Karnataka High Court
Smt. Bharati W/O. Mahadev Odu vs Mt. Laxmibai W/O. Shivappa Odu on 10 January, 2024
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RFA No. 100229 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 10TH DAY OF JANUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
REGULAR FIRST APPEAL NO. 100229 OF 2018 (PAR)
BETWEEN:
1. SMT. BHARATI W/O. MAHADEV ODU
AGE:31 YEARS,
OCC:HOUSEHOLD,
R/O: CHABBI VILLAGE,
TQ:BAGALKOT,
DIST:BAGALKOT.587101.
2. SHRI SHANKAR
S/O. IRAPPA SHANNASHIVANNAVAR
AGE:30 YEARS,
OCC:AGRICULTURE,
R/O: LOKAPUR, TQ:MUDHOL,
DIST:BAGALKOT.587101.
Digitally signed
by
SHIVAKUMAR
HIREMATH
3. SHRI SHIVAPPA
Date:
2024.02.02
S/O. RAMAPPA SANNASHIVANNAVAR
12:27:02
+0530
AGE:56 YEARS,
OCC:AGRICULTURE,
R/O: LOKAPUR, TQ:MUDHOL,
DIST:BAGALKOT.587101.
4. SMT RENAVVA W/O. BASAPPA ODU
AGE:45 YEARS,
OCC:HOUSEHOLD,
R/O: CHABBI, TQ:BAGALKOT,
DIST:BAGALKOT-587101.
5. SHRI SOMAPPA
S/O. RAMAPPA SANNASHIVANNAVAR
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RFA No. 100229 of 2018
AGE:38 YEARS,
OCC:AGRICUALTURE,
R/O: LOKAPUR, TQ:MUDHOL,
DIST:BAGALKOT 587101
...APPELLANTS
(BY SRI. S.S.NIRANJAN, ADVOCATE)
AND:
SMT. LAXMIBAI W/O. SHIVAPPA ODU
AGE:43 YEARS,
OCC:HOUSEHOLD,
R/O: CHABBI VILLAGE,
TQ:BAGALKOT,
DIST:BAGALKOT.587101.
...RESPONDENT
(BY SRI. PAVAN B. DODDATTI, ADVOCATE)
THIS REGULAR FIRST APPEAL FILED UNDER SECTION 96
OF CODE OF CIVIL PROCEDURE, 1908, PRAYING TO SET ASIDE
THE JUDGMENT AND DECREE PASSED BY THE PRINCIPAL
SENIOR CIVIL JUDGE AND JMFC, MUDHOL, IN OS NO.63/2015
DATED 16-04-2018 SO FAR AS THE AWARDING OF 1/5TH
SHARE TO THE PLAINTIFFS IN ITEM NO. 1 TO 3 AND 5 OF THE
SUIT SCHEDULE PROPERTIES AND THEREBY TO DISMISS THE
SUIT OF THE PLAINTIFF AND TO GRANT SUCH OTHER RELIEFS
THAT THIS COURT DEEMS FIT AND PROPER IN THE
CIRCUMSTANCES OF THE CASE BY ALLOWING THIS APPEAL, IN
THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
RAJESH RAI K, J., DELIVERED THE FOLLOWING:
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RFA No. 100229 of 2018
JUDGMENT
In this appeal, the appellants have questioned the
legality and correctness of the Judgment and decree
passed in Original Suit No.63/2015 dated 16.04.2018 by
the Principal Senior Civil Judge and JMFC Court, Mudhol,
wherein, the learned trial Judge decreed the suit partly.
2. For the sake of convenience, the parties are
referred to as per their ranking before the trial Court. The
defendants are the appellants and the plaintiff is the
respondent.
3. The plaintiff filed a suit against the defendants
for partition and separate possession of 1/5th share in the
suit schedule properties. It is the case of the plaintiff that,
one Ramappa Irappa Sannashivannavar is the propositus
of the family of the plaintiff and defendants. He died after
1960. The defendant Nos.3 and 5 are the sons of the said
Ramappa Irappa Sannashivannavar. The defendant No.4
i.e. Smt. Renawwa W/o. Basappa Odu and plaintiff Smt.
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Laxmibai W/o. Shivappa Odu are the daughters of the said
Ramappa. Wife of Ramappa i.e. Smt. Basawwa died after
the death of Ramappa. The defendant No.3 died leaving
behind him his legal heirs i.e. defendant Nos.1 and 2. The
plaintiff and defendants are the legal heirs of Ramappa.
They are the Hindu undivided family members having 05
landed properties and 01 house property in Hebbal,
Jalikatti and Lokapur. After the death of Ramappa, it was
not possible for the plaintiff to continue in the joint family
due to difference of opinion among the plaintiff and
defendants, as the defendants have started to act adverse
of the plaintiff. She has got undivided share of 1/5th in the
suit properties in spite of many mutation have been
effected into the names of defendant Nos.3 and 5 and
father of defendant Nos.1 and 2 after the death of
Ramappa as they are behind the back and without the
knowledge of the plaintiff. The mutations have been
effected in the absence of registered documents. This has
been known to the plaintiff, as such, she requested the
defendants to allow her legitimate share in the suit
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properties and when it is denied, she filed a suit for
partition and separate possession.
4. The defendants have filed written statement
denying the entire case of the plaintiff and inter-alia
contended that, the suit is barred by limitation. One
Neelawwa W/o. Irappa Sannashivannavar was the mother
of propositus Ramappa Irappa Sannashivannavar and the
said Neelawwa owned landed properties in R.S.No.62/1,
65/1, 62/9. The said properties are her exclusive
properties. In the year 1960, the said Neelwwa had
consented to mutate the name of Ramappa Irappa
Sannashivannavar by deleting her name in the record of
rights in respect of the above properties. Accordingly, the
name of Ramappa Irappa Sannashivannavar has been
mutated in the record of rights of the above said
properties as per M.E.No.473. Accordingly, Ramappa
Irappa Sannashivannavar became exclusive owner of the
properties in R.S.No.62/1, 65/1 and 62/9. As far as the
property bearing R.S.No.28/1 has been purchased by
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Neelawwa in the name of Ramappa Irappa
Sannashivannavar, when he was minor vide sale deed
dated 10.08.1984, thereby, Ramappa Irappa
Sannashivannavar became exclusive owner and is in
possession of R.S.No.28/1. The said Neelawwa died on
28.10.1984. Subsequently, Ramappa Irappa
Sannashivannavar purchased R.S.No.6/2 under a sale
deed dated 04.05.1956 and his name has been mutated
as per M.E. on 26.11.1956. Thereby, the said property
became the exclusive property of Ramappa
Sannashivannavar. The said Ramappa had given
R.S.No.28/1 to his elder son Shivappa i.e. defendant No.3.
Thus, his name has been mutated under M.E.No.386 dated
18.08.1978. By virtue of the same, he became exclusive
owner in possession of R.S.No.28/1. As such, the said
properties are self acquired properties of defendant No.3.
The above said Irappa Ramappa Sannashivannavar had
purchased R.S.No.11 for Rs.20,000/- vide sale deed dated
02.04.1982. Accordingly, his name has been mutated as
per M.E.No.431 on 11.04.1982. Hence, the said property
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was also his self acquired property and on 31.10.1991 he
died leaving behind defendant Nos.1 and 2. Further, the
said Ramappa Irappa Sannashivannavar died on
19.04.1991. Hence, the names of his sons i.e. defendant
Nos.3, 5 and Irappa were mutated in respect of
R.S.No.63/1, 62/1, as per M.E.No.3094 dated 08.06.1999
in respect of R.S.No.6/2 as per M.E.No.811 dated
02.06.1999. Mahadevi the wife of Irappa, defendant No.1
the daughter of Irappa, plaintiff and defendant No.4 had
consented to enter the names of defendant Nos.2, 3 and
5. The said Irappa died on 31.10.1991 leaving behind him
his daughter defendant No.1 and son defendant No.2.
Accordingly, the name of defendant No.2 came to be
mutated in the record of rights in respect of R.S.No.11 as
per M.E.No.812 dated 02.08.1999. The lands bearing
R.S.No.65/1 to an extent of 03 acres 16 guntas, 65/2 to
an extent of 4 acres 26 guntas, 69/2 to an extent of 4
acres 25 guntas, 69/3 to an extent of 4 acres 37 guntas of
Hebbal village have been acquired by Karnataka Industrial
Development Corporation, Dharwad. As such, the plaintiff
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and defendant No.4 have no right, title whatsoever in the
suit lands. Accordingly, the defendants prays to dismiss
the suit.
5. The trial Court based on the pleadings and
documents, framed the following issues:
(i) Whether the plaintiff proves, herself,
defendants are members of Hindu joint family and
the suit schedule properties are Hindu Undivided
joint family properties?
(ii) Whether the defendants No.1 to 5 prove
that Ramappa Sannashivannavar is exclusive owner
of the suit schedule properties bearing R.S.No.62/1,
65/1, 69/2, 28/1, 6/2?
(iii) Whether they prove, R.S.No.28/1 is self
acquired property of defendant No.3 same is in his
ownership and possession?
(iv) Whether they prove RS No.11 is the self
acquired property of Irappa, after his death, the
defendant No.1 and 2 succeeded to his property?
(v) Whether they prove, after the death of
Ramappa Irappa Sannashivannavar the defendant
No.1, plaintiff and defendant No.4 had consented to
mutate the names of defendant Nos.3, 5 and 2 in
respect of R.S.No.63/1, 62/2 in R of R and in ME
No.3094, dated 08.06.1994?
(vi) Whether they prove, after the death of
Irappa Sannashivannavar, the defendant No.1,
plaintiff and defendant No.4 had consented to
mutate the names of defendant No.3, 5 and 2 in
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respect of RS No.6/2 in record of rights and in ME
No.811, dated 02.06.1999?
(vii) Whether the plaintiff proves that they are
entitled for 1/5th share in the suit schedule
properties?
(viii) What order or decree ?
6. Before the trial Court, the plaintiff examined
herself as P.W.1 and got marked 08 documents as Ex.P.1
to Ex.P.8. On the other hand, among the defendants,
defendant No.5 has been examined as D.W.1 and
defendant No.4 has been examined as D.W.2 and other
four witnesses were examined as D.W.3 to D.W.6 and got
marked 10 documents as Ex.D1 to Ex.D.10.
7. After assessment of the oral and documentary
evidence, the trial Court answered issue No.1 in the
negative, issue No.2 in the affirmative, issue No.3 in the
negative, issue No.4 in the affirmative, issue Nos.5 and 6
in the negative, issue No.7 in the partly affirmative, issue
No.8 as per final order and the suit came to be decreed
only in respect of item Nos.1 to 3 and 5 by declaring that
the plaintiff is entitled to 1/5th share in those properties,
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however, dismissed the suit of the plaintiff in respect of
item No.4. The defendants aggrieved by the Judgment and
preliminary decree, filed this appeal.
8. Heard the learned counsel for the
appellants/plaintiffs, so also the respondent/plaintiff.
Learned counsel for the appellants vehemently contends
that, the trial Court has erred in passing the impugned
Judgment by partly decreeing the suit. Accordingly, the
learned counsel submits that, the trial Court has rightly
dismissed the suit of the plaintiff in respect of item No.4 of
the property, however, wrongly decreed the suit in respect
of item Nos.1 to 3 and 5 by awarding 1/5th share to the
plaintiff in the suit properties.
9. He further contends that, the trial Court erred
in answering issue No.3 in the negative. The entire
findings in paragraph Nos.23 to 25 of the impugned
Judgment are erroneous and baseless for the reason that,
during the life time of Ramappa, suit item No.5 i.e.
R.S.No.28/1 measuring 13.37 acres of Jalikatti village has
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been given in favour of defendant No.3 Shivappa by virtue
of a family arrangement and by way of Wardi and
accordingly, mutations have been effected vide Ex.P.5 i.e.
ME No.386 dated 18.08.1978 and since then the
defendant No.3 is in exclusive possession of the said
property. Thereby, the trial Court ought to have answered
issue No.3 in the affirmative and could have dismissed the
suit in respect of item No.5 of the suit property. Whereas
the learned counsel for the defendant submits that, after
the death of Shri. Ramappa the legal heirs i.e.
plaintiff/defendant Nos.1 to 5 submitted a joint application
and Wardi to the Survey Officer, whereby, the plaintiff and
defendant No.4 relinquished their rights in respect of the
suit schedule item No.3 property i.e. R.S.No.6/2 of
Jallikatti village, in favour of defendant Nos.2, 3 and 5.
Accordingly, mutations have been effected vide Ex.P.3,
Ex.D.3, ME No.811 and since then defendant No.2, 3 and
5 are in exclusive possession of the said property. He
further contends that, they do not dispute the case of the
plaintiff in respect of item Nos.1 to 3 which belongs to
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Ramappa, but item No.1 is acquired from Neelawwa by
Ramappa. Item No.3 has been purchased by him and it is
self acquired property. Item No.5 is purchased by the said
Neelavva in the name of Ramappa. Item No.4 is purchased
under the management of Ramappa in the name of
Irappa. Item No.2 is also exclusive property of Ramappa.
So all those properties have become absolute properties of
Ramappa. He has transferred item No.5 to Shivappa under
M.E.No.386. After his death, with the consent of female
heirs of Ramappa including plaintiff, mutation in respect of
item Nos.1 to 3 changed in the name of defendant Nos.2,
3 and 5 as per M.E.No.8111. In respect of item No.4, after
the death of Irappa as per M.E.No.812/2006-07 mutation
has been changed in the name of Shankar
Sannashivannavar i.e. defendant No.2 on the consent of
female hears including plaintiff. The documents at Ex.P.1,
RTC extract pertaining to the year 2014-2015 shows that,
this property is standing in the name of Shankar Irappa
Sannashivannavar including plaintiff. Accordingly, he prays
to dismiss the appeal.
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10. Having heard the learned counsel for the
appellants, perusal of the documents and evidence made
available before us, the points that would arise for our
consideration are :
(i) Whether the Judgment passed by the learned
trial Judge is erroneous and liable to be set aside ?
(ii) Whether the trial Judge is justified in
decreeing the suit of the plaintiff partly in favour of the
plaintiff?
(iii) What order ?
11. As the common questions of law are involved
and both the issues are interlinked to each other, they are
taken up together for the sake of convenience.
12. In answer to the primary limb of the argument
advanced by the learned counsel for the appellants that
the original Court has erroneously decreed the suit in
favour of the plaintiff with respect to Item Nos. 1 to 3 and
5 is concerned, we find that the Item No.1 and 2 were
inherited from the mother of late Ramappa who is the
father of the privies to this suit and further, on her demise
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being voiceless and intestate, these schedule properties
has devolved to the father of these privies, who in turn
has enjoyed the same in his lifetime and additionally, has
also purchased Item No.3 of the schedule properties vide
sale deed dated 04.05.1956 and accordingly, he has also
died intestate living behind the plaintiff and defendants
who are the appellants and respondent before this Court.
This being the scenario, it is the contention addressed by
the learned counsel for the appellants that, defendant
Nos.1, 3 and 5 has been bestowed with the rights over the
Item Nos. 1 to 3 and 5 of the schedule property by the
deceased Ramappa by way of creation of Record of Rights
i.e., Mutations vide dated 18.08.1978, 08.06.1999 and
02.06.1999. Before enunciating the findings in this regard,
we find it relevant to refer to the decision of the Hon'ble
Apex Court in P. Kishore Kumar v. Vittal K. Patkar
reported in , 2023 SCC OnLine SC 1483, wherein, the
Hon'ble Apex Court in paragraph No. 12 to 16 has held as
under -
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"12. It is trite law that revenue records are not
documents of title.
13. This Court in Sawarni v. Inder Kaur [(1996) 6
SCC 223] held that mutation in revenue records
neither creates nor extinguishes title, nor does it have
any presumptive value on title. All it does is entitle
the person in whose favour mutation is done to pay
the land revenue in question.
14. This was further affirmed in Balwant
Singh v. Daulat Singh (Dead) by LRs [(1997) 7
SCC 137] wherein this Court held that mere mutation
of records would not divest the owners of a land of
their right, title and interest in the land..
15. In Jitendra Singh v. State of Madhya Pradesh
[2021 SCC OnLine SC 802], this Court after
considering a catena of judgments, reiterated the
principle of law as follows:
"6. ***mutation entry does not confer any
right, title or interest in favour of the
person and the mutation entry in the
revenue record is only for the fiscal
purpose."
16. We may also profitably refer to the decision of
this Court in Sita Ram Bhau Patil v. Ramchandra
Nago Patil (Dead) by LRs [(1977) 2 SCC
49]. wherein it was held that there exists no
universal principle that whatever will appear in the
record of rights will be presumed to be correct, when
there exists evidence to the contrary."
(Emphasis supplied by Us)
13. Further the Hon'ble Apex Court in the case of
Vineeta Sharma v. Rakesh Sharma, reported in
(2020) 9 SCC 1 in paragraph No. 130 has held as under-
"130. Earlier, an oral partition was
permissible, and at the same time, the burden of
proof remained on the person who asserted that
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there was a partition. It is also settled law that
cesser of commonality is not conclusive proof of
partition, merely by the reason that the members
are separated in food and residence for the
convenience, and separate residence at different
places due to service or otherwise does not show
separation. Several acts, though not conclusive
proof of partition, may lead to that conclusion in
conjunction with various other facts. Such as
separate occupation of portions, division of the
income of the joint property, definement of shares
in the joint property in the revenue or land
registration records, mutual transactions, as
observed in Bhagwani Kunwar v. Mohan
Singh [Bhagwani Kunwar v. Mohan Singh, 1925
SCC OnLine PC 27 : AIR 1925 PC 132]
and Digambar Adhar Patil v. Devram Girdhar
Patil [Digambar Adhar Patil v. Devram Girdhar
Patil, 1995 Supp (2) SCC 428 : AIR 1995 SC
1728]"
(Emphasis supplied by Us)
14. When the dispute on hand is looked into from
the angle of settled norms as propounded by the Hon'ble
Apex Court, we find that, though the evidences tendered
by all the defendants before the Trial Court have directed
towards the mutation transfers in the name of the
defendants and also the fact that plaintiff is a married
daughter, no documentary evidences are tendered by the
defendants, portraying the implied partition. Even though
not conclusive, the defendants also have failed to lead the
cogent evidence before the trial Court so also this Court as
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to division in income arriving from the schedule properties,
division of lands in the schedule properties, division of
possession in the schedule properties along with division of
interest in the schedule properties is concerned. When
these aspects are not proved by the defendants but for the
mutation records created in respect of defendants, when it
is also the settled norm that the married daughters are
also entitled for the share in the property of her deceased
father, this Court is not in conformity with the grounds
urged by the defendants who are the appellants herein.
Moreover, when the law laid down by the Hon'ble Apex
Court Bondar Singh v. Nihal Singh, reported in (2003)
4 SCC 161 holds the field; this Court being appellate
Court cannot traverse beyond what is pleaded by the
parties in their pleadings and appreciate the evidence
produced before it.
Accordingly, we answer the above raised point Nos.1
and 2 in the affirmative and pass the following -
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ORDER
(i) The first appeal is dismissed.
(ii) The Judgement and decree dated 16.04.2018 in
Original Suit No.63/2015 by the Principal Senior
Civil Judge and JMFC Court, Mudhol is
confirmed.
(iii) No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
Svh/-
