Karnataka High Court
Shivappa Bhima Belagali vs Ramachandra Kallappa Belagali on 31 July, 2023
Bench: Anant Ramanath Byarhj
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RFA No. 4146 of 2013
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 31ST DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO. 4146 OF 2013 (PAR/POS)
BETWEEN:
SHIVAPPA BHIMA BELAGALI
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O. HIDKAL, TQ: RAIBAG,
DIST: BELGAUM.
REP BY GENERAL POWER OF ATTORNEY HOLDER
SHANKAR SHIVAPPA BELAGALI
AGE: 32 YEARS, OCC: AGRICULTURE,
R/O. HIDKAL, TQ: RAIBAG,
DIST: BELGAUM.
...APPELLANT
(BY SRI. RAJASHEKHAR BURJI, ADVOCATE)
AND:
1. RAMACHANDRA KALLAPPA BELAGALI
Digitally
AGE: 39 YEARS, OCC: AGRICULTURE,
signed by
GIRIJA A
GIRIJA A BYAHATTI
R/O. HIDKAL, TQ: RAIBAG,
BYAHATTI Date:
2023.08.02
10:40:42 -
DIST: BELGAUM.
0700
2. SMT. GOURAVVA KALLAPPA BELAGALI,
AGE: 58 YEARS, OCC: AGRICULTURE,
R/O. HIDKAL, TQ: RAIBAG,
DIST: BELGAUM.
3. SMT. KAMALAVVA
W/O DHARMARAJ NAROTTE,
AGE: 35 YEARS, OCC: HOUSEHOLD WORK,
R/O: SAMBARAGI, TQ: ATHANI,
DIST: BELGAUM.
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RFA No. 4146 of 2013
4. NINGAPPA BHARAMAPPA DALAWAI,
AGE: 59 YEARS, OCC: AGRICULTURE,
R/O: SAMBARAGI, TQ: ATHANI,
DIST: BELGAUM.
5. LAXMAN
S/O BHARAMAPPA DALAWAI,
AGE: 49 YEARS, OCC: AGRICULTURE,
R/O: KUDACHI, TQ: RAIBAG,
DIST: BELGAUM.
6. BALAPPA
S/O BHARAMAPPA DALAWAI,
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O: KUDACHI, TQ: RAIBAG,
DIST: BELGAUM.
7. SUBHASH
S/O BHARAMAPPA DALAWAI,
AGE: 43 YEARS, OCC: AGRICULTURE,
R/O: KUDACHI, TQ: RAIBAG,
DIST: BELGAUM.
8. SMT. BHAGAWWA
W/O LAKKAPPA BELAGALI,
AGE: 38 YEARS, OCC: AGRICULTURE,
R/O: HIDKAL, TQ: RAIBAG,
DIST: BELGAUM.
9. SMT. SAVAKKA
W/O BABU BANDGAR,
AGE: 35 YEARS, OCC: AGRICULTURE,
R/O: TANGADI, TQ: ATHANI,
DIST: BELGAUM.
10. SMT. CHAMPAWWA
W/O KAREPPA LABAGE,
AGE: 33 YEARS, OCC: AGRICULTURE,
R/O: KANCHAKARAWADI,
TQ: RAIBAG, DIST: BELGAUM.
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RFA No. 4146 of 2013
11. SMT. KALLAWWA GUNDAPPA BELAGALI,
AGE: 62 YEARS, OCC: HOUSEHOLD WORK,
R/O: HIDKAL, TQ: RAIBAG,
DIST: BELGAUM.
12. MAHENDRA
S/O GUNDU BELAGALI,
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O: HIDKAL, TQ: RAIBAG,
DIST: BELGAUM.
13. VIVEK
S/O GUNDAPPA BELAGALI,
AGE: 47 YEARS, OCC: AGRICULTURE,
R/O: HIDKAL, TQ: RAIBAG,
DIST: BELGAUM.
14. SMT. SHOBA
W/O GANAPATI MURAGANNAVAR,
AGE: 35 YEARS, OCC: HOUSEHOLD WORK,
R/O: ALAKHANUR, TQ: RAIBAG,
DIST: BELGAUM.
15. KUMARI. KASTURI
D/O DUNDAPPA BELAGALI,
AGE: 21 YEARS, OCC: AGRICULTURE,
R/O: HIDKAL, TQ: RAIBAG,
DIST: BELGAUM.
16. SMT. GANGAWWA W/O MASNIK BELAGALI,
AGE: 62 YEARS, OCC: AGRICULTURE,
R/O: HIDKAL, TQ: RAIBAG,
DIST: BELGAUM.
17. SMT. LAXMI
W/O VASANT BANDGAR,
AGE: 42 YEARS, OCC: AGRICULTURE,
R/O: ALAKHANUR, TQ: RAIBAG,
DIST: BELGAUM.
18. MAHADEV MASNIK BELAGALI,
AGE: 41 YEARS, OCC: AGRICULTURE,
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RFA No. 4146 of 2013
R/O: HIDKAL, TQ: RAIBAG,
DIST: BELGAUM.
19. SHIVAPUTRA MASNIK BELAGALI,
AGE: 38 YEARS, OCC: AGRICULTURE,
R/O: HIDKAL, TQ: RAIBAG,
DIST: BELGAUM.
20. BHIMAPPA MASNIK BELAGALI,
AGE: 35 YEARS, OCC: AGRICULTURE,
R/O: HIDKAL, TQ: RAIBAG,
DIST: BELGAUM.
21. SMT. SUREKHA
W/O PARASAPPA MARAPUR,
AGE: 33 YEARS, OCC: AGRICULTURE,
R/O: HIDKAL, TQ: RAIBAG,
DIST: BELGAUM.
22. KUMARI. KASTURI
D/O MASNIK BELAGALI,
AGE: 21 YEARS, OCC: NIL,
R/O: HIDKAL, TQ: RAIBAG,
DIST: BELGAUM.
23. SMT. BALAVVA
W/O NINGAPPA BANDAGARI,
AGE: 48 YEARS, OCC: AGRICULTURE,
R/O: HIDKAL, TQ: RAIBAG,
DIST: BELGAUM.
24. LAKKANNA
S/O BHIMA BELAGALI,
AGE: 58 YEARS, OCC: AGRICULTURE,
R/O: HIDKAL, TQ: RAIBAG,
DIST: BELGAUM.
25. SMT. TAYAVVA
W/O MALLAPPA ALAKHANUR,
AGE: 52 YEARS, OCC: AGRICULTURE,
R/O: YARAGATTI, TQ: MUDHOL,
DIST: BAGALKOT.
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RFA No. 4146 of 2013
26. ADVAPPA
S/O BHIMAPPA BELAGALI,
AGE: 61 YEARS, OCC: AGRICULTURE,
R/O: HIDKAL, TQ: RAIBAG,
DIST: BELGAUM.
27. SHRISHAIL
S/O BHIMAPPA BELAGALI,
AGE: 61 YEARS, OCC: AGRICULTURE,
R/O: HIDKAL, TQ: RAIBAG,
DIST: BELGAUM.
28. PRABHU
S/O SHIVAPPA GADAG,
AGE: 49 YEARS, OCC: AGRICULTURE,
R/O: HIDKAL, TQ: RAIBAG,
DIST: BELGAUM.
29. BASAVARAJ
S/O SHIVAPPA GADAG,
AGE: 48 YEARS, OCC: AGRICULTURE,
R/O: HIDKAL, TQ: RAIBAG,
DIST: BELGAUM.
...RESPONDENTS
(R1 TO R7, R10, R12 TO R17, R19, R21, R22,
R24 AND R25-NOTICE SERVED;
R8, R9, R11, R18, R20, R23, R26, R27,
R28 AND R29- HELD SUFFICIENT)
---
THIS RFA IS FILED UNDER ORDER 43 RULE 1 R/W. SEC.
96 OF CPC, AGAINST THE JUDGMENT AND DECREE
DTD:18.04.2013 PASSED IN O.S.NO.45/2010 ON THE FILE OF
THE SENIOR CIVIL JUDGE & JMFC, RAIBAG, DECREEING THE
SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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RFA No. 4146 of 2013
JUDGMENT
This appeal is arising from the judgment and decree
dated 18.04.2013 passed in O.S.No.45/2010 on the file of
the Senior Civil Judge, Raibag (hereinafter referred to as
'the trial Court', for brevity).
2. The suit was for partition, wherein the plaintiffs
claimed declaration of ownership to the extent of 1/9th
share in the suit schedule properties, and sought for
permanent injunction against the defendants. Later the
plaint was amended and the plaintiffs have sought for
partition of their share in the suit schedule properties, as
prayed in paragraph No.7(a) of the plaint.
3. The case was contested by the defendants. The
genealogy was admitted. The defendants admitted the
fact that the suit schedule properties were ancestral
properties and the previous oral partition in respect of
certain properties pleaded by the plaintiffs are also
admitted. However, the defendants have taken a stand
that the plaintiffs have no share in the said properties and
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RFA No. 4146 of 2013
it is their stand that the suit properties are allotted to
them in the previous partition. Thereafter, after the
amendment of the plaint, defendants have also filed
additional written statement and in the additional written
statement, they have taken a stand that the suit is not
maintainable without including all the joint family
properties.
4. After hearing the parties to the suit, the trial
Court has decreed the suit and granted a decree for
partition. Aggrieved by the aforementioned judgment and
decree, defendants No.1 and 2 are in appeal.
5. Heard Sri. Rajashekhar Burji, learned counsel
appearing for the appellants.
6. Sri.Rajashekhar Burji, learned counsel for the
appellants would urge before the Court that the trial Court
did not appreciate the oral and documentary evidence in
the light of the defence taken by the defendants in the
additional written statement. It is his contention that the
defendants have taken a specific stand in the additional
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RFA No. 4146 of 2013
written statement that all the family properties are not
included in the suit for partition. Without including all the
family properties, the suit is not maintainable. To
substantiate his contention, he would refer to Exs.D1 and
D2, the record of rights produced by the defendants in
support of their defence.
7. This Court has considered the contention raised
at the bar. The following point would arise for
consideration:
"Whether the trial Court is justified in
decreeing the suit for partition and separate
possession in the light of the defence taken
by the defendants that all the joint family
properties are not included in the suit?
8. It is a settled position of law that, in a suit for
partition and separate possession all the family properties
are to be included in a common hotchpot. It is urged that,
the properties at Exs.D1 and D2, namely survey No.410/8
measuring 5 acre 10 guntas and survey No.411/6
measuring 1 acre 06 guntas are the joint family
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RFA No. 4146 of 2013
properties, which are not included in the partition. Apart
from contending that the properties at Exs. D1 and D2 are
the joint family properties, defendants in the written
statement have not taken defence disclosing as to how the
properties are inherited and how the properties were
acquired as joint family properties. The evidence in this
regard is also not forthcoming. Except producing Exs. D1
and D2, the record of rights pertaining to the
aforementioned properties bearing survey Nos.410/8 and
411/6, appellants have not produced any other
documents.
9. On perusal of the aforementioned documents at
Exs.D1 and D2, it is apparent that the properties stand in
the name of the plaintiffs. Prima facie it would indicate
that the plaintiffs are the owners of the schedule
properties. To hold that these properties belong to the
joint family, defendants must adduce evidence relating to
its source, nature of acquisition or nature of inheritance.
The said evidence is not forthcoming. That being the
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position, the trial Court has rightly held that the
defendants have not produced any material to show that
the said properties are the joint family properties.
10. As far as the documents relating to previous
partition is concerned, on perusal of the same, it is evident
that the properties bearing survey Nos.410/8 and 411/6
are not forthcoming in the memorandum of previous
partition, which is marked as Ex.P4. This being the
position, the Court is not in a position to give a finding
that the aforementioned properties are also the joint
family properties.
11. On perusal of the material on record and on re-
appreciation of the evidence and on perusal of the
reasoning assigned by the trial Court, this Court is of the
view that that judgment and decree under appeal do not
call for any interference. Accordingly, the following:
ORDER
The appeal is dismissed.
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RFA No. 4146 of 2013
The impugned judgment and decree dated
18.04.2013 passed in O.S.No.45/2010 on the file of the
Senior Civil Judge, Raibag, are confirmed.
Sd/-
JUDGE
gab
CT:PA
