Karnataka High Court
Gurusiddayya S/O Basavannayya ... vs Rudrayya S/O Basavannayya Hiremath on 19 February, 2024
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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RFA No. 3118 of 2011
C/W RFA No. 4048 of 2012
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 19TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
REGULAR FIRST APPEAL NO. 3118 OF 2011 (PAR-)
C/W
REGULAR FIRST APPEAL NO. 4048 OF 2012
IN WP NO.3118/2011
BETWEEN:
1. RUDRAYYA S/O. BASAVANNAYYA HIREMATH,
AGE: 61 YEARS, OCC: AGRICULTURE,
R/O: RAMANAL, TQ: KALAGHATAGI,
DIST: DHARWAD.
2. SHIVAPUTRAYYA S/O. BASAVANNAYYA
HIREMATH, AGE: 55 YEARS,
OCC: AGRICULTURE,R/O: RAMANAL,
TQ: KALAGHATAGI,
DIST: DHARWAD.
3. GURUPADAYYA S/O. BASAVANNAYYA
HIREMATH, AGE: 46 YEARS,
BHARATHI OCC: AGRICULTURE,R/O: RAMANAL,
HM TQ: KALAGHATAGI, DIST: DHARWAD.
...APPELLANTS
(BY SRI. DINESH M. KULKARNI, ADVOCATE)
AND:
1. GURUSHIDDAYYA S/O. BASAVANNAYYA HIREMATH,
AGE: 68 YEARS, OCC: AGRICULTURE,
R/O: RAMNAL, TQ: KALGHATAGI,
DIST: DHARWAD.
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RFA No. 3118 of 2011
C/W RFA No. 4048 of 2012
2. SHIVALINGAYYA S/O. BASAVANNAYYA HIREMATH,
AGE: 64 YEARS, OCC: AGRICULTURE,
R/O: RAMANAL, TQ: KALAGHATAGI,
DIST: DHARWAD.
3. BASAYYA S/O. BASAVANNAYYA HIREMATH,
GAE: 51 YEARS, OCC: AGRICULTURE,
R/O K.E.G., HOUSES, BAMMIGATTI ROAD,
TQ: KALAGHATAGI, DIST: DHARWAD
SINCE DECEASED BY HIS LR.S.,
3(A) SOMAYYA S/O. BASAYYA HIREMATH,
AGE: 26 YEARS, OCC: AGRICULTURE,
R/O: MOOLEMATH ONI, KALAGHATAGI,
TQ: KALAGHATAGI.
3(B) FAKIRAYYA S/O. BASAYYA HIREMATH,
AGE: 24 YEARS, OCC: AGRICULTURE,
R/O: MOOLEMATH ONI,KALAGHATAGI,
TQ: KALAGHATAGI,DIST: DHARWAD.
3(C) MAHANTESH S/O. BASAYYA HIREMATH,
AGE: 22 YEARS, OCC: STUDENT,
R/O: MOOLEMATH ONI,KALAGHATAGI,
TQ: KALAGHATAGI,DIST: DHARWAD.
3(D) CHANNABASAYYA S/O. BASAYYA HIREMATH,
AGE: 21 YEARS, OCC: PRIVATE JOB,
R/O: MOOLEMATH ONI,KALAGHATAGI,
TQ: KALAGHATAGI,DIST: DHARWAD.
4. MARAYYA S/O. KALLAYYA MOOLIMATH,
AGE: 35 YEARS, OCC: AGRICULTURE,
R/O: MOOLEMATH ONI,KALAGHATAGI,
TQ: KALAGHATAGI,DIST: DHARWAD.
5. DIVISIONAL MANAGER,
SOUTH CENTRAL RAILWAY OFFICE,
CLUB ROAD, KESHWAPUR,
HUBBLI-POST, HUBLI.
DIST: DHARWAD.
6. SPECIAL LAND ACQUISITION OFFICER,
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RFA No. 3118 of 2011
C/W RFA No. 4048 of 2012
HUBLI-ANKOLA BROAD GAGE RAILWAY,
SOUTH-CENTRAL RAILWAY,
CLUB ROAD,KESHWAPUR,
POST: HUBLI,DIST: DHARWAD.
7. SHANKAR VIRUPAXAPPA DESHKULKARNI,
(SINCE DECEASED BY HIS LR.S.,)
A) SHRIPAD S/O. SHANKAR DESHKULKARNI
@DESAI, AGE: ABOUT 45 YEARS,OCC:
AGRICULTURE,
R/O: TADAS
8. KRISHNAJI TAMMAJI DESHKULKARNI,
(SINCE DECEASED BY HIS LR.S.,)
8(A) BASAVANTAPPA KRISHNAJI DESHKULKARNI,
AGE: ABOUT 52 YEARS,
OCC: AGRICULTURE,
R/O: BOGENAGARAKOPPA,
TQ: KALAGHATAGI,DIST: DHARWAD.
9. SHARATH CHANNABASAYYA MOOLIMATH,
AGE: 38 YEARS, OCC: AGRICULTURE,
R/O: NEAR MEDAR ONI, MOOLIMATH ONI,
KALAGHATAGI, TQ: KALAGHATAGI,
DIST: DHARWAD.
10. GIRISH C MOOLIMATH,
AGE: 36 YEARS, OCC: AGRICULTURE,
R/O: MOOLIMATH ONI, NEAR MEDAR ONI,
KALAGHATAGI, TQ: KALAGHATAGI,
DIST: DHARWAD.
11. BASAVANNEVVA W/O. VIRUPAXAYYA HIREMATH,
AGE: 86 YEARS, OCC: HOUSEWORK,
R/O: DEVANGPETH, HUBLI.
SINCE DECEASED BY LR'S
11(A) SRI. SHAMBAYYA S/O. VIRUPAXAYYA HIREMATH
AGE: 58 YEARS, OCC: SERVICE,
R/O ADARGUNCHI TQ: HUBBALLI,
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RFA No. 3118 of 2011
C/W RFA No. 4048 of 2012
DIST: DHARWAD
11(B) SMT. AKKAVVA W/O SHANKARAYYA
SHIRAGANTIMATH
AGE: 55 YEARS, OCC: HOUSE HOLD WORK,
R/O: ADARGUNCHI TQ: HUBBALLI
DIST: DHARWAD.
11(c) SMT. MAHANTAVVA W/O VIRABHADRAYYA
SHIRAGANTIMATH
AGE: 52 YEARS, OCC: HOUSE HOLD WORK
R/O ADARGUNCHI, TQ: HUBBALLI
DIST: DHARWAD
(AMENDED V/C/O DATED 18.6.2018)
12. RUDRAVVA W/O. GURULINGAYYA NANDIMATH,
AGE: 58 YEARS, OCC: HOUSEWORK,
R/O: HOSPETH, TQ: SHIGGAO,
DIST: HAVERI.
13. MAHADEVI YEGAYYA SALIMATH,
SINCE DECEASED BY HER LR.S.,
13(A) SHOBHA S/O. YEGAYYA SALIMATH,
AGE: 26 YEARS, OCC: HOUSE WORK,
R/O: HOSPETH, TQ: SHIGGAON,
DIST: HAVERI.
...RESPONDENTS
(BY SRI.SAGAR R. HEDGE, ADVOCATE FOR R1;
SRI. AJAY U. PATIL, ADVOCATE FOR R5;
SRI. GIRISH S. HIREMATH, ADVOCATE FOR R8 (A);
R2, R3(A) TO R3(D), R4, R6, R0, R10, R11(A) TO R11(C), R12,
R13(A) SERVED)
RFA FILED UNDER SECTION 96 OF CPC., PRAYING TO
MODIFY THE JUDGMENT AND DECREE PASSED BY THE
LEARNED II ADDL. SENIOR CIVIL JUDGE DHARWAD (ITERNARY
COURT KALAGHATAGI) IN O.S. NO.279/2003 DTD:27.06.2011
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RFA No. 3118 of 2011
C/W RFA No. 4048 of 2012
TO THE EXTENT OF ITEM NO.1 OF SUIT SHEDULE 'B' ROPERTY
I.,E., SUIT IN RESPECT OF THE SAID SUIT PROPERTY ALSO IN
FAVOUR OF THE PALINTIFFS/APPELLANTSAND THE APPEAL
MAY KINDLY BE ALLOWED.
IN RFA NO.4048/2012
BETWEEN:
GURUSIDDAYYA S/O BASAVANNAYYA HIREMATH
AGE: 61 YEARS, OCC: AGRICULTURE,
R/O. RAMANAL, TQ: KALAGHATAGI,
DIST: DHARWAD.
...PETITIONER
(BY SRI. S R HEGDE, ADVOCATE)
AND:
1. RUDRAYYA S/O BASAVANNAYYA HIREMATH
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O. RAMANAL, TQ: KALAGHATAGI,
DIST: DHARWAD-580001
2. SHIVAPUTRAYYA S/O. BASAVANNAYYA HIREMATH
AGE: 49 YEARS, OCC: AGRICULTURE,
R/O. RAMANAL, TQ: KALAGHATAGI,
DIST: DHARWAD-580001
3. GURUPADAYYA S/O. BASAVANNAYYA HIREMATH
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O. RAMANAL, TQ: KALAGHATAGI,
DIST: DHARWAD-580001
4. SHIVALINGAYYA S/O. BASAVANNAYYA HIREMATH
AGE: 58 YEARS, OCC: AGRICULTURE,
R/O. RAMANAL, TQ: KALAGHATAGI,
DIST: DHARWAD-580001
5. BASAYYA S/O. BASAVANNAYYA HIREMATH
SINCE DECEASED BY HIS LRS,
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RFA No. 3118 of 2011
C/W RFA No. 4048 of 2012
A. SOMAYYA S/O. BASAYYA HIREMATH
AGE: MAJOR, OCC: AGRICULTURE,
R/O. MOOLIMATH ONI, KALAGHATAGI,
DIST: DHARWAD.
B) FAKIRAYYA S/O. BASAYYA HIREAMTH
AGE: MAJOR, OCC: AGRICULTURE,
R/O. MOOLIMATH ONI, KALAGHATAGI,
DIST: DHARWAD.
C) MAHANTESH S/O. BASAYYA HIREMATH
AGE: MAJOR, OCC: STUDENT,
R/O. MOOLIMATH ONI, KALAGHATAGI,
DIST: DHARWAD.
D) CHANNABASAYYA S/O. BASAYYA HIREMATH
AGE: 22 YEARS, OCC: PVT. JOB.
R/O. MOOLIMATH ONI, KALAGHATAGI,
DIST: DHARWAD.
6. MARAYYA S/O. KALLAYYA MOOLIMATH
AGE: 36 YEARS, OCC: AGRICULTURE,
R/O. MOOLIMATH ONI, KALAGHATAGI,
DIST: DHARWAD-580001
7. SMT.BASAVANNEVVA W/O. VIRUPAXAYYA HIREMATH
AGE: 51 YEARS, OCC: HOUSEHOLD WORK,
R/O. HOSPET, TQ: SHIGGAON,
DIST: HAVERI-581205
8. SMT.RUDRAVVA W/O. GURULINGAYYA NANDIMATH
AGE: 51 YEARS, OCC: HOUSEHOLD WORK,
R/O. HOSPET, TQ: SHIGGAON,
DIST: HAVERI-581205
9. SMT.MAHADEVI W/O. YEGAYYA SALIMATH
SINCE DECEASED BY HER LRS.
9(A) SMT.SHOBHA D/O. YEGAYYA SALIAMTH
AGE: 19 YEARS, OCC: HOUSEHOLD.
R/O. HOSPET, TQ: SHIGGAON,
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RFA No. 3118 of 2011
C/W RFA No. 4048 of 2012
DIST: HAVERI-581205
...RESPONDENTS
(BY SRI.DINESH M. KULKARNI, ADVOCATE FOR R1 TO R3;
SRI. P.G. CHIKKANAAGUND, ADVOCATE FOR R4;
SRI. S.S. BADAWADAGI, ADVOCATE FOR R4 (A-D);
APPEAL DISMISSED IN R/O R7(A);
R7 (B-C), R8 SERVED;
APPEAL DISMISSED AGAINST R(A))
RFA FILED UNDER SECTION 96 OF CPC., PRAYING TO
THE JUDGMENT AND DECREE PASSED BY THE HON'BLE II
ADDL. SR. CIVIL JUDGE, DHARWAD IN O.S.NO.279/2003,
DATED 27.06.2011, MAY PLEASED BE SET ASIDE EXCEPT SUIT
SCHEDULE-10 F PROPERTY, WITH COSTS IN THE ENDS OF
JUSTICE AND EQUITY.
THESE APPEALS, COMING ON FOR FURHTER HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The plaintiffs and the defendant No.1 are currently in
appeal, and a suit was initiated by the plaintiffs in OS
No.279/2003 for declaration and alternative relief of partition
and separate possession of their legitimate shares in the suit
schedule properties.
2. The plaint averments in brief are as follows:
are the sons. The defendants No.11 to 13 are the
daughters of one Basavannayya Hiremath. The defendant
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No.4 is the defendant No.1's daughter's husband. The
defendant No.5 and 6 are the officials of the Railway
Department, and the Land Acquisition Officer. The
defendants No.7 and 8 are the landlords of the tenanted
land. The defendants No.9 and 10 are the plaintiffs'
mother's brothers.
ii) The suit schedule properties are tenanted
lands, which were cultivated from their father. After
coming into force of the Karnataka Land Reforms Act, the
defendant No.1 being the elder son filed Form No.7 on his
behalf, and on behalf of the joint family. The Land
Tribunal, Dharwad, granted the occupancy rights to the
defendant No.1 as manager of the joint family by order
dated 23.4.1976, and these lands are in joint possession
and enjoyment of the plaintiffs and the defendants No.1
to 3. The defendant No.1 having refused to allot share to
the plaintiffs, the present suit is filed.
3. The defendant No.1 entered appearance, and filed a
written statement contending that the occupancy right over the
suit schedule properties were granted exclusively in his favor,
and not on behalf of the joint family. It was further contended
that there was earlier a partition between the family members
in the year 1970, and thereafter he was cultivating the suit
schedule properties individually, and therefore, sought for
dismissal of the suit.
4. The defendants No.2 and 3 filed a written statement
supporting the case of the defendant No.1.
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5. The plaintiffs to prove their case examined the
plaintiff No.1 as PW1 and marked the documents at Exs.P1 to
P40. The defendants to prove their case examined the
defendant No.1 as DW1 and marked the documents at Exs.D1
to D75.
6. The Trial Court, after reviewing the pleadings of the
parties, framed the following issues.
1. Whether the plaintiffs prove that third
plaintiff has constructed a house in suit property
bearing VPC No.20 out of his own income?
2. Whether the plaintiffs prove that 1 st
defendant, and second plaintiff and 3 defendant,
rd
have temporarily partitioned the suit property
bearing VPC No.13 and second deft., and 1 plaintiff,
st
have temporarily partitioned the suit property
bearing VPC No.15 by constructing house out of
their own self earnings?
3. Whether the plaintiffs prove that
plaintiffs and defendants 1 to 3 have partitioned
Sy.No.28 measuring 2 acres 34 Gs. among
themselves and it is a joint family property?
4. Whether the plaintiffs prove that 2 acres
6 Gs. of land bearing Sy.No.28 is acquired by
Railway Department and plaintiffs and defendants 1
to 3 are entitled for share in the said acquisition
amount and also plaintiffs and defendants 1 to 3 are
entitled for share in the said acquisition amount and
also plaintiffs and defendants 1 to 3 are entitled for
share in the remaining 28 Gs. of land bearing R S
No.28 measuring 1 A 30 Gs?
5. Whether the plaintiffs prove that portion
land bearing Sy.No.42/3 and 42/3 were acquired by
the Railway Department and plaintiffs and
defendants 1 to 3 are entitled for share in the said
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acquisition amount and also plaintiffs and
defendants 1 to 3 are entitled for share in the
remaining land?
6. Whether the plaintiffs prove that they
have made a family arrangement of family property
as stated in the plaint?
7. Whether the plaintiffs are entitled for
relief sought for?
8. Whether the defendants prove that
plaintiffs have not included all the family properties?
9. Whether the suit is bad for not
impleading Union of India as per Sec.79 of CPC and
for issuing notice U/s 80 CPC?
10. Whether the suit is bad for mis-joinder
and non-joinder of necessary parties?
11. What order or decree?
Addl. Issues framed on 10.9.2007:
I. Whether plaintiffs prove that the name of the
defendant No.1 was entered in the above said
property extracts of the suit properties bearing
Survey Nos.52/7, 52, 43/3A, 42/3/B, 52/14 and
Rs.No.28 on behalf of plaintiffs and defendants 1 to
3, as defendant No.3 was the Manager of the
family?
II. Whether the defendant No.1 prove that
the occupancy rights were granted to him, in
respect of R.S Nos.42/3B, 42/3A, 52/7, 52/10 and
52/14 and other plaintiffs have not right over the
above said properties?
III. Whether plaintiffs prove that they and
defendants No.1 to 3 have got equal shares in the
suit properties?"
7. The Trial Court, after appreciating the evidence on
record, and also the arguments advanced by the learned
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counsel for the parties, recorded a finding that the suit
schedule properties at item Nos.1 to 4 are the joint family
properties, and the suit schedule item No.5 is the self acquired
property of the defendant No.1 and allotted 1/8 share to each
th
of the plaintiffs except for item No.1 of schedule B property.
Taking exception to the same, these appeals are filed.
8. The learned counsel for the plaintiffs/appellants
submits that Form No.7 was filed by the defendant No.1 as he
was the elder member of the joint family, and Form No.7
indicated that the suit schedule properties being cultivated
since more than 50 years as on the date, and when Form No.7
was filed, the defendant No.1 was aged 32 years. Therefore,
the evidence on record clearly establishes that the suit schedule
properties were cultivated on behalf of the deceased father of
plaintiffs and defendants No.1 to 3 and the defendant No.10 to
12. The said properties are ancestral properties. The plaintiffs
are entitled for 1/8 share in item No.1 of schedule B property.
th
9. The learned counsel for the defendant No.1 submits
that the Form No.7 and the order dated 13.5.1976 clearly
establish that the suit schedule properties were cultivated by
the defendant No.1 in his individual capacity, and not on behalf
of the joint family. Therefore, in the absence of any evidence
on record, the impugned judgment and decree passed by the
Trial Court is not sustainable in law.
10. Considered the submissions of the learned counsel
for the parties.
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11. A perusal of the order dated 13.5.1976 passed by
the Land Tribunal at Ex.D59 indicated that the owner of the
item No.1 of schedule `B' property has stated that the
defendant No.1 was cultivating the said land individually.
However, the defendant No.1 before the Land Tribunal has not
stated that the said property was cultivated in his individual
capacity, and not on behalf of the joint family. The order
further indicated that there is no finding that the item No.1 of
schedule `B' property was cultivated individually by the
defendant No.1 and granted the occupancy right exclusively in
favour of the applicant i.e. the defendant No.1 in respect of the
suit schedule properties. The evidence on record establishes
that the item No.1 of schedule-B was cultivated by the
defendant No.1 on his behalf and on behalf of the joint family
as a tenant.
12. The defendant No.1 having admitted that the other
suit schedule properties are the joint family properties, and
having not placed any evidence to substantiate that he was
cultivating the item No.1 of schedule `B' property in his
individual capacity, the impugned judgment and decree passed
by the Trial Court holding that the said property is not the joint
family property is contrary to the evidence on record. The
plaintiffs have proved that the said property is the joint family
property. Accordingly, I pass the following:
ORDER
i. The appeal is allowed.
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ii) The judgment and decree dated 27.6.2011 passed
in OS No.279/2003 by the learned II Addl. Senior Civil Judge,
Dharwad (Itinary Court of Kalghatagi) is hereby set aside.
iii) The plaintiffs are entitled for 1/8 share each in the
th
suit schedule properties.
Sd/-
JUDGE
bkm
corrected
