Tippamma W/O Basanna vs Shivaputra S/O Nagappa Halkatti
2023 Latest Caselaw 3506 Kant

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                                                       NC: 2023:KHC-K:1260
                                                            RSA No. 7272 of 2009




                                 IN THE HIGH COURT OF KARNATAKA,

                                        KALABURAGI BENCH

                               DATED THIS THE 20TH DAY OF JUNE, 2023

                                              BEFORE
                            THE HON'BLE MR. JUSTICE N.S.SANJAY GOWDA


                           REGULAR SECOND APPEAL NO. 7272 OF 2009 (DEC)
                      BETWEEN:

                      1.    TIPPAMMA W/O BASANNA
                            AGE: 95 YEARS, OCC:NIL,
                            NOW EXPIRED BY HER LEGAL REPRESENTATIVES
                            BASAMMA W/O REVANSIDDAPPA
                            AGE:52,OCC:HOUSEHOLD
                            R/O:TOTANALLI,TQ:SEDAM,
                            DIST:GULBARGA.

                      2.    MALLAMMA W/O BASWARAJ
                            OCC:HOUSEHOLD R/O:TOTANALL,
                            TQ:SEDAM, DIST:GULBARGA

                      3.    YELLAMMA W/O SATISH
Digitally signed by         AGE: 25 YEARS, OCC:HOUSEHOLD,
RAMESH MATHAPATI            R/O:TOTANALLI, TQ:SEDAM,
Location: HIGH
COURT OF                    DIST:GULBARGA.
KARNATAKA
                                                                   ...APPELLANTS
                      (BY SRI SHARANABASSAPPA K.BABSHETTY, ADVOCATE)

                      AND:

                            SHIVAPUTRA S/O NAGAPPA HALKATTI
                            AGE: 25 YEARS, OCC:AGRICULTURE
                            R/O:TOTANALLI TQ:SEDAM,
                            DIST:GULBARGA

                                                                  ...RESPONDENT
                      (BY SMT. HEMA L KULAKARNI, ADVOCATE)
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                                    NC: 2023:KHC-K:1260
                                        RSA No. 7272 of 2009




      THIS RSA IS FILED UNDER SECTION 100 OF CPC,
PRAYING TO ALLOW THIS APPEAL AND SET ASIDE THE
JUDGEMENT AND DECREE DATED 29.7.2009 PASSED BY THE
III ADDL. DISTRICT JUDGE GULBARGA IN R.A.NO.33/2007.

     THIS APPEAL, HAVING BEEN HEARD AND RESERVED ON
12.06.2023,  COMING    OF  FOR  'PRONOUNCEMENT   OF
JUDGMENT' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                         JUDGMENT

1. This is a second appeal which has been filed by the

plaintiffs.

2. The plaintiffs had filed a suit seeking for a declaration

that they were the owners of land bearing Sy.No.114/2

measuring 12 acres and that the defendant should be

directed to hand over the possession of 6 acres out of said

extent of 12 acres, which had been encroached upon and

which had been demarcated in the plaint sketch in green

colour. They also sought for mesne profits @ Rs.12,000/-

per annum be granted to them.

3. The plaintiffs contended that the property belonged

to Ramanna and after his death his son Basanna had

succeeded to the same. It was stated that after the death

NC: 2023:KHC-K:1260 RSA No. 7272 of 2009

of Basanna in the year 1972, the name of his wife

Tippamma i.e., plaintiff No.1 was entered in the revenue

records and the same was found from 1980-81. It was

stated that the defendant-Shivaputrappa had

surreptitiously got his name entered in the record of rights

from the year 1988-89 and he had thereafter encroached

upon the land by an extent of 1 acre every year and he

had ultimately encroached an extent of 6 acres out of the

total extent of 12 acres.

4. It was stated that plaintiff No.1 was aged about 95

years, while plaintiff No.2 was an illiterate lady and

plaintiff No.3 had been given in marriage to one Basanna

of another village and plaintiff No.4 was also given in

marriage and since there were no male members in the

family, they were helpless and taking advantage of this

situation, the defendant had encroached upon their

property. It was stated that the defendant had refused to

hand over the possession despite request made in that

regard and since he had no title or interest, it was

NC: 2023:KHC-K:1260 RSA No. 7272 of 2009

necessary that they be declared as owners and be granted

possession.

5. The defendant-Shivaputrappa entered appearance

and contested the suit by filing a written statement. Apart

from denying the plaint averments, he also setup a further

plea that there were four brothers Ramanna, Sharnappa,

Chandrappa and Shivlingappa. Out of these four,

Sharanappa, Shivlingappa had died without leaving behind

any children and their respective spouses had also pre-

deceased them.

6. He stated that two surviving brothers namely

Ramanna was the husband of plaintiff-Tippamma and

while Chandrappa was his grand-father. It was stated that

Ramanna and Chandrappa owned joint family properties

including the suit property and an oral partition had been

effected between Ramanna and Chandrappa in which the

suit property had been allotted to the share of

Chandrappa, while other lands had been allotted to

Ramanna. It was stated that Chandrappahad thus become

NC: 2023:KHC-K:1260 RSA No. 7272 of 2009

the absolute owner of the suit land and hence his name

was found in the record of rights.

7. It was also stated that after the death of

Chandrappa, his father Nagappa became the owner, and

he was cultivating the same personally along with him. He

stated that as Nagappa was illiterate, the son of plaintiff

No.1 had got his name entered in the record of rights

without their knowledge and the suit property did not

therefore belong to Ramanna.

8. In addition to setting up title in his family under the

oral partition, Shivaputrappa-defendant also contended

that he was in possession of the suit land for more than 12

years to the knowledge of the plaintiff and he had

therefore perfected his title by adverse possession.

9. The Trial Court on considering the material placed

before it during the trial came to the conclusion that the

plaintiffs had proved that they were the owners of the suit

property and defendant had encroached upon the suit

NC: 2023:KHC-K:1260 RSA No. 7272 of 2009

property and they were hence entitled for recovery of

possession.

10. In order to come to this conclusion, the Trial Court

relied upon the revenue record pertaining to the period

1973 to 1977-78 (Ex.P2) in which the name of Basanna,

husband of plaintiff No.1 had been entered and also on the

subsequent record of rights for the period 1978-80. The

Trial Court also noticed that the name of plaintiff No.1-

Tippamma also appeared in the record of rights from

1980-83 and this indicated that the property belonged to

plaintiff-Tippamma. It also noticed that the revenue

records for the year 1988 to 1993 contains the name of

both Shivaputrappa along with plaintiff-Tippamma, but the

basis for entering the name of Shivaputrappa was not

forthcoming. The Trial Court also held that Shivaputrappa

had merely contended that the property had fallen to the

share of his grand-father Chandrappa and apart from this

oral assertion there was no document indicating this

partition.

NC: 2023:KHC-K:1260 RSA No. 7272 of 2009

11. In appeal, the Appellate Court on re-appreciation of

the evidence came to the conclusion that there was an

admission given by the plaintiff-Tippamma to the effect

that there was a partition between her father-in-law

Ramanna and his brother Chandrappa and in the light of

this admission, the revenue records would have no

significance and it followed that the suit property

measuring 12 acres had been divided equally. The

Appellate Court took the view that the finding by the Trial

Court that the defendant had not established his assertion

that there was a partition would be of little significance

since PW.1 had admitted partition of the suit property. The

Appellate Court accordingly set aside the decree of the

Trial Court and dismissed the suit.

12. Consequently, the plaintiffs are in second appeal and

this second appeal was admitted to consider the following

substantial questions of law:

(a) Whether the Appellate Court was justified in dismissing the suit of the appellant which

NC: 2023:KHC-K:1260 RSA No. 7272 of 2009

had been filed for declaration and possession, despite the fact that the plaintiff and the defendant had admitted that there was a partition amongst their predecessor-in-interest i.e., Ramanna and Chandrappa and pursuant to the partition, the RTCs stood in the name of Ramanna, the predecessor of the appellant over the entire extent of land from the year 1973-74 to 1977-78 and in the name of the appellant-Tippamma from 1978-79 to 1982-83 and only in the year 1988-89, the name of the 1st defendant- Shivaputra was entered in the revenue record without any order of mutation?

(b) Whether the Appellate Court was justified in dismissing the suit in the light of the fact that the defendant Shivaputra suggested to the plaintiff during the course of cross-

      examination        that         the     suit       land       was
      partitioned      and        6     acres       in    the        suit
      properties       had        been        allotted         to    his

grandfather without considering whether this factum of partition had been established by the defendant?

NC: 2023:KHC-K:1260 RSA No. 7272 of 2009

13. Learned counsel for the appellant contended that the

case of the plaintiff was that the property belonged to her

father-in-law Ramanna and the revenue record indicated

that his son's name i.e. Basanna was entered in the record

of rights and after his death, the name of his wife i.e.,

plaintiff No.1 was appearing right from the year 1980-81

and in the light of these documents, the Trial Court was

right in decreeing the suit.

14. Learned counsel also contended that plaintiff No.1-

Tippamma had not admitted that the suit property had

been partitioned. She had merely stated that two surviving

brothers had partitioned the properties and she had

nowhere indicated that the suit property was partitioned.

It was therefore contended that the Appellate Court had

completely misconstrued the deposition of plaintiff No.1

during her cross examination.

15. Learned counsel contended that the Appellate Court

had failed to notice that in the very next sentence plaintiff

No.1 had denied the suggestion that the suit property had

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NC: 2023:KHC-K:1260 RSA No. 7272 of 2009

fallen to the share of Chandrappa and after the death of

Chandrappa, the suit property had devolved on to his

grandson i.e., defendant.

16. Learned counsel also contended that since

Shivaputrappa had put-forth a claim over only 6 acres on

the basis of an alleged oral partition, the Trial Court was

not justified in dismissing the suit as there was absolutely

no evidence indicating partition of the suit property.

17. Learned counsel for the respondent, on the other

hand, contended that Tippamma had clearly admitted the

partition in respect of the suit property and therefore the

Appellate Court was justified in decreeing the suit.

18. The plaintiff-Tippamma contended that the suit

property belonged to Ramanna, her father-in-law and after

his death her husband Basanna had succeeded to the suit

property and on his death, she had inherited the property

along with her children. Thus, Tippamma was claiming title

through Ramanna.

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NC: 2023:KHC-K:1260 RSA No. 7272 of 2009

19. Shivaputrappa-the defendant contended that the suit

property along with other properties belonged to four

brothers i.e., Ramanna, Sharnappa, Chandrappa and

Shivlingappa and out these four, Sharnappa and

Shivlingappa had died issue-less. He also admitted that

the joint family properties including the suit property

jointly belonged to Ramanna i.e., father-in-law of plaintiff

No.1 and Chandrappa his grandfather.

20. It is therefore clear that title of the suit property

being vested with the family of Ramanna and Chandrappa

was not at all in dispute, and it was the admitted case that

the suit property was the joint family property of Ramanna

and Chandrappa. In fact, the specific plea taken by

Shivaputrappa was that there was an oral partition

between Ramanna (father-in-law of plaintiff No.1) and his

grand-father Chandrappa and the suit land had fallen to

the share of Chandrappa. In the light of this plea, it was

therefore essential on the part of Shivaputrappa, who

contended that the suit property was allotted to his

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NC: 2023:KHC-K:1260 RSA No. 7272 of 2009

grandfather in an oral partition, to establish this particular

fact.

21. Admittedly, Shivaputrappa did not produce any

documentary evidence to indicate that the suit properties

fell to the share of his grandfather at a partition. Though it

was contended that on the death of his grandfather, the

property devolved on to his father Nagappa, there was not

even a revenue record produced to evidence this partition.

22. The arguments which is however advanced by the

defendant/respondent is that there was an admission by

Tippamma regarding the partition and therefore

Shivaputrappa did not have to establish this oral partition.

The Appellate Court has accepted this contention, and this

is primary reason for the Appellate Court to reverse the

decree of the Trial Court and dismiss the suit.

23. The Cross-examination of defendant-Tippamma

would therefore have to be examined. The relevant portion

of cross-examination of Tippamma reads as follows;

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NC: 2023:KHC-K:1260 RSA No. 7272 of 2009

"£À£Àß ªÀiÁªÀ£À ºÉ¸gÀ ÄÀ gÁªÀÄtÚ. gÁªÀÄtÚ¤UÉ 4 d£À CtÚ vÀªÀÄAä ¢gÀÄ, gÁªÀÄtÚ, ±ÀgÀt¥À,à ZÀAzÀ¥ æ ,àÀ §¸ÀªAÀ vÀ¥,àÀ ±Àgt À ¥À¤ à UÉ ªÀÄPÀ̽®è, §¸ÀªAÀ vÀ¥¤ Àà UÉ ªÀÄPÀ½ Ì ®è, CªÀj§âgÀÄ ¸ÁQë ºÉüÀªÅÀ zÀÄ ®UÀß«®èzÉ wÃjPÉÆArzÁÝgÉ CªÀj§âgÀÆ wÃjPÉÆAqÀ £ÀAvÀgÀ £À£ßÀ ªÀiÁªÀ gÁªÀÄtÚ ªÀÄvÀÄÛ ZÀAzÀ¥ æ Àà ªÀÄvÀÄÛ ZÀAzÀ¥ æ £ àÀ À £ÀqÄÀ ªÉ ¥Á®Ä D¬ÄvÀÄ CAzÀgÉ ¸Àj.ZÀAzÀ楤 Àà UÉ 4 d£À ªÀÄPÀ¼ Ì ÀÄ. £ÁUÀ¥,àÀ ±Át¥Àà ¥Àw æ ªÁ¢ £ÁUÀ¥àÀ ªÀÄUÀ ²ªÀ¥ÀÄvÀæ¥Àà CAzÀgÉ ¸Àj. ¥Á°£À°è zÁªÁ d«ÄãÀÄ 6 JPÀgÉ ZÀAzÀ¥ æ £àÀ À ¨sÁUÀPÉÌ ºÉÆÃVzÉ C£ÀÄߪÀÅzÀÄ ¸ÀļÀÄ.î £ÁUÀ¥àÀ wÃjPÉÆAqÀ £ÀAvÀgÀ DvÀ£À ªÀÄUÀ ²ªÀ¥ÀÄvÀæ¥Àà ¥Àw æ ªÁ¢ ªÀiÁ°ÃPÀ£ÁVzÁÝ£É ªÀÄvÀÄÛ PÀfAÓ iÀÄ°èzÁÝ£É C£ÀÄߪÀÅzÀÄ ¸ÀļÀÄ.î ."

24. As could be seen from the above, Tippamma stated

that there were four brothers out of which, two had no

children and after their death the remaining two brothers

had partitioned the property. This statement cannot be

construed as an admission that Tippamma had admitted

that the suit property had been partitioned as pleaded by

defendant-Shivaputrappa.The fact that in the very next

statement, she categorically denied the assertion that the

suit property i.e., 6 acres had been allotted to Chandrappa

was false and on the death of Chandrappa, his son had

become the owner was also false and thereafter on the

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NC: 2023:KHC-K:1260 RSA No. 7272 of 2009

death of Nagappa, Shivaputrappa-defendant had become

the owner was also false, clearly indicates that there was

absolutely no admission regarding the oral partition of the

suit property that had been setup by the defendant. The

finding of the Appellate Court that the oral partition was

admitted cannot therefore be sustained.

25. It is to be stated here that the plaintiff produced the

revenue records pertaining to the year 1973-74, which

was more than 30 years prior to filing of the suit, which

contained the name of plaintiff's husband as the owner. In

fact, the revenue records from the year 1973 to 1982-83

continuously shows the name of plaintiff's husband

Basanna and thereafter her name (Ex.P2 and 3) and it is

only for the first time in the year 1988-89 the name of

defendant-Shivaputrappa has been entered in the revenue

record along with the name the plaintiff-Tippamma.

26. The Trial Court has noticed that the basis on which

the name of defendant-Shivaputrappa was entered in the

record of rights was not explained nor was the order of

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NC: 2023:KHC-K:1260 RSA No. 7272 of 2009

mutation produced by the defendant. In the absence of

any material to indicate the basis on which the name of

Shivaputrappa was entered in the revenue records, the

Appellate Court was not justified in dismissing the suit by

misconstruing the deposition of Tippamma. The first

question of law is therefore answered in favour of the

plaintiffs.

27. As stated above, the specific case pleaded by

Shivaputrappa was that the suit property was granted to

his grand-father Chandrappa under an oral partition. In

furtherance of this plea, a suggestion was also made in the

cross-examination to Tippamma that 6 acres was granted

to his grandfather. Apart from this suggestion, there is

admittedly no evidence at all produced to indicate that

there was a partition between Ramanna and Chandrappa.

The defendant-Shivaputrappa, in fact, did not produce any

documentary or oral evidence and the only evidence was

his own statement.

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NC: 2023:KHC-K:1260 RSA No. 7272 of 2009

28. In my view, having regard to the revenue documents

produced by Tippamma, the Appellate Court ought not to

have dismissed the suit when Shivaputrappa had failed to

establish the factum of partition as pleaded by him. In the

result, the second question of law is also answered in

favour of the appellants/plaintiffs. Consequently, the

judgment and decree of the Appellate Court is set aside,

and the judgment and decree of the Trial Court is

restored.

The appeal is accordingly allowed.

Sd/-

JUDGE

MSR