Karnataka High Court
Jagannath S/O Bhojappa vs Pandappa S/O Bhojappa on 26 June, 2024
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RSA No. 200268 of 2021
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 26TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE Mrs JUSTICE K S HEMALEKHA
REGULAR SECOND APPEAL NO.200268 OF 2021 (DEC)
BETWEEN:
JAGANNATH S/O BHOJAPPA
AGE: 57 YEARS, OCC: BUSINESS IN HOTEL,
R/O. VILLAGE NIDWANCHA,
TQ. AND DIST. BIDAR.
...APPELLANT
(BY SRI SANJEEVKUMAR C. PATIL, ADVOCATE)
AND:
PANDAPPA S/O BHOJAPPA
AGE: 62 YEARS, OCC: BUSINESS IN HOTEL,
Digitally signed
by SWETA R/O. VILLAGE NIDWANCHA,
KULKARNI TQ. AND DIST. BIDAR-584101.
Location: High
Court of
Karnataka ...RESPONDENT
(BY SRI SANTOSH BIRADAR, ADVOCATE)
THIS RSA IS FILED U/S. 100 OF CPC, PRAYING TO CALL
FOR THE RECORDS AND SET ASIDE THE JUDGMENT AND
DECREE DATED 08.10.2020 PASSED BY THE PRL. SENIOR
CIVIL JUDGE AND CJM, BIDAR, IN R.A. NO.18/2019 AND
JUDGMENT AND DECREE DATED 10.04.2019, PASSED BY THE
PRL. CIVIL JUDGE AND JMFC-II BIDAR, IN O.S. NO.183/2014,
AND DECREE THE SUIT OF THE PLAINTIFF BY ALLOWING THIS
APPEAL.
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RSA No. 200268 of 2021
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The plaintiff is before this Court in this second
appeal. Suit of the plaintiff for declaration and ownership
over the suit schedule property which is a suit shop plot
bearing G.P.No.1-81 situated at Nidwancha village, Taluk
Bidar to the extent of half and another house bearing
G.P.No.667 constructed on plot measuring 30 x 51 feet to
the extent of half share towards western side measuring
30 x 26 feet and for perpetual injunction restraining
defendant from interfering and obstructing the plaintiff's
half lawful possession.
2. The suit is based on the partition said to have
been effected by a memorandum of partition dated
20.02.1997 between the plaintiff and the defendant. The
case of the plaintiff is that the residential house G.P.No.1-
81 is the joint family property of the plaintiff and
defendant and the plaintiff is entitled for half share.
Further the contention of the plaintiff is that the plaintiff
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and defendant were doing hotel business and out of their
joint family funds and with the income from the hotel
business the plaintiff and defendant have purchased the
open plot measuring 30 x 51 feet in Sy.No.247 under the
registered sale deed dated 12.02.1992 in the name of the
present defendant nominally. The case of the plaintiff is
that when the plaintiff approached the defendant to effect
partition in respect of the suit properties, the same was
denied. It is the case of the plaintiff that by the
intervention of the elders and the respectful persons, the
suit properties were partitioned orally and was reduced
into writing on 20.02.1997 and in the said partition the
landed property has been allotted and given to the father
Bhojappa for his maintenance and also decided and settled
that if the father resided with any of the son then another
son should pay Rs.1500/- per year to the father for his
maintenance as additional amount. It is stated that in the
said family partition that half portion of the house bearing
G.P.No.1-81 towards the south and half portion in the
house bearing G.P.No.667 located in land Sy.No.247 out of
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the total measuring 30 x 51 feet towards western side
measuring 30 x 26 feet was allotted exclusively to the
share of the plaintiff and accordingly, he is put in actual
physical possession of the suit properties allotted in the
partition effected on 20.02.1997. The plaintiff contends
that he is the absolute owner and possessor of the suit
properties as per the partition effected on 20.02.1997,
however, the name of the plaintiff could not be entered in
the revenue records in respect of the suit properties.
Further, it is stated that the defendant had given no
objection for mutating his name in the revenue records to
G.P.No.1-81 but however objected for the entry of his
name in G.P.No.667 measuring 30 x 26 feet of his half
share in light of the partition dated 20.02.1997 and hence
the plaintiff was constrained to file a suit for declaration
that he is the absolute owner in possession of the suit
properties.
3. On notice, the defendant appeared and filed his
written statement inter alia contending that deceased
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Bhojappa father of the defendant was living with one
Paramma alias Parvathi and the plaintiff is born to said
Paramma. It is contended that defendant is born to
Bhojappa from his legally wedded wife one Rajamma and
he has one sister by name Girijamma. It is the specific
case of the defendant that suit residential house G.P.No.1-
81 stands in the name of Bhojappa and it is the joint
family ancestral property. The specific contention of the
defendant is that the suit open space item No.2 measuring
30 x 51 feet in land Sy.No.247 which is purchased by the
defendant under a registered sale deed dated 12.02.1992
out of the income of the hotel business which he was
running and it is his exclusive property. It is the specific
case of the defendant that the plaintiff was a student and
he had no source of income for him to contribute to the
purchase of open plot measuring 30 x 51 feet. The
defendant contended that the suit item No.2 is the
exclusive property of the defendant and the plaintiff has
no right to claim any share even on the basis of the
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alleged partition deed dated 20.02.1997 which is nothing
but a created, forged and fabricated document.
4. The Trial Court, on the basis of the pleadings,
framed the following issues:
"ISSUES
1. Whether the plaintiff proves that, he is the absolute
owner in lawful possession and enjoyment and
enjoyment of the suit properties to the half extent
as alleged by him?
2. Whether the plaintiff further proves the alleged
interference by the defendant?
3. Whether the plaintiff is entitled for the relief
claimed?
4. What order or decree?"
5. The Trial Court, on the basis of the pleadings,
oral and documentary evidence, arrived at a conclusion
that the plaintiff has failed to prove that he is the absolute
owner in lawful possession and enjoyment of the suit
properties to the extent of half share as alleged by him
and by the judgment and decree dismissed the suit of the
plaintiff. In the appeal preferred by the plaintiff before the
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first appellate Court, the first appellate Court on re-
appreciating the entire oral and documentary evidence,
arrived at a conclusion that the plaintiff is entitled for
declaration that he is the owner and possessor of the suit
half portion in G.P.No.1-81 of Nidwancha village, Taluk
and District Bidar and defendant is perpetually restrained
from interfering with the peaceful possession of the
plaintiff over this property. The claim over the suit land
G.P.No.667 i.e., item no.2 was dismissed. Aggrieved, the
plaintiff is before this Court.
6. Heard Sri Sanjeevkumar C. Patil, learned
counsel appearing for the appellant and Sri Santosh
Biradar, learned counsel appearing for the respondent and
perused the material on record.
7. The undisputed fact is that item No.1 of the suit
properties G.P.No.1-81 is the joint family property of the
plaintiff and defendant. Item No.2 the landed property
G.P.No.667 according to the plaintiff is the joint family
property and purchased out of the hotel business which
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the plaintiff and defendant were running. The undisputed
fact is that item No.2 bearing G.P.No.667 is purchased in
the name of the defendant in the year 1992 under a
registered sale deed. Defendant No.2 specifically
contended that he was running hotel business and out of
the said business he has purchased suit land G.P.No.667.
The burden is on the plaintiff to prove that item No.2
G.P.No.667 is the joint ancestral property of the plaintiff
and defendant. In order to substantiate that it is the joint
family property, other than a mere assertion that plaintiff
and defendant together have purchased the property, no
material is forthcoming. On the other hand, the registered
sale deed stands in the name of defendant and mutation
entries have been effected to indicate the name of the
defendant in the revenue records. The burden which was
on the plaintiff to prove that he has contributed to the
purchase of the property, no materials are forthcoming
that it belongs to the family of the plaintiff and defendant.
On the other hand, the defendant produced Exs.D3 to D45
to indicate that he has purchased the property and he has
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been in possession over the suit property to the entire
extent. Ex.P-5 which is placed reliance by the plaintiff to
contend that there was a partition and division of the
property based on which the plaintiff is seeking for
declaration, Ex.P-5 is not acted upon by the parties. In
the said circumstances, the first appellate Court has rightly
held that the plaintiff is entitled for share in house
G.P.No.1-81 which is the ancestral property of the plaintiff
and defendant. The claim of his right to the extent of half
share by way of declaration was failed to be established by
the plaintiff in item No.2 of the suit schedule property. In
the said circumstances, the manner in which the first
appellate Court has considered the entire oral and
documentary evidence, this Court is of the considered view
that the same does not warrant any interference under
Section 100 CPC. No substantial question of law arises for
consideration. Accordingly, this Court pass the following:
ORDER
(I) The Regular Second Appeal is hereby
dismissed.
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(II) The judgment and decree of the first
appellate Court stands confirmed.
Sd/-
JUDGE
SWK
CT: VD
