Karnataka High Court
Smt.Shivavva W/O. Rangappa Khajipur vs Smt.Mallavva W/O. Muttappa Khajipur on 8 January, 2024
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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NC: 2024:KHC-D:369
RFA No. 100362 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 8TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
REGULAR FIRST APPEAL NO. 100362 OF 2017 (PAR/POS)
BETWEEN:
1. SMT.SHIVAVVA W/O. RANGAPPA KHAJIPUR
@LAJPUR @ KOLLI, AGE:63 YEARS,
OCC:HOUSEHOLD WORK,
R/O. SULIKERI, TALBADAMI,
DIST:BAGALKOT-587201.
2. YAMANAPPA S/O. RANGAPPA KHAJIPUR
@LAJPUR @ KOLLI, AGE:39 YEARS,
OCC:SERVICE, R/O. SULIKERI,
TALBADAMI,
DIST:BAGALKOT-587201.
3. HANAMAPPA S/O. RANGAPPA KHAJIPUR
@LAJPUR @ KOLLI, AGE:33 YEARS,
OCC:AGRICULTURE,
R/O. SULIKERI, TALBADAMI,
SUJATA DIST:BAGALKOT-587201.
SUBHASH
PAMMAR
Digitally signed by 4. SMT MALIYAVVA W/O. TIMMANNA INDRI
SUJATA SUBHASH
PAMMAR
Date: 2024.01.10
AGE:37 YEARS, OCC:HOUSEHOLD WORK,
16:55:02 +0530
R/O. SULIKERI, TALBADAMI,
DIST:BAGALKOT-587201.
5. SMT LAXMIBAI W/O. GADIGEPPA KANDAGAL
AGE:35 YEARS, OCC:HOUSEHOLD WORK,
R/O. HALAPETH, BAGALKOT,
TAL/DIST:BAGALKOT-587101.
...APPELLANTS
(BY SRI. S B HEBBALLI, ADVOCATE)
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NC: 2024:KHC-D:369
RFA No. 100362 of 2017
AND:
1. SMT.MALLAVVA W/O. MUTTAPPA KHAJIPUR
@LAJPUR @ KOLLI,
AGE:49 YEARS,
OCC:HOUSEHOLD WORK,
R/O. SULIKERI,
TALBADAMI,
DIST:BAGALKOT-587201.
2. SMT SUJATA W/O. IRANNA TEGGI
AGE:28 YEARS,
OCC:HOUSEHOLD WORK,
R/O. MURANAL,
TAL:BAGALKOT,
DIST:BAGALKOT-587101.
3. YAMANAPPA S/O. MUTTAPPA KHAJIPUR
@LAJPUR @ KOLLI,
AGE:26 YEARS,
OCC:STUDENT,
R/O. SULIKERI,
TALBADAMI,
DIST:BAGALKOT-587201.
...RESPONDENTS
(BY SRI.VIJAYAKUMAR S. BHIMAKKANAVAR, ADV.)
THIS RFA IS FILED UNDER SEC. 96 OF CPC.,1908, AGAINST
THE JUDGMENT AND DECREE DTD:01.08.2017 PASSED IN
O.S.NO.46/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JUDICIAL MAGISTRATE FIRST CLASS, BADAMI, DECREEING THE
SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RFA No. 100362 of 2017
JUDGMENT
1. Defendants are in appeal. Plaintiffs filed a suit for
partition and separate possession of their half share in the suit
schedule properties contending that one late Yamanappa was
the propositus of the family, and his wife is also no more, and
they had two sons by name Rangappa and Muttappa. Plaintiff
Nos.1 and 2 are the wife and daughter of Muttappa and
defendant No.1 is the wife of Rangappa and defendant Nos.2 to
5 are their children.
2. The suit schedule 'B' properties are the joint family
properties of the plaintiffs and defendants. R.S. No.52/1 in the
schedule 'B' property, in the tenanted land, and since Rangappa
was manager of the family, he had filed Form No.7 for grant of
occupancy rights in respect of the said land and the Tribunal
had granted occupancy rights in his favour which enures to the
benefit of the joint famil. In view of the differences between the
members of the family, at the request of the plaintiffs to effect
partition was not acceded to, and therefore, the suit for
partition and separate possession.
3. The defendants entered appearance and denied the
plaint averments and contended that the oral partition had
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taken place in the year 1960-61 between Rangappa and
Muttappa, and in the oral partition, R.S. No.46, the eastern side
was allotted to Rangappa and western half portion was allotted
to Muttappa. R.S. No.111/1 which runs north to south was also
divided in equal portions. The eastern strip was allotted to
Rangappa and western half portion was allotted to Muttappa,
and VPC No.171 fell to the share pf Rangappa and VPC No.134
to the share of Muttappa. Rangappa was cultivating the land
bearing R.S. No.52 in his individual capacity, and the Land
Tribunal taking into account the same has granted occupancy
rights exclusively in his favour and therefore, the plaintiffs have
no share in the said land.
4. The Trial Court, in all framed five issues. The
plaintiffs to prove their case got examined plaintiff No.1 as PW1
and marked Exs.P1 to P5. The defendants to prove their case
examined defendant No.3 as DW1 and Govindrao
Hanamantharoa Deshpande as DW2 and marked documents
Exs.D1 to D9(a) and D9(b). The Trial Court after appreciating
the evidence on record held that the defendants have failed to
prove that prior partition had taken place between Rangappa
and Muttappa, and the suit schedule properties are the joint
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family properties, and also land bearing R.S. No.52, the
occupancy rights of which was granted in favour of Rangappa
enures to the benefit of plaintiffs and defendants\, since he was
cultivating the said land during the subsistence of the joint
family. Taking exception of the same, this appeal is filed.
5. Learned counsel for the appellants would submit
that the voters' list and also the property extract in respect of
VPC No.134 and No.171 clearly establishes that the plaintiffs
and defendants were residing separately and there was
severance of joint family in pursuance of earlier partition that
had taken place in the year 1960-61. He further submits that
the land bearing Sy. No.52 was exclusively cultivated by
deceased Rangappa as tenant, and the Land Tribunal taking
into account had granted occupancy rights exclusively in his
favour and the same do not enure to the benefit of the joint
family. Therefore, the finding recorded by the Trial Court that
Sy. No.52 is also the joint family property is contrary to the
evidence on record and sought for dismissal of the suit.
6. Per contra, learned counsel for the plaintiffs would
submit that except oral statement of the defendants that earlier
partition that had taken place in the year 1960-61, no
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documentary evidence is produced to establish the said claim,
and the evidence on record clearly establishes that earlier
partition had not taken place. He further submits that the land
bearing Sy. No.52/1 was cultivated by deceased Rangappa on
his behalf and on behalf of the joint family and not in his
individual capacity. Therefore, the occupancy right granted in
favour of deceased Rangappa enures to the benefit of joint
family consisting of the plaintiffs and the defendants.
Therefore, the Trial Court after appreciating the evidence on
record in a proper perspective has rightly decreed the suit, and
the same does not warrant any interference and sought for
dismissal of the appeal.
7. Considered the submission made by the learned
counsel for the parties.
8. The point that arises for consideration is that,
whether the Trial Court was justified in holding that the suit
schedule properties are the joint family properties and
decreeing the suit. The relationship between the parties is not
disputed. Ex.P1 is the certified copy of the record of rights for
the period 2012-13 in respect of the land bearing Sy. No.46
measuring 5 acres which indicated that the name of plaintiff
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No.3 and defendant No.2 are shown as owners in possession of
the subject land. Similarly, plaintiff No.3 and defendant No.2
are shown as owners in possession of the land bearing Sy.
No.111/1 at Ex.P2. Ex.P3 is the record of right for the period
2012-13 in respect of the land bearing Sy. No.52 which
indicated that the names of the defendants are shown in the
possession of the subject land. Ex.D4 is the copy of the extract
issued by the Gram Panchayat concerned which indicated that
the property bearing VPC bearing No.134 is standing in the
name of the plaintiffs and Ex.P5 is the VPC extract issued by
the Gram Panchayat concerned in respect of VPC No.171 which
indicated that the subject property is standing in the name of
deceased Rangappa.
9. Ex.D1 is the copy of the Form No.7 submitted by
the deceased Rangappa during his life time with the Land
Tribunal concerned for grant of occupancy rights in respect of
R.S. No.52. Ex.D2 is the order dated 26.09.1981 passed by the
Land Tribunal, Badami granting occupancy rights in favour of
deceased Rangappa in respect of R.S. No.52. Exs.D3 to D8 are
the RTC extracts of R.S. No.52 indicating that the property
earlier stood in the name of deceased Rangappa and after his
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death, the names of the defendants have been mutated in the
revenue records. Ex.D9 is the voters' list indicated that the
plaintiffs and defendants are residing separately.
10. Plaintiff No.1 was examined as PW1. PW1 has
reiterated the plaint averments and nothing is elicited in her
cross-examination to disbelieve her claim that the suit schedule
properties are the joint family properties.
11. Defendant No.3 was examined as DW1. DW1 has
reiterated the contentions taken in the written statement.
12. Perusal of the oral and documentary evidence
indicated that the defendants have failed to establish that there
was an earlier partition that had taken place between the
deceased Rangappa and Muttappa during their life time in the
year 1960-61 and in the absence of any evidence to
substantiate the same, the Trial Court rightly recorded the
finding that the defendants have failed to prove that the
partition had earlier taken place.
13. The record of rights Exs.P1 and P2 clearly indicated
that the properties bearing Sy. Nos.46 and 111/1 was standing
jointly in the name of plaintiff No.3 and defendant No.2 which
clearly establishes that there was no severance of joint family,
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and the claim of the defendants that an earlier partition had
taken place is without any substance.
14. The Form No.7 was filed by deceased Rangappa
during his life time on 30.06.1979, wherein, in the particulars
of the family members, he has shown the names of the
defendants herein. The Tribunal granted occupancy rights in
favour of the deceased Rangappa since Form No.7 was filed by
him. The defendants have not placed any corroborative
material to substantiate that the deceased Rangappa was
cultivating the land bearing Sy. No.52/1 in his individual
capacity and the Tribunal having granted occupancy rights
during the substance of the joint family, the Trial Court has
rightly held that it enures to the benefit of the plaintiffs and
defendants and therefore, the plaintiffs are entitled for half a
share in the suit schedule properties.
15. Merely because the parties are residing separately,
that would not establish the severance of the joint family
properties and also the earlier partition when the defendants
have failed to establish that a partition had earlier taken place
between the deceased Rangappa and Muttappa in the year
1960-61.
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16. The Trial Court after appreciating the evidence on
record, in a proper perspective has passed the impugned
judgment and decree, and allotted half a share to the plaintiffs
in the suit schedule properties, and in the absence of any
perversity or illegality in the impugned order passed by the
Trial Court, I do not find any ground to interfere. Accordingly,
the appeal stands dismissed.
Sd/-
JUDGE
RSH / CT: ANB
