Karnataka High Court
Smt. Leelabai vs Smt. Basavanevva on 13 December, 2023
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RSA No. 100596 of 2017
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 13TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
REGULAR SECOND APPEAL NO.100596 OF 2017 (PAR)
BETWEEN:
SMT. LEELABAI W/O. GANAPATSA HABIB,
AGED: 70 YEARS, OCC: AGRICULTURE,
R/O: H.NO.180, VISHWESHWAR NAGAR,
HUBBALLI, DIST: DHARWAD.
REP. BY SPECIAL POWER OF ATTORNEY HOLDER
SRI. MADAVSA S/O. GANAPATSA HABIB,
AGED: 45 YEARS, OCC: BUSINESS,
R/O: H.NO.180, VISHWESHWAR NAGAR,
HUBBALLI, DIST: DHARWAD-580032.
...APPELLANT
(BY SMT. PALLAVI A.PACHHAPURE, ADVOCATE)
AND:
1. SMT. BASAVANEVVA
W/O. FAKIRAPPA MARUNAVAR,
Digitally
signed by
AGED: 55 YEARS,
VISHAL
VISHAL
NINGAPPA
OCC: AGRICULTURE AND HOUSEHOLD,
NINGAPPA PATTIHAL
Date:
R/O: DURGAD ONI, UNKAL, HUBBALLI,
PATTIHAL
2023.12.21
13:09:23
DISTRICT: DHARWAD-580031.
+0530
2. IRAPPA
S/O. SIDHAPPA MARUNAVAR,
AGED: 64 YEARS, OCC: AGRICULTURE,
R/O: DURGAD ONI, UNKAL, HUBBALLI,
DISTRICT: DHARWAD-580031.
3. SMT. SAVAKKA
W/O. MUDAKAPPA MARUNAVAR,
AGED: 44 YEARS, OCC: HOUSEHOLD,
R/O: DURGAD ONI, UNKAL, HUBBALLI,
DISTRICT: DHARWAD-580031.
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RSA No. 100596 of 2017
4. RENUKA
D/O. MUDAKAPPA MARUNAVAR,
AGED: 27 YEARS, OCC: HOUSEHOLD,
R/O: DURGAD ONI, UNKAL, HUBBALLI,
DISTRICT: DHARWAD-580031.
5. MANJULA
D/O. MUDAKAPPA MARUNAVAR,
AGE: 25 YEARS, OCC: HOUSEHOLD,
R/O: DURGAD ONI, UNKAL, HUBBALLI,
DISTRICT: DHARWAD-580031.
6. SIDHAPPA
S/O. MUDAKAPPA MARUNAVAR,
AGE: 23 YEARS, OCC: HOUSEHOLD,
R/O: DURGAD ONI, UNKAL, HUBBALLI,
DISTRICT: DHARWAD-580031.
7. SHIVANAND
S/O. MUDAKAPPA MARUNAVAR,
AGED: 22 YEARS, OCC: HOUSEHOLD,
R/O: DURGAD ONI, UNKAL, HUBBALLI,
DISTRICT: DHARWAD-580031.
...RESPONDENTS
(BY SRI. MALLIKARJUNSWAMY B.HIREMATH, ADV. FOR R1;
SRI. AMRUTH V. JOIS, ADVOCATE FOR R3 TO R7;
NOTICE TO R2 IS SERVED)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE
JUDGMENT AND DECREE DATED 29.02.2016 PASSED IN R.A.
NO.136/2013 ON THE FILE OF I ADDITIONAL DISTRICT AND
SESSIONS JUDGE, DHARWAD, SITTING AT HUBBALLI, DISMISSING
THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED
26.04.2013, PASSED IN O.S.NO. 227/2006 ON THE FILE OF THE I
ADDITIONAL SENIOR CIVIL JUDGE, HUBBALLI, DECREEING THE SUIT
FILED FOR PARTITION AND SEPARATE POSSESSION.
THIS REGULAR SECOND APPEAL, COMING ON FOR
ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 100596 of 2017
JUDGMENT
The present second appeal by defendant No.8-
purchaser assailing the concurrent findings of the Courts
below, whereby, the suit seeking for partition and separate
possession was decreed in part granting 1/3rd share to the
plaintiff and defendant No.1 and defendant Nos.2 to 6
together are entitled to 1/3rd share in suit schedule 'A' and
'B' properties.
2. The parties herein are referred to as per their
ranking before the Trial Court for the sake of convenience.
3. Family pedigree of the parties is as under:
Siddappa
= Ningavva (Dft.7)
Irappa Fakirappa Mudakappa (dead)
(Dft.1) (died)
Basavannevva (Pltff)
Savakka Renuka Manjula Siddappa Shivanand
(Dft.2) (Dft.3) (Dft.4) (Dft.5) (Dft.6)
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4. Suit seeking for partition and separate possession
of the landed properties contending that the suit schedule
properties are the joint family properties of the plaintiff and
defendant Nos.1 to 6. It is averred that Irappa-defendant
No.1 filed form No.7 in respect of the suit schedule property
as a tenant, after the death of the original propositus
Siddappa and the occupancy rights were granted in his
favour and defendant No.1 being the elder member of the
family, granting occupancy rights enure to the benefit of all
the family members, who are the plaintiff and defendant
Nos.2 to 6.
5. Pursuant to the suit summons issued by the Trial
Court, defendant Nos.1 to 8 appeared through their counsel.
Defendant No.1 contested the suit by filing written statement
inter alia, contending that defendant No.1 is the exclusive
owner of the suit schedule 'A' property, as he has filed Form
No.7 in his individual capacity and the Land Tribunal has
declared defendant No.1 as an occupant and granted
occupancy rights in his individual capacity and the plaintiff
and defendant Nos.2 to 6 have no right over the suit 'A'
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schedule property. Defendant No.1 admitted that he sold his
property in favour of defendant No.8 being his exclusive
property and plaintiff and defendant Nos.2 to 6 have no right
over the suit schedule 'A' property.
6. Defendant Nos.2, 3 and 7 filed memo adopting
the written statement filed by defendant No.1.
7. Defendant No.8 was impleaded in the suit and
filed her written statement, contending that the suit schedule
'A' property was purchased by her from defendant No.1, as it
was his individual property having been granted occupancy
rights on 07.05.1976 by the Land Tribunal and defendant
No.1 being the exclusive owner of the suit schedule 'A'
property had every right to execute the sale deed in her
favour and she is a bonafide purchaser for value.
8. The Trial Court on basis of pleadings, framed the
following issues:
1. Whether plaintiff proves that deceased
Siddappa was the tenant of suit land and she
is in joint possession of the suit land?
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2. Whether she further proves that she is entitled
for 1/3rd share in the suit properties and
partition by metes and bounds?
3. Whether defendant No.1 proves that the suit
land is his self-acquired property?
4. Whether the valuation of the suit property and
Court fee paid thereon is proper one?
5. Whether defendant No.1 is entitled for
compensatory cost of Rs.10,000/-?
ADDITIONAL ISSUES
1. Whether the plaintiff proves that she is legally
wedded wife of Fakkirappa marunavar?
2. Whether the suit of the plaintiff is bad for non-
joinder of purchaser of Schedule A property?
3. Whether the defendant No.8 proves that she is
bonafide purchaser of suit property for value?
9. In support of his contention, the plaintiff
examined himself as PW.1 and four witnesses as PWs.2 to 5
and got marked documents at Exs.P.1 to P.19. On the other
hand, defendant No.1 examined himself as DW.1 and three
witnesses as DWs.2 to 4 and got marked documents at
Exs.D.1 to D.41.
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10. The Trial Court on basis of the pleadings, oral and
documentary evidence arrived at a conclusion that:
(i) The plaintiff has proved that the deceased
Siddappa was the tenant of the suit schedule
property and he is in joint possession.
(ii) The plaintiff is entitled for 1/3rd share in the
suit schedule properties by metes and
bounds.
(iii) Defendant No.1 has failed to prove that the
suit land 'A' property is self acquired
property of defendant No.1.
(iv) Defendant No.8 has proved that she is a
bonafide purchaser of the suit schedule
property
By judgment and decree, the Trial Court decreed the
suit of the plaintiff granting 1/3rd share in suit schedule 'A'
and 'B' properties and defendant No.1 was granted 1/3rd
share and defendant Nos.2 to 6 were together entitled for
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1/3rd share in the suit schedule 'A' and 'B' properties. It was
held that defendant No.8 is entitled to the share in the suit
schedule 'A' property to the extent of share of defendant
No.1.
11. Aggrieved by the judgment and decree of the
Trial Court, defendant No.8 preferred appeal before the First
Appellate Court.
12. The First Appellate Court, while reconsidering and
re-appreciating the entire oral and documentary evidence,
concurred with the judgment and decree of the Trial Court.
Aggrieved, by the concurrent findings of facts of the Courts
below, holding that the suit schedule 'A' property is the joint
family property of the plaintiff and defendant Nos.1 to 6, the
regular second appeal by defendant No.8-purchaser of the
suit schedule 'A' property from defendant No.1.
13. Heard Smt.Pallavi A Pachhapure, learned counsel
appearing for the appellant, Sri Mallikarjunswamy
B.Hiremath, learned counsel appearing for respondent No.1
and Sri Amruth V.Jois, learned counsel appearing for
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respondent Nos.3 to 7 and perused the judgment and decree
of the Courts below.
14. The present second appeal pertains only to the
schedule 'A' property. The granting of share in respect of suit
schedule 'B' property is not assailed, defendant No.8-
purchaser of the suit schedule 'A' property, is before this
Court contending that defendant No.1 was the exclusive
owner of the suit schedule property, having been granted
occupancy rights by the Land Tribunal and Form No.10
having been issued in favour of defendant No.1.
15. Ex.P.12 is the certified copy of Form No.7 filed by
defendant No.1 and Ex.D.3 is Form No.7, Ex.P.11 is the
mutation entry 'varsa' effected after the death of Siddappa,
entering the name of defendant No.1 and his brothers,
Fakirappa and Mudakappa and also the name of their
mother, Lingavva, which was mutated. In Form No.7 at
Ex.P.12, the age of defendant No.1 is mentioned as 25 years
and in Column No.8 of the application, it has been stated
that he has been cultivating the suit schedule 'A' property for
25 years as on the date of filing of the application. The trial
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Court held that the contents of the application itself falsify
the case of defendant No.1 that he alone was cultivating the
suit schedule 'A' property. The propositus, namely, Siddappa,
died in the year 1970 before coming into force of the
Karnataka Land Reforms Act, 1961 (hereinafter referred to
as 'the Act, for short) and defendant No.1, being the eldest
member of the family, filed an application in Form No.7
seeking occupancy rights in respect of suit schedule 'A'
property, granting occupancy rights to defendant No.1 and
Form No. 10, issued though in an individual capacity, would
enure to the benefit of his family members. Defendant No.1
absolutely failed to establish that the granting of occupancy
rights and issuance of Form No.10 in his favour were his
individual property.
16. The Trial Court placing reliance upon the oral and
documentary evidence, more particularly the Land Tribunal
order, though granted in favour of defendant No.1, has
arrived at a conclusion that defendant No.1 being the elder
member of the family and the suit schedule 'A' property was
standing in the name of original propositus Siddappa, the
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Trial Court held that the granting of occupancy rights in
favour of defendant No.1 cannot be held to be the individual
property of defendant No.1 and accordingly, the Trial Court
decreed the suit holding that the plaintiff and defendant
Nos.1 to 6 are entitled for 1/3rd share in the suit schedule 'A'
property. In order to grant equity to defendant No.8, it was
held that the share that would be allotted to defendant No.1
in suit schedule 'A' property was to be allotted to defendant
No.8.
17. The First Appellate Court being the last fact
finding Court has re-appreciated the entire oral and
documentary evidence and has arrived at a conclusion that
defendant Nos.1 and 8 have failed to establish that the suit
schedule 'A' property was the exclusive property of
defendant No.1 and defendant No.8 has purchased the
property under the guise of the exclusive property of
defendant No.1 and has arrived at a conclusion that the
plaintiff and defendant Nos.1 to 6 are entitled for share in
the suit schedule property being coparceners.
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18. The manner in which the Courts below have
assessed the entire oral and documentary evidence and
arrived at a conclusion, this Court is of the considered view
that the concurrent findings of facts arrived at by the Courts
below does not warrant any interference in the second
appeal to be dealt with under Section 100 CPC. Accordingly,
no substantial questions of law would arise for consideration
in the present appeal and this Court pass the following:
ORDER
(i) The regular second appeal is hereby
dismissed.
(ii) The judgment and decree of the Courts
below stands confirmed.
Sd/-
JUDGE
EM, CT: UMD
