Karnataka High Court
Sri B M Poovanna vs Sri B M Belliappa on 3 July, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2024:KHC:25001
RSA No. 749 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.749 OF 2018 (PAR)
BETWEEN:
1. SRI B.M. POOVANNA,
AGED ABOUT 30 YEARS,
S/O B.M. MANDANNA,
HOSKERI VILLAGE,
MADIKERI TALUK,
KODAGU DISTRICT-571201.
2. SRI B.M. UTHAPPA,
AGED ABOUT 28 YEARS,
S/O B.M. MANDANNA,
HOSKERI VILLAGE,
MADIKERI TALUK,
KODAGU DISTRICT-571201.
...APPELLANTS
Digitally signed
by DEVIKA M (BY SRI M.M.ASHOKA, ADVOCATE)
Location: HIGH
COURT OF AND:
KARNATAKA
1. SRI B.M.BELLIAPPA,
DEAD BY LRS.
1(a) B.M.ANITHA,
W/O B.M.BELLIAPPA,
AGED ABOUT 68 YEARS,
R/AT HOSKERI VILLAGE,
MADIKERI TALUK,
KODAGU -571201.
1(b) B.B.DAKSHA,
D/O B.M.BELLIAPPA,
W/O PALLIAUDA NAVEEN,
-2-
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RSA No. 749 of 2018
AGED ABOUT 45 YEARS,
R/AT MAGGULA VILLAGE,
BILGUNDA POST,
VIRAJPETE TALUK,
KODAGU-57218.
1(c) B.B.DEVIKA,
D/O B.M.BELLIAPPA,
W/O KALLIUADA NANJAPPA,
AGED ABOUT 41 YEARS,
R/AT KOTHUR VILLAGE,
KOTHUR POST, PONNAMPET,
KODAGU-571216.
2. SRI B.M. MANDANNA,
S/O LATE MACHAIAH,
AGED ABOUT 62 YEARS,
HOSKERI VILLAGE,
MADIKERI TALUK,
KODAGU DISTRICT-571201
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 01.02.2018
PASSED IN R.A.NO.23/2016 ON THE FILE OF THE PRL.
DISTRICT AND SESSIONS JUDGE, KODAGU, MADIKERI,
DISMISSING THE APPEAL AS SANS-MERIT AND CONFIRMING
THE JUDGMENT AND DECREE DATED 1.4.2016 PASSED IN
O.S.NO.1/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE AT
MADIKERI.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission. Heard the learned
counsel for the appellants.
2. This second appeal is filed against the concurrent
finding of the First Appellate Court.
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3. The plaintiffs filed a suit seeking the relief of
partition and separate possession contending that the suit
schedule properties are the joint family properties of the
plaintiffs and defendant No.2 and they are in joint and
constructive possession and enjoyment of the said properties
and hence claimed 2/3rd share in the suit schedule properties.
The defendant No.1 appeared and took the specific contention
that the suit schedule properties are the absolute properties of
defendant No.1 and also took the additional contention that
there was a partition of the properties. The Trial Court framed
the issues with regard to the contentions of the parties and
allowed the parties to lead evidence. The plaintiffs examined
plaintiff No.2 as P.W.1 and got marked the documents at
Exs.P.1 to 16. On the other hand, defendant No.1 examined
himself as D.W.1 and got marked the document at Ex.D.1.
4. The Trial Court having considered the material on
record, dismissed the suit coming to the conclusion that there
are materials before the Court that there was a division between
the parties and partition was taken place and taken note of
Ex.P.13. The Trial Court in paragraph No.15 taken note of
Ex.P.13 is the copy of the sale deed produced by the plaintiffs.
In Ex.P.13, the defendant No.2 has categorically stated that
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there was a partition in the year 1977. However, he has not
stated the nature of partition. As per the recitals of Ex.D.1, on
29.05.1977, earlier partition was reduced into writing. This
partition was between the defendants and their brothers. Under
this partition, both wet lands and bane lands were divided
between the defendants and their brothers. The suit survey
numbers are the wet lands. Exs.P.1, 2 and 6 are the RTC
extracts in respect of suit survey numbers. In these documents,
tenure of the land stated as sagu. In Coorg area, tenure sagu
refers to wet lands and tenure bane refers to dry land and coffee
estate. As per Ex.D.1, defendant No.2 was allotted only 2 acres
in suit survey numbers. However, total extent of suit schedule
properties is measuring 3.45 acres. In earlier part of the
judgment it is observed that though the names of defendant
No.1 and some other persons finds place in the RTC extract, the
plaintiffs are claiming right over the entire extent. The
defendant No.2 had the knowledge of earlier partition as per
Ex.D.1. Because in an undisputed period of time in the year
2003, he has categorically stated that there was a partition in
the year 1977. P.W.1 in his evidence has categorically stated
that still he is in cordial terms with defendant No.2. Further,
P.W.1 in his cross-examination has categorically admitted that
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the defendants and their brothers divided the properties and in
that partition, defendant No.2 was allotted 5 acres. However, as
per Ex.P.13, the defendant No.2 has sold more than 5 acres of
land. Hence, the plaintiffs have suppressed the material facts.
As per the evidence produced by defendant No.1, there was an
oral partition and in that earlier partition, father of defendant
No.2 was allotted only 2 acres of wet land. However, in the
plaint schedule, the plaintiffs are claiming right over 3.45 acres.
It is not the case of the plaintiffs that the suit schedule
properties are the joint family properties of themselves and
defendant Nos.1 and 2. It is their specific case that themselves
and defendant No.2 are the exclusive owners of the suit
schedule properties. Having taken note of the same, the Trial
Court comes to the conclusion that already there was a partition
and the same is brought out during the course of the evidence.
The document in respect of suit schedule properties i.e., wet
lands, shows it is only with regard to sagu land and not proved
that the suit schedule properties are the joint family properties
as contended by the plaintiffs and dismissed the suit.
5. Being aggrieved by the said judgment and decree of
the Trial Court, an appeal is filed in R.A.No.23/2016. The First
Appellate Court considering the grounds urged in the appeal
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memo, formulated the points whether the judgment and decree
of the Trial Court suffers from illegality and perversity and
whether it calls for interference. The First Appellate Court by
considering the documents at Exs.P.1 to 16 comes to the
conclusion that the plaintiffs have failed to establish their case in
proving the case on preponderance of possibility to grant the
relief of partition and separate possession. The First Appellate
Court held that the Trial Court has not committed any error in
coming to such a conclusion and dismissed the appeal.
6. Being aggrieved by the said concurrent finding, the
present second appeal is filed before this Court.
7. The learned counsel for the appellants would
vehemently contend that both the Courts committed an error
and the fact that the property is jamma land is not in dispute
and the property is also assessed. The appellants have absolute
right over the same as joint family properties and both the
Courts have committed an error in not coming to the conclusion
that the property belongs to the family, but erroneously held
that jamma bane land are not amenable for partition and
alienation and the very approach of the Trial Court is erroneous.
The First Appellate Court also committed an error in coming to
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the conclusion that the schedule property is already partitioned
and sold under sale deed, when the rights of the jamma bane
land is limited with the holder and the Government is the
absolute owner and hence it requires interference of this Court
and this Court has to frame substantial questions of law that
both the Courts have committed an error in not accepting the
case of the plaintiffs that the suit schedule properties are the
joint family properties and both the Courts are not justified in
dismissing the suit and confirming the judgment of the Trial
Court.
8. Having heard the learned counsel for the appellants
and also on perusal of the material available on record, the suit
is filed for the relief of partition to the extent of 0.47 acres of
sagu land bearing Sy.No.78/3P1 and also area of 1.80 acres of
sagu land bearing Sy.No.78/4 and an area of 1.1 acres of sagu
land bearing Sy.No.78/2. It is also the claim of the plaintiffs
that the suit schedule properties are the joint family properties
of the plaintiff and defendant No.2 and they are in joint and
constructive possession and in order to prove the factum of the
properties are the joint family properties, nothing is placed on
record, except producing RTC extracts at Exs.P.1, 2 and 6 to 9.
It is emerged during the course of evidence that already there
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was a partition between the defendants and their brothers. The
claim of the plaintiffs in the suit is that both the properties
belong to the plaintiffs and defendant No.2 and they are the
joint family properties. In accordance with the earlier partition
between the family in terms of Ex.D.1, some of the portions of
the properties allotted to the respective parties were sold and
this has been discussed by the Trial Court in paragraph No.15.
The Trial Court also considered the sale deed Ex.P.13 and
Ex.D.1 partition deed and also the extent which the plaintiffs
have sought for the relief of partition in respect of claiming right
over 3.45 acres and the Court also taken note of defendant No.2
was allotted 2 acres of wet land in the earlier partition. In order
to grant the relief of partition, no material is placed on record
that the property belongs to joint family. There was a division
in the family in the year 1977 in terms of Ex.D.1. To that effect,
there was a pleading in 2003 itself. When such materials were
considered by the Trial Court, I do not find any error committed
by the Trial Court in dismissing the suit. The First Appellate
Court also comes to the conclusion by considering the
documents placed on record at Exs.P.1 to 16 and taking note of
the evidence of D.W.1 and Ex.D.1, that the plaintiffs have failed
to establish their case to prove that the properties are joint
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family properties and nothing is made out of preponderance of
probabilities to grant the relief of partition. When both the
Courts have considered both oral and documentary evidence
placed on record, in the absence of any error on the part of both
the Courts, the question of granting the relief of partition does
not arise in the absence of material to show that the properties
are the joint family properties and relied upon only the RTC
extracts and the same is only for cultivation. Hence, I do not
find any ground to admit the appeal and frame substantial
question of law invoking Section 100 of CPC.
9. In view of the discussions made above, I pass the
following:
ORDER
The second appeal is dismissed.
Sd/-
JUDGE
MD
