Baladandappa S/O Rangappa ... vs Sri Ramappa S/O Rangappa ...
2023 Latest Caselaw 4243 Kant

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                                                                RSA No. 155 of 2008




                                  IN THE HIGH COURT OF KARNATAKA

                                             DHARWAD BENCH

                                DATED THIS THE 11TH DAY OF JULY, 2023

                                                  BEFORE

                                THE HON'BLE MR JUSTICE ANIL B KATTI

                                           RSA NO. 155 OF 2008
                         BETWEEN:
                         BALADANDAPPA S/O RANGAPPA CHANNADAS
                         AGED ABOUT 68 YEARS,
                         R/O WADDAR ONI, ALAVANDI,
                         TQ. AND DIST. KOPPAL
                                                                          ...APPELLANT

                         (BY SRI. SHIVARAJ HIREMATH, ADV.)

                         AND:
        Digitally
POOJA
        signed by
        POOJA DEELIP
                         1. SRI. RAMAPPA S/O RANGAPPA CHANNADAS
DEELIP  SAVANUR          AGED ABOUT 74 YEARS
SAVANUR Date:
        2023.07.13
        11:16:40 -0700
                         R/O. WADDAR ONI, ALAVANDI,
                         TQ. AND DIST. KOPPAL

                         SINCE DECEASED BY HIS LR'S

                         1(A) SMT. HANUMAVVA, W/O LATE. RAMAPPA,
                              AGED ABOUT 70 YEARS, HINDU,
                              R/O. ALAVANDI, KOPPAL TALUK AND DISTRICT.

                         1(B) SMT. YANKAMMA, D/O LATE.RAMAPPA,
                              W/O HANUMANTHAPPA DASAR,
                              AGED ABOUT 50 YEARS, HINDU,
                              R/O. SHIVAPUR, KOPPAL TALUK AND DISTRICT.

                         1(C) SMT. RINDAMMA, D/O LATE. RAMAPPA,
                              W/O PARAMESHAPPA DASAR,
                              AGED ABOUT 45 YEARS, HINDU,
                              R/O. BAVALLI, SANDUR TALUK, BELLARI DISTRICT.
                                -2-
                                            RSA No. 155 of 2008



1(D) SRI. DEVENDRAPPA DASAR, S/O RAMAPPA,
     AGED ABOUT 40 YEARS, HINDU, OCC: KSRTC DRIVER,
     R/O. ALAVANDI, KOPPAL TALUK AND DISTRICT.

1(E)   SMT. LAKSHMAVVA, D/O LATE. RAMAPPA,
       W/O HANUMANTHA DASAR,
       AGED ABOUT 35 YEARS, HINDU,
       R/O. NINGAPUR, KOPPAL TALUK AND DISTRICT.

1(F)   SMT. PADMAMMA, D/O LATE. RAMAPPA,
       W/O KADAPPA DASAR,
       AGED ABOUT 30 YEARS, HINDU,
       R/O. GADHIGANUR, HOSPET TALUK, BELLARI DISTRICT.

1(G) SMT. HANUMAVVA, D/O LATE. RAMAPPA.
     W/O. LAHITH DASAR,
     AGED ABOUT 27 YEARS, HINDU,
     R/O. NEERALGI, KOPPAL TALUK AND DISTRICT.

                                                  ...RESPONDENTS

(BY SRI. D.V. PATTAR, ADV. FOR R1 A TO G)

                               ***

     THIS RSA FILED U/S 100 OF CPC AGAINST THE JUDGEMENT
AND DECREE DATED: 09.03.2007 MADE IN O.S. NO. 35/2004
PASSED BY THE CIVIL JUDGE (JR.DN) AND J.M.F.C., KOPPAL AND
SET ASIDE THE JUDGMENT AND ORDER DATED: 11.10.2007 MADE
IN RA.NO.8/2007 PASSED BY THE CIVIL JUDGE (SR.DN.) KOPPAL,
DECREE THE SUIT O.S. NO. 35/2004 FILED BY THE APPELLANT
HEREIN BEFORE CIVIL JUDGE (JR.DN) KOPPAL.

      THIS RSA COMING ON FOR ORDERS AND THE SAME HAVING
BEEN HEARD AND RESERVED FOR JUDGMENT ON 24.03.2023, THIS
DAY, THE COURT, DELIVERED THE FOLLOWING:

                          JUDGMENT

Appellant/plaintiff feeling aggrieved by the judgment and

decree of First Appellate Court on the file of Civil Judge (Sr.Dn)

& CJM., Koppal in R.A.No.8/2007, dated 11.10.2007, preferred

this appeal.

RSA No. 155 of 2008

2. Parties to appeal are referred with their ranks as

assigned before Trial Court for the sake of convenience.

3. The factual matrix leading to the case of plaintiff

can be stated in nutshell to the effect that plaintiff and

defendant are brothers and their father Rangappa Channadas

died long back. The plaintiff and defendant are joint family

members and there is no partition in between them with

respect to suit property. On the death of father of plaintiff and

defendant both of them have succeeded to suit property and

they are living separately for their convenience in portion of the

suit house. The suit property is ancestral property of family of

plaintiff and defendant standing in the name of grand father of

plaintiff and defendant. Plaintiff demanded equal partition and

separate possession in the suit property, but the defendant has

refused for the same. Therefore, plaintiff was constrained to

institute suit for the relief claimed in the suit.

4. In response to suit summons defendant appeared

through counsel and filed written statement admitting

relationship between plaintiff and defendant and their father

died long back. It is the case of defendant that suit property is

not joint family property and the same was originally belong to

RSA No. 155 of 2008

Hanumadas uncle of plaintiff and defendant and he has given

the said property to defendant. Plaintiff has not included the

other joint family properties of plaintiff and defendant i.e. land

bearing Sy.No.278/A measuring 8 Acres of Alavandi village and

Sy.No.83/AA, measuring 4 Acres 26 guntas of Mornal village,

open plot at Kampli village, jointly constructed house and one

Janatha House of Alavandi village are also the joint family

properties. Plaintiff has no independent source of income to

acquire any properties in his name. The defendant was working

in irrigation department and has purchased properties referred

above in the name of plaintiff out of the exclusive contribution

of defendant. The plaintiff by taking undue advantage of his

name being appeared in the above referred properties falsely

claimed that the said properties are belonging to him. When the

defendant demanded partition in the non suit properties, the

plaintiff has filed this false suit. The defendant has made

counter claim with respect to above referred two agricultural

lands and two houses and sought for partition of his half share

in the said properties. Therefore, on these grounds prayed for

dismissal of the suit and to decree the counter claim by

granting half share in the properties claimed in the written

statement.

RSA No. 155 of 2008

5. The plaintiff has filed rejoinder to the counter claim

of defendant contending that properties claimed by defendant

in the written statements are not the joint family properties. It

is further denied that out of exclusive contribution of defendant

the property claimed in the written statement are acquired in

the name of plaintiff. The plaintiff has also denied the nature of

properties claimed in the written statement either joint family

or co-parcenary properties of plaintiff and defendant.

Therefore, prayed for dismissal of the counter claim.

6. The trial Court framed necessary issues. Plaintiff to

prove his case relied on the evidence of PW.1 and document as

per EX.P.1. Defendant relied on evidence of DWs.1 to 3 and

documents Exs.D.1 to 10.

7. The Trial Court, after appreciation of evidence on

record has decreed suit granting half share not only in the suit

property, but also in non suit properties of which counter claim

was made by the defendant. The counter claim of defendant

with respect to house suit at Kampli and Alavandi came to be

rejected.

8. Plaintiff challenged the said judgment and decree of

trial Court before the First Appellate Court on the file of Civil

RSA No. 155 of 2008

Judge (Sr.Dn) & CJM, Koppal in R.A.No.8/2007. The First

Appellate Court after re-appreciation of evidence has dismissed

the appeal and confirmed the judgment and decree of the trial

Court.

9. Plaintiff has challenged concurrent findings of both

courts below contending that the First Appellate Court wrongly

casted burden on plaintiff to prove that defendant is not having

half share in R.S.No.278/A of Alavandi village and Sy.No.83/AA

of Mornal village. The Court below have committed serious

error in holding that Sy.Nos.278/A and 83/AA are joint family

properties between plaintiff and defendant, they are self

acquired properties of plaintiff. The Courts below have wrongly

decreed the counter claim of defendant as against well

established law for making such claim. The approach and

appreciation of oral and documentary evidence by both courts

below are contrary to law and evidence on record in partly

decreeing the counter claim of the defendant. Therefore,

prayed for allowing the appeal and to confirm the decree suit of

plaintiff only with respect to house property claimed by plaintiff.

10. In response to notice, defendant/respondent has

appeared through his counsel.

RSA No. 155 of 2008

11. This Court, by order dated 23.01.2015 admitted the

appeal and framed following substantial questions of law for

consideration.

1) Whether both the Courts below were

justified in accepting that the defendant, a daily

wager in Irrigation Department with a family

consisting of himself, his wife and 6 children,

was able to contribute for acquisition of

immovable property in the name of his younger

brother-plaintiff?

2) Whether both the Courts below have

rightly appreciated the evidence available on

record while answering issues framed in the

Court below and points for consideration in the

lower appellate Court?

12. Heard arguments of both sides.

13. On careful perusal of pleadings of both the parties

and evidence on record, it would go to show that plaintiff and

defendant are joint family members is not in serious dispute.

The plaintiff has claimed that suit house property is ancestral

property of plaintiff and defendant. Whereas it is the contention

RSA No. 155 of 2008

of defendant that suit house property was belonging to

Hanumadas uncle of plaintiff and defendant. During his life time

suit house property was transferred in favour of the defendant,

as such the said property is exclusively belongs to defendant.

The defendant has further contended that plaintiff has not

incorporated other joint family properties of plaintiff and

defendant i.e. land bearing Sy.No.278/A measuring 8 Acres of

Alavandi village and Sy.No.83/AA, measuring 4 Acres 26 guntas

of Mornal village, open plot at Kampli village, jointly

constructed house and one Janatha House of Alavandi village.

Therefore, defendant has made counter claim claiming his half

share in the said properties and also in the suit house property

claimed by plaintiff. The plaintiff filed rejoinder to counter claim

of defendant denying that said properties of which counter

claim is made by defendants are the joint family properties of

plaintiff and defendant. The plaintiff has also denied that out of

exclusive source of income of defendant, the said properties are

purchased in the name of plaintiff. Therefore, prayed for

rejection of counter claim of defendant. The trial Court decreed

the suit of plaintiff and partly allowed the counter claim

granting half share in land bearing Sy.No.278/A measuring 8

Acres of Alavandi village and Sy.No.83/AA, measuring 4 Acres

RSA No. 155 of 2008

26 guntas of Mornal village. The counter claim insofar as house

situated at Kampli and Alavandi, the claim of defendant is

rejected. The First Appellate Court concurred with finding of

trial Court and dismissed the appeal of plaintiff. The defendant

has not challenged the rejection of counter claim with respect

to house properties situated at Kampli and Alavandi village and

also grant of half share in the suit house property claimed by

plaintiff. Therefore, decree of the trial Court to that extent has

attained finality.

14. Now the dispute is confined to grant of half share of

defendant in landed properties bearing Sy.No.278/A measuring

8 Acres of Alavandi village and Sy.No.83/AA, measuring 4 Acres

26 guntas of Mornal village as claimed in the counter claim.

Plaintiff has resisted the counter claim claiming that those

landed properties are self acquired properties of plaintiff. The

claim of plaintiff that the those properties are self acquired

properties has been rejected by both the courts below. In view

of counter claim of defendant, the burden of proving that the

above referred agricultural landed properties are the joint

family properties or ancestral properties of plaintiff and

defendant as claimed in the counter claim.

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RSA No. 155 of 2008

15. Plaintiff has contended that counter claim made by

defendant in the written statement could not have been

entertained by both courts below and the same is against well

established principle of law. It is the case of defendant that

non-inclusion of other joint family properties in one hotchpotch,

the suit for partial partition is not maintainable. The trial Court

for the reasons recorded in paragraphs No.16 to 18 while

dealing issue No.5 has held that defendant has made counter

claim by including all joint family properties and suit cannot be

dismissed for non-inclusion of other family properties on

technical grounds. The claim of defendant and plaintiff over the

said properties can be adjudicated by evidence on record. The

reasoning assigned by the trial Court for adjudicating complete

partition between the parties which is affirmed by the First

Appellate Court appears to be more reasonable rather than

dismissing the suit of plaintiff for non-inclusion of other

properties and driving parties to enter one more litigation for

the claim over said prosperities.

16. The plaintiff has contended that both courts below

could not have entertained counter claim of defendant. It is

appropriate to take note of Order VIII Rule 6A of CPC, which

empowers the defendant to make counter claim. It is profitable

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RSA No. 155 of 2008

to reproduce the same for ready reference, which reads as

under:

6A. Counter-claim by defendant.--(1) A defendant in a suit may, in addition to his right of pleading a set-off under rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter- claim is in the nature of a claim for damages or not:

Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the court.

(2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim.

(3) The plaintiff shall be at liberty to file a written statement in answer to the

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RSA No. 155 of 2008

counter-claim of the defendant within such period as may be fixed by the court.

(4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints."

On plain reading of said proviso, it is evident that it is open for

the defendant to make counter claim in the suit filed by

plaintiff. Therefore, contention of plaintiff that both courts

below could not have entertained the counter claim cannot be

legally sustained.

17. The additional issue Nos.1 and 2 are related to the

counter claim made by defendant with respect to property

referred therein. Now scope of this appeal is confined only to

grant of half share with respect to landed properties covered

under additional issue No.1, since the defendant has not

challenged the rejection of his counter claim with respect to

house properties at Kampli and Janatha house claimed by

defendant.

18. The defendant though has claimed in the written

statement that landed properties and house properties are

purchased in the name of plaintiff out of his exclusive

contribution, since he was in Government service. However, it

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RSA No. 155 of 2008

appears that defendant has given up the said claim. The

defendant has made counter claim claiming his half share in the

said properties. The burden is on the defendant to prove that

agricultural lands referred in the counter claim or either joint

family properties or ancestral joint family properties to claim

his half share in the said properties. It is only after the

defendant discharging his initial burden of proving the fact

asserted in the counter claim that the properties claimed in the

counter claim are either joint family properties or ancestral

properties of plaintiff and defendant, then only burden shifts on

plaintiff to prove that said properties are self acquired

properties. In view of Order VIII Rule 6A (4) of CPC the counter

claimed shall be treated as plaint and governed by the rules

applicable to plaint. Therefore, while addressing the issues

relating to counter claim, the defendant who makes counter

claim will take the position of plaintiff and plaintiff will take the

position of defendant. Therefore, it is the burden of defendant

to prove the fact in issue that the properties claimed in the

counter claim are either joint family properties or ancestral

properties in terms of Section 101 of the Indian Evidence Act,

who seeks to give judgment as to any legal right or liability

dependant on the existence of facts which he assert, prove

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RSA No. 155 of 2008

those facts exists. When a person is bound to prove the

existence of any fact, it is said that the burden of proof lies on

that person. In terms of Section 104 of the Indian Evidence

Act, the burden of proving any fact necessary to be proved in

order to enable any person to give evidence of any other fact is

on the person who wishes to give such evidence. In the present

case, the defendant pleaded the facts in the counter claim by

asserting his rights over the said properties claiming that the

said properties are joint family properties or ancestral

properties and sought for partition and separate possession of

his half share in the said properties. Therefore, burden is on the

defendant to prove the said fact that properties claimed in the

counter claim are either joint family properties or ancestral

properties.

19. Learned counsel for appellant/plaintiff has argued

that merely because the plaintiff and defendant are living

together there is no presumption of joint properties. There is no

any such presumption of landed properties being joint family

properties. It is for the defendant to place necessary evidence

on record as to the source of right to properties made in the

counter claim. The mere pleading that the properties claimed in

the counter claim are either joint family properties or ancestral

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RSA No. 155 of 2008

properties without there being any supportive documents

cannot be said as sufficient evidence to prove the nature of

properties of which right of half share is claimed by defendant.

20. The defendant other than his own evidence as

D.W.1 and the evidence of his own witnesses D.W.2 and 3,

further two RTC of the two agricultural lands Ex.D.1 and D.2

has not produced any evidence to prove the nature of

properties to which the defendant is claiming his right of his

half share in the properties claimed in the counter claim. The

record of rights as Ex.D.1 and 2 with respect to above referred

both landed properties are standing in the name of plaintiff. On

the basis of entries in the RTC Exs.D.1 and 2 the source of title

cannot be ascertained. It is for the defendant to place evidence

on record that the said properties were earlier standing in the

name of his father which he has received from his father, so as

to hold that the said properties are ancestral properties. The

defendant has also not placed any evidence on record as to

how his father acquired property covered under Exs.D.1 and 2.

Therefore, in the absence of any supportive evidence on record

to substantiate the pleading of defendant that the said

properties are either joint family properties or ancestral

properties the claim of defendant in seeking right of half share

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RSA No. 155 of 2008

cannot be legally sustained. The Courts below have recorded

the finding that plaintiff has failed to prove that they are the

self acquired properties and granted the relief of partition and

separate possession of half share of defendant in the said two

properties. The Courts below have forgotten the fact that

burden of proving the nature of properties claimed in the

counter claim that they are either joint family properties or

ancestral properties is on the defendant. The defendant by

evidence on record has failed to prove the fact the above

referred pleadings in the counter claim in seeking the relief of

partition and separate possession of his half share in the said

properties. The approach and appreciation of oral and

documentary evidence placed on record in deciding the

additional issue No.1 are contrary to law and evidence on

record. Accordingly, substantial questions of law are answered

in negative. Consequently, proceeded to pass the following:

ORDER

Appeal filed by appellant/plaintiff is hereby allowed.

The judgment and decree of the First Appellate Court on

the file of Civil Judge (Sr.Dn) & CJM, Koppal in R.A.No.8/2007,

dated 11.10.2007 which confirmed the judgment and decree of

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RSA No. 155 of 2008

the trial Court on the file of Civil Judge (Jr.Dn) and JMFC,

Koppal in O.S No.35/2004, dated 9.3.2007 in granting half

share to the defendant in the land bearing Sy.No.278/A

measuring 8 Acres of Alavandi village and Sy.No.83/AA,

measuring 4 Acres 26 guntas of Mornal village is hereby set

aside.

Office to draw decree accordingly.

Office is directed to transmit TCRs forthwith along with

copy of this judgment.

(Sd/-) JUDGE Vb/-