Karnataka High Court
Girimallappa vs Smt.Kontewwa And Ors on 22 November, 2023
-1-
NC: 2023:KHC-K:8771
RSA No. 200140 of 2019
C/W RSA No. 200141 of 2019
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
REGULAR SECOND APPEAL NO.200140 OF 2019 (PAR)
C/W
REGULAR SECOND APPEAL NO.200141 OF 2019(PAR)
IN RSA 200140/2019:
BETWEEN:
GIRIMALLAPPA
S/O MAHADEVAPPA HOSAMANI
AGE: 54 YEARS, OCC: AGRICULTURE,
R/O: AHERI JAMBAGI, TQ. DIST.VIJAYAPUR.
...APPELLANT
(BY SRI D. P. AMBEKAR, ADVOCATE)
AND:
Digitally signed
by SHILPA R
TENIHALLI 1. SMT. KONTEWWA
Location: HIGH
COURT OF W/O MAHADEVAPPA HOSAMANI
KARNATAKA
AGE: 74 YEARS, OCC: HOUSEHOLD WORK,
R/O. KANAMADI VILLAGE,
TQ. DIST.VIJAYAPUR-586114.
2. SMT. RENUKA
W/O MUKUND VATHAR
AGE: 48 YEARS, OCC: HOUSEHOLD WORK & AGRIL.
R/O. KANAMADI VILLAGE,
TQ. DIST.VIJAYAPUR-586114.
3. SMT. YALLAWWA
W/O BHAGAPPA HARIJAN
-2-
NC: 2023:KHC-K:8771
RSA No. 200140 of 2019
C/W RSA No. 200141 of 2019
AGE: 46 YEARS, OCC: HOUSEHOLD WORK & AGRIL,
R/O. HUVINHALLI, TQ.SINDAGI,
DIST.VIJAYAPUR-586202.
4. HANAMANT
S/O MAHADEVAPPA HOSAMANI
AGE: 52 YEARS, OCC: AGRICULTURE,
R/O. AHERI-JAMBAGI,
TQ.DIST.VIJAYAPUR585112.
5. SHIVASHANKAR
S/O MAHADEVAPPA HOSAMANI
AGE: 52 YEARS, OCC: AGRICULTURE,
R/O. AHERI-JAMBAGI,
TQ.DIST.VIJAYAPUR-586112.
6. DHULAPPA
S/O MAHADEVAPPA HOSAMANI
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O AHERI-JAMBAGI,
TQ.DIST.VIJAYAPUR-585112.
...RESPONDENTS
(BY SRI AJAYKUMAR A.K., ADVOCATE FOR
SMT. RATNA N. SHIVAYOGIMATH, ADVOCATE FOR R1 TO R3)
THIS RSA IS FILED U/S 100 OF CPC, PRYING TO ALLOW
THE APPEAL AND SET ASIDE THE JUDGMENT AND DECREE
DATED 09.01.2019 PASSED BY THE PRINCIPAL DISTRICT
JUDGE, VIJAYAPURA, DISMISSING R.A.NO.34/2017 AND
CONFIRMING THE JUDGMENT AND DECREE
DATED:02.02.2017, PASSED BY THE III ADDL. SENIOR CIVIL
JUDGE, VIJAYAPUR, DISMISSING COUNTER-CLAIM OF
DEFENDANT-1 IN O.S.NO.179/2013 AND FURTHER ALLOW
SAID COUNTER-CLAIM OF DEFENDANT-1 IN O.S.NO.
179/2013, WITH COSTS THROUGH OUT.
-3-
NC: 2023:KHC-K:8771
RSA No. 200140 of 2019
C/W RSA No. 200141 of 2019
IN RSA 200141/2019:
BETWEEN:
GIRIMALLAPPA
S/O MAHADEVAPPA HOSAMANI
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O: AHERI JAMBAGI, TQ.DIST.VIJAYAPUR.
...APPELLANT
(BY SRI D. P. AMBEKAR, ADVOCATE)
AND:
1. SMT. KONTEWWA
W/O MAHADEVAPPA HOSAMANI
AGE: 72 YEARS, OCC: HOUSEHOLD WORK,
R/O. KANAMADI VILLAGE,
TQ. DIST.VIJAYAPUR-586114.
2. SMT. RENUKA
W/O MUKUND VATHAR
AGE:46 YEARS, OCC:HOUSEHOLD WORK & AGRIL,
R/O. KANAMADI VILLAGE,
TQ. DIST.VIJAYAPUR-586114.
3. SMT. YALLAWWA
W/O BHAGAPPA HARIJAN
AGE: 44 YEARS, OCC: HOUSEHOLD WORK & AGRIL,
R/O. HUVINHALLI, TQ.SINDAGI,
DIST.VIJAYAPUR-586202.
4. HANAMANT
S/O MAHADEVAPPA HOSAMANI
AGE: 48 YEARS, OCC: AGRICULTURE,
R/O. AHERI-JAMBAGI,
TQ.DIST.VIJAYAPUR585112.
5. SHIVASHANKAR
S/O MAHADEVAPPA HOSAMANI
AGE: 49 YEARS, OCC: AGRICULTURE,
-4-
NC: 2023:KHC-K:8771
RSA No. 200140 of 2019
C/W RSA No. 200141 of 2019
R/O. AHERI-JAMBAGI,
TQ.DIST.VIJAYAPUR-586112.
6. DHULAPPA
S/O MAHADEVAPPA HOSAMANI
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O AHERI-JAMBAGI,
TQ.DIST.VIJAYAPUR-585112.
...RESPONDENTS
(BY SRI AJAYKUMAR A.K., ADVOCATE FOR
SMT. RATNA N. SHIVAYOGIMATH, ADVOCATE FOR R1 TO R3)
THIS RSA IS FILED U/S 100 OF CPC, PRYING TO ALLOW
THE APPEAL AND SET ASIDE THE JUDGMENT AND DECREE
DATED 09.01.2019 PASSED BY THE PRINCIPAL DISTRICT
JUDGE, VIJAYAPURA, ALLOWING R.A.NO.48/2017 AND
REVERSISNG THE JUDGMENT AND DECREE DATED:02.02.2017,
PASSED BY THE III ADDL. SENIOR CIVIL JUDGE, VIJAYAPUR,
DISMISSING O.S. NO. 179/2013 AND FURTHER DISMISS SAID
O.S. NO. 179/2013, WITH COSTS THROUGH OUT.
THESE APPEALS COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though the appeals are listed for admission, with the
consent of learned counsel for the parties, they are taken up
for final disposal.
2. Defendant No.1 in O.S.No.179/2013 on the file of
the learned III Additional Senior Civil Judge, Vijayapura has
NC: 2023:KHC-K:8771
preferred RSA No.200141/2019 being aggrieved by the
impugned common judgment and decree dated 09.01.2019
passed in R.A.Nos.34 and 48/2017 by allowing R.A.No.48/2017
and dismissing R.A.No.34/2017 and holding that the plaintiffs
and defendants are entitled for 1/7th share each in the suit
property. Defendant No.1 has also preferred RSA
No.200140/2019 being aggrieved by rejection of his counter
claim to declare that he is the absolute owner of the suit
schedule property.
3. For the sake of convenience, the parties are
referred to as per their ranking before the Trial Court.
4. Brief facts of the case are that, the plaintiffs have
filed the suit O.S.No179/2013 against the defendants seeking
partition and separate possession of their 1/7th share each in
the property bearing Survey No.28, measuring 19.19 acres,
situated at Aheri-Jambagi village (hereinafter referred to as
'suit property' for brevity).
5. It is contended by the plaintiffs that Mahadevappa
is the husband of plaintiff No.1 and father of plaintiff Nos.2 and
3. Said Mahadevappa and plaintiff No.1 were having six
NC: 2023:KHC-K:8771
children i.e., plaintiff Nos.2 and 3 being the daughters and
defendant Nos.1 to 4 being the sons. Mahadevappa purchased
the suit property from out of his income as he was living at
Mumbai for about 12 years to eke out his livelihood. The
plaintiffs and other defendants have also joined their hands
with Mahadevappa in doing coolie work at Mumbai and finally
they purchased the suit property in the name of Mahadeveppa
being the eldest brother of the family.
6. It is contended that when Mahadevappa was not
keeping good health, defendant Nos.1 to 4 managed to collude
with the village accountant, concocted the document to show
that at the instance of Mahadevappa, the suit property was
divided amongst four sons i.e., defendant Nos.1 to 4 as per
M.E.No.6261. Mahadeveppa never effected partition nor
submitted any application to that effect. Therefore, the said
mutation entry do not confer any right over the property.
Therefore, the plaintiffs prayed for partition and separate
possession of their 1/7th share each by metes and bounds.
7. Defendant No.1 filed written statement denying the
contentions taken by the plaintiffs. The relationship between
NC: 2023:KHC-K:8771
the parties is admitted. It is also admitted that the suit
property stood in the name of his father Mahadevappa. It is
contended that defendant No.1 after attaining majority, went to
Mumbai to earn his livelihood and also to support his father,
brothers and sisters. He got a job at Mumbai and he became a
skilled mason. He was appointed by a Japanee's Company and
he was sent to Baghdad at Iraq. He was earning good income
and was maintaining his parents, brothers and sisters. From
17.05.1981 till 09.04.1983, he worked at Baghdad and
returned back to India with his earnings. He paid consideration
amount to purchase the suit property, but, it was purchased in
the name of his father, he being the elderly person. Since then
defendant No.1 is in peaceful possession and enjoyment of the
suit property.
8. It is contended that only after receiving summons in
the original suit, defendant No.1 came to know about
M.E.No.6261, which was created and fabricated behind his
back. Therefore, he filed counter claim to declare that he is the
absolute owner in possession of the suit property and for the
relief of permanent injunction against the plaintiffs and
NC: 2023:KHC-K:8771
defendant Nos.2 to 4 from interfering with his peaceful
possession and enjoyment of the same.
9. The plaintiffs have filed rejoinder, denying the
contentions taken by defendant No.1 and also the very claim
made in the counter claim. Defendant No.1 is not entitled for
any such relief. Hence, prayed for rejection of the counter
claim.
10. On the basis of these pleadings, following issues
and additional issues were framed by the Trial Court:
Issues
1. Whether the plaintiffs prove that, the suit
property is joint family property of plaintiffs and
defendants?
2. Whether the plaintiffs prove that, they are
entitled 1/7th share each in the suit property?
3. Whether the defendant proves that, ME No. 6261
is created in the name of deceased Mahadevappa?
4. Whether the defendant No.1 entitled for relief of
counter claim as contend in para no.21 of the
written statement?
NC: 2023:KHC-K:8771
5. Whether the plaintiffs are entitled to the relief as
sought for?
6. What order or decree?
Additional issue
Whether the suit of the plaintiff is barred by law of
limitation?
11. Plaintiff No.1 got examined herself as PW.1 and got
marked Exs.P1 to P9 in support of her contentions. Defendant
No.1 got examined himself as DW.1 and also got examined
DW.2. They got marked Exs.D1 to D12 in support of their
defence. The Trial Court after taking into consideration all
these materials on record answered issue Nos.1 to 5 and
additional issue No.1 in the negative and dismissed the suit of
the plaintiffs and also the counter claim made by defendant
No.1.
12. Being aggrieved by the same, the plaintiffs have
preferred R.A.No.48/2017 and defendant No.1 has preferred
R.A.No.34/2017. The First Appellate Court on re-appreciation
of the materials on record, allowed R.A.No.48/2017 and held
that the plaintiffs are entitled for 1/7th share each in the suit
- 10 -
NC: 2023:KHC-K:8771
property, but, dismissed R.A.No.34/2017 and confirmed the
impugned judgment and decree of the Trial Court, dismissing
the counter claim. Being aggrieved by the same, defendant
No.1 has preferred these appeals.
13. Perused the Trial Court and also the First Appellate
Court records.
14. It is the contention of the plaintiffs that
Mahadevappa is the father and plaintiff No.1 is the mother of
plaintiff Nos.2 and 3 and defendant Nos.1 to 4. This fact is
admitted even by the contesting defendant No.1. It is the
further contention of the plaintiffs that their father
Mahadevappa was working as a coolie and all other members of
the family were also working at Mumbai as coolie to eke out
their livelihood and from out of the savings, Mahadevappa
purchased the suit property under the sale deed dated
27.06.1983 in his name. Therefore, it is the family property,
enjoyed by all the members of the family and they are entitled
for equal share.
15. Defendant Nos.2 to 4 have not contested the
matter and it is only defendant No.1, who contested the suit.
- 11 -
NC: 2023:KHC-K:8771
He took up the contention that it was he who was earning at
Mumbai and thereafter went to Baghdad at Iraq and had
earned good income and out of the same, he purchased the
suit property in the name of his father out of love and affection
and therefore, it is his self acquired property and he is the
absolute owner in possession of the same. Therefore, the
plaintiffs or other defendants are not entitled for any share.
Accordingly, he prayed for passing a decree in his favour,
declaring that he is the absolute owner in possession of the suit
property and for grant of permanent injunction against the
plaintiffs by allowing his counter claim.
16. Plaintiff No.1 examined herself as PW.1. During her
cross-examination, even though she has admitted that when
they were staying at Mumbai, they were struggling hard to
meet their requirements, they were starving for few days and
defendant Nos.1 was working as coolie under a mason and
thereafter, he went to Baghdad, but, the witness denied the
suggestions that even though defendant No.1 was earning in
the foreign nation, he used to help them financially. The
witness categorically stated that defendant No.1 has earned for
himself and never helped the family members.
- 12 -
NC: 2023:KHC-K:8771
17. It is interesting to note that learned counsel for
defendant No.1 suggested to the witness that the sons of
Mahadevappa effected partition of the suit property during
1983 and gave a Wardi to the village accountant and
accordingly, the suit property was mutated in the name of
defendant Nos.1 to 4 as per M.E.No.6261. Ofcourse, the
witness has denied the suggestions, but, the suggestions put to
the witness are contrary to the defence taken by defendant
No.1.
18. The plaintiffs categorically pleaded in the plaint that
behind their back, defendant Nos.1 to 4 managed to get their
names entered in the revenue records even during the lifetime
of their father Mahadevappa. It is also the contention of the
plaintiffs that said mutation effected is not binding on them. It
is also interesting to note that defendant Nos.2 to 4, in whose
names the revenue records were mutated, have not supported
defendant No.1 nor they have contested the matter asserting
partition between the brothers. Under such circumstances, I do
not find any reason to accept the partition between the
brothers. But, the suggestions put to PW.1 by learned counsel
for defendant No.1 regarding partition between the parties and
- 13 -
NC: 2023:KHC-K:8771
certifying the mutation, is fatal to the defence made out in the
written statement.
19. It is the specific contention of defendant No.1 that
he was initially earning his livelihood at Mumbai and thereafter,
went to Baghdad and was earning handsome income. He has
placed materials to substantiate the same. Even PW.1 admits
that defendant No.1 was earning in the foreign nation, but,
categorically denied that he ever helped the family members
financially. Defendant No.1 produced his bank pass book with
Syndicate Bank, Branch Bijapur Main as per Ex.D-7. As per this
pass book, on 27.06.1983 defendant No.1 had withdrawn the
cash of Rs.27,000/-. Incidentally the sale deed is also dated
27.06.1983. Therefore, it is the contention of defendant No.1
that it was he who paid the consideration amount. It is
pertinent to note that the sale consideration to purchase the
suit property was only Rs.8,000/-. Even according to Ex.D-7 -
the passbook, that was the first entry under which the
defendant No.1 withdrawn the amount. Thereafter, it was only
on 13.11.1986 a sum of Rs.7,000/- was withdrawn from the
account. There are very few entries in the passbook which
shows that defendant No.1 had withdrawn the amount. It is
- 14 -
NC: 2023:KHC-K:8771
pertinent to note that it was for the first time on 27.06.1983
defendant No.1 had withdrawn the amount of Rs.27,000/-.
When it is the contention of defendant No.1 that he was
working initially at Mumbai and thereafter at Baghdad and was
earning handsome income and was also helping the family, not
even a scrap of paper is produced before the Court to
substantiate such contention. When he was earning elsewhere
and if his contention that he was supproting the family
financially is to be accepted, there must be some material for
having transferred the amount to the family frequently to meet
their needs. In the absence of any such material, the
contention taken by defendant No.1 in that regard cannot be
accepted. When defendant No.1 not bothered to help the
family financially, his contention that he purchased the suit
property in the name of his father, even though he invested the
amount cannot be accepted.
20. The First Appellate Court, on proper appreciation of
the materials on record, rejected the claim of defendant No.1
while decreeing the suit of the plaintiffs and rejecting the
counter claim. I do not find any reason to interfere with the
same. No substantial question of law would arise calling for
- 15 -
NC: 2023:KHC-K:8771
interference by this Court. Therefore, I am of the opinion that
it is not a matter for admission or for granting any relief.
Hence, I proceed to pass the following:
ORDER
(i) Both the appeals are dismissed with costs.
(ii) The impugned judgment and decree dated
09.01.2019 passed by the Principal District
Judge, Vijayapura in R.A.Nos.34 and 48 of
2017 is confirmed.
Registry to send back the Trial Court and First Appellate
Court records along with copies of this judgment.
Sd/-
JUDGE
SRT/SWK
CT-VD
