Smt Honnamma vs Smt Puttathayamma
2022 Latest Caselaw 5276 Kant

                               1


      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 23RD DAY OF MARCH, 2022

                          BEFORE

    THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

               R.F.A. NO.2460 OF 2006 (DEC)

BETWEEN:

1. SMT. HONNAMMA
W/O LATE K.R.REVANA SIDDAPPA
AGED ABOUT 50 YRS

2. SMT. MANJULA
W/O HONNAGANGAIAH
D/O LATE K.R.REVANA SIDDAPPA
AGED ABOUT 40 YRS

3. SMT. RENUKA, W/O NAGANNA
D/O LATE K.R.REVANA SIDDAPPA
AGED ABOUT 37 YRS

4. KUMARI VANI
D/O LATE K.R.REVANA SIDDAPPA
AGED ABOUT 30 YRS

5. SRI RENUKAPPA
S/O LATE K.R.REVANA SIDDAPPA
AGED ABOUT 28 YRS

ALL ARE R/AT KAMBALU VILLAGE
SOMPURA HOBLI, NELAMANGALA TQ
BANGALORE RURAL DIST-562123
                                              ...APPELLANTS
(BY SRI.A V GANGADHARAPPA, ADVOCATE)
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AND:

1. SMT. PUTTATHAYAMMA
D/O LATE G B REVANNA
SINCE DEAD BY LRS

1(A). SRI.CHIKKAREVANNA
S/O PUTTATHAYAMMA,
AGED ABOUT 70 YEARS,
RESIDENT OF HULIYAPURA,
TAVAREKERE POST, HEBBUR HOBLI,
TUMKUR TALUK & DISTRICT.

1(B). SRI.R.RAJANNA
S/O PUTTATHAYAMMA,
AGED ABOUT 54 YEARS,
RESIDING AT ARNIKAR DRY CLEANERS,
NO.1292, 25TH MAIN ROAD,
(BIG BAZAR ROAD), (OPP K.C.DASS SWEETS),
9TH BLOCK, JAYANAGAR, BANGALORE-560069.

1(C). SRI.BHOJANNA
S/O PUTTATHAYAMMA
AGED ABOUT 50 YEARS,
RESIDENT OF HULIYAPURA,
TAVAREKERE POST, HEBBUR HOBLI,
TUMKUR TALUK & DISTRICT.

1(D). SMT. BHAGYAMMA
W/O MARIYAPPA
D/O PUTTATHAYAMMA,
AGED ABOUT 58 YEARS,
RESIDENT OF ELUGALLU MATHIKERE,
MAGADI TALUK, RAMANAGAR DISTRICT.

1(E). SMT.SHARADAMMA
W/O SIDDAPPA,
D/O PUTTATHAYAMMA
AGED ABOUT 56 YEARS
                              3


RESIDENT OF KAMBALU VILLAGE,
SOMPURA HOBLI, NELAMANGALA TALUK,
BANGALORE RURAL DISTRICT-562123.

1(F). SMT. ANNAPOORNAMMA
W/O REVANNA,
D/O PUTTATHAYAMMA,
AGED ABOUT 46 YEARS,
RESIDENT OF KADU MATHIKERE VILLAGE,
HERUR POST, KUNIGAL TALUK,
TUMKUR DISTRICT.
(AMENDED VIDE ORDER DATED 4/6/2014)

2. SMT REVAMMA
D/O LATE G B REVANNA
SINCE DEAD BY LR

2(A). SRI.K.C.SHIVARUDRAIAH
S/O LATE CHIKKANNA,
AGED ABOUT 53 YEARS,
NO.3, MUNESHWARA NILAYA BANK COLONY,
UTTARAHALLI ROAD, BANGALORE.
(AMENDED VIDE ORDER DATED 4/6/2014)

3. SMT CHIKKAREVAMMA
D/O LATE G B REVANNA
AGED ABOUT 50 YRS
R/AT MARUR, KUDOOR HOBLI
MAGADI TQ, BANGALORE RURAL DIST

4. SRI R CHANDRAPPA S/O LATE G B REVANNA
AGED ABOUT 67 YRS
R/AT NO.2385, 7TH MAIN, 20TH CROSS
BANASHANKARI II STAGE, BANGALORE.
                                             ...RESPONDENTS
(BY SRI.M.RAJASHEKAR, ADVOCATE FOR R3 & R4;
V/O DTD 12.03.2014 SERVICE TO NOTICE TO R1(B) IS H/S;
PROPOSED R1(A,C,D,E & F) ARE SERVED;
PROPOSED R2(A) SERVED)
                                 4


     THIS RFA IS FILED U/O 41 RULE 1 R/W SEC.96 OF CPC
AGAINST THE JUDGMENT AND DECREE DT.21.10.2006 PASSED IN
O.S.NO.819/2000 ON THE FILE OF THE PRL.CIVIL JUDGE (SR.DN.)
BANGALORE RURAL DISTRICT, BANGALORE, DECREEING THE SUIT
FOR DECLARATION, PARTITION AND SEPARATE POSSESSION.

    THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 16.03.2022, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                          JUDGMENT

The captioned Regular First Appeal is filed by the

unsuccessful defendants who are questioning the judgment

and decree of the Court below passed in O.S.No.819/2000

wherein the suit filed by the plaintiffs is decreed granting 1/5th

share each in the suit schedule property.

2. For the sake of convenience, the parties are

referred to as per their rank before the Trial Court.

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

The plaintiffs filed a suit seeking declaration that each of

the plaintiffs have got 1/5th share in the suit schedule property

and therefore, claimed partition by metes and bounds. The

plaintiffs claim that late Gunda Bhaktha Revanna is the father

of plaintiffs and deceased K.R.Revana Siddappa who is the

husband of defendant No.1 and father of defendant Nos.2 to

7. The plaintiffs further claimed that after death of their

father Gunda Bhaktha Revanna, the present plaintiffs and their

deceased brother K.R. Revana Siddappa inherited the suit

schedule property and they are in joint possession and

enjoyment as there was no partition in the family. The

plaintiffs further specifically pleaded that after the death of

K.R. Revana Siddappa, defendant No.1 in collusion with one of

her brothers got her name mutated in the revenue records by

falsely stating that her husband was the only legal heir of late

Gunda Bhaktha Revanna. The plaintiffs also alleged that

defendants have secured loan though suit schedule property is

ancestral property. On these set of pleadings, the plaintiffs

sought for partition by metes and bounds.

4. On receipt of summons, the defendants entered

appearance and contested the proceedings by filing written

statement. The defendants stoutly denied the entire

averments made in the plaint and specifically contended that

this property was allotted by the Grama Panchayat to the

husband of defendant No.1 i.e., K.R.Revana Siddappa in 1962-

63 and therefore, claimed that suit schedule property is the

self acquired property of defendants. The defendants also

contended that suit schedule property never stood in the name

of Gunda Bhaktha Revanna and it was constructed by

K.R.Revana Siddappa. The defendants also contended that

the suit property which is situated in Bangalore is not included

in the present suit and hence, sought for dismissal of the suit.

5. The Trial Court, based on rival contentions of the

parties, formulated the following issues:

"1) Whether the plaintiffs prove that suit schedule properties is the joint family properties?

2) Whether plaintiffs further prove that they are entitle to 1/5th share in the suit schedule properties?

3) Whether plaintiff is entitle to relief mesne profit?

4) What order or decree?"

6. The plaintiffs in support of their contentions,

examined plaintiff No.4 as PW.1 and examined two

independent witness as PWs.2 and 3 and relied on

documentary evidence vide Exs.P-1 to P-5. The defendants to

counter the claim of the plaintiffs, examined defendant No.1

as DW.1 and one independent witness as DW.2 and relied on

documentary evidence vide Exs.D-1 to D-19.

7. The Trial Court having assessed ocular and

documentary evidence answered issue Nos.1 and 2 in the

affirmative and decreed the suit. The Trial Court while

answering issue Nos.1 and 2 has recorded a categorical finding

that the suit schedule property was originally owned by Gunda

Bhaktha Revanna and therefore, after his death all his sons

have inherited the suit schedule property and therefore,

plaintiffs are also entitled for share as it is the joint family

property. The Trial Court has accepted the documents

produced by the plaintiffs vide Exs.P-1 to P-5. The Trial Court

having relied on the pleadings averred in the writ petition filed

by defendant No.1 has come to conclusion that defendants

have failed to prove that suit property is self acquired property

of K.R. Revana Siddappa who is the husband of defendant

No.1. Having taken judicial note of the pleadings in the writ

petition at paragraph No.1, the Trial Court has come to

conclusion that the pleadings in the earlier proceedings would

bind the defendants wherein they have admitted that suit

property is ancestral property. On these set of reasonings,

the Trial Court has proceeded to decree the suit.

8. Learned counsel appearing for the

appellants/defendants would vehemently argue and contend

before this Court that there was no nucleus for the propositus

Gunda Bhaktha Revanna to acquire the suit schedule property.

Referring to the averments made in the plaint, learned counsel

for defendants would contend that plaintiffs themselves have

pleaded that villagers have given the property to Gunda

Bhaktha Revanna and having taken such a contention, it was

incumbent on the part of plaintiffs to establish that this

property was acquired by propositus Gunda Bhaktha Revanna.

He would also submit to this Court that Trial Court erred in

giving credence to Ex.P-3 which carries no evidentiary value

and the same is demolished by the defendants by leading

rebuttal evidence vide Exs.D-1 to D-3, which would clearly

establish that the documents at Exs.P-1 to P-3 are concocted.

Learned counsel would further take this Court to the relevant

cross-examination and would contend that even during trial,

defendants have succeeded in eliciting in cross-examination of

plaintiffs that suit schedule property was given by the villagers

to the father of plaintiffs namely Gunda Bhaktha Revanna. To

substantiate the said claim, the plaintiffs have not at all

produced any documents.

9. The second limb of arguments canvassed by the

learned counsel for the defendants is that the present suit for

partial partition is not at all maintainable as plaintiffs have not

included the property situated at Bangalore. He would also

contend that plaintiffs have admitted in cross-examination that

family owns one site at Hebburu Village and same is not

included. On these set of pleadings, he would submit to this

Court that the judgment and decree of the Trial Court is

palpably erroneous and contrary to clinching rebuttal evidence

on record and also contrary to categorical admissions elicited

in cross-examination of plaintiffs. On these set of grounds, he

would submit to this Court that the judgment and decree

passed by the Court below warrants interference at the hands

of this Court.

10. Per contra, learned counsel appearing for the

respondents/plaintiffs would vehemently argue and contend

before this Court that plaintiffs have succeeded in discharging

their initial burden by producing cogent and clinching evidence

on record. Placing reliance on Exs.P-1 to P-3, he would

contend that the suit schedule property was standing in the

name of Gunda Bhaktha Revanna at undisputed point of time.

Taking this Court to Exs.P-2 and P-3, he would submit to this

Court that Gunda Bhaktha Revanna's name is duly mutated to

the property extracts way back in 1961-62. Coupled with

these two documents, he would straight away take this Court

to Ex.P-5 which is the writ petition filed by defendant No.1 in

W.P.No.11036/2000. Referring to the grounds at paragraph 2

of the writ petition, he would contend that defendant No.1 has

claimed that suit schedule property has fallen to her husband's

share in an oral partition effected in the year 1974-75. It is in

this background, this Court disposed of the writ petition

relegating the parties to adjudicate their rights in pending suit

i.e., O.S.No.819/2000. Therefore, he would submit to this

Court that in absence of rebuttal evidence, the plaintiffs have

succeeded in discharging their initial burden by placing on

record cogent and clinching evidence to demonstrate that the

suit schedule property was originally owned by Gunda Bhaktha

Revanna and therefore, would request this Court to dismiss

the appeal.

11. Heard the learned counsel appearing for the

appellants/defendants and learned counsel appearing for the

respondents/plaintiffs. Perused the Trial Court records. The

following points would arise for consideration:

1) Whether the Trial Court was justified in holding that suit schedule property is joint family property of plaintiffs and defendants?

2) Whether the Trial Court was justified in holding that defendants have failed to prove that suit schedule property is self acquired property of K.R.Revana Siddappa who is the husband of defendant No.1 and father of defendant Nos.2 to 4?

3) Whether defendants can be permitted to raise a contention of maintainability for non-inclusion of properties?

Re: Point Nos.1 and 2:

12. The plaintiffs claim that suit schedule property was

originally owned by their father Gunda Bhaktha Revanna.

Ex.P-3 is the assessment extract issued by the authority. On

perusal of the same, this Court would find that the property

was originally standing in the name of Gunda Bhaktha

Revanna way back in 1961-62. Coupled with these

documents, plaintiffs have also placed reliance on the writ

petition filed by defendant No.1 in W.P.No.11036/2000 vide

Ex.P-5. Paragraph 2 of the writ petition would clinch the issue

and therefore, it would be useful for this Court to cull out

paragraph 2 of the writ petition which reads as under:

"2. It is submitted that as respondent No.3 is residing at Bangalore and petitioner's husband was residing at Kambalu village, respondent No.3 and the husband of the petitioner mutually agreed and partitioned the property orally that property situated at Kambalu was given to husband of the petitioner and the house sitauted at Banashankari II Stage, Bangalore was given to respondent No.3. This arrangement was made in view of the fact that both are residing in the above said respective places. This oral partition took place some where in the year 1974- 75 during the life time of the husband of the petitioner. Since then respondent No.3 is residing at Bangalore enjoying his property and the husband of the petitioner was enjoying the property situated at Kambalu. After the death of propositus of Revanna, khata of the property situated at Kambalu was changed in the name of the husband of the petitioner in the year 1963-64, since then the khata was standing in the name of the husband of the petitioner

till his death. To show that upto date kandayam paid receipt and kandayam paid by the husband of the petitioner are produced herewith and marked as Annexures-A to G."

It is in this background, this Court disposed of the writ

petition and the operative portion of the order reads as under:

"The petitioner in this petition has challenged the order (Annexure-A) passed by the Executive Officer of the Taluka Panchayat on the ground that he has no right in ordering joint Khatha in the name of the petitioner and the 3rd respondent as this property is allotted to her husband in oral partition. This fact is not admitted by the 3rd respondent. If that is so, whether there is partition or not is yet to be proved. It is submitted in this regard the suit has already been filed in O.S.No.819/00 in the Civil Court. If that is so, any entry now made pursuant to the impugned order is subject to the decision that may be rendered by the Civil Court. Therefore, I do not propose to interfere in the impugned order.

For the reasons stated above, writ petition is rejected.

However, the parties are at liberty to move the appropriate authorities for necessary changes in the

revenue records relating to the property in question on the basis of the decree that may be passed by the Civil Court."

13. If the averments made in the writ petition as per

Ex.P-5 are meticulously examined, this Court would find that

the defendant No.1 has taken a specific contention that suit

schedule property is ancestral property and there was oral

partition during the lifetime of husband of defendant No.1

during the year 1974-75 and in the said partition, suit

schedule property was allotted to the share of defendant No.1.

It is in the context of these averments at paragraph 2 of the

writ petition, learned Single Judge has disposed of the writ

petition relegating defendant No.1 to establish her defence in

pending suit bearing O.S.No.819/2000 and demonstrate that

suit schedule property has fallen to the share of her husband

in an oral partition.

14. However, on perusal of the record, this Court would

find that the defendants have taken a contrary stand in the

present suit. The question that needs to be examined by this

Court is what would be the effect of pleadings in the writ

petition i.e., W.P.No.11036/2000 as per Ex.P-5. This Court

has to assess the evidentiary value of the averments made in

paragraph 2 of the writ petition which is culled out in the

preceding paragraph. The defendant No.1 has taken a specific

contention that suit schedule property was allotted to the

share of her husband in a family partition. Therefore, under

Section 58 of the Indian Evidence Act, the said admission

made at paragraph 2 of the writ petition will act as an estoppel

to the admission made at paragraph 2 of the writ petition.

15. It is a trite law that an admission made by a party

to the suit in earlier proceedings is admissible as against him.

Such an admission being a relevant fact, the Courts are bound

to take notice thereof for arriving at a decision on the basis

thereof together with other materials brought on record by the

parties. Once a party to the suit makes an admission in an

earlier proceedings, the same can be taken in aid, for

determination of an issue having regard to the provisions of

Section 58 of Indian Evidence Act, 1872. The averments

made in the writ petition are not at all controverted by

defendant No.1. Therefore, it has to be presumed to have

been admitted in terms of Section 58 of Indian Evidence Act.

It is also trite that a categorical admission cannot be resiled

from but in a given case, it may be explained or clarified.

Offering an explanation in regard to admission or explaining

about the same, however, would depend upon the nature and

character thereof. It may be in a given instance, defendant

may be entitled to take an alternative plea. Such alternative

pleas, however, cannot be mutually destructive of each other.

Therefore, having regard to the facts and circumstances of the

case on hand, this Court has to examine as to whether an

explanation can be offered and whether there is scope to offer

an explanation in the present case on hand. It is only when

there is a scope to offer an explanation, a clarification can be

made to overcome the admissions given by a party in earlier

proceedings. But in the present case on hand, defendant No.1

in the culled out portion of averments made in the writ

petition, would find that defendant No.1 has admitted in

unequivocal terms that suit property is a joint family property.

She has in fact set up a plea of oral partition. It is in this

background, this Court is of the view that there is absolutely

no scope to raise any alternate plea or there is any scope to

offer an explanation in regard to the averments made in the

earlier proceedings. Therefore, the entire onus was on the

defendants who have admitted the nature of the suit schedule

property to get rid of the effect of said admission.

16. To counter these admissions, the defendants have

not at all produced any cogent evidence and no explanation is

forthcoming as against the said admission made in the writ

proceedings. When a question was posed to the learned

counsel appearing for the defendants, he conveniently dodged

the said question and was not able to offer any explanation

and did not even address his arguments as to how the

admission made in the earlier proceedings would not bind the

defendants. It is more than a trite that admission by way of

pleadings made by the parties or their agents in any other

collateral proceedings have superior evidentiary value and

therefore, Court can base its decision on admission of the

parties. Admission forms best evidence and though such

admission may not create a right in favour of the opposite

party, but the said admission would invariably bind the party

and therefore, would be estopped from taking any contrary

stand.

17. The admission in the present case on hand having

regard to the nature of dispute between the parties is

conclusive and goes to the root of the case. Apart from the

admission, the onus that shifted on defendants to establish

that it is the self acquired property of husband of defendant

No.1 is not at all discharged in the present case on hand.

Except producing tax paid receipts and demand notices vide

Exs.D-4 to D-19, the defendants have not produced a single

scrap of paper to prove as to how this property was allotted by

the Government in favour of husband of defendant No.1.

There is absolutely no rebuttal evidence to disprove the

plaintiffs' claim. The plaintiffs have not only succeeded in

discharging their initial burden but have also succeeded in

establishing that defendant No.1 has admitted in the earlier

proceedings in regard to the nature of the property.

18. In the present case on hand, the defendants have

totally given a go-by to the theory of oral partition which was

set up in the writ proceedings. Therefore, this Court is of the

view that the plaintiffs have succeeded in establishing that suit

property was originally owned by Gunda Bhaktha Revanna and

after his death, all his sons and also plaintiffs have inherited to

the suit schedule property and therefore, they are entitled for

legitimate share. For the foregoing reasons, point Nos.1 and 2

formulated by this Court are answered in the affirmative.

Re: Point No.3:

19. The defendants claim that the present suit for

partial partition is not maintainable. However, on perusal of

the written statement, this Court would find that no particulars

are furnished in the written statement and there is no counter

claim by the defendants. It would be also relevant to refer to

the cross examination of DW.1 relating to the property which

is situated in Bangalore. She has admitted in unequivocal

terms that BDA has allotted site to plaintiff No.4 in 1969 and

she admits that plaintiff No.4 has constructed a residential

house by availing loan from Banashankari Housing Society.

Therefore, in absence of specific pleadings, the present suit for

partition cannot be non-suited.

20. Learned counsel for the defendants has made a

feeble attempt by also placing reliance on cross-examination

of plaintiffs in regard to existence of one more site in Hebburu

Village. Even in respect of this property, in absence of

pleadings and counter claim by the defendants, the question

as to whether the suit for partial partition is maintainable

cannot be examined at this stage, since there were no specific

pleadings, no issue was framed by the Trial Court and

defendants also did not insist for framing of an issue regarding

maintainability of the present suit on the ground of partial

partition. Even on perusal of the grounds before this Court,

no specific ground is raised in regard to maintainability of suit

for partial partition. Therefore, this Court is of the view that it

is an after thought and therefore, defendants cannot be

permitted to raise a contention at a belated stage. For the

foregoing reasons, point No.3 formulated above is answered in

the negative.

21. In the light of the discussions made supra, this

Court is of the view that the findings recorded by the Trial

Court in holding that suit schedule property was originally

owned by Gunda Bhaktha Revanna and after his death,

plaintiffs and defendants have jointly inherited the suit

schedule property is based on clinching legal evidence

adduced by the plaintiffs and in absence of rebuttal evidence.

Therefore, this Court is of the view that the judgment and

decree passed by the Trial Court does not suffer from any

infirmities. There is proper appreciation of evidence by the

Trial Court and the conclusions arrived at by the Trial Court is

based on legal evidence adduced by the plaintiffs. Therefore,

this Court is of the view that the judgment and decree passed

by the Court below does not warrant any interference at the

hands of this Court.

22. For the foregoing reasons, the appeal is devoid of

merits and the same is accordingly dismissed.

Sd/-

JUDGE

CA