Karnataka High Court
Shri Shivaji Yallappa Rawool vs Shri Ballapa Yallappa Rawool on 16 June, 2023
Bench: Rajendra Badamikar
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RSA No. 5060 of 2009
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 16TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
REGULAR SECOND APPEAL NO. 5060 OF 2009
BETWEEN
SRI. SHIVAJI YALLAPPA RAWOOL
AGE: 52 YEARS, OCC: WEAVER,
R/O: H.NO.146, IST CROSS,
BHARAT NAGAR, SHAHAPUR,
BELAGAVI.
...APPELLANT
(BY SMT. PALLAVI PACHHAPURE FOR
SRI. SRINAND A PACHHAPURE, ADVOCATES)
AND
YASHAVANT
Digitally
signed by
NARAYANKAR YASHAVANT
SRI. BALLAPPA YALLAPPA RAWOOL
NARAYANKAR
AGE: 62 YEARS, OCC: WEAVER,
OLD ADDRESS: R/O: H.NO.146, IST CROSS,
BHARAT NAGAR, SHAHAPUR,
BELAGAVI.
NEW ADDRESS: R/O:R.S.NO.106B, 107N,
2ND CROSS, GANESH COLONY,
SAMBHAJI NAGAR, VADAGAON,
BELAGAVI.
...RESPONDENT
(BY SRI. SANTOSH B RAWOOT, ADVOCATE)
THIS RSA FILED U/S. 100 OF CPC AGAINST THE JUDGMENT &
DECREE DTD: 06/11/2008 PASSED IN R.A.NO.227/1998 ON THE
FILE OF THE II ADDL.CIVIL JUDGE(SR.DN) BELGAUM, ALLOWING
THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DTD:
19.09.1998 PASSED IN OS.NO.34/1997 ON THE FILE OF THE II
ADDL.CIVIL JUDGE(JR.DN) BELGAUM, FILED SUIT FOR PARTITION.
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RSA No. 5060 of 2009
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
05.06.2023 COMING ON FOR PRONOUNCEMENT, THIS DAY COURT
DELIVERED THE FOLLOWING.
JUDGMENT
This is the defendant's appeal filed under Section 100
of the Code of Civil Procedure, 1908 (for short, hereinafter
referred to as 'CPC') challenging the judgment and decree
passed by the learned II Additional Civil Judge (Sr.Dn.),
Belgaum in R.A. No.227/1998 whereby he has reversed
the judgement and decree in O.S.No.34/1997 on the file of
the learned Civil Judge (Jr. Dn.), Belgaum and decreed the
suit of plaintiff for partition.
2. For the sake of convenience, the parties herein
are referred with the original ranks occupied by them
before the Trial Court.
3. The suit property is a residential house situated
at I Cross, Bharat Nagar, Shahapur, Belgaum, which is
described in the scheduled in detail. The plaintiff has filed
a suit seeking 1/2 share in the suit scheduled property by
partition. According to the plaintiff, suit property is
purchased by the plaintiff in the name of his elder brother
RSA No. 5060 of 2009
one Ramappa as he was senior member of the family and
the said Ramappa left house in the year 1967-68.
Thereafter, his whereabouts is not known and they did not
hear about him. He renounced the world and before
leaving the house he had performed Homa and other
ceremonies. The suit property standing in the name of said
Ramappa and before filing of the suit, plaintiff has
requested the defendant to effect partition but defendant
did not hear to the request of the plaintiff. Therefore, he
filed the suit for partition.
4. The defendant did not appear before the Trial
Court. However, the Trial Court after appreciating the oral
and documentary evidence, dismissed the suit.
5. Aggrieved by the said findings, the plaintiff
preferred the appeal before the learned II Additional Civil
Judge(Sr.Dn.), Belgaum in R.A. No.227/1998. The learned
Senior Civil Judge after re-appreciating the oral as well as
documentary evidence, allowed the appeal by reversing
the judgment and decree of the Trial Court in
RSA No. 5060 of 2009
O.S.No.34/1997 and decreed the suit.
Being aggrieved by this judgment and decree, the
defendant is before this Court.
6. Heard the arguments advanced by the learned
counsel for the appellant/defendant and the learned
counsel for the respondent/plaintiff. Perused the records.
7. Learned counsel for the appellant submitted
that the plaintiff has not produced any single document to
show that he had earned the suit scheduled property from
his earnings and purchased it in the name of Ramappa.
There is no evidence to show that the plaintiff is in
possession of the suit property. The defendant has also
produced the material documents to show that he is in
exclusive possession of the suit property from last 40
years but the same were rejected. It is also contended
that the respondent has no right to seek partition in the
suit property without seeking declaration of the death of
Ramappa in whose name the suit property was purchased.
The lower Appellate Court has failed to consider any of
these aspects and in a mechanical way decreed the suit
RSA No. 5060 of 2009
only basing on presumption under Sections 107 and 108 of
the Indian Evidence Act, 1872. But without seeking
declaration, such presumption cannot be drawn. Hence, he
would seek for allowing the appeal by setting aside the
impugned judgment.
8. Per contra, learned counsel for the
respondent/plaintiff would support the judgment and
decree of the Trial Court and would contend that the Trial
Court has failed to appreciate the evidence on record and
the First Appellate Court has rightly considered the
presumption available under Section 108 of the Indian
Evidence Act, 1872 and has rightly decreed the suit in
favour of the plaintiff, as admittedly the suit property is
standing in the name of elder brother Ramappa. Hence, he
would seek for dismissal of the appeal.
9. This Court by order dated 22.03.2010 has
framed the following substantial question of law:
i) Whether in the facts and circumstances of the
case, the lower Appellate Court was justified in
reversing the judgment and decree dated
RSA No. 5060 of 2009
19.09.1998 in O.S.No.34/1997 on the file of
the learned II Additional Civil Judge (Jr.Dn.),
Belgaum.
10. It is evident from the records that the suit
property is standing in the name of Ramappa. It is the
contention of the plaintiff that he has purchased the suit
property in the name of Ramappa, as he was elder brother
out of his hard earning. At the same time, the defendant
has also asserted the same contention. But however, it is
evident that both the plaintiff as well as defendant have
failed to produce any material document to show that the
suit property is purchased by them in the name of
Ramappa. It is also important to note here that the
plaintiff has not produced genealogy of the family. There is
no serious dispute of the fact that the suit scheduled
property was standing in the name of Ramappa. Learned
counsel for the appellant contended that the Genealogy is
not shown and since three brothers had a sister by name
Suman, who would be necessary party to the suit, but to
substantiate this contention, the appellant has not
produced any peace of document before this Court.
RSA No. 5060 of 2009
Surprisingly, he has remained exparte and did not contest
the suit before Trial Court. However, on merits the suit
came to be dismissed.
11. The plaintiff in his plaint para No.3 asserted
that in 1968 Ramappa left the place and till today his
whereabouts is not known and in the eye of law he is
presumed to be dead. In para No.2, it is contended that
Ramappa was not having any faith in this world and was
often he would express that he would renounce the word.
But however, there is no pleading to the effect that
Ramappa has renounced the world by becoming a Sanyasi.
Absolutely no pleading is forthcoming, but in the evidence,
the plaintiff has made out a case that Ramappa renounced
the world and a Homa was performed. But there is no
evidence as to when the Homa was performed and what
are the religious ceremonies performed as per custom.
Even there was no pleading to this effect in the plaint and
without pleading the evidence in this regard cannot be
accepted.
RSA No. 5060 of 2009
12. In this context, the learned counsel for the
appellant has placed reliance on a decision reported in
MANU/UP/0141/1985 : AIR1985All104, in the case of
Avadhesh Kumar vs. Sheo Shankar and Ors. The
Allahabad High Court in the said decision relaying on the
decision of the Hon'ble Apex Court has clearly held that in
order to prove that a person has renounced the world by
becoming a Sanyasi, it should be shown that he has
actually relinquished and abandoned the wordily
possessions and relinquished all the desires for them. It is
further observed that the ceremonies performed must be
strictly proved and merely by wearing a Cloth ordinarily
worn by Sanyasi or by mere declaration, a person cannot
be termed as that he has renounced the world. In the
instant case, the plaint pleadings simply disclose that
Ramappa has expressed his desire but there is no
evidence or pleading to show that he did renounced the
world by becoming any Sanyasi. This material pleading is
missing. However, plaintiff has tried to lead evidence in
this regard but that is without pleading. Further the
witnesses who were examined in this regard are friends of
RSA No. 5060 of 2009
the plaintiff but they are not the friends of Ramappa.
Since, this evidence is without pleading, the same cannot
be even looked into.
13. The defendant/appellant herein tried to make
out a case that he has purchased the suit property and he
is possessing the original sale deed and he is paying tax all
along which presupposes regarding his contribution. But
the fact remains that the properties purchased in the
name of Ramappa and who has contributed and what was
corpus derived is not at all forthcoming either from the
plaintiff or from the defendant. Hence, the contention of
both plaintiff as well as defendant that they have
purchased the property in the name of Ramappa cannot be
accepted. No doubt the defendant asserts that there is
one more sister, but no evidence is placed before this
Court to substantiate the said contention. However,
admittedly the property is standing in the name of
Ramappa. But no declaration regarding civil death of
Ramappa is sought. Admittedly, property was purchased in
the year 1959 itself by Ramappa. The First Appellate Court
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RSA No. 5060 of 2009
placing reliance under Section 108 of the Indian Evidence
Act, has held that Ramappa is deemed to have been died.
But the contention of the plaintiff is that Ramappa was
alive till 1968 and thereafter he was not heard.
Admittedly, the suit was filed on 15.01.1997. Under
Section 107 of the Indian Evidence Act, the burden is on
the plaintiff to prove that Ramappa is not alive within 30
years from the date of filing the suit. Admittedly, Ramappa
was alive as it is asserted that in the year 1968 he left.
Suit is filed in the year 1997 itself. Section 107 reads as
under:
"107.Burden of proving death of person
known to have been alive within thirty years,-
When the question is whether a man is alive or dead,
and it is shown that he was alive within thirty years,
the burden of proving that he is dead is on the person
who affirms it."
14. Further under Section 108 of the Indian
Evidence Act, gives presumption and cast negative burden
on a person who asserts that to prove that he is alive, but
under Section 108 comes into play when within 7 years
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RSA No. 5060 of 2009
from the date of assertion regarding his death, he was not
heard or for 7 years those who would naturally have heard
of him if he had been alive. But Section 108 of the
Evidence Act, will come into effect only if the ingredients
of under Section 107 of the Evidence Act, are complied
with. Admittedly, no presumption can be withdrawn under
Section 108 of the Evidence Act, regarding civil death and
burden is on the plaintiff to prove that Ramappa's civil
death. But the plaintiff himself has raised inconsistent
stands. At one breath he claims that Ramappa is unheard
after 1968. But at another breath, he tried to make out a
case that he has renounced the world by becoming a
Saint.
15. As observed above, this fact was not pleaded
and it is not established. If Ramappa is not heard, no
complaint was lodged in this regard by any of the parties.
No paper publication was also issued in this regard. Hence,
merely on the assertion of the plaintiff by filing a suit,
Ramappa cannot be presumed to be dead. In this context,
the learned counsel for the appellant has placed reliance
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RSA No. 5060 of 2009
on a decision of this Court in R.S.A. No.5773/2013 dated
17.12.2020 wherein this Court has clearly observed that in
the absence of prayer of declaration right to seek partition
especially when declarative relief is not sought regarding
civil death of a person is not permissible. Admittedly, in
the instant case also there is no conclusive evidence
placed to prove that Ramappa died a civil death. The
plaintiff did not seek relief of declaration that Ramappa is
not seen more than 7 years as contemplated under
Section 108 of the Evidence Act, and therefore
presumption must be drawn regarding his Civil death or
his non-appearance for more than 7 years which amounts
to civil death and then he could have sought for partition
but without seeking a declarative relief he is directly
seeking partition. Unless there is a declaration regarding
civil death of Ramappa, the question of plaintiff claiming
partition in the property of Ramappa does not arise at all.
The First Appellate Court did not appreciate any of these
aspects and in a mechanical way decreed the suit. Even
the defendant tried to claim title and produced certain
records regarding mutating his name but that will not give
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RSA No. 5060 of 2009
any right to him over the suit property. In the absence of
declaration regarding civil death of Ramappa, the suit for
partition itself is not maintainable and as such the First
Appellate Court has seriously committed an error in
reversing the judgment and decree of the Trial Court by
decreeing the suit. Hence, the judgment and decree of the
First Appellate Court is required to be set aside. The
substantial question of law is accordingly answered in the
negative and hence, I proceed to pass the following:
ORDER
The appeal is allowed.
The judgment and decree passed by the learned II
Additional Civil Judge (Sr.Dn.), Belgaum in R.A.
No.227/1998 is set aside and the judgment and decree of
the learned II Additional Civil Judge (Jr.Dn.) Belgaum in
O.S.No.34/1997 stands restored.
Sd/-
JUDGE
SSP
