Karnataka High Court
Basavaraj vs Yallavva (Nirmala) on 23 November, 2023
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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RFA No. 100199 of 2016
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 23RD DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
REGULAR FIRST APPEAL NO.100199/2016
BETWEEN:
BASAVARAJ MAHADEVAPPA DYAVANUR,
AGE:43 YEARS, OCC: AGRICULTURE,
R/O: ROTTIGAVAD, TQ: KUNDAGOL,
TQ AND DIST: DHARWAD.
...APPELLANT
(BY SRI MALLIKARJUNSWAMY B. HIREMATH, ADVOCATE)
AND:
1. SMT. YALLAVVA (NIRMALA)
W/O. YALLAPPA KARIGAR,
AGE: 26 YEARS, OCC: AGRICULTURE,
R/O: ROTTIGAVAD, TQ: KUNDAGOL,
Digitally
signed by HALIVASTHI NAVALUR,
BHARATHI TQ AND DIST: DHARWAD.
HM
2. BASAVARAJ A/F. DYAMAPPA BAGARI,
AGE:53 YEARS, OCC: AGRICULTURE,
R/O: ROTTIGAVAD, TQ: KUNDAGOL,
TQ AND DIST: DHARWAD.
3. SMT. MALLAVVA
W/O. NAGAPPA MARCHANNAVAR,
AGE:30 YEARS, OCC: AGRICULTURE,
R/O: ROTTIGAVAD, TQ: KUNDAGOL,
H.V.IBRAHIMPUR, TQ: NARGUND.
4. SMT. YAMANAVVA
W/O. HANAMAPPA BAGARI,
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RFA No. 100199 of 2016
AGE:60 YEARS, OCC: AGRICULTURE,
R/O: ROTTIGAVAD, TQ: KUNDAGOL,
H.V. PATRAKARATNAGAR, HUBBALLI.
...RESPONDENTS
(BY SRI H.R.GUNDAPPA, ADVOCATE FOR R1, R3 AND R4;
R2 - NOTICE SERVED.)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF
THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO SET ASIDE THE
JUDGMENT AND DECREE DATED 25.04.2016, IN O.S.NO.265/2011
PASSED BY THE SENIOR CIVIL JUDGE, KUNDAGOL, IN RESPECT OF
ITEM NO.II OF THE SUIT SCHEDULE PROPERTY AND ETC.,
THIS APPEAL COMING ON FOR DICTATING JUDGEMENT THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This regular first appeal is filed by defendant No.2
calling in question the judgment and decree in
O.S.No.265/2011, dated 25.04.2016, passed by the Senior
Civil Judge, Kundagol, thereby the trial Court has decreed
the suit in part by granting decree of partition that the
plaintiff and defendants No.3 and 4 are entitled for 1/3rd
share each in suit schedule B property.
2. For the purpose of convenience, ranking of the
parties is referred to as per their status before the trial
Court.
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3. Brief facts of the case. The plaintiff (respondent
No.1) has filed a suit for partition in respect of suit
schedule item Nos.A, B and C properties. The original
propositus is one Dyavanna who has two sons namely
Hanumappa and Dyamappa. Defendant No.4 is wife of
Hanumappa and plaintiff and defendant No.3 are
daughters of defendant No.4 and Hanumappa. Defendant
No.1 is son of Dyamappa and Channavva. Defendant No.2
is purchaser of suit schedule B property from defendant
No.1. The trial Court has decreed the suit only insofar as
suit schedule B property which is R.S.No.21/1A/3
measuring 1 acre 27 guntas and dismissed in respect of
suit item No.A and C properties. Being aggrieved by this,
defendant No.2 has filed the present appeal.
4. It is stated that the suit schedule properties are
ancestral properties. The plaintiff had not questioned
dismissing the suit so far as suit schedule item Nos.A
and C properties. Defendant No.2 has preferred appeal by
contending that he is purchaser of suit schedule B
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property from defendant No.1, therefore the suit property
is not amenable for partition as defendant No.2 is
exclusive owner of the property in question in the appeal.
5. On the other hand, it is the case of plaintiff that
defendant No.1 did not have title to sell the property in
favour of defendant No.2 as the property admittedly
belongs to the original propositus; therefore the plaintiff
and defendants No.3 and 4 being the wife and children of
Hanumappa are entitled to 1/3rd share each. Therefore,
justified the judgment and decree passed by the trial
Court.
6. Whereas, defendant No.2 is contending that
defendant No.1 has got the property being son of
Dyamappa and Channavva and thus is entitled to half
share in the property; therefore, he has acquired property
through his father and original propositus. Hence
defendant No.1 has absolute title over the property and
thus has disposed of the suit property by sale in favour of
defendant No.2. Therefore, when defendant No.1 was
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having absolute title over the property, he is competent to
sell the property. Therefore, he sold the property to
defendant No.2 which suffers from no illegality or
perversity. Therefore, decreeing the suit so far as the suit
schedule item No.B is not correct. Therefore challenged
the judgment and decree passed by the trial Court.
7. Upon hearing rival submissions of the learned
counsel appearing for the parties, the point that arises for
my consideration is as under:
"Whether the trial Court has committed
an error in decreeing the suit so far as suit
schedule B property by granting 1/3rd share
each to plaintiff and defendants No.3 and 4 in
the suit schedule B property?"
8. It is the case of defendant No.2/appellant that
defendant No.1 was absolute owner and in possession of
the suit schedule B property. Hence he has sold the
property to defendant No.2. Therefore defendant No.1 was
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having clear title in his name as it is emanated to him
through his father Dyamappa. Accordingly he has sold the
property to defendant No.2. Therefore defendant No.2 had
acquired property by way of sale.
9. It is not disputed that the suit property is
ancestral property. Dyavanna is the original propositus in
the family and the land belongs to him. Defendant No.1 is
claiming to be adoptive son of Dyamappa, who is son
Dyavanna. Defendant No.1 is stating that he is son of
Dyamappa and Channavva. The suit schedule properties
are divided into two parts between Hanumappa and
Dyamappa and among them the plaintiff and defendants
No.3 and 4 being the wife and children of Hanumappa in
the share of Hanumappa has to be divided. The trial Court
has decreed the suit by giving share of 1/3rd each to the
plaintiff and defendants No.3 and 4 in suit schedule B
property.
10. Defendant No.1 is stated to be adopted son of
Dyamappa. This fact is not disputed by plaintiff and
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defendants No.3 and 4. It is not disputed fact that the suit
schedule B property originally belonging to Dyavanna;
then his two sons namely Hanumappa and Dyamappa are
entitled for half share each. This entitlement by the two
children of the original propositus Dyavanna is not
disputed. There are no evidence that there was earlier
partition in the family. Even though defendant No.1 is
contending that there was equitable partition in the family
on earlier occasion and therefore in order to compensate
and enabling the equitable partition, the suit schedule B
property is given to defendant No.1. Thus defendant No.1
acquired absolute title over the suit schedule B property.
But to this effect there is no evidence adduced by
defendant No.1 or defendant No.2.
11. Mere revenue entries cannot confer title on the
person who is claiming; therefore the trial Court has
treated the entire property belonging to Hanumappa and
accordingly given 1/3rd share each to plaintiff and
defendants No.3 and 4. But the fact that the plaintiff has
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stated that defendant No.1 is adopted son of Dyamappa,
thereby in this regard defendant No.1 need not prove that
he is adopted son of Dyamappa. When the property
originally belongs to original propositus, then equally
divided between two sons, the defendant No.1 being the
adopted son of Dyamappa is entitled for half share but not
the whole land.
12. When this being the fact, the trial Court has
treated the plaintiff's father is having title over the whole
land is also not correct. It is contended by the learned
counsel for plaintiff and defendants No.3 and 4 that in the
cross-examination defendant No.1 had deposed ignorance
regarding his sister Channavva and who is her husband
and where she is residing. Therefore it is argued by the
learned counsel for plaintiff and defendants No.3 and 4
that defendant No.1 is stranger to the family. But upon
considering the pleadings of the plaintiff and in the very
cause title the plaintiff has stated that defendant No.1 is
adopted son of Dyamappa, therefore defendant No.1 is not
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stranger to the family of Dyamappa and original
propositus.
13. When this being the fact, the plaintiff and
defendants No.3 and 4 are having right of 50% and
defendant No.1 is having right of 50% over the suit
schedule B property. Just because defendant No.1 has not
stated the name of husband, sister and where they are
residing cannot be a reason to discard the evidence of
defendant No.1 on the reason that when there is enmity
between the family, it is quite natural to say that they do
not know the names and where they are residing. The said
admission is revealed with anguish over the others; but
when the plaintiff herself admitted in the cause title that
defendant No.1 is adopted son of Dyamappa, no evidence
is required.
14. When this being the fact, defendant No.1 is
entitled for half share in the suit schedule B property. But
the trial Court held that plaintiff and defendants No.3 and
4 are entitled for whole property and accordingly
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decreeing 1/3rd share each to plaintiff and defendants No.3
and 4 is not correct. Even though defendant No.1 had
executed the sale deed in respect of the whole extent of 1
acre 27 guntas but this sale deed is null and void so far as
50% of the extent of 1 acre 27 guntas is concerned since
defendant No.1 is having right and title towards 50% of
extent only. Therefore the plaintiff and defendants No.3
and 4 are entitled for 1/3rd share each in the half share
allotted to Hanumappa. Therefore, the plaintiff and
defendants No.3 and 4 are entitled for 1/6th share each in
the suit schedule properties. Therefore, defendant No.2
has acquired title by way of purchasing the land only to
the extent of half of its extent i.e., half of 1 acre 27 guntas
as defendant No.1 is having title over half extent of 1 acre
27 guntas.
15. Therefore it is declared that defendant No.1 is
having title over 50% of the extent and the sale deed
made to that extent is correct. Therefore the plaintiff and
defendants No.3 and 4 are entitled for 1/6th share each in
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the suit schedule B property and for the remaining 50% of
the property defendant No.2 has become owner by virtue
of sale deed executed by defendant No.1. To this extent
the judgment and decree of the trial Court is liable to be
modified. Accordingly I answer point for consideration in
the affirmative in part.
16. Therefore, by modifying the judgment and
decree of the trial Court it is declared that the plaintiff and
defendants No.3 and 4 are entitled for 1/6th share each in
the suit schedule B property. Accordingly I proceed to pass
the following:
ORDER
i) The appeal is allowed in part.
ii) The judgment and decree in
O.S.No.265/2011, dated 25.04.2016, passed
by the Senior Civil Judge, Kundagol, is modified
holding that the plaintiff and defendants No.3
and 4 are entitled for 1/6th share each in the
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suit schedule B property which is given
Sy.No.21/1A/3 measuring 1 acre 27 guntas as
more fully described in the plaint B schedule
property.
iii) No order as to costs.
iv) Draw preliminary decree
accordingly.
v) Send back the trial Court records
along with a copy of this judgment.
SD/-
JUDGE
MRK
CT-ASC
