Karnataka High Court

Sri M R Venkatesh vs Sri M R Sringeshwara on 21 December, 2023

                              1


        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 21ST DAY OF DECEMBER, 2023

                           BEFORE

      THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

       REGULAR SECOND APPEAL NO.878 OF 2016 (PAR)

BETWEEN:

     SRI M R VENKATESH
     S/O LATE RAMA NAIKA
     AGED ABOUT 57 YEARS
     R/O BALAGARU
     BINTHRAVALLI VILLAGE
     BERUKODIGE POST
     KOPPA TALUK
     CHIKKAMAGALURU-577126

                                                ...APPELLANT

(BY SRI.RUDRAIAH M, ADVOCATE)

AND:

1.    SRI M R SRINGESHWARA
      S/O LATE RAMA NAIKA
      AGED ABOUT 52 YEARS
      R/O BALAGARU, BINTHRAVALLI VILLAGE
      BERUKODIGE POST
      KOPPA TALUK,
      CHIKKAMAGALURU-577 126

2.    SMT NAGARATHNA @ NAGAMMA
      W/O VASAPPA NAIKA
      AGED ABOUT 55 YEARS
                                2


    R/O BAVIGADDE, SINGANABIDRE POST
    MANDAGADDE HOBLI
    THIRTHAHALLI TALUK
    SHIMOGA-577 432

                                               ...RESPONDENTS

(BY SRI.T N VISWANATHA, ADVOCATE FOR R1;
SRI.S.SHIVANANDA, ADVOCATE FOR R2)

     THIS RSA IS FILED UNDER SEC.100 R/W ORDER 42 RULE 1
AND 2 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED
05.02.2016 PASSED IN R.A NO.58/2015 ON THE FILE OF THE 2ND
ADDL. SENIOR CIVIL JUDGE, CHIKKAMAGALURU, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED
10.06.2015 PASSED IN O.S NO.13/2009 ON THE FILE OF THE CIVIL
JUDGE AND JMFC., KOPPA.

    THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 20.12.2023, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

The captioned second appeal is by defendant No.1

assailing the concurrent judgments rendered by both the

Courts below wherein both the Courts have held that grant

made in favour of defendant No.1 was on behalf of the family

and therefore, plaintiff's suit for partition and separate

possession in respect of granted land is decreed by trial Court

and confirmed by the appellate Court.

2. For the sake of brevity, the parties are referred to

as per their rank before the trial Court.

3. The family tree is as under:

Rama Naika (Deceased Defendant No.2)(father) | Smt.Shingamma (Mother) |

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    |                           |                                    |
M.R.Venkatesh            M.R.Sringeshwara             Smt. Nagarathna
(Defendant 1)            (Plaintiff)                  (Defendant 3)

4. The plaintiff has filed the present suit by contending

that he constitutes undivided Joint Hindu Family with

defendants. The defendant No.2 - Rama Naika is the father

and the present plaintiff and defendant Nos.1 and 3 are the

children of defendant No.2. The plaintiff has alleged that

defendant No.1 was managing the property owned by his

mother Shingamma. It is also contended that defendant No.1

as manager of the family submitted an application seeking

grant and the authorities have granted the suit property

bearing Sy.No.4/P measuring 4 acres. It is the specific case of

the plaintiff that application was submitted seeking grant on

behalf of joint family and therefore, plaintiff claimed that the

property though granted in the name of defendant No.1, the

same would enure for the benefit of the family and therefore,

plaintiff is entitled for his legitimate share in the property. The

plaintiff also alleged that he is residing with his parents while

defendant No.3 is separately residing with her family. The

present suit is filed alleging that on account of defendant

having walked out of the family and the fact that he is residing

separately, plaintiff demanded his legitimate share in the suit

schedule property and the defendant No.1 went on postponing

and refusing to effect partition by metes and bounds and

hence, the present suit.

5. The defendant No.1, on receipt of summons,

tendered appearance and filed written statement and stoutly

denied the entire averments made in the plaint. The

defendant No.1 on the contrary claimed that he has submitted

application seeking grant in his individual capacity. The

defendant No.1 contended that since 1980 he is residing

separately and has been making a living by doing coolie work

and also taking lease of garden lands. The defendant No.1

further alleged that his father has thrown him out of the house

and therefore, defendant No.1 was compelled to reside

separately. On these set of grounds, defendant No.1 claimed

that suit land is self acquired property and therefore, not

available for partition.

6. The plaintiff and defendants to substantiate their

respective claim have let in oral and documentary evidence.

7. The trial Court while taking cognizance of voters list

vide Ex.P-11 held that plaintiff and defendant No.1 in fact

were residing together in 1988. Therefore, referring to family

tree and bearing in mind the fact that relationships are not in

dispute, trial Court on an assumption that suit schedule

property was under joint cultivation held that the grant made

in favour of defendant No.1 was in fact on behalf of joint

family member and therefore, it would enure for the benefit of

the joint family. The trial Court has also taken cognizance of

the admission elicited in cross-examination of defendant No.1

and has come to conclusion that the grant was in fact on

behalf of joint family and not in individual capacity. The trial

Court has further assumed that since defendant No.1 while

tendering application seeking grant has furnished the details

of family members, it has to be presumed that grant was on

behalf of joint family. Consequently, suit is decreed and

plaintiff is awarded 1/3rd share in the suit schedule properties.

Feeling aggrieved by the judgment and decree of the trial

Court, the defendant No.1 preferred appeal before the

appellate Court.

8. The appellate Court has independently assessed the

evidence on record. On reassessing the evidence on record,

the appellate Court has taken cognizance of evidence of DW.2

examined by defendant No.1. Referring to the statement of

DW.2 who has stated in his evidence that he has paid

Rs.3,300/- to defendant No.2 who was working as a coolie

under him and the said amount is utilized to pay premium

while securing grant of the suit land, appellate Court was also

of the view that the grant made in favour of defendant No.1

would enure for the benefit of the entire family. Appellate

Court while concurring with the reasons has recorded its

reasons aligning with the reasons assigned by the trial Court.

The appellate Court has also held that defendant No.1 while

tendering application seeking grant was residing with plaintiff

and other defendants. The appellate Court also held that

defendant No.1 and defendant No.3's marriage was

solemnized on the same day and therefore, defendant No.1

was in fact residing along with his parents and siblings.

Therefore, appellate Court was of the view that the grant

made in favour of defendant No.1 would enure for the benefit

of the joint family. Consequently, appeal is dismissed.

9. This Court vide order dated 29.06.2016 has

admitted the appeal and formulated following substantial

question of law:

"1) Were the Courts below justified in decreeing the suit of the plaintiff for partition and separate possession which the defendants have pleaded that it is self acquired properties and the same was granted by the Government under Ex.P1 and he is junior member of the family in view of the dictum of this court in RFA.No.305/91?

2) Were the Courts below is justified in decreeing the suit of the plaintiff when the plaintiff has not produced any material documents before the Court to prove that the suit schedule properties are joint family properties?"

10. Learned counsel appearing for the defendant No.1

in the light of substantial question of law formulated by this

Court would vehemently argue and contend that the family

admittedly did not possess any ancestral properties. Referring

to para 7 of the written statement, he would point out that

defendant No.1 was thrown out of the family in 1980 and

therefore, the concurrent findings of the Courts below that

grant made in favour of defendant No.1 would enure for the

benefit of the entire family is perverse. He would further point

out that both the Courts erred in relying on evidence of DW.2

while recording finding that grant made in favour of defendant

No.1 was on behalf of joint family. He would vehemently

argue and contend that neither plaintiff has pleaded in his

plaint that the premium to secure grant was paid through the

wages paid by DW.2 nor defendant No.2 who is the father of

plaintiff and defendant No.1 has taken a stand that money

was paid by him having secured it through DW.2 under whom

defendant No.2 was working as a coolie. While taking this

Court through the contents of Ex.P-1 which is an application

submitted by defendant No.1, he would vehemently argue and

contend that both the courts have misread this application.

Referring to Ex.P-1, he would point out that defendant No.1

has not at all submitted application on behalf of the family.

The details of family members is furnished as it is the

requirement of the application. Therefore, he would contend

that merely because details of family members is disclosed,

that in itself will not amount to grant on behalf of the joint

family. He would further contend that plaintiff cannot

approbate and reprobate and claim benefit. At one breath,

plaintiff claims that defendant No.1 was acting as a Kartha and

then, he claims that defendant No.1 was hardly aged 18 years

and had no capacity to pay premium while securing grant of

suit land. He would further contend that appellate Court has

misread the evidence of defendant No.1. The defendant No.1

has nowhere admitted that he has submitted application on

behalf of family. On these set of grounds, he would contend

that the concurrent findings recorded by both the Courts suffer

from perversity and therefore, substantial question of law

needs to be answered in the affirmative and against the

plaintiff and suit is liable to be dismissed.

11. Per contra, learned counsel appearing for the

plaintiff would vehemently argue and contend that defendant

No.1 was hardly aged 18 years and therefore, had no financial

resources to seek grant. Referring to Ex.P-2, he would point

out that premium of Rs.3,271/- is paid. Referring to these

significant details, he would contend that evidence of DW.2

would clinch the entire controversy between the parties.

DW.2 who is examined as a witness on behalf of defendant

No.1 has admitted in cross-examination that he paid

Rs.3,300/- to defendant No.2 which was in-turn utilized to pay

premium to secure grant. Learned counsel appearing for the

plaintiff has also placed heavy reliance on Ex.P-1. Referring to

the family details, he would point out that application was in

fact submitted on behalf of joint family and therefore, he

would contend that defendant No.1 cannot take advantage of

grant made in his favour. He would further contend that

defendant No.1 was in fact residing along with his parents and

plaintiff, as on the date of grant was not even married and

therefore, he would contend that, though grant is made in

favour of defendant No.1, the same would enure for the

benefit of the entire family.

12. To buttress his arguments, he has placed reliance

on the judgment rendered by the Hon'ble Apex Court in the

case of B.L.Sreedhar and Others vs. K.M.Munireddy

(Dead) and Others1. Referring to the principles laid down by

the Apex Court in the above cited judgment, he would contend

that any grant made in favour of family member, would enure

to the whole family and the person in whose favour grant is

made cannot take advantage and claim to be an individual

grant.

13. Heard learned counsel appearing for defendant

No.1 and learned counsel appearing for plaintiff. I have given

my anxious consideration to the reasons and conclusions

recorded by both the Courts.

AIR 2003 SC 578

14. On examining the pleadings and material placed on

record by both the parties, it is quite evident that family did

not possess any properties. The pleadings in the plaint only

refer that plaintiff's mother owned one agricultural land and

that was managed by defendant No.1. The plaintiff is placing

heavy reliance on two aspects. Firstly, plaintiff and defendant

No.2 claimed that they constitute undivided Joint Hindu Family

and they were all residing together as on the date of grant.

The second aspect on which plaintiff is placing heavy reliance

is application filed by the defendant No.1 seeking grant clearly

reveals that family details are furnished by defendant No.1.

Therefore, it presupposes that application seeking grant of suit

land was filed on behalf of joint family and not in individual

capacity.

15. On meticulous examination of the judgment

rendered by both the Courts, it is quite evident that both the

Courts have not properly understood the principle governing

the grant made in favour of an individual and the ingredients

required to constitute that the grant was on behalf of joint

family and therefore, it would enure for the benefit of the

entire family. Even the judgment relied the learned counsel

appearing for the plaintiff relates to Karnataka Village Offices

Abolition Act. The suit land in question does not fall within the

provisions of Karnataka Village Offices Abolition Act nor the

grant is made under the provisions of Karnataka Land Reforms

Act. The concept of enuring for the benefit of joint family

arises for consideration only in those cases where the

applicant and his family members have a pre-existing right.

Under the Karnataka Village Offices Abolition Act, the family as

a holder has a right over the property though not absolute.

Therefore, when a re-grant is made in favor of a family

member, it goes without saying that it is on behalf of the

family and therefore, grant made would enure for the benefit

of the entire family.

16. In the present case on hand, the land which is

granted admittedly is a surplus land and owned by the State.

There is absolutely no evidence indicating that family was

unauthorizedly cultivating the land and it is a case of

regularization. If the grant is made for the first time and if the

applicant is not having any antecedent right in the land which

is granted, what can be inferred is that the authority

exercising discretion has granted land subject to eligibility of

the applicant seeking grant. When a surplus land is granted in

favour of an individual, the other family members only on the

strength of their relationship with the applicant cannot assert

right in the granted land. When such grant is made in favour

of an individual, it has to be treated as a separate property.

Therefore, the dictum laid down by the Apex Court in the

judgment cited by the learned counsel appearing for the

plaintiff has no application to the present case on hand.

17. The law requires that grant itself must show that it

was intended for the joint family. The second ground on

which both the Courts have got swayed away is by the

evidence of DW.2 who has admitted in his cross-examination

that he has paid Rs.3,300/- to the defendant No.2 who is the

father of plaintiff and that said amount is utilized to pay the

premium to secure grant. This admission may not be a

conclusive admission. There has to be pleading in the plaint.

It is not the case of the plaintiff that his father/defendant No.2

secured money from DW.2 and the same was utilized to pay

premium. Defendant No.2 has not pleaded in the written

statement that it is he who has paid the premium. If such a

contention is not taken in the plaint and in the written

statement filed by defendant No.2, the stray admission elicited

in cross-examination of DW.2 cannot partake the character of

joint grant.

18. The appellate Court has misread the admissions

elicited in the cross-examination of defendant No.1. The

appellate Court has presumed that there is clear admission

elicited in cross-examination of defendant No.1 that

application was filed on behalf of the family. When a question

is posed, defendant No.1 has admitted for having disclosed

the family details, but he has specifically stated that

application was filed in his individual capacity.

19. Both the Courts have not examined the evidence to

ascertain whether plaintiff has succeeded in discharging his

initial burden. The plaintiff is simply claiming that grant was

on behalf of joint family and therefore, is entitled for a share.

The plaintiff has contended that defendant No.1 has submitted

the application as a Kartha of the family. It is not in dispute

that when defendant No.2/father was alive, defendant No.1

submitted the application. Therefore, defendant No.1 could

not have acted as a Kartha. There is absolutely no evidence

indicating that family was in possession of suit land prior to

grant. Therefore, it can be inferred that neither the applicant

nor the family had any antecedent right in the suit land.

There is absolutely no whisper in the plaint that premium was

paid by defendant No.2.

20. Both the Courts have proceeded on an assumption

that since plaintiff and defendant Nos.1 and 2 constitute joint

family, the grant made in favour of defendant No.1 is on

behalf of the family. The said conclusions and reasons

assigned by both the Courts while answering issue No.1 in the

affirmative suffers from serious perversity and serious

infirmities.

21. As observed in the preceding paragraphs, there is

absolutely no foundation in the plaint that an amount of

Rs.3,300/- was secured from DW.2 by defendant No.2/father

and in-turn, the said amount is utilized to pay premium to

secure grant. The admission elicited in cross-examination of

DW.2 is not conclusive. Such stray admission cannot

displace/discharge the initial burden of plaintiff to prove that

the grant in favour of defendant No.1 was in fact on behalf of

joint family.

22. In legal proceedings, the principle that "no amount

of evidence can substantiate what has not been pleaded in

pleadings" underscores the importance of aligning the

evidence presented in court with the specific allegations

outlining the pleadings by the parties involved. Pleadings

serve as the foundation for the case, delineating the factual

and legal basis upon which each party relies. They set the

parameters for the issues to be addressed during the trial.

Consequently, any evidence introduced during the proceedings

must be directly relevant to the matters raised in the

pleadings.

23. As discussed supra, question of enuring for the

benefit of the family would arise only under two instances.

Firstly, where the family has a preexisting right in the land and

therefore, the grant in favour of one family member would

automatically enure for the benefit of the entire family. The

second instance would be when a grant without antecedent

title/right is made in favour of one family member and if

premium is paid from joint exertion by the brothers, then the

grant would be on behalf of the joint family. Both these

instances discussed supra are not found in the present case on

hand. Both the Courts have proceeded on an assumption that

since defendant No.1 was residing along with his father and

plaintiff, both the Courts have assumed that the grant was on

behalf of the family. Appellate Court has also misread the

alleged admission elicited in cross-examination of plaintiff.

The plaintiff has nowhere admitted that the application was

filed on behalf of the family. The details of family members

furnished in the application does not necessarily mean that

application was filed on behalf of the family. As there is a

clause calling upon the applicant to disclose the details of the

family members, the defendant No.1/applicant in compliance

of the requirement of the application has furnished the details

of the family members. The disclosure of family members in

the application in itself will not constitute and create right in

favour of the family members. In absence of evidence that

premium was paid by the defendant No.2/father, both the

Courts erred in recording a finding that grant was on behalf of

the plaintiff's family.

24. In the light of discussion made supra, the

substantial questions of law framed by this Court are

answered in the negative and against the plaintiff.

25. In the light of conclusions recorded by this Court, I

pass the following:

ORDER

(i) The second appeal is allowed;

(ii) The judgment and decree passed in R.A.No.58/2015 on the file of the II Additional Senior Civil Judge, Chikkamagalur and itinerate at Koppa confirming the judgment and decree passed in O.S.No.13/2009 on the file of the Civil Judge and JMFC, Koppa is set aside. Consequently, suit is dismissed;