Karnataka High Court
Nanu Billava vs Sri Krishna Billava on 24 July, 2023
Bench: Shivashankar Amarannavar
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RSA No. 1334 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
REGULAR SECOND APPEAL NO. 1334 OF 2014 (PAR)
BETWEEN:
NANU BILLAVA,
AGED ABOUT 61 YEARS,
S/O SHESHIHENGSU,
ARMARTHITHLU OF KARAVALI,
NO.1, SHIROOR VILLAGE,
KUNDAPURA TALUK - 576 228,
UDUPI DISTRICT.
...APPELLANT
(BY SRI. VYASA RAO K.S., ADVOCATE)
AND:
1. SRI. KRISHNA BILLAVA,
S/O SHESHIHENGSU,
MANJUNATHA NILAYA,
Digitally signed by KARAVALI, BELEMANE OF NO.1,
LAKSHMINARAYANA
MURTHY RAJASHRI SHIROOR VILLAGE - 576 228,
Location: HIGH
COURT OF KUNDAPURA TALUK,
KARNATAKA
UDUPI DISTRICT.
DEAD BY HIS LRS.
1(A) KAVERI POOJARTHY,
W/O LATE KRISHNA BILLAVA,
AGED ABOUT 63 YEARS.
1(B) SMT. KALAVATHI,
D/O LATE KRISHNA BILLAVA,
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RSA No. 1334 of 2014
AGED ABOUT 39 YEARS.
1(C) SMT. PARVATHI,
D/O LATE KRISHNA BILLAVA,
AGED ABOUT 31 YEARS.
1(D) SMT. ASHWINI,
D/O LATE KRISHNA BILLAVA,
AGED ABOUT 26 YEARS,
ALL ARE R/AT
ARMARTHITHU OF KARAVALI,
NO.1, SHIROOR VILLAGE AND POST,
BYNDOOR TALUK,
UDUPI DISTRICT.
2. SMT. MACHI,
W/O MANJU BILLAVA .
AGED ABOUT 52 YEARS,
R/AT MANGLUMANE OF NO.1,
SHIROOR VILLAGE - 576 228,
KUNDAPURA TALUK,
UDUPI DISTRICT.
3. PUSHPALATHA,
D/O MANJU BILLAVA,
AGED ABOUT 34 YEARS,
R/AT MANGLUMANE OF NO.1,
SHIROOR VILLAGE - 576 228,
KUNDAPURA TALUK,
UDUPI DISTRICT.
4. SUMALATHA,
D/O MANJU BILLAVA,
AGED ABOUT 32 YEARS,
R/AT MANGLUMANE OF NO.1,
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RSA No. 1334 of 2014
SHIROOR VILLAGE - 576 228,
KUNDAPURA TALUK,
UDUPI DISTRICT.
5. MR. MURALIDHAR,
S/O MANJU BILLAVA,
AGED ABOUT 29 YEARS,
R/AT MANGLUMANE OF NO.1,
SHIROOR VILLAGE - 576 228,
KUNDAPURA TALUK,
UDUPI DISTRICT.
6. MANOHAR,
S/O MANJU BILLAVA,
AGED ABOUT 26 YEARS,
R/AT MANGLUMANE OF NO.1,
SHIROOR VILLAGE - 576 228,
KUNDAPURA TALUK,
UDUPI DISTRICT.
7. KHAJI MIYA MOHISIN,
S/O KHAJI MIYA HUSSAIN,
AGED ABOUT 53 YEARS,
RESIDING AT NO.1,
SHIROOR VILLAGE,
KUNDAPUR TALUK,
SHIROOR - 576 228,
UDUPI DISTRICT.
8. BIVI FATHIMA,
S/O KHAJI MIYA HUSSAIN,
AGED ABOUT 70 YEARS,
RESIDING AT NO.1,
SHIROOR VILLAGE,
KUNDAPURA TALUK,
SHIROOR - 576 228,
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RSA No. 1334 of 2014
UDUPI DISTRICT.
9. M. RAFIQ,
S/O AABU MOHAMMED,
AGED ABOUT 50 YEARS,
RESIDING AT NO.1,
SHIROOR VILLAGE,
KUNDAPUR TALUK,
SHIROOR - 576 228,
UDUPI DISTRICT.
10. MOHAMMED HANEEF,
S/O AABU MOHAMMED,
AGED ABOUT 48 YEARS,
RESIDING AT NO.1,
SHIROOR VILLAGE,
KUNDAPURA TALUK,
SHIROOR - 576 228,
UDUPI DISTRICT.
11. M. ABDUL MANNAM,
S/O AABU MOHAMMED,
AGED ABOUT 43 YEARS,
RESIDING AT NO.1,
SHIROOR VILLAGE,
KUNDAPURA TALUK,
SHIROOR - 576 228,
UDUPI DISTRICT.
12. M. PAKKI AHMED,
S/O AABU MOHAMMED,
AGED ABOUT 40 YEARS,
RESIDING AT NO.1,
SHIROOR VILLAGE,
KUNDAPUR TALUK,
SHIROOR - 576 228,
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RSA No. 1334 of 2014
UDUPI DISTRICT.
13. PATAGAR SAFIYA,
W/O SHAVIL HAMEED,
AGED ABOUT 56 YEARS,
R/AT MUSLIM KERI NO.1,
SHIROOR VILLAGE,
KUNDAPURA TALUK,
SHIROOR - 576 228,
UDUPI DISTRICT.
...RESPONDENTS
(BY SRI. K CHANDRANATH ARIGA .,ADVOCATE FOR
R1(A TO D);
SRI. VASANTH RAJ, ADVOCATE FOR R2 TO R6;
SRI. GURURAJ R., ADVOCATE FOR R8 AND R11;
SERVICE OF NOTICE TO R7, R9, R10 AND R12 IS
DISPENSED WITH;
R13 - SERVED)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 27.6.2014 PASSED IN
R.A.NO.6/2012 ON THE FILE OF SENIOR CIVIL JUDGE,
KUNDAPURA, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 30.1.2012 PASSED IN
O.S.NO.17/2001 ON THE FILE OF THE II ADDL. CIVIL JUDGE &
JMFC., KUNDAPURA.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed seeking setting aside the
judgment and decree dated 27.06.2014 passed by Senior
Civil Judge, Kundapura in R.A.No.6/2012 confirming the
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RSA No. 1334 of 2014
judgment and decree dated 30.01.2022 passed by the 2nd
Additional Civil Judge and JMFC, Kundapura in
O.S.No.17/2001 and for the dismissal of the suit in
O.S.17/2001.
2. Heard the learned counsel for the appellant and
learned counsel for LR's of respondent No.1, learned
counsel for respondents no.2 to 6 and learned counsel for
respondents no.8 and 11.
3. The appellant was defendant no.1, respondent
no.1 was plaintiff, respondents no.2 to 7 were defendants
and respondentd no.8 to 12 were LR's of defendant no.8
and respondent no.13 was defendant no.9 before the Trial
Court in O.S.No.17/2001. The parties will be referred to
their ranking as in the trial court.
4. The Plaintiff has filed a suit seeking partition
and separate possession of his share in the suit schedule
properties contending that the suit schedule properties are
joint family properties granted in the name of defendant
no.1. It is further case of the plaintiff that the members of
the joint family were cultivating the suit schedule
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properties prior to the grant in the name of defendant no.1
and therefore, they are joint family properties. The
contention of the defendant no.1 is that suit schedule
properties are self acquired properties and they have been
granted in his individual capacity and plaintiff and
defendants no. 2 to 6 are not having any share in the suit
schedule properties. The defendant no.1 sold items no.4,
9 and 14 of the suit schedule properties in favour of
defendants no.7 to 9 respectively. The defendants no.7 to
9 contended that they are bonafide purchasers of items
no.4, 9 and 14 from defendant no.1. The trial court
placing reliance on the oral evidence of PW-1 and Ex.P-15
to Ex.P-19, has held that family of the plaintiff and
defendants no.1 to 6 were cultivating suit schedule
properties prior to the grant in the name of defendant no.1
and the grant by the Land Tribunal in the name of
defendant no.1, enure to the benefit of joint family and
members of the joint family. Considering the said aspect,
the trial court decreed the suit and granted 1/3rd share to
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RSA No. 1334 of 2014
plaintiff, 1/3rd share to defendant no.1 and 1/3rd share
jointly to defendant no.2 to 6.
5. The Trial Court has also held that the
defendants no.7 to 9 are purchasers of items no.4, 9 and
14 from defendant no.1 and that defendants no.8 and 9
can work out their share in final decree proceedings in the
share to be allotted to defendant no.1.
6. Aggrieved by the said judgment and decree
passed by the trial court, the defendant no.1 filed an
appeal in R.A. No. 6/2012 on the file of Senior Civil Judge,
Kundapura (first appellate court). The first appellate court
reappreciating the evidence and taking into consideration
the evidence of PW-1 and considering the Ex.P-15 to Ex.P-
19, has held that suit schedule properties are the joint
family properties of plaintiff and defendants no.1 to 6 and
dismissed the appeal confirming the judgment and decree
passed by the trial court.
7. Aggrieved by the judgment and decree passed
by the trial Court and first appellate court, the defendant
no.1 has filed this second appeal.
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8. Admittedly, the suit schedule properties are
granted in the name of defendant no.1 as per order of the
Land Tribunal at Ex.P-16 and Form no.10 at Ex.P-19. The
defendant no.1 has filed application in Form no.7 claiming
grant of occupancy rights which is at Ex.P-15. In the
Ex.P-15, the age of the defendant no.1 has been
mentioned as 23 years and in the last column, it is stated
that properties sought to be granted are in the cultivation
of the family since 25 years. The defendant no.1 has
given statement before the Land Tribunal which is at Ex.P-
18. In said statement the defendant no.1 has stated that
the properties sought to be granted are "ºÀ¼É ªÀÄÆ®UÉÃt ªÀÄvÀÄÛ
C£Á¢ ZÁ®UÉÃt EzÉ". The defendant no.1 also stated that
he and his family members are cultivating the said suit
schedule properties. Considering the said documents and
oral evidence, the trial court and first appellate court have
rightly held that even though the properties granted in the
name of defendant no.1, as the properties were cultivated
by the family members since 25 years prior to the date of
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the application, the grant enure to the benefit of joint
family members. The said finding of fact by the trial court
and first appellate court cannot be interfered with in this
second appeal.
9. Learned counsel for the appellant has placed
reliance on the decision of Hon'ble Apex Court in the case
of ACHUTHAN NAIR -Vs- CHINNAMMU AMMA AND
OTHERS reported in AIR 1966 SC 411, wherein it is
held that when a property stands in the name of the
member of the joint family, it is incumbent upon those
asserting that it is joint family property, to establish it. In
the said decision, the Apex Court has further held when
the family possessed sufficient nucleus with the aid of
which the member might have made the acquisition. The
law raises a presumption that it is a joint family property
and the onus is shifted to individual member to establish
that the property was acquired by him without the aid of
the said nucleus. In the case on hand, there is no
question of any nucleus, as the properties have been
granted by the Land Tribunal in the name of defendant
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RSA No. 1334 of 2014
no.1. The plaintiff has established that the properties
granted in the name of defendant no.1 were cultivated by
the joint family members prior to the defendant no.1 filing
application seeking grant of occupancy rights in Form no.7
(Ex.P-15).
10. Considering all these aspects, no substantial
question of law arises for consideration.
11. Hence, this appeal is dismissed.
12. Registry is directed to return the trial court
records along with the copy of this order.
Sd/-
JUDGE
TS
CT:SNN
