Smt Lakkamma vs Smt Jampakka
2023 Latest Caselaw 433 Kant

                          1


    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 6TH DAY OF JANUARY, 2023

                       BEFORE

  THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

             R.S.A.NO.2660 OF 2006 (RES)

BETWEEN:

1. SMT. LAKKAMMA
D/O LATE SANGAPPA
AGED ABOUT 51 YEARS

2. SMT. SANGAMMA
D/O LATE SANGAPPA
AGED ABOUT 49 YEARS

3. SMT. RANGAMMA
DEAD BY LRS

3A. KENGAPPA
S/O SIDDALINGAPPA
AGED ABOUT 60 YEARS
R/O KAGALAGERE GOLLARAHATTY
HOLALKERE TQ
CHITRADURGA-577501.

3B. SIDDAPPA
S/O KENGAPPA
AGED ABOUT 35 YEARS
R/O KAGALAGERE GOLLARAHATTY
HOLALKERE TQ
CHITRADURGA-577 501.
                             2


3C. JAYAPPA
S/O KENGAPPA
AGED ABOUT 30 YEARS
R/O KAGALAGERE GOLLARAHATTY
HOLALKERE TQ
CHITRADURGA-577501.

3D. JAYAMMA
W/O BASAPPA
AGED ABOUT 32 YEARS
R/O KAGALAGERE GOLLARAHATTY
HOLALKERE TQ
CHITRADURGA-577501.

3E. RATHNAMMA
W/O RANGAPPA
AGED ABOUT 30 YEARS,
R/O GANJIHATTY VILLAGE,
CHITRADURGA TQ & DIST.

3F. SHIVAPPA
S/O KENGAPPA
AGED ABOUT 28 YEARS
R/O KAGALAGERE GOLLARAHATTY
HOLALKERE TQ
CHITRADURGA-577 501.

                                  ...APPELLANTS

(BY SRI.B M SIDDAPPA, ADVOCATE)

AND:

1. SMT. JAMPAKKA
W/O LATE SANNA SANGAPPA
AGED ABOUT 62 YEARS
R/AT ANNEHALU, JAMPAIAHNAHATTY
CHITRADURGA TALUK AND DISTRICT
                                3


2. SMT. ERAKKA
W/O LATE SANNA SANGAPPA
R/AT ANNEHALU JAMPAIAHNAHATTY,
CHITRADURGA TALUK AND DISTIRCT

                                               ...RESPONDENTS

(BY SRI.KALEEMULLAH SHARIFF, ADVOCATE)


     THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE

JUDGEMENT    &     DECREE    DATED:    24.2.2006   PASSED   IN

R.A.NO.223/2004 ON THE FILE OF THE ADDL.DISTRICT JUDGE,

CHITRADURGA, DISMISSING THE APPEAL AND CONFIRMING THE

JUDGEMENT    AND    DECREE    DATED:   23.8.1997   PASSED   IN

OS.NO.661/1989 ON THE FILE OF THE ADDL.CIVIL JUDGE (JR.DN.),

CHITRADURGA.


     THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR

JUDGMENT ON 03.01.2023, COMING ON FOR PRONOUNCEMENT OF

JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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                              JUDGMENT

The captioned second appeal is filed by the unsuccessful

defendants questioning the concurrent findings of the Courts

below wherein plaintiffs suit for partition and separate

possession is decreed granting half share to the plaintiffs in

the suit schedule property.

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

as per their rank before the trial Court.

3. The family tree of the parties is as under:

Halappa |

---------------------------------------------------------------

    |                    |              |                 |
Dasappa           Karisangappa       Hallappa        Kariappa
    |                                                     |
Sangappa                                          Sanna Sangappa
    |                                                     |
------------------------------          -----------------------------
       |                 |                 |                   |
Ningamma        Sanna Mallamma         Jampakka             Erakka
(1st Wife)      (2nd Wife)             (1st Wife)           (2nd Wife)
(Def 1)          (Def 2)                (Pltf 1)            (Pltf 2)
     |                   |

Lakkamma --------------------------------

               |                           |
         Sangamma                    Rangamma



     4.    The   plaintiffs   have    filed   the    present   suit    by

contending that suit Sy.No.94/1 is an ancestral property and

this property was allotted to one Dasappa and Kariyappa who

are the sons of late Halappa in a family partition. The

plaintiffs further contended that husband of defendant No.1

namely Sangappa who is the son of Dasappa got his name

mutated after the death of his father. The plaintiffs' case is

that suit land was jointly allotted to the plaintiffs' ancestor

Kariyappa as well as defendants grandfather Dasappa, which

was, after partition, assigned Sy.No.94/1 measuring 12 acres

39 guntas. It is the specific case of the plaintiffs that Dasappa

being the eldest son, though properties were allotted to

Dasappa and Kariyappa, plaintiffs' ancestor Kariyappa had half

share in the suit schedule property. The plaintiffs also

contended that in the said partition, the other two sons

namely Hallappa and Karisangappa were allotted their

respective shares. The present suit is filed alleging that

defendants on account of dispute in the family are acting

adversely to the interest of the plaintiffs and plaintiffs are

compelled to file the present suit seeking relief of partition and

separate possession.

5. On receipt of summons, the defendants contested

the proceedings by filing written statement and stoutly denied

the entire averments made in the plaint. At para III of the

written statement, the defendants contended that the third

son of propositus Halappa who was also named as Hallappa

was allotted 6 acres 15 guntas in a family partition while

Karisangappa who is the second son was allotted 10 acres 14

guntas. The claim of the plaintiffs that the present suit land

was jointly allotted to Dasappa and Kariyappa was seriously

disputed by the defendants. The defendants claim that about

50 to 60 years back, suit property bearing Sy.No.94/1 was

allotted to the share of Dasappa who is the ancestor of

defendant Nos.1 and 2, while Sy.No.94/2 was jointly allotted

to Hallappa and ancestor of plaintiffs herein namely Kariyappa

and Sy.No.94/3 was allotted to the share of Karisangappa.

Therefore, defendants claimed that Dasappa was the absolute

owner of suit land measuring 12 acres 39 guntas and hence,

prayed for dismissal of the suit.

6. The plaintiffs by way of rejoinder admitted that

propositus Halappa had four sons namely, Dasappa,

Karisangappa, Hallappa and lastly, Kariyappa. The plaintiffs

further contended that it is only Hallappa and Karisangappa

who took their legitimate share and separated from the family

while plaintiffs ancestor Kariyappa and defendants ancestor

Dasappa continued to be joint family members and therefore,

the suit land bearing Sy.No.94/1 was mutated in the name of

Dasappa as the manager in the family. The plea of adverse

possession set up by the defendants was also seriously

disputed by the plaintiffs by way of rejoinder.

7. The plaintiffs and defendants to substantiate their

respective claim have led in oral and documentary evidence.

8. The trial Court based on rival pleadings and oral

and documentary evidence proceeded to answer issue No.1 in

the affirmative. The trial Court referring to the evidence on

record held that plaintiffs have succeeded in proving that suit

schedule properties are ancestral properties of Dasappa and

Kariyappa and therefore, proceeded to hold that plaintiffs have

succeeded in proving their joint possession and enjoyment

over the suit land along with defendants. While answering

issue No.2 in the affirmative, trial Court held that plaintiffs are

entitled for half share in the suit schedule property. Issue

No.3 was answered in the negative and while answering the

same in the negative, trial Court held that defendants having

pleaded plea of prior partition have failed to substantiate the

same. Accordingly, issue No.3 was answered in the negative.

Referring to the evidence on record and in absence of rebuttal

evidence, trial Court proceeded to hold that Dasappa and

Kariyappa retained 12 acres 39 guntas after the other two

sons separated from the family and therefore, trial Court held

that plaintiffs who represent the branch of Kariyappa are

entitled for half share in the suit schedule property.

9. Feeling aggrieved by the judgment and decree of

the trial Court, the defendants preferred appeal before the

Appellate Court.

10. The defendants attempted to produce copy of

registered sale deed to demonstrate that Sy.No.94 which

originally measured 30 acres was in fact purchased by

Dasappa and therefore, defendants attempted to demonstrate

that in fact Dasappa was the absolute owner of the entire

extent bearing Sy.No.94 measuring 30 acres. The Appellate

Court being final fact finding authority has independently

assessed oral and documentary evidence. On meticulous

examination of the material on record, the Appellate Court

was also of the view that the claim of plaintiffs that suit land

was jointly allotted to Dasappa and Kariyappa appears to be

probable and the fact that defendants having set up plea of

prior partition, have failed to substantiate the same, Appellate

Court was also of the view that plaintiffs are bound to succeed

and they are entitled for half share in the suit schedule

properties. Consequently, appeal was dismissed.

11. These concurrent findings are under challenge by

the defendants.

12. This Court vide order dated 21.08.2009 was

pleased to admit the appeal on the following substantial

question of law:

"Whether Court below having rejected the claim of the defendant that there was partition between the ancestors of plaintiff and defendant 50-60 years prior to filing of the suit is justified in accepting the plea of plaintiff that the suit schedule property was jointly allotted to the share of ancestors of plaintiff and defendant, viz., Dasappa and Kariyappa in the partition between the children of late Hallappa and order for partition of the same between the said two families in equal share in the absence of pleadings and evidence in that behalf?"

13. Learned counsel appearing for the defendants

would vehemently argue and contend that the present suit is

bad for non-joinder of the other two branches who are

necessary parties to the suit. Referring to the additional

evidence which was placed before the Appellate Court, he

would contend that the sale deed produced before the

Appellate Court would clinch the entire controversy between

the parties. Reiterating the grounds, he would contend that

Dasappa was in fact the absolute owner. However, on

humanitarian ground, he chose to allot some shares in the

properties though he was the absolute owner of the property.

He would further point out that the finding of the Appellate

Court that Dasappa received Sy.No.94 under exchange deed is

patently erroneous. He would contend that the Appellate

Court has virtually misread the evidence on record. Referring

to the rebuttal evidence vide Exs.D-1 and D-3, he would

vehemently argue and contend that plaintiff is an attester to

Ex.D-1 which is the registered sale deed executed at an

undisputed point of time and in the said sale deed, one of the

boundary is shown as property owned by Dasappa. Even

under Ex.D-3 which is the registered sale deed, the property

which is the subject matter of alienation under Ex.D-3, on

northern side, the property owned by Dasappa is shown.

Therefore, he would contend that neither Kariyappa nor the

present plaintiffs have ever asserted their right over the suit

land. He would further point out that if suit land is jointly

allotted to Dasappa and Kariyappa, then the same ought to

have reflected in the revenue records. Referring to Ex.D-19,

he would contend that both the Courts have virtually misread

the said documents and the conclusion that it is the exchange

deed is palpably erroneous. He would contend that the sale

deed obtained by Dasappa is not in the nature of exchange

deed and therefore, it is his self acquired property.

14. Referring to the revenue records, learned counsel

appearing for the defendants would vehemently argue and

contend that no documents are produced to show that

property was originally owned by propositus Halappa.

Therefore, if both the Courts proceeded to hold that there is

no partition, then he would contend that the substantial

question of law framed by this Court needs to be answered in

the negative as all branches are not party to the present suit.

15. To buttress his arguments, he has placed reliance

on the following judgments:

1) Glen Fredric Picardo vs. Rodney Picardo & Ors. - 2010 (4) AIR Kar R 476;

2) Makhan Singh (D) by LRs. vs. Kulwant Singh

- 2007 AIR SCW 3018;

3) Mariam Hussain vs. Syedani and Others - ILR 2007 Kar 2715;

4) Hero Vinoth (minor) vs. Seshammal - 2006 AIR SCW 2833;

5) B.N. Padmanabhiah vs. M/s. Sri Jayamurugarajendra Oil Mills, Davanagere & Others - R.A.Nos.115 and 116 of 1956;

6) Janki Vashdeo Bhojwani and Another vs. Indusind Bank Limited and Others - 2005 (1) KCCR

227.

16. Per contra, learned counsel appearing for the

plaintiffs repelling the contentions canvassed by the learned

counsel appearing for the defendants would contend that once

a plea of prior partition is raised, then the entire burden would

shift on the contesting defendants who have set up plea of

prior partition. The plaintiffs can be non-suited in a partition

suit provided defendants succeed in substantiating the factum

of partition as alleged in the written statement. He would

contend that both the Courts have concurrently held that plea

of prior partition as alleged by defendants is not substantiated

and accordingly, issue No.2 is answered in the affirmative.

The plea of adverse possession is also not established.

Therefore, he would contend that the substantial question of

law framed by this Court needs to be answered in the

affirmative and requests this Court to dismiss the appeal.

17. Heard learned counsel appearing for the defendants

and learned counsel appearing for the plaintiffs. Perused the

judgment under challenge. I have also taken note of the

substantial question of law framed by this Court.

18. This Court while admitting the appeal has

formulated the substantial question of law. Under substantial

question of law, a serious question is raised by this Court as to

how plaintiffs are entitled to seek half share if there is no

partition in the family when admittedly propositus Halappa had

four sons. On examination of the material on record, it is not

in dispute that Halappa had four sons and it is the case of both

the parties to the suit that there was partition in the family.

Para III and IV of the written statement would be relevant and

the same are culled as under:

"III. It is false that suit 'B' schedule property is the ancestral property of Dasappa and Kariyappa. It S.No.94, was acquired by Dasappa by Varga Vargi in 1908-09. However, the brother appear to have treated S.No.94, as their joint family property.

IV. At a partition about 50-60 years back suit property 94/1, fell to the share of Dasappa father of Sangappa, husband of defendants 1 & 2. 94/2 fell to

the share of Hallappa and Kariyappa, predecessor of plaintiffs husband 94/3 fell to the share of Karisangappa."

19. If these two paras are meticulously examined, two

significant details would emerge. Firstly, it is admitted that

the suit property is joint family property. Consequently,

defendants claim that there was partition in the family and

Sy.No.94/2 was jointly allotted to the share of Hallappa and

Kariyappa. While Sy.No.94/3 was allotted to the share of

Karisangappa. It is not in dispute that Sy.No.94 was totally

measuring 30 acres. The defendants case is that in the

partition, their ancestor Dasappa was allotted 12 acres 39

guntas. The defendants have also contended that Hallappa

and plaintiffs ancestor Kariyappa were jointly allotted 6 acres

15 guntas. The said contention is not at all supported by legal

evidence. On the contrary, the evidence on record clearly

indicates that Dasappa was the eldest son and the fact that he

retained 12 acres 39 guntas would lead to an inference that he

along with youngest brother Kariyappa jointly took 12 acres

39 guntas and they continued to be joint family members.

20. The trial Court has taken cognizance of several

categorical admissions elicited in the cross-examination of

DW.1. In cross-examination, DW.1 has admitted that

Karisangappa and Hallappa have taken their legitimate share

in Sy.No.94. He has further admitted that properties which

are allotted to the share of Hallappa ad Karisangappa on

account of partition are not included in the present suit. The

plaintiffs have further succeeded in eliciting that it is only the

branch Karisangappa and Hallappa who have separated from

the family. In cross-examination, to a particular suggestion,

DW.1 has nowhere stated that plaintiffs ancestor Kariyappa

was jointly allotted 6 acres 15 guntas along with Hallappa. In

cross-examination, there is a further admission elicited by

plaintiffs from the mouth of DW.1 who has admitted that two

branches having separated, the other two branches namely

Dasappa and Kariyappa continued to reside jointly. These

significant details are found at para 15 of the trial Court

judgment.

21. It is trite law that if plea of prior partition is set up,

then the entire burden is on the party asserting severance in

the family. If plaintiffs have sued for partition and if there is a

defence set up by the defendants alleging previous partition,

then the entire burden is on the defendants to prove that

there was partition. Though the partition in the family is not

in dispute, the controversy is as to what was the share that

was allotted to plaintiffs ancestor. Though defendants contend

that plaintiffs ancestor Kariyappa was jointly allotted 6 acres

15 guntas along with Hallappa, the said fact is successfully

demolished by plaintiffs in cross-examination of DW.1.

22. When a party asserts and claims previous partition,

then the same has to be substantiated by producing cogent

and clinching evidence. Mere bald allegations would not be

sufficient. Several cases are to be decided on the fact of

preponderance of probabilities. The evidence led in by the

plaintiffs appears to be probable. If defendants assert and

claim that there is already partition, then they were under an

obligation to demonstrate what is the exact share that was

allotted to the plaintiffs ancestor in the said partition. If

during trial, plaintiffs have succeeded in eliciting that it is only

Karisangappa and Hallappa who walked out of the family by

taking their legitimate share, it presupposes that Dasappa

along with his younger brother namely Kariyappa continued to

be joint family members.

23. Therefore, the contention of the defendants that

the present suit for partition is not maintainable without

impleading the other two branches is not at all sustainable and

the said defence is totally misconceived. The plaintiffs are

entitled for half share because it is only two branches who

opted to reside jointly and there was never severance between

the defendants ancestor Dasappa and plaintiffs ancestor

Kariyappa. Both the Courts have concurrently held that

plaintiffs ancestor Kariyappa and defendants ancestor Dasappa

continued as joint family members. In absence of rebuttal

evidence coupled with several admissions elicited in cross-

examination, this Court is of the view that the concurrent

findings recorded by the Courts below is in accordance with

law.

24. Though several contentions are raised and an

attempt is made to demonstrate that Dasappa was the

absolute owner of the suit schedule property, the said

contention runs contrary to the pleadings averred in paras III

and IV of the written statement. The admission in regard to

the nature of the property at para III of the written statement

is conclusive and therefore, defendants are bound by the

stand taken at para III of the written statement admitting that

suit property is ancestral property. Any evidence contrary to

what is stated at para III cannot be looked into. Therefore,

the substantial question of law as to whether plaintiffs are

entitled for half share having held that there was no partition

is in accordance with law. Both the Courts have rightly

granted half share and therefore, the judgment and decree

rendered by the Courts below is in accordance with law and

would not warrant any interference. Accordingly, the

substantial question of law is answered in the affirmative.

25. For the foregoing reasons, I pass the following:

ORDER

The appeal is devoid of merits and the same is

accordingly dismissed.

Sd/-

JUDGE

CA