Karnataka High Court
Koitrappa S/O Halappa Megalageri vs Timmanna S/O Doddagoorappa Vaddar on 6 February, 2024
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RFA No. 100252 of 2015
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 6TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
REGULAR FIRST APPEAL NO. 100252 OF 2015 (PAR/POS)
BETWEEN:
1. KOTRAPPA S/O. HALAPPA MEGALAGERI,
AGE: 64 YEARS, OCC: RETIRED EMPLOYEE/
AGRICULTURE, R/O: VADERAYANAHALLI,
RANEBENNUR, DIST: HAVERI-581115.
2. BASAVARAJ S/O. HALAPPA MEGALAGERI,
AGE: 59 YEARS, OCC: AGRICULTURE,
R/O: VADERAYANAHALLI RANEBENNUR,
DIST: HAVERI-581115.
...APPELLANTS
(BY SRI.N.R.KUPPELUR, ADVOCATE)
VIJAYALAKSHMI AND:
M KANKUPPI
Digitally signed by
VIJAYALAKSHMI M
KANKUPPI
1. TIMMANNA S/O. DODDAGOORAPPA VADDAR
Date: 2024.02.24
12:08:03 +0530 DEAD BY HIS LRs.,
1(A). REVANAPPASHASTRI,
S/O. TIMMANNA VADDAR,
AGE: 52 YEARS, OCC: COOLIE,
R/O: NOOKAPUR VILLAGE,
TQ: RANEBENNUR, DIST: HAVERI-581115.
1(B). TOTAPPASHASTRI,
S/O. TIMMANNA VADDAR,
AGE: 50 YEARS, OCC: COOLIE,
R/O: NOOKAPUR VILLAGE,
TQ: RANEBENNUR, DIST: HAVERI-581 115.
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RFA No. 100252 of 2015
1(C). SAROJAMMA,
W/O. MARUTI BYADGI,
AGE: 48 YEARS,
OCC: HOUSEHOLD WORK,
R/O: NIDNEGILU VILLAGE,
TQ: HIREKERUR,
DIST: HAVERI-581 116.
1(D). INDRAMMA,
W/O. HANUMANTAPPA VADDAR,
AGE: 48 YEARS,
OCC: HOUSEHOLD WORK,
R/O: HALAGERI VILLAGE,
TQ: RANEBENNUR,
DIST: HAVERI-581 115.
1(E). CHANDRAMMA,
W/O. PARAMESH VADDAR,
AGE: 46 YEARS,
OCC: HOUSEHOLD WORK,
R/O: LAKAMAPUR VILLAGE,
DIST: HAVERI-581 115.
1(F). SHEKHAR,
S/O. TIMMANNA VADDAR,
AGE: 35 YEARS, OCC: COOLIE,
R/O: NOOKAPUR VILLAGE,
TQ: RANEBENNUR,
DIST: HAVERI-581115.
2. SHETTEWWA,
W/O. TIMMANNA VADDAR,
AGE: 67 YEARS,
OCC: HOUSEHOLD WORK,
R/O: NOOKAPUR VILLAGE,
TQ: RANEBENNUR,
DIST: HAVERI-581 115.
3. SANNATIMMANNA,
S/O. SANNAGOORAPPA VADDAR,
AGE: 55 YEARS, OCC: COOLIE,
R/O: NOOKAPUR VILLAGE,
TQ: RANEBENNUR,
DIST: HAVERI-581 115.
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RFA No. 100252 of 2015
4. HANUMANTAPPA,
S/O. SANNAGOORAPPA VADDAR,
AGE: 73 YEARS, OCC: COOLIE,
R/O: NOOKAPUR VILLAGE,
TQ: RANEBENNUR,
DIST: HAVERI-581 115.
5. KALLAPPA,
S/O. LAXMAPPA VADDAR,
AGE: 59 YEARS, OCC: COOLIE,
R/O: VADERAYANAHALLI,
RANEBENNUR, DIST: HAVERI-581 115.
6. MELAGIRIPPA,
S/O. LAXMAPPA VADDAR,
AGE: 65 YEARS, OCC: COOLIE,
R/O: VADERAYANAHALLI,
RANEBENNUR, DIST: HAVERI-581 117.
7. TIMMANNA,
S/O. LAXMAPPA VADDAR,
AGE: 65 YEARS, OCC: COOLIE,
R/O: VADERAYANAHALLI,
RANEBENNUR,
DIST: HAVERI-581 115.
8. NAGARAJ,
S/O. VENKAPPA VADDAR,
AGE: 47 YEARS, OCC: COOLIE,
R/O: VADERAYANAHALLI,
RANEBENNUR,
DIST: HAVERI-581 115.
9. VENKAMMA,
W/O. HANUMANTAPPA MENASINAHAL,
AGE: 40 YEARS, OCC: COOLIE,
R/O: HALAGERI VILLAGE, RANEBENNUR,
DIST: HAVERI-581 115.
10. RAJAPPA,
S/O. VENKAPPA VADDAR,
AGE: 37 YEARS, OCC: COOLIE,
R/O: VADERAYANAHALLI, RANEBENNUR,
DIST: HAVERI-581 115.
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RFA No. 100252 of 2015
11. GIRIJAMMA,
W/O. HANUMANTAPPA VADDAR,
AGE: 35 YEARS, OCC: COOLIE,
R/O: GANGAYIKOPPA VILLAGE,
RANEBENNUR, DIST: HAVERI-581 115.
12. GANESHAPPA,
S/O. VENKAPPA VADDAR,
AGE: MAJOR, OCC: COOLIE,
R/O: VADERAYANAHALLI,
RANEBENNUR, DIST: HAVERI-581 115.
13. GANGAMMA,
W/O. MUTTAPPA VADDAR,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O: HONEHANASAWADI VILLAGE,
TQ & DIST: SHIMOGGA.
14. ANJANEYA,
S/O. VENKAPPA VADDAR,
AGE: 25 YEARS, OCC: COOLIE,
R/O: VADERAYANAHALLI, RANEBENNUR,
DIST: HAVERI-581 115.
15. NAGAPPA,
S/O. TIRAKAPPA UJJANAGOUDRA,
AGE: 70 YEARS, OCC: AGRICULTURE,
R/O: VADERAYANAHALLI,
RANEBENNUR, DIST: HAVERI-581 115.
16. REVANASHIDDAPPA,
S/O. KARABASAPPA BANAKAR,
SINCE DIED BY HIS LRs.,
16(A). BASAVARAJAPPA
S/O. REVANASHIDDAPPA BANAKAR,
AGE: 58 YEARS, OCC: AGRICULTURE.
16(B). KOTRAPPA
S/O. REVANASHIDDAPPA BANAKAR,
AGE: 53 YEARS, OCC: AGRICULTURE.
16(C). REVANAPPA
S/O. REVANASHIDDAPPA BANAKAR,
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RFA No. 100252 of 2015
AGE: 48 YEARS,
OCC: AGRICULTURE.
16(D). MALATESH S/O. REVANASHIDDAPPA BANAKAR,
AGE: 43 YEARS, OCC: AGRICULTURE.
16(E). GANESH S/O. REVANASHIDDAPPA BANAKAR,
AGE: 41 YEARS, OCC: AGRICULTURE.
RESPONDENTS NO.16(A) TO 16(E) ARE RESIDENTS OF
R/O. VADERAYANAHALLI, TQ: RANEBENNUR,
DIST: HAVERI-581115.
17. ANJANEPPA,
S/O. BHIMAPPA TALAWAR @ MALLAPUR,
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O: NALAVAGALA VILLAGE,
TQ: RANEBENNUR, DIST: HAVERI-581 115.
18. SIDDAPPA,
S/O. RUDRAPPA UJJANAGOUDRA,
AGE: 70 YEARS, OCC: AGRICULTURE,
R/O: VADERAYANAHALLI, TQ: RANEBENNUR,
DIST: HAVERI-581 115.
...RESPONDENTS
(BY SRI.R.H.ANGADI, ADV. FOR R1(A) TO R1(F), R2 TO R4, R8;
NOTICE TO R5 TO R7, R9 TO R15, R16(A) TO R16(E), R17
AND R18 ARE SERVED)
THIS RFA IS FILED UNDER SEC. 96 OF CPC 1908., PRAYING
TO ALLOW THE APPEAL BY SETTING ASIDE THE JUDGMENT AND
DECREE DATED 01.10.2015 PASSED BY LEARNED ADDITIONAL
SENIOR CIVIL JUDGE, RANEBENNUR, IN O.S.NO.64/2010 THE
PRESENT REGULAR FIRTST APPEAL, IN THE INTEREST OF JUSTICE
AND EQUITY.
THIS APPEAL COMING ON FOR HEARING, THIS DAY,
RAJESH RAI K, J., DELIVERED THE FOLLOWING:
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RFA No. 100252 of 2015
JUDGMENT
challenging the judgment and preliminary decree dated
01.10.2015 passed by the learned Additional Senior civil
Judge, Ranebennur in O.S. No.64/2010.
2. For the sake of convenience, the parties are
referred to as per their ranking before the trial Court. The
appellants are defendants 11 and 12. Respondent Nos.1 to 4
are the plaintiffs and respondents 5 to 18 are the defendants
No.1 to 10 and 13 to 16, respectively.
3. Brief facts leading rise to filing of this appeal are
as under:
The plaintiffs have filed a suit for partition and separate
possession in respect of the suit schedule property. It is the
case of the plaintiffs that the original propositus
Hanumanthappa Vaddar had 4 children by name Laxmappa,
Doddagoorappa, Sannagoorappa and Melagiriyappa.
Laxmappa married Sankavva and he had children namely
Venkappa and defendant Nos.1 to 3-Kallappa, Melagiriyappa
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and Timmanna. Venkappa died on 09.03.1991 leaving
behind defendant Nos.4 to 10. Second son of
Hanumanthappa Vaddar i.e. Doddagoorappa had children
namely the 1st plaintiff and Kallappa. 1st plaintiff married 2nd
plaintiff. Kallappa also died. The 3rd son of Hanumanthappa
Vaddar Sannagoorappa died leaving behind him the 3rd
plaintiff-Sannatimmanna and 4th plaintiff Hanumanthappa.
The last son of Hanumanthappa Vaddar died without any
issues.
4. It is the case of the plaintiffs that, the plaintiffs
and the defendants constitute members of joint Hindu
family. From among the children of Hanumanthappa Vaddar,
the first son Laxmappa was clever, he was the manager of
the joint family. Hence, all revenue records stood in his
name. Inspite of it, defendant Nos.2 and 3 managed to get
the revenue records changed in their names behind the back
of the plaintiffs. In this regard, RTS proceedings were
initiated. Since suit schedule properties are ancestral joint
family properties of plaintiffs, plaintiffs are entitled for share
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in suit schedule 'A' properties. Hence, plaintiffs prayed for
decreeing the suit.
5. After institution of the suit, defendants appeared
through their counsel. Defendant Nos.1 to 3 and 5 to 10
have not filed their written statement. Defendant No.4 has
filed his written statement. He admits the genealogy
furnished by the plaintiffs. He admits that suit schedule
properties are the joint family properties of plaintiffs and
defendant Nos.1 to 4 and they are in possession of the suit
schedule properties. Defendant No.4 contended that till date
there is no partition in their family. Hence, plaintiffs and
defendant Nos.1 to 4 are entitled for share in suit schedule
'A' properties. Defendant No.4 further contended that sale
deeds dated 25.06.1976 and 21.06.1978 are not valid
documents. Hence prayed to decree the suit as prayed for.
6. Defendant No.12 filed his written statement and
the same was adopted by defendant No.11. They denied the
genealogy of plaintiffs and contended that plaintiffs are not
members of the Hindu undivided family of Laxmappa
Hanumanthappa Vaddar and it is contended that suit
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schedule properties are not joint famly properties. It is
further contended that land bearing Sy.No.72 was granted to
Laxmappa H.Vaddar by the Government in the year 1926 on
his individual capacity. After the death of Laxmappa, the
name of his sons were entered in the revenue records. It is
contended that father of defendant Nos.11 and 12 had
purchased a portion of land measuring 7 acres 1 gunta in
Sy.No.72 under registered sale deed dated 25.06.1976 and 1
acre 1 gunta was purchased under registered sale deed
dated 21.06.1978 from the children of Laxmappa. Later, the
sons of Laxmappa partitioned remaining portion of Sy.No.72.
Hence, land in Sy.No.72 poded as Sy.No.72/2A and
Sy.No.72/2B. It is contended that land bearing Sy.No.72/2A
measuring 4 acres 8 guntas fell to the share of defendant
No.11 and Sy.No.72/2B measuring 4 acres 10 guntas fell to
the share of defendant No.12. Defendant Nos.11 and 12
further contended that they have become absolute owners
of the suit schedule properties by virtue of sale deed dated
25.06.1976 and 21.06.1978 respectively. Hence, they
prayed to dismiss the suit.
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7. Defendant No.14 filed written statement and
denied the claim of the plaintiffs and also denied the
genealogy furnished by the plaintiffs. Defendant No.14
contended that he purchased the land bearing Sy.no.72/1/1
measuring 2 acres 20 guntas under registered sale deed
dated 10.04.1995 from the legal representatives of
Laxmappa. Thus, he is absolute owner of his property.
Hence, he prayed for dismissal of the suit.
8. The trial court on the basis of the pleadings of the
parties, framed following issues:
1) Whether the plaintiff proves that the genealogy
produced by the plaintiff is correct?
2) Whether the plaintiff proves that, the suit
schedule properties are the joint family
properties of plaintiff and defendants?
3) Whether the plaintiff is entitled for 2/3rd share
in the suit schedule properties?
4) Whether the defendants prove that there is no
cause of action to file the suit, the sale deed in
between defendants 11 to 17 are invalid
u/Sec.4 of KPTCL Act and are without prior
permission from the Govt., and not binding
upon the plaintiff share?
5) Whether the defendant No.14 proves that
Sy.No.72 of Hulikatti village in an absolute
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landed property of Laxmappa and he was
cultivating the land on his individual capacity
since 1926?
6) Whether the defendant No.12 proves that the
plaintiff has not properly valued the court fee?
7) Whether the plaintiff is entitled for decree as
prayed for?
8) What order or decree?
9. In order to prove their case 2nd legal
representative of plaintiff No.1 was examined himself as
P.W.1 and three more witnesses were examined as P.Ws.2 to
4 and got marked Exs.P1 to P45. To rebut the claim of the
plaintiffs, defendant No.12 was examined as DW-1 and
defendant No.4 was examined as DW-2 and they got marked
Exs.D1 and D2. The trial court considering the oral and
documentary evidence answered issue Nos.1 to 3 and 7 in
the affirmative and issue Nos.5 and 6 in the negative and
consequently decreed the suit of the plaintiffs. It is ordered
and decreed that plaintiffs are entitled for 2/3rd share in all
the suit schedule properties. Being aggrieved by the
judgment and preliminary decree passed by the trial court,
defendants No.11 and 12 have filed the present appeal.
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10. Heard the learned counsel for the defendants
No.11 and 12 and learned counsel for the plaintiffs and
defendant No.8.
11. Learned counsel for the defendants No.11 and 12
submits that land bearing Sy.No.72 was granted to
Laxmappa H.Vaddar by the Government in the year 1926 in
his individual capacity. After the death of Laxmappa, the
name of his sons were entered in the revenue records. It is
contended that father of defendant Nos.11 and 12 had
purchased a portion of land measuring 7 acres 1 gunta in
Sy.No.72 under registered sale deed dated 25.06.1976 and 1
acre 1 gunta was purchased under registered sale deed
dated 21.06.1978 from the children of Laxmappa. Therefore,
defendant Nos.11 and 12 became absolute owners of the suit
schedule properties by virtue of the registered sale deed
dated 25.06.1976 and 21.06.1978. In fact the suit schedule
properties are the joint family properties of plaintiffs and
defendant Nos.1 to 4, but the trial court without considering
the genealogy and status of the joint family of plaintiffs and
defendant Nos.1 to 4 decreed the suit in part and granted
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2/3rd share in favour of the plaintiffs, which is not in
accordance with law. Hence, he submits that the judgment
and decree passed by the trial court is perverse and arbitrary
and it is required to be set aside. Hence, on these grounds
he prays to allow the appeal.
12. On the other hand, learned counsel for the
plaintiffs and defendant No.8 justified the judgment and
decree passed by the trial court. He submits that suit
schedule properties are joint family properties of plaintiffs
and defendant Nos.1 to 4 and they constitute Hindu
undivided joint family. The original propositus is Hanumantha
Vaddar and his first son Laxmappa was manager of the joint
family. The suit land was granted by the Government in
favour of Laxmappa, but behind the back of the plaintiffs, his
legal representatives entered their names in the revenue
records. Therefore, the trial court after considering all these
aspects has rightly decreed the suit in part and granted 2/3rd
share to the plaintiffs. Hence, he prayed for dismissal of the
appeal.
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13. Perused the records and considered the
submissions of the learned counsel for the parties.
14. The points that would arise for our
consideration are:
1) Whether the plaintiffs have proved the genealogy?
2) Whether the plaintiffs prove that suit schedule
properties are the joint family properties of
plaintiffs and defendant Nos.1 to 4?
3) Whether defendant Nos.11, 12 and 14 prove that
they become absolute owners of the suit
properties by virtue of registered sale deed dated
25.06.1976, 21.06.1978 and 10.04.1995?
4) Whether the judgment and decree passed by the
trial court is perverse and calls for interference?
5) What Order?
are related to each other and requires common discussion,
they are taken up together in order to avoid the repetition
of facts.
16. As per the case of the plaintiffs one
Hanumanthappa Vaddar was the original propositus. He
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had four sons by name, Laxmappa, Doddagoorappa,
Sannagoorappa and Melagiriyappa. The first son of
Hanumanthappa Vaddar by name Laxmappa was the
manager of the joint family. During the year 1926, the
British Government granted 18 acres of land in Sy.No.72
to Laxmappa. After the death of Laxmappa, his sons
mutated their names in the revenue records and denied
the share of the plaintiffs. On the other hand, defendant
Nos.11, 12 and 14 have taken a contention that after the
death of Laxmappa, in the year 1976, 1978 and 1995, the
legal representatives of deceased Laxmappa alienated a
portion of Sy.No.72 in their favour. Therefore, they have
become absolute owners of their properties by virtue of
registered sale deeds. Hence, they denied the share of the
plaintiffs. Further, defendant Nos.11, 12 and 14 also
disputed the genealogy furnished by the plaintiffs and joint
family status as pleaded by the plaintiffs.
17. In order to prove this aspect, plaintiff No.1A
was examined as P.W.1 and he has reiterated the plaint
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averments in his examination-in-chief. In support of his
oral evidence, he relied upon Exs.P1 to P43-RTC, Ex.P44-
Caste Certificate and Ex.P45-Drudikarana Patra. P.W.1 has
undergone intense cross-examination by counsel for the
defendants. In his cross-examination he categorically
admits that he is permanent resident of Nookapur village
and he has been residing in the village since from 25-30
yeas. He admits that Laxmappa, Doddagoorappa,
Sannagoorappa and Melagiriyappa are the sons of
Hanumanthappa Vaddar. Doddagoorappa and
Sannagoorappa were teachers and they were wandering
from village to village and they preach 'Harikathe'.
Further, he admits that he do not know how the original
propositus got the properties. He admits that, suit
schedule properties were standing in the name of
Laxmappa. He admits that, plaintiffs are seeking partition
from the branch of Laxmappa. He admits that British
Government granted land in Sy.No.72 in favour of
Laxmappa and he is not aware that land in Sy.No.72 was
granted to Laxmmappa on 18.02.1926. He pleads
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ignorance about the alienation made in Sy.No.72,
measuring 7 acres 1 guntas. He further pleads ignorance
about the number of children of Laxmappa and sale of 7.1
acres and 1.1. acres in favour of father of defendant
Nos.11 and 12 by name Halappa Nagappa. He pleads
ignorance about the portion of land held by the sons of
Laxmappa in respect of remaining land in Sy.No.72. He
further pleads ignorance about the sons of Laxmappa
having sold 2.20 acres to Nagappa Tirakappa
Ujjanagoudra and 2.20 acres to Revanappa Karibasappa
Banakar. He pleads ignorance in respect of the parties to
the RTS proceedings. He admits that his father demanded
partition from his uncle Venkappa and Kallappa. He admits
that Laxmappa was granted 18 acres of land in Sy.No.72
and rest of the suggestions were denied by P.W.1.
18. In support of his case, plaintiffs got examined
one Chandrappa R.Guttur as P.W.2. In his chief-
examination, he has deposed that suit schedule properties
are joint family properties of plaintiffs and defendants and
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till date no partition is effected in the family of plaintiffs
and defendants and plaintiffs are in possession of the suit
schedule properties. P.W.2 has undergone intense cross-
examination by the counsel for defendant Nos.11 to 14. In
the cross-examination, he deposed that he do not know
when wife and children of Hanumanthappa died and that
he do not know the extent of land in Sy.No.72. He admits
that suit property was granted by British Government in
favour of Laxmappa. He pleads ignorance as to the extent
of land held by the legal representatives of deceased
Laxmappa.
19. Sri.Girish H.Vaddar was examined as P.W.3. In
his examination-in-chief he has reiterated the averments
made in the evidence of P.Ws.1 and 2. In the cross-
examination, he admits that he do not know the schedule
of property. He has stated that he has never seen
Hanumanthappa and that he do not know the prospective
purchasers of the suit schedule properties. He has stated
that he do not know how schedule property was granted in
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favor of Laxmappa and who has purchased the schedule
property. He has deposed that he do not know when
Laxmappa died. He admits that Sannagoorappa and
Doddarappa were residents of Vaddarhalli and rest of the
suggestions were denied by P.W.3.
20. Further, plaintiffs got examined one Raju
Vaddar @ Bhovi as P.W.4. He also reiterated the
averments made in the evidence of P.Ws.1 to 3. In the
cross-examination, he has specifically stated that he has
given instructions to prepare the affidavit in lieu of his
chief-examination. He has stated that he do not know the
particulars of the suit schedule properties, but he admits
that suit schedule properties were granted in favour of
Laxmappa by the British Government. He has further
stated that he do not know the date of death of Laxmappa
and rest of the suggestions were denied by P.W.4.
21. In order to rebut the claim of the plaintiffs,
defendant No.12 examined himself as D.W.1. In his chief-
examination, he reiterated the averments made in the
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written statement. He has categorically deposed that his
father purchased the schedule property under registered
sale deeds dated 25.06.1976 and 21.06.1978 from the
children of Laxmappa. Therefore, they became absolute
owners of the schedule property. He further deposed that
plaintiffs by creating a story that one Hanumanthappa was
propositus of their family, was having four sons, amongst
the sons Laxmappa was elder and was a clever person and
his name was entered on behalf of the joint family as
manager of the joint family. The sons of Hanumanthappa
were enjoying the properties jointly and are having share
in the suit properties. Without any basis for their claim,
they filed the suit without having any locus-standi. D.W.1
has undergone intense cross-examination by the counsel
for the plaintiffs.
22. In order to support the defence of the
defendants, defendant No.4 - Nagaraj Venkappa Vaddar was
examined as D.W.2. He deposed that plaintiffs and
defendants are joint family members and the suit schedule
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properties are joint family properties of plaintiffs and
defendants. He further contended that he is the son of
Venkappa who is none other than son of deceased
Laxmappa. Therefore, he has got share in the schedule
properties. In the cross-examination he has admitted that
suit schedule properties were granted in favour of his
grandfather Laxmappa and after his death his legal
representatives were cultivating the said property. He further
admitted that Venkappa, Kallappa Melagiriyappa and
Timmanna are sons of Laxmappa. He further admits that
defendant Nos.1 to 3 are the sons of Laxmappa and
Venkappa is also the son of Laxmappa and defendant Nos.4
to 10 are the sons of said Venkappa. Rest of the suggestions
were denied by D.W.2.
23. It is relevant to refer to Section 50 of the Indian
Evidence Act,1872, which reads as under:
"50. Opinion on relationship, when relevant.--
When the Court has to form an opinion as to the
relationship of one person to another, the opinion,
expressed by conduct, as to the existence of such
relationship, or any person who, as a member of the
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family or otherwise, has special means of knowledge on
the subject, is a relevant fact.
24. Section 50 of the Evidence Act is the only
provision, which to a certain extent, allows evidence
somewhat akin to the "reputation evidence." The persons
whose opinion is made in evidence by the section must be
shown to have 'special means of knowledge on the
subject.' So, evidence under this section can come in only
when the following requirements are fulfilled:
1. The person whose opinion is sought to be
given in evidence must be proved to have
special means of knowledge on the
subject.
2. (a) The opinion alone is evidence;
(b) the opinion as expressed by conduct
only is evidence; or, in other words,
(i) conduct only can be given in
evidence;
(ii) from the conduct given in evidence
the Court is to see whether it is the
result of any opinion held by the
person.
3. The opinion which is relevant must be the
one as to the existence of the relationship
(emphasis supplied); (i) as has been
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pointed out above, the negative opinion -
or the opinion as to the non-existence of
the relationship may not be relevant under
this section. But the question does not fall
to be decided in the present case.
25. On perusal of the pleadings of the parties, the
plaintiffs are claiming the suit properties contending that
the original propositus Hanumanthappa Vaddar and he had
four sons by name Laxmappa, Doddagoorappa,
Sannagoorappa and Melagiriyappa. The first son
Laxmappa is the grand father of the plaintiffs and
therefore Laxmappa was the manager of the joint family.
He was managing the suit schedule properties on behalf of
Doddagoorappa, Sannagoorappa and Melagiriyappa. But
the plaintiffs have not produced any material to show that
the plaintiffs and defendants constitute the joint family
properties and the genealogy furnished by the plaintiffs
also is not established. Accordingly we answer point Nos.1
and 2 in the negative.
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26. Point No.3: Admittedly, defendant Nos.1, 2, 3
and deceased Venkappa are sons of deceased Laxmappa,
the original grantee and defendants No.4 to 10 are the
children of deceased Venkappa, whereas plaintiffs No.1
and 2 are the children of Doddagoorappa, whereas
plaintiffs No.3 and 4 are children of Sannagoorappa.
Therefore, plaintiffs No.1 to 4 are no way concerned to the
family of deceased Laxmappa. In fact the suit properties
were originally granted to deceased Laxmappa, who died
in the year 1976 itself, but the trial Court merely on the
basis of admission of DW1 proceeded to decree the suit
and granted share in favour of the plaintiffs. In fact the
joint family status of plaintiffs and defendants is not
established. Looking from any angle, the plaintiffs have
failed to produce sufficient oral and documentary evidence
in order to prove that the suit schedule properties are
ancestral and joint family properties. On the other hand,
defendants are able to prove that the suit schedule
properties were granted in favour of Laxmappa and all
revenue documents stands in the name of Laxmappa.
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Thus, it is the separate property of the family of
Laxmappa.
27. In the instant case, land bearing Survey No.72
was originally granted in favour of Laxmappa Vaddar and
the defendants are claiming their property to the branch of
Doddagoorappa and Sannagoorappa. In order to prove
that Laxmappa Vaddar is related to Doddagoorappa and
Sannagoorappa i.e., the family of plaintiffs No.1 to 4,
plaintiffs have not produced any documents to
substantiate their claim, in order to prove the relationship
with Laxmappa Vaddar. Therefore, plaintiffs are not
entitled for share in survey No.72/1 of Hulikatti village, as
shown in item No.1 to 5 of 'A' schedule property.
However, defendants are not disputing share in item No.6
of 'A' schedule property to make any partition in favour of
plaintiffs.
28. Hence the plaintiffs are entitled for item No.6 of
'A' schedule property only and they are not entitled for any
share in item No.1 to 5 of 'A' schedule properties. Hence
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the appeal filed by the appellant deserves to be partly
allowed. Hence we answer point No.3 partly in the
affirmative.
29. Point No.4: In view of the above discussion we
proceed to pass the following:
ORDER
The appeal filed by defendant Nos.11 and
12 is partly allowed.
The judgment and decree passed by the
trial Court dated 01.10.2015 in O.S.No.64/2010
is set aside. Suit of the plaintiffs in respect of
item No.1 to 5 of schedule 'A' properties, is
dismissed. Insofar as item No.6 of schedule 'A'
properties is concerned, judgment of the Trial
Court is maintainable.
Sd/-
JUDGE
Sd/-
JUDGE
KMV/MBS/PJ
