Mr Manjunatha vs Mr.Sulendra
2022 Latest Caselaw 5715 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 30TH DAY OF MARCH, 2022

                         BEFORE

           THE HON'BLE MR. JUSTICE R. NATARAJ

 REGULAR SECOND APPEAL NO.1674 OF 2017 (PAR)

BETWEEN:

MR. MANJUNATHA,
AGED ABOUT 55 YEARS,
S/O LATE SRI.VEERABHADREGOWDA,
R/AT BELAME VILLAGE,
PALYA HOBLI, ALUR TALUK,
HASSAN DISTRICT - 573 129.
                                           ...APPELLANT
(BY SMT.AISHWARYA AMAR, ADVOCATE FOR
    SRI.SHRIKARA P.K., ADVOCATE)

AND:

1.     MR.SULENDRA,
       AGRICULTURIST,
       AGED ABOUT 60 YEARS,
       S/O LATE SRI. VEERABHADREGOWDA,
       R/AT BHAVASAVALLI VILLAGE,
       KANATHUR POST,
       PALYA HOBLI, ALUR TALUK,
       HASSAN DISTRICT - 573 129.

2.     MRS.SHARADA,
       W/O VISHWANATHA,
       AGED ABOUT 62 YEARS,
       R/AT KAMATHI VILLAGE,
       PALYA HOBLI, ALUR TALUK,
       HASSAN DISTRICT - 573 219.

3.     MRS. KAMAKSHI,
       W/O MALLESHA,
                              2




     AGED ABOUT 58 YEARS,
     R/AT BELAME VILLAGE,
     PALYA HOBLI, ALUR TALUK,
     HASSAN DISTRICT - 573 219.

4.   MR.RAMESH,
     S/O LATE SRI.VEERABHADREGOWDA,
     AGED ABOUT 54 YEARS,
     R/AT BHAVASAVALLI VILLAGE,
     KANATHUR POST,
     PALYA HOBLI, ALUR TALUK,
     HASSAN DISTRICT - 573 129.

5.   MR.MAHESHA,
     S/O LATE SRI.VEERABHADREGOWDA,
     AGED ABOUT 52 YEARS,
     R/AT BHAVASAVALLI VILLAGE,
     KANATHUR POST,
     PALYA HOBLI, ALUR TALUK,
     HASSAN DISTRICT - 573 129.
                                                ...RESPONDENTS

(BY SRI.V.F.KUMBAR, ADVOCATE FOR R1, R4 AND R5;
    R2 AND R3 SERVED)

     THIS    REGULAR   SECOND     APPEAL   IS    FILED    UNDER
SECTION 100 OF CPC., 1908, AGAINST THE JUDGMENT AND
DECREE DATED 23.11.2016 PASSED IN RA NO.10/2014 ON THE
FILE OF THE ADDL.SENIOR CIVIL JUDGE, AND JMFC., HASSAN
ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT
AND DECREE DATED 06.11.2013 PASSED IN OS NO.165/2011
ON THE FILE OF THE CIVIL JUDGE, ALUR.


     THIS    REGULAR   SECOND     APPEAL   COMING        ON   FOR
ADMISSION     THIS   DAY,   THE    COURT    DELIVERED         THE
FOLLOWING:
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                            JUDGMENT

This appeal is filed by defendant No.3 in

O.S.No.165/2011 challenging the concurrent finding of fact

that the plaintiff is entitled to an un divided share in the

suit schedule properties.

2. The parties shall henceforth be referred as they

were arrayed before the Trial Court.

3. The plaintiff and the defendants are the children

of Veerabhadregowda and Kamalamma. The plaintiff

claimed that the suit properties at suit item Nos.1 to 3 and

5 to 9 were the joint family properties, while item No.4

was purchased by defendant No.3 in his name out of

nucleus of the joint family. He, therefore, contended that

all the properties were owned and possessed by the joint

family and was jointly cultivated by them. He further

alleged that he requested the defendants to effect partition

and allot his separate share in the suit schedule properties,

which was denied by the defendants which compelled the

plaintiff to seek his share by a suit for partition and

separate possession.

4. Defendant No.3 contested the suit and claimed

that the suit item No.4 was his self acquisition and that the

plaintiff and other defendants have no right, title or

interest therein. He however did not dispute the fact that

the other items belonged to the joint family. Likewise the

defendant Nos.1 to 4 and 5 submitted that the suit

properties were the properties of the joint family and

therefore, prayed that the suit be decreed. Defendant No.2

did not contest the suit and was placed exparte.

5. Based on these rival contentions, the trial Court

framed the following issues and set down the case for trial:

1) Whether the plaintiff proves that suit schedule properties are ancestral and undivided Hindu joint family property?

2) Whether the defendant No.3 proves that item No.4 of suit schedule property is his self acquired property?

3) Whether the plaintiff is entitled for 1/6th share ?

4) Whether the plaintiff is entitled the reliefs?

5) what order or decree?

6. The plaintiff was examined as PW.1 and he

marked documents as Exs.P1 to P10. Defendant No.3 was

examined as DW.1 and he marked documents as Exs.D1 to

D7.

7. In view of the admitted position that suit item

Nos.1 to 3 and 5 to 9 were the joint family suit properties,

the trial Court held that those properties are liable to be

partitioned. Insofar as suit item No.4 is concerned, the trial

Court held that the said property was the self acquisition of

defendant No.3, since the same was granted to defendant

No.3 by the Government and that there was no evidence

to establish that it was granted to benefit of the family.

Hence, the trial Court decreed the suit in part and declared

that the plaintiff is entitled to 1/6th share in the suit item

Nos.1 to 3 and 5 to 9.

8. Being aggrieved by the aforesaid judgment and

decree, the plaintiff filed R.A.No.10/2014 before the First

Appellate Court. The First Appellate Court secured the

records of the trial Court, heard the learned counsel for the

parties and framed the following points from consideration:

1) Whether the trial court has committed an error in holding that item No.4 of the suit schedule property is not the joint family property?

2) Whether the impugned judgment and decree of trial court calls for interference?

3) What order or decree?

9. The First Appellate Court held that the joint

family possessed of substantial properties and were

enjoyed jointly by the members of the family. It held that

the parties did not dispute that they were cultivating item

No.4 jointly. Therefore, it held that the grant of item No.4

enured to the family and thus, the plaintiff was entitled to

an undivided share in the said property. The First Appellate

Court therefore decreed the suit in respect of suit item

No.4 as well.

10. Being aggrieved by the aforesaid judgment and

decree, defendant No.3 is before this Court.

11. Learned counsel for defendant No.3 submitted

that the suit item No.4 was granted exclusively to

defendant No.3 and therefore, the plaintiff had no right,

title and interest in the said property. She contended that

unless there was positive evidence to establish that it was

granted to the benefit of the family, the First Appellate

Court misdirected itself in holding that it was granted for

the benefit of the family.

12. A perusal of the documents placed before the

Trial Court would indicate that except the Grant Certificate,

the defendant No.3 did not produce any material to

establish that he had made a claim in respect of that

property in his individual capacity. No material is placed

before the Trial Court to establish that he was cultivating

the said property without the assistance of any of the

members of the joint family. The defendant No.3 could

have produced documents such as application for grant,

the proceedings conducted by the Committee before

granting the land etc., which would have thrown some

light about his independent claim over the suit Item No.4

13. In that view of the matter, unless the defendant

No.3 established that the said property was cultivated by

him independently, there is a presumption that the

members of the joint family were cultivating it together

with other Items of the suit properties. A perusal of

Ex.D-1 indicates that defendant No.3 had purchased suit

Item No.4 at a public auction which is contrary to his claim

that he was granted it by the Government. The defendant

No.3 did not produce any evidence before the Trial Court

to establish his independent income to purchase the suit

Item No.4 at a public auction. If that be so, the irresistible

conclusion would be that the grant of Item No.4 was to

enure to all the members of the joint family. In that view

of the matter, the First Appellate Court is justified in

decreeing the suit in respect of suit Schedule Item No.4.

There is no infirmity in the appreciation of evidence and

application of law to the facts and circumstances of the

case. Hence, this appeal is dismissed.

Pending I.A., if any, does not survive for

consideration.

Sd/-

JUDGE

NR/hnm