Karnataka High Court
Sri.Ramappa S/O Kadappa Sindur vs Sri.Kadappa S/O Bhimappa Sindhur on 20 December, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
1 RFA No. 100264 OF 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 20th DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE H.P.SANDESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO. 100264 OF 2019
BETWEEN:
1. SRI.RAMAPPA S/O. KADAPPA SINDUR
SINCE DECEASED BY LRS,
SMT.DUNDAVVA W/O. RAMAPPA SINDUR,
AGED ABOUT: 70 YEARS, OCC: HOUSEHOLD,
R/AT: MAREGUDDI, TQ: JAMKHANDI,
DIST: BAGALKOTE-587314.
2. SRI. LAKSHAMAPPA S/O. RAMAPPA SINDUR,
Digitally signed
by
SHIVAKUMAR
AGED ABOUT: 51 YEARS, OCC: AGRICULTURE,
HIREMATH
Date:
R/AT: MAREGUDDI, TQ: JAMKHANDI,
2024.01.04
13:24:53 +0530 DIST: BAGALKOTE-587314.
3. SRI.SADASHIV S/O. RAMAPPA SINDUR,
AGED ABOUT: 42 YEARS, OCC: AGRICULTURE,
R/AT: MAREGUDDI, TQ: JAMKHANDI,
DIST: BAGALKOTE-587314.
4. SRI. MAHADEV S/O. RAMAPPA SINDUR,
AGED ABOUT: 38 YEARS, OCC: AGRICULTURE,
R/AT: MAREGUDDI, TQ: JAMKHANDI,
DIST: BAGALKOTE-587314.
5. SRI. SIDDAPPA S/O. RAMAPPA SINDUR,
AGED ABOUT: 34 YEARS, OCC: AGRICULTURE,
R/AT: MAREGUDDI, TQ: JAMKHANDI,
DIST: BAGALKOTE-587314.
2 RFA No. 100264 OF 2019
6. SMT.GEETA W/O. SURESH PUJARI
AGED ABOUT: 30 YEARS, OCC: HOUSEHOLD,
R/AT: CHIKKUR, TQ: MUDHOL,
DIST BAGALKOTE-587320.
...APPELLANTS
(BY SRI. MRUTYUNJAY TATA BANGI, ADVOCATE)
AND:
1. SRI. KADAPPA S/O. BHIMAPPA SINDHUR
AGED ABOUT: 56 YEARS, OCC: AGRICULTURE,
R/AT: MAREGUDDI, TQ: JAMKHANDI,
DIST: BAGALKOTE-587314.
2. SRI.SADAPPA S/O. BHIMAPPA SINDHUR,
AGED ABOUT: 46 YEARS, OCC: AGRICULTURE,
R/AT: MAREGUDDI, TQ: JAMKHANDI,
DIST: BAGALKOTE-587314.
3. SRI. ADIVEPPA S/O. BHIMAPPA SINDHUR,
AGED ABOUT: 56 YEARS,
OCC: AGRICULTURE, R/AT: MAREGUDDI,
TQ: JAMKHANDI, DIST: BAGALKOTE-587314.
4. SMT.TAYAWWA W/O. BHIMAPPA SINDHUR,
AGED ABOUT: 74 YEARS, OCC: HOUSEHOLD,
R/AT: MAREGUDDI, TQ: JAMKHANDI,
DIST: BAGALKOTE-587314.
...RESPONDENTS
(BY SRI. RAVI S. BALIKAI, ADVOCATE FOR R1-R4)
THIS REGULAR FIRST APPEAL FILED UNDER ORDER 96 OF
THE CODE OF CIVILPROCEDURE, PRAYING TO SET ASIDE THE
JUDGMENT AND DECREE PASSED BY THE PRINCIPAL SENIOR
CIVIL JUDGE, JAMKHANDI, AT JAMKHANDI PASSED IN O.S. NO.
154 OF 2011 DATED 14.03.2019 AND DECREE THE SUIT IN
ENTIRETY WITH COSTS THROUGHOUT BY ALLOWING THE
PRESENT APPEAL IN THE INTEREST OF JUSTICE AND EQUITY.
3 RFA No. 100264 OF 2019
THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND
RESERVED ON 11.12.2023 COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, RAMACHANDRA D. HUDDAR, J.,
DELIVERED THE FOLLOWING:
JUDGMENT
The legal heirs of original plaintiff described as plaintiffs
1(a) to 1(f) have preferred this appeal being aggrieved and
dissatisfied by the judgment of dismissal of the suit in
O.S.No.154/2011 dated 14.03.2019 passed by the Principal
Senior Civil Judge, Jamakhandi (for short "Trial Court").
2. The records of this appeal reveal that, during the
pendency of the suit itself, the original plaintiff died and his legal
representatives were brought on record , who are appellants in
this appeal.
3. For the purpose of convenience, the parties are
referred to as per their rank before the Trial Court.
4. The case of the original plaintiff in brief is as under:
i) That, the original plaintiff by name Ramappa S/o.
Kadappa Sindur filed the suit against the defendants seeking
relief of partition and separate possession of his alleged half
share in the suit lands bearing Survey No.154/1 measuring 22
acres 39 guntas and Survey No.154/2 measuring 4 acres 8
guntas, both situated in Mareguddi village of Jamakhandi Taluk.
ii) It is the case of the plaintiff that, his father Kadappa
was the propositus of the family. He had three sons by name
Gulappa, Bhimappa and Ramappa. This original plaintiff was
none else than the son of Kadappa. It is further stated that
defendants are the sons and wife of said Bhimappa . Kadappa
died long back. He was the owner of the suit schedule properties
described in the plaint.
iii) It is the specific case of the plaintiff that, after
demise of Kadappa, his brothers and son Gulappa expressed
their desire to divide the properties but his two sons i.e. plaintiff
and Ramappa were not ready to effect the division in the
properties. At that time, original plaintiff was quite young and
was under the care and custody of his brother-Bhimappa .
Therefore, a partial partition has taken place. The fertile land in
Survey No.155 was allotted to his brothers and Kadappa and his
sons Gulappa, Ramappa and Bhimappa . The land in Survey
No.154 was allotted to Bhimappa and Ramappa jointly.
iv) It is further alleged by the plaintiff that, for
convenience of agricultural operations and to seek benefit from
the governments scheme to raise loans, the said property was
divided into two unequal portions. Accordingly, the names of
Bhimappa and Ramappa were mutated in respect of Survey
No.154/1 and 154/2. It is specifically alleged by the plaintiff
that, no such partition has taken place by metes and bounds in
between Bhimappa and Ramappa at any point of time. Even it is
alleged that, at any point of time there was no necessity for
them to effect equal partition.
v) It is alleged that, after demise of Bhimappa his legal
heirs got there names mutated in respect of Survey No.154/1.
The dispute arose between the family of the plaintiff and
defendants with regard to joint management and enjoyment of
the properties. The plaintiff found difficulty with joint family and
it was impossible for him to continue with joint possession of the
schedule properties. Therefore, he requested the defendants to
effect partition, but there was flat denial. Therefore, he has filed
the present suit before the Trial Court seeking his alleged half
share in the schedule properties by metes and bounds. It was
prayed by the plaintiff to decree the suit.
5. The records of this appeal do reveal that, when the
suit was filed, it was only against three defendants.
Subsequently, defendant No.4 was impleaded. Pursuant to the
suit summons, defendants 1 to 3 appeared. Defendant No.4
despite of service of summons did not appear before the Trial
Court and therefore he was placed exparte.
6. Defendant No.1 filed written statement. Defendants
2 and 3 did not file any written statements on their behalf.
7. It is specifically contended by defendant No.1 in his
written statement that, during the year 1969 itself, there was a
partition in between Bhimappa , Gulappa and Ramappa. To that
effect, mutation entry No.1889 came to be certified by the
revenue authorities. The plaintiff, after twenty years of the said
partition, now has filed this suit. According to defendant No.1, 02
acres 34 guntas of land in Survey No. 154/2 and Survey
No.155/1 measuring 02-acres 06-guntas. In the said partition,
Parasappa and Nagappa were also allotted land in Survey
No.155/3 measuring 06 acres 20 guntas and in Survey No.155/2
measuring 5 acres 10 guntas under M.E.Nos.1954 and 1889.
There was already a partition by metes and bounds.
It is contended that by suppressing the material facts of
earlier partition, just to have unlawful gain, the plaintiff has
designed this suit and filed the same before the Trial Court. As
per the partition of 1969 all the share holders are enjoying their
respective properties. Even they have raised loan based upon
the fertility of the lands. Now, the defendants names are
appearing in the revenue records. They have also raised loan.
From the last 40 years, the plaintiff and defendants are residing
separately. The plaintiff has not challenged the mutation entry
bearing Nos.1954 and 1889 at any point of time. Thus, the suit
filed by the plaintiff is barred by limitation and also liable for
dismissal on the ground of non-joinder of necessary parties.
Thus, it is prayed by defendant No.1 to dismiss the suit.
8. Based upon the rival pleadings of both the parties,
the learned Trial Court framed in all five issues.
i) Whether plaintiff proves that Sy.No.154 was
allotted jointly to him and father of the
defendants?
ii) Whether plaintiff proves that at the time of
partial partition, it was not equally divided
properties and it was not acted upon?
iii) Whether suit is bad for non joinder of necessary
parties?
iv) Whether plaintiff is entitled for the reliefs as
claimed?
v) What order or decree?
9. To substantiate his claim and to prove his case, the
original plaintiff, himself entered the witness box and examined
as PW1 and he also got examined one more witness i.e.
Dayanand Bhimappa Chalavadi, being of the ADLR as PW2 to
prove that there was no survey of the lands. On behalf of the
plaintiff three documents were marked as Ex.P1 to Ex.P3 and he
closed his evidence.
10. To rebut the evidence of the plaintiff, defendant No.1
himself entered the witness box as DW1, so also wife of Gulappa
by name Bhagavva, Hanamantha S/o. Parasappa Sindur and
Kallwwa W/o. Nagappa Sindur as DW2 to DW4 and got marked
documents as per Ex.D1 to Ex.D44 and closed the defence
evidence.
11. The Trial Court on hearing the arguments and after
assessment of evidence adduced by both the sides, answered
issue No.1 to 4 in the negative and ultimately dismissed the suit
of the plaintiff. It is this judgment, which is under challenge by
the legal heirs of original plaintiff by preferring this appeal.
12. The learned counsel for the appellants,
Sri.Mrityunjaya Tata Bangi, submits that, because of unequal
partition of the schedule properties in the year 1969, the original
plaintiff was constrained to file the suit. According to his
submission, when the said alleged partition has taken place, the
plaintiff was very much young and was under the care and
custody of Bhimappa. Therefore, jointly the plaintiff and
defendants were allotted share in the schedule properties.
Whatever the allotment so made in the said partition was for the
purpose of convenience to raise loans from various banks for the
purpose of improvement of agriculture. He further submits that
as there was unequal partition, therefore, the plaintiff has
demanded for effecting partition as he intended to separate from
the joint family with Bhimappa. AS there was refusal, this suit
was filed by the plaintiff.
13. In support of his submission, the learned counsel for
the plaintiff relied upon various documents, oral as well as
documentary, spoken to by PW1 and PW2 as well as defendant
No.1 and his witnesses. He submits that because of unequal
partition, it can be construed that, it was not a partition by
metes and bounds. It was just a family arrangement and that
family arrangement cannot be termed as partition by metes and
bounds as per submission. Therefore, he prays to allow the
appeal and set aside the impugned judgment and decree passed
by the Trial Court.
14. As against this submission, the learned counsel
Sri.Ravi S Balikai, appearing for respondents 1 to 4 submits that,
so far as the relationship between the parties is concerned, there
is no dispute. His submission is that, the assertions made by the
plaintiff that, there was unequal partition at the time when the
plaintiff was very young at that time, is utterly false. As per his
submission, because of fertility of lands, more property was
allotted to Bhimappa and lesser fertile land was allotted to the
plaintiff. The said partition cannot be reopened now by seeking
partition by the plaintiff. According to other defendants, they
were also allotted the lesser share based upon the fertility of
land and that does mean that the plaintiff was allotted lesser
share in the suit schedule properties. He submits that, the
mutation entries have taken place and have remained
unchallenged till date. The plaitnfif is a quarrelsome person and
he is not a reputed person in the village. Always he is in the
habit of quarrelling with his brother-Bhimappa, so also his legal
representatives now. He submits that in view of the partition of
the year 1969, the plaintiff has to be non-suited.
15. Learned counsel Sri.Mrityunjaya Tata Banki for the
appellants and Sri.Ravi S Balikai for respondents took us through
various oral and documentary evidence.
16. In view of rival submissions of both the sides and
also on reading of the entire materials placed on record, the
following points would arise for our consideration:
i) Whether the learned Trial Court has
committed illegality or perversity in
dismissing the suit by giving a finding that the
defendants were able to prove the earlier
partition?
ii) If so, whether the judgment and decree of the
Trial Court requires interference by this
Court?
Point No.1 and 2 are discussed together.
17. So far as relationship between plaintiff and
defendants is concerned, it is admitted by both sides as per the
genealogy furnished by the appellants. The appellants in their
appeal memo have stated that originally, one Mallappa was the
propositus. He had three sons viz., Kadappa, Parasappa and
Nagappa. Kadappa was the ancestor of plaintiff and defendants.
Kadappa had three sons viz., Gulappa, Bhimappa and Ramappa.
Ramappa was original plaintiff. Bhimappa had three sons by
name Kadappa, Sadappa and Aiveppa and wife by name
Tayawwa. Kadappa, Sadappa and Adiveppa are defendants 1 to
3, respectively and Tayawwa is defendant No.4.
18. So far as oral evidence of the original plaintiff is
concerned, he has spoken to before the Trial Court in line with
the contents of plaint averments. He has been thoroughly cross-
examined by the counsel for defendants. It is his consistent
evidence before the Trial Court that, Bhimappa was elder
member of the family and he was managing the properties.
Therefore, the original plaintiff is entitled for equal share as
there was unequal partition in the year 1969. The original
plaintiff admitted about the allotment of share as per mutation
entries No.1954 and 1889 being certified by the revenue
authorities. He denies the suggestion that the land so allotted to
Bhimappa was not fertile land. He denied all the suggestions
directed to him.
19. He examined one more witness as PW2-Dayanand
Chalavadi being official of ADLR at the relevant time to show that
there was no phod/hissa in Survey No.154. According to him, in
Survey No.154 measuring 27 acres 7 guntas, the land measuring
13 guntas is phot Kharab land as per the revenue records and no
Phod/hissa has taken place. But in the cross-examination
directed to him, he deposed ignorance that in the said survey
number partition has already taken place. No documents are
available in the office about payment of charges with regard to
conducting of survey of the said survey number. PW1 says that
no partition has taken place, but admits about certification of
mutation entries in the year 1969 by the revenue authorities and
based upon that, name of Bhimappa so also the name of the
plaintiff were entered in the mutation records to the extent
allotted.
20. Kadappa Bhimappa Sindur-Defendant No.1 being son
of Bhimappa has spoken in line with the contents of written
statement. He has specifically stated that, in the year 1969 there
was a partition in between brothers i.e. Gulappa, Bhimappa and
Ramappa. To that effect, mutation entry No.1889 came to be
certified by the revenue authorities according to the allotment of
legitimate share in the suit schedule properties to the original
plaintiff as well as his brother, Bhimappa and Gulappa. He states
that in the said partition, 2 acre 34 guntas of land in Survey
No.154/2 and 2 acre 6 guntas in Survey No.155/1 was allotted
to the share of the plaintiff, being fertile land. Deceased-
Bhimappa, the brother of the original plaintiff, was allotted 2
acre 7 guntas in Survey No.154/1 in lieu of his legitimate share
and another brother-Gulappa was allotted 4 acres of land in
Survey No. 155/2. He has specifically stated that already there
was a partition and therefore, there is no question of again
reopening the earlier partition.
21. In the intensive cross-examination directed by the
plaintiff to DW1, he is consistent through his cross-examination
that already there was partition. He denied the suggestion that
for the purpose of raising loan, the mutation entries were
effected. He has specifically stated that because as there was
already partition in the year 1969, now the plaintiff cannot again
claim for fresh partition and seek allotment of share in the
schedule properties as claimed in the plaint. It is his specific
evidence that the other sharers were also allotted share and
they have not questioned about the earlier partition of the year
1969.
22. DW2-Smt.Bhagavva W/o.Gulappa Sindur, DW3-
Hanamanth S/o. Parasappa Sindur and DW4-Smt.Kallawwa W/o.
Nagappa Sindur also have given their evidence before the Trial
Court and that, as per the partition of the year 1969, all the
sharers are enjoying their respective shares and they have not
questioned the said partition till date. Though these three
witnesses examined by defendant No.1 were directed with
severe and intensive cross-examination, but they are consistent
in their evidence and have concretely deposed their evidence
that there was already partition and they admitted the partition
of the year 1969. No effective cross-examination was directed to
these witnesses so as to disbelieve their evidence given to by
them in their examination-in-chief. Except Ex.P1 to Ex.P3, the
plaintiff has not produced any other documents. Amongst the
said documents so produced by the plaintiff, Ex.P3 is the
mutation entry bearing Noi.1889, which shows that, there was
allotment of properties in the name of Gulappa, Bhimappa,
Ramappa, Parasappa and Nagappa. For better appreciation, it is
just and proper to incorporate the said allotment of shares in the
judgment, which reads as under:
PÀæ.¸ÀA ºÀQÌ£À ¥ÀæPÁgÀªÀÅ ¸ÀªÉð d«ÄãÀÄ DPÁgÀ
£ÀA
1. WÀƼÀ¥Áà PÁ. ¹AzÀÆgÀ 155/1 6 JPÀgÉ 22 2=00
EªÀ£À ¥Á°UÉ §A¢zÀÄÝ
UÀÄAmÉ
2. ©üªÀÄ¥Áà PÁ. ¹AzÀÆgÀ 154/1 25 JPÀgÉ 34 5=00
EªÀ£À ¥Á°UÉ §A¢zÀÄÝ
UÀÄAmÉ
3. gÁªÀÄ¥Áà PÁ. ¹AzÀÆgÀ 154/2 4 JPÀgÉ 0 UÀÄAmÉ 1=00
EªÀ£À ¥Á°UÉ §A¢zÀÄÝ
4. ¥ÀgÀ¸À¥Áà ªÀÄ. ¹AzÀÆgÀ 155/3 6 JPÀgÉ 20 1=94
EªÀ£À ¥Á°UÉ §A¢zÀÄÝ
UÀÄAmÉ
5. £ÁUÀ¥Áà ªÀÄ. ¹AzÀÆgÀ 155/2 5 JPÀgÉ 10 UÀÄAmÉ 1=74
EªÀ£À ¥Á°UÉ §A¢zÀÄÝ
23. Ex.P.1 and P2 are the RTC Extracts pertaining to
Survey No.154/1 and 154/2 produced by the plaintiff, whereas
defendants have produced various documents marked as per
Ex.D1 to Ex.D44. They consist Khata documents, RTC extracts,
Mutation extracts etc.,
24. On scrupulous reading of all these documents, they
do suggest that, in whose name the said landed properties are
standing right from the year 1969 onwards. As per Ex.D18, the
name of Bhimappa Kadappa Sindur is appearing in respect of
Survey No.154/1 measuring 22 acres 36 guntas situated at
Mareguddi village. That means, as per the allotment of shares in
the partition, the aforesaid mutation No.1954 as per Ex.P3 was
certified. Likewise, the said certification of mutation entry shows
that there was raising of loan by the share holders to whom the
landed properties were allotted from various societies and banks
etc., The RTC extracts produced by defendant No.1 marked as
per Ex.D18 to 26 do suggest about the names being effected in
the revenue records in the names of the share holders as per the
partition.
25. While marking the said documents, the plaintiff has
not raised any objections.
26. It is submitted by the counsel for defendant No.1
that now because of irrigation facility being provided by the
Government by drawing GLBC canal, the properties have
become irrigated lands and now the plaintiff want to have
unlawful gain. He further submits that, there was partition based
upon the fertility of land in the year 1969 and the other
defendants and DW2 to DW4 being allottees of shares never
questioned the said partition. They were satisfied with the
allotment of shares in the said partition. It is only the plaintiff,
who is objecting now that he wants an equal partition.
27. On scrupulous reading of the entire pleadings and
the evidence produced by the plaintiff and defendants, it do
demonstrate that by virtue of Ex.P3, there was already partition.
The said partition was based upon fertility of lands as per the
counsel for the defendants. This fact is not denied by the
plaintiff. He never says in the plaint that, the land so allotted to
him is not at all fertile lands. There is no pleadings to that effect.
Simply he pleads and deposes that there was unequal partition
in the year 1969 so effected and based upon that mutation was
certified and the name of original plaintiff and defendants came
to be entered in the revenue records. Unless the earlier partition
is set aside by the competent Court of law, the said old partition
holds good. The plaintiff, at one breathe admits the partition of
the year 1969 and at another breath, after lapse of so many
years, now he approached the Trial Court claiming that the said
partition is unequal. It is usual practice in villages, which the
court can take judicial note that, the partition takes place based
upon the fertility of lands. If the said land does not yield much
income, more land would be allotted to him so as to equal the
income with other allottees of land. Thus, partition of the lands
always depends upon the nature of the lands and the facilities
attached to such lands. It is stated by the learned counsel
during the course of arguments that, now water canal has been
drawn by the Government and some of the lands surrounding
the said canal have become irrigated. This must have prompted
the plaintiff to file the present suit seeking partition alleging that,
there was unequal partition. That does not mean that, the earlier
partition has to be discarded and the plaintiff be awarded share
as claimed.
28. The learned Trial Court based on the evidence placed
on record as well as based upon documentary and oral evidence,
has rightly come to the conclusion that the plaintiff has to be
non-suited. We do not find any factual or legal error being
committed in dismissing the suit of the plaintiff. If really the
plaintiff was aggrieved by the earlier partition, he could have
challenged the said mutation entry immediately after effecting
the same. It is the consistent evidence of DW1 that, right from
the date of the partition, the original plaintiff and his brother-
Bhimappa were residing separately. The original plaintiff was
married at the relevant time and never disputed the same.
Simply he submits that he continued his jointness with Bhimappa
only to show that he continued his residence for the purpose of
cultivation of the properties jointly with Bhimappa. To prove the
same, except self-serving testimony of PW1, no evidence is
placed on record.
29. Whereas DW2 to DW4, being close blood relatives of
the plaintiff and defendant No.1 have deposed that there was a
partition in the year 1969 and all are separated. There is no
evidence brought on record that DW2 to DW4 are having ill-will
or animosity against plaintiff to depose against him. The case
made out by the defendant No.1 is more probable than the case
of the plaintiff. There is ample oral as well as documentary
evidence put forth by the defendant No.1 to show that the
partition of the year 1969 is acted upon.
30. Whereas the evidence placed by the plaintiff suffers
from material particulars. Just for the sake of having more
benefit, the plaintiff might have filed the suit. This probability
cannot be ruled out. Hence we are of the considered opinion that
the Trial Court has not erred in dismissing the suit of the
plaintiff. There is no illegality or perversity found in the
judgment of the Trial Court in dismissing the suit of the plaintiff.
Therefore, we answer the above points against the plaintiff and
in favour of the defendants.
31. In view of the discussions made in the above paras,
the appeal filed by the appellants fails and is liable to be
dismissed. The judgment and decree passed by the Trial Court
has to be affirmed. Resultantly, we pass the following:
ORDER
i) The appeal stands dismissed.
ii) The judgment and decree dated 14.03.2019 in
O.S.No.154/2011 passed by the Principal
Senior Civil Judge, Jamakhandi is confirmed.
iii) Considering the relationship between the
parties, there shall be no order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
YAN
