeatedly demanded

and requested defendant No.1 to effect partition by metes and

bounds, the defendant No.1 was unwilling to effect partition

and allot plaintiff's legitimate share in the suit schedule

property. Therefore, the plaintiff claimed that she was

compelled to file the present suit seeking partition by metes

and bounds and allot her legitimate share in the suit schedule

property.

5. On receipt of summons, the defendant No.1

contested the proceedings by filing written statement. The

defendant No.1 stoutly denied the entire averments made in

the plaint and specifically contended that he separated from

the joint family way back in 1958 by executing registered

release deed on 22.02.1958. The defendant No.1 claimed

under the said release deed, the defendant No.1 was allotted

Sy.Nos.32/1, 145/1 and Kaneshumari No.63/1 towards his

legitimate share. The defendant No.1 further contended that

Sy.No.145/2 measuring 4 acres was also allotted to his share

in order to discharge the loan which was availed for the

benefit of the joint family. Therefore, the defendant No.1

contended that he is not at all the member of the joint family

as he had separated way back in 1958 by executing the

registered release deed. The defendant No.1 also claimed that

he was put in exclusive possession of the above said suit

schedule property and therefore, the allegation that plaintiff is

in joint possession along with defendants was seriously

disputed by the defendant No.1.

6. The defendant No.1 also contended that the land

Tribunal has granted occupancy rights in respect of schedule

item No.1. Insofar as item No.3 is concerned, the defendant

No.1 contended that it was re-granted n the name of

defendant No.1 after abolition of Village Officers Abolition Act

and therefore, claimed that he is the absolute owner of item

No.3. At paragraph 10 of the written statement, the

defendant No.1 specifically contended that present suit is filed

without including the properties which were allotted to the

share of his brothers. Therefore, the defendant No.1

contended that suit is bad for non-inclusion of the suit

schedule property and therefore, sought for dismissal of the

suit on the ground that suit schedule property for partial

partition is not maintainable.

7. Based on the rival contentions, the Trial Court

formulated the following issues:

"1. Whether plaintiff proves that the suit schedule properties are joint family properties of herself and defendants?

2. Whether defendant No.1 proves that in the year 1958 he himself separated from the joint family by executing registered release deed on 22-2-1958 and took the lands bearing Sy.No.32/1, 145/1 & Khaneshumari No.63/1 towards his share and another land bearing Sy.No.145/2 measuring 4 Ars. was allotted to his defendant for discharge of the joint family loan availed at Chilur Co-operative Society?

3. Whether defendant No.1 further proves that the suit schedule Item No.1 property was allotted by the Land Tribunal in favour of this defendant by conferring the occupancy rights?

4. Whether defendant No.1 further proves that the suit schedule 'A' Item No.3 property is also granted in his favour which one is Umbli land same is his absolute property?

5. Whether defendant No.1 further proves that he has constructed a house in the year 1972 in the vacant land which was given to him under the Regd. Release Deed?

6. Whether the suit is bad for non-joinder of all properties?

7. Whether the Court Fee paid by the plaintiff is proper and correct?

8. Whether the suit of plaintiff is barred by law of limitation?

9. Whether plaintiff is entitled for her 4/42 share in the suit schedule properties by metes & bounds?

10. Whether plaintiff is entitled for the relief of permanent injunction against defendant No.1 to 7?

11. To what decree or order?"

8. The plaintiff in support of her contention led in

evidence by examining herself as PW.2 and she has also

examined her husband as PW.1. The plaintiff relied on

documentary evidence vide Exs.P-1 to P-18. The defendant

No.1 in support of his contention examined himself as DW.1

and relied on documentary evidence vide Exs.D-1 to D-10.

9. The Trial Court having examined the oral and

documentary evidence and also having meticulously examined

the pleadings of the rival parties, answered issue No.1 in the

negative by holding that plaintiff has failed to prove that suit

schedule properties are joint family ancestral properties.

While answering issue No.2, Trial Court has recorded a

categorical finding that defendant No.1 has succeeded in

proving that he separated from the family in the year 1958 by

executing a registered release deed on 22.02.1958 as per

Ex.D-1. The learned Judge also held that in terms of the

registered release deed, defendant No.1 was allotted property

bearing Sy.Nos.32/1, 145/1, 63/1 and 145/2. While

examining issue No.3, the Trial Court has answered the same

in the affirmative by holding that defendant No.1 has

succeeded in proving that item No.1 was allotted to him by the

Land Tribunal by conferring occupancy rights in his individual

capacity. The learned Judge, however, while answering issue

No.4 in the negative has held that item No.3 property though

granted in favour of defendant No.1, however, the Trial Court

was of the view that it was granted on behalf of family

members and therefore, grant of occupancy rights would also

enure for the benefit of plaintiff and therefore, the said issue

was answered in the negative.

10. While examining issue No.6, learned Judge has

come to conclusion that suit schedule property for partial

partition is not at all maintainable. However, in the interest of

justice and to avoid multiplicity of proceedings, the Court

below was of the view that Sy.No.192 in respect of which

occupancy rights was granted in favour of defendant No.1 on

behalf of the family has proceeded to hold that plaintiff has

not included all the joint family ancestral properties that was

allotted to the other branch but, however held that plaintiff is

entitled for a share in Sy.No.192. On these set of reasonings,

the Trial Court has decreed the suit in part granting share only

in Sy.No.192 and dismissing the claim of the plaintiff insofar

as other properties. It is against this dismissal of the suit in

respect of item Nos.1 to 3, the plaintiff is before this Court.

11. Heard learned counsel for the appellant and learned

counsel for the respondents. Perused the Trial Court records.

The only point that would arise for consideration before this

Court is as follows:

"Whether the Trial Court was justified in

properties are concerned?"

12. The present suit is filed by the plaintiff seeking

share in the suit schedule property by specifically contending

that there is no severance in the family and that she

constituted a undivided joint Hindu family along with

defendants. Plaintiff asserts that suit schedule property are

joint family ancestral properties and therefore, she is entitled

for her legitimate share in the suit schedule property. This

contention is countered by defendant No.1. The defendant

No.1 has produced clinching rebuttal evidence on record. It is

the specific case of defendant No.1 that he separated from the

family way back in the year 1958 and accordingly, executed a

registered release deed on 22.02.1958. The defendant No.1

claimed that under the registered release deed, he was

allotted 10 acres 12 guntas in Sy.No.32/1, 18 acres 8 guntas

in Sy.No.145/2 and Sy.No.63 properties and therefore, he

contends that he is no more a member of the joint family and

therefore, the subsequent acquisition made by defendant No.1

in item Nos.1 to 4 cannot be the subject matter of the

partition suit. At the same time, the defendant No.1 also

contended that when plaintiff asserts and claim that there is

no severance in the family, then plaintiff ought to have

included all the suit schedule property.

13. It is the specific case of defendant No.1 that the

family of plaintiff and defendants own more than 60 acres.

Defendant No.1 has specifically claimed that his brothers were

also allotted their legitimate share in the suit schedule

property. The grievance of the defendant No.1 before this

Court is that plaintiff has elected to seek partition only in

respect of four items and therefore, contention of defendant

No.1 is that the present suit in the present form is not at all

maintainable for non-inclusion of all the properties of the

family. This contention, though accepted by the Trial Court,

however, has proceeded to decree the suit in respect of

Sy.No.192 on the premise that plaintiff cannot be drawn to

another round of litigation only on the ground of non-inclusion

of suit schedule property.

14. The release deeds at Exs.D-1 to D-3 clearly

demonstrate that there is severance in the family. Therefore,

the rebuttal evidence led in by defendant No.1 clearly

demonstrates that there is no joint family as alleged by the

plaintiff in the plaint. The rebuttal evidence clearly indicates

that there is severance in the family. Even otherwise, the

learned Judge was justified in recording a categorical finding

that the present suit is filed without including the properties

which were allotted to the share of Ramappa, Chandappa and

Siddalingappa. However, during trial, defendant No.1 has

admitted that item No.4 in Sy.No.192 is joint family tenanted

land. It is in this background, learned Judge was of the view

that occupancy rights granted in favour of defendant No.1 in

respect of item No.4 will enure for the benefit of the family.

The material on record would clearly indicate that there is

severance in the family and therefore, learned Judge, even

otherwise, was not justified in decreeing the suit of the

plaintiff in part thereby granting share in item No.4.

Accordingly, the point formulated above is answered in the

affirmative.

15. In view of the above, this Court would affirm the

findings and conclusions arrived at by Trial Court. The Trial

Court while answering issue No.1 was justified in holding that

plaintiff has failed to prove that the suit schedule properties

are joint family properties of herself and defendants. While

examining issue No.2, the Trial Court was justified in recording

a finding that defendant No.1 has separated from the joint

family be executing a registered release deed on 22.02.1958

as per Ex.D-1 and the suit lands were allotted to him. The

findings recorded by the Trial Court on issue No.6 is based on

categorical admission given by the plaintiff in cross-

examination. The defendants have succeeded in eliciting in

cross-examination and also by way of rebuttal evidence that

the present suit is filed only in respect of properties allotted to

defendant No.1 whereas the properties which were allotted to

other brothers of defendant No.1 are not included in the

present suit and therefore, suit for partial partition is not at all

maintainable.

16. The judgment and decree of the Trial Court does

not suffer from any infirmities and therefore, would not

warrant any interference at the hands of this Court. Since

there is no challenge by the contesting defendants questioning

the grant of share in Sy.No.192, I am of the view that the

appeal is devoid of merits and the same is liable to be

dismissed.

Accordingly, the appeal is dismissed.

Sd/-

JUDGE

CA