Karnataka High Court
Sri Nagaraju vs Smt. Gowramma on 6 March, 2024
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RSA No. 2044 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 2044 OF 2012 (PAR)
BETWEEN:
1. SRI NAGARAJU
SINCE DEAD BY LR'S, ARE ON RECORD
2. SMT PUTTATHAYAMMA
W/O SRI. NAGARAJU
AGED ABOUT 62 YEARS
3. SRI RAJESH
S/O SRI. NAGARAJU
AGED ABOUT 29 YEARS
4. SRI RAMESH
S/O SRI. NAGARAJU
AGED ABOUT 27 YEARS
ALL ARE R/O SOMEDYAPANAHALLI
Digitally signed KASABA HOBLI, KANAKAPURA TQ
by R DEEPA
RAMANAGARAM DISTRICT-571511.
Location: HIGH ...APPELLANTS
COURT OF
KARNATAKA (BY SRI. R B SADASHIVAPPA, ADVOCATE
SMT. R. MANJULA, ADVOCATE)
AND:
1. SMT. GOWRAMMA
AGED ABOUT 72 YEARS
W/O LATE SRI KEMPE GOWDA
2. SRI RAMAKRSIHNE GOWDA
SINCE DEAD BY LR'S.
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RSA No. 2044 of 2012
2(a) SMT. NINGAMMA
W/O RAMAKRISHNE GOWDA
AGED ABOUT 51 YEARS
2(b) SRI SURESH
S/O LATE RAMAKRISHNE GOWDA
AGED ABOUT 29 YEARS
2(c) SRI JAYASWAMY
S/O LATE RAMAKRISHNE GOWDA
AGED ABOUT 27 YEARS.
3. SMT. DEVAMMA
SINCE DECEASED BY HER LR
SRI KEMPE GOWDA
S/O SRI SIDDE GOWDA
AGED ABOUT 47 YEARS
4. SMT CHIKKAMMA
D/O LATE SRI HOMBALE GOWDA
AGED ABOUT 69 YEARS
ALL ARE R/O SOMEDYAPANAHALLI
KASABA HOBLI, KANAKAPURA TQ
RAMANAGARAM DISTRICT-57151.
...RESPONDENTS
(BY SRI. KIRAN V RON, ADVOCATE FOR R2(a-c)
SRI. H.B. BASAVARAJ, ADVOCATE R1, R3 & R4)
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGEMENT & DECREE DTD 1.8.2012 ASSED IN
R.A.NO.88/2008 ON THE FILE OF PRESIDING OFFICER, FAST
TRACK COURT, KANAKAPURA, RAMANAGARA DISTRICT,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT
AND DECREE DTD 20.09.2008 PASSED IN OS.NO.175/2005 ON
THE FILE OF PRINCIPAL CIVIL JUDGE (SR.DN.), RAMANAGARA.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 2044 of 2012
JUDGMENT
This second appeal is filed by the appellants
challenging the judgment and decree dated 01.08.2012,
passed in R.A.No.88/2008 by the Presiding Officer, Fast
Track Court, Kanakapura, Ramanagara District, confirming
the judgment and decree dated 20.09.2008 passed in
O.S.No.175/2005 by the Principal Civil Judge (Sr. Dn.),
Ramanagara.
2. For the sake of convenience, parties are referred
to as per their ranking before the trial Court. The
appellants are defendant Nos.1 to 4, respondent Nos.1
and 2 are plaintiff No.1 and 2 and respondent Nos.3 and 4
are defendant Nos.5 and 6. The plaintiffs filed a suit for
partition and separate possession against the defendants
in respect of the suit schedule properties.
3. The brief facts leading rise to filing of this appeal
are as under:
It is the case of the plaintiffs that, one
Hombalegowda was the propositus and his wife Smt.
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Kalamma had four children by name Kempegowda,
Nagaraju-1st defendant, Devamma-5th defendant and
Chikkamma-6th defendant. Plaintiff No.1 is the wife and
plaintiff No.2 is the son of Kempegowda, who is no more.
He died leaving behind the plaintiffs as his legal heirs. It is
contended that, during the lifetime of Kempegowda-
husband of 1st plaintiff and father of 2nd plaintiff, filed an
application for determination of occupancy right in respect
of 'A' and 'B' schedule properties as they were the tenants
in cultivation of the lands under one K.Doreswamy Iyangar
and others. The plaintiffs and the defendants are the
members of Hindu undivided family and the suit schedule
properties are the joint family properties of the plaintiffs
and the defendants and no partition is effected between
the plaintiffs and the defendants. It is contended that after
his demise, his mother Kalamma, the plaintiffs and
defendant No.1 have filed L.R. application and they were
brought on record. Defendant No.1 without their consent
and notice, has filed Form No.7 before the Land Tribunal,
Kanakapura for confirmation of occupancy right in his
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name alone. As per order, it appears that he has been
registered as a tenant and issued Form No.10 in favour of
defendant No.1 on 24.04.1982. The said suit schedule
properties are the joint family properties of the plaintiffs
and the defendants. The plaintiffs demanded for partition
and separate possession, but defendant No.1 denied to
effect a partition. Hence, cause of action arose for the
plaintiffs to file a suit for partition and separate
possession.
4. Defendant No.1 filed written statement denying
that the suit schedule properties are the joint family
properties of the plaintiffs and the defendants and also
that they are the members of the joint family. It is
contended that defendant No.1 is in possession of the suit
schedule properties as a tenant. He has submitted Form
No.7 before the Land Tribunal. The Land Tribunal passed
an order confirming the occupancy right in respect of suit
item Nos.1 and 2 vide order dated 01.01.1982 and Form
No.10 was issued on 24.04.1982. On the basis of the
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order passed by the Land Tribunal, defendant No.1
became the absolute owner of the suit schedule properties
and enjoying the suit schedule properties. Further, it is
contended that he has got every right to dispose of the
properties and bequeathed the properties in favour of
defendant Nos.2 and 4 under a registered gift deed. The
plaintiffs have no right to question the gift deed executed
by defendant No.1 in favour of defendant Nos.2 and 4 and
prayed to dismiss the suit.
5. The Trial Court, on the basis of the above said
pleadings, framed the following issues:
1) Do the plaintiffs prove that the suit
properties are the joint family properties
as alleged?
2) DO the defendants-1 to 4 prove the
partition between the 1st defendant and
the first plaintiffs husband as alleged?
3) Do the plaintiffs prove their share in the
suit properties as alleged?
4) Whether the plaintiffs are entitled for the
relief of partition and separate possession
as prayed?
5) What Order or Decree?
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6. The plaintiffs in order to substantiate their case,
plaintiff No.2 was examined as PW.1 and examined two
witnesses as PW.2 and PW.3 and got marked 19
documents as Exs.P1 to P19. In rebuttal, defendant No.1
was examined as DW.1 and got marked 31 documents as
Exs.D1 to D31. The trial Court after assessing oral and
documentary evidence of the parties, answered issue
Nos.1 to 4 in the negative, issue No.5 as per final order.
The suit of the plaintiffs was decreed in part with no costs.
It is ordered and decreed that the plaintiffs are entitled for
partition and separate possession of 1/4th share in the suit
properties by metes and bounds. The partition be effected
under Section 54 of C.P.C. (Karnataka amendment).
7. The defendants aggrieved by the judgment and
preliminary decree passed in the above said suit, filed an
appeal in R.A.No.88/2008 before the Presiding officer, Fast
Track Court , Kanakapura. The First Appellate Court, after
hearing the parties, has framed the following points for
consideration:
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1) Whether appellants have made out grounds
to permit them to produce the additional
evidence?
2) Whether the trial Court is justified in partly
decreeing the suit?
3) Whether the judgment and decree of the
trial Court is required to be interfered with
in this appeal?
8. The First Appellate Court, on re-assessing the oral
and documentary evidence, answered point Nos.1 and 3 in
the negative, point No.2 in the affirmative and
consequently, dismissed the appeal filed by the defendants
and also dismissed the application for production of
additional evidence. The defendants No.1 to 4 aggrieved
by the judgments and decrees passed by the courts below,
have filed this second appeal.
9. This court admitted the appeal on 24.11.2016 the
following substantial question of law :
"Whether the courts below were justified in
holding that there is existence of joint family
and occupancy right granted by the land
Tribunal in favour of the first defendant would
enure to the benefit of the members of the joint
family and decreeing the suit for partition and
separate possession and holding that plaintiffs
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are entitled to 1/4th share each in the suit
schedule property?"
10. Heard learned counsel for the defendant Nos.1
to 4/appellants and also the learned counsel for the
plaintiffs.
11. Learned counsel for the defendants No.1 to 4/
appellants submits that defendant No.1 was in possession
of the suit schedule properties as a tenant and he had filed
Form No.7 before the Land Tribunal and occupancy right
was granted in favour of defendant No.1 in his individual
capacity and not to enure the benefit of the members. He
submits that defendant No.1 had produced form No.7,
which discloses that defendant No.1 has submitted form
No.7 in his individual capacity and not to enure the benefit
of the family. He submits that the occupancy right was
granted in favour of defendant No.1 in respect of suit
schedule 'A' and 'B' properties. Defendant No.1 is the
absolute owner of the suit schedule properties. He further
submits that though the defendants have produced the
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additional evidence before the First Appellate Court, the
First Appellate Court has not considered the proposed
additional evidence. Hence, he submits that the First
Appellate Court has committed an error in dismissing the
application for production of additional evidence. He also
submits that Kempegowda is the brother and he does not
fall within the definition of Family as per Section 2(12) of
the Karnataka Land Reforms Act, 1964. Hence, he submits
that the courts below have committed an error in passing
the impugned judgments and prays to allow the appeal.
12. Learned counsel for the plaintiffs submits that
the plaintiffs and the defendants are the members of
Hindu undivided family and he submits that Kempegowda
submitted form No.7 before the Land Tribunal. During the
pendency of the proceedings, Kempegowda died leaving
behind the plaintiffs and the defendants as his legal heirs.
He submits that defendant No.1 himself has filed an
application along with the plaintiffs to come on record as
legal representatives of deceased Kempegowda and in the
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said application, he has stated that they have succeeded
to the estate of deceased Kempegowda and they are
entitled to be brought on record as legal heirs in the above
case and continue the proceedings. He submits that in
view of application filed by defendant No.1 before the
Deputy Commissioner for inam abolition, defendant No.1
himself has admitted that the suit schedule properties
were in possession of Kempegowda during his lifetime.
After his death, without the consent of the plaintiffs,
submitted form No.7 before the Land Tribunal. He submits
that the occupancy right was granted in favour of
defendant No.1 to enure the benefit of joint family. He
submitted that PW.2 and PW.3 have deposed in the
examination-in-chief that Hombalegowda and
Kempegowda were in possession of the suit schedule
properties as the tenants. The said fact has not been
denied in the course of cross-examination. He also submits
that the defendants themselves have suggested to PW.1 in
the course of cross-examination that Kempegowda was in
possession of the suit schedule properties. He submits that
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from the evidence of PW.2 and PW.3 and suggestion made
to PW.1, the defendants admitted that the suit schedule
properties were in possession of Kempegowda and such
suit schedule properties are the joint family properties and
no partition is effected. Hence, he submits that both the
courts below were justified in passing the impugned
judgments and prays to dismiss the appeal.
13. Perused the records and considered the
submissions of learned counsel for the parties.
14. SUBSTANTIAL QUESTIONS OF LAW: It is the
case of the plaintiffs that Kempegowda was in possession
of the suit schedule properties as a tenant. He submitted
an application before the Deputy Commissioner for inam
abolition. During the pendency of the said proceedings,
Kempegowda died. Defendant No.1 submitted an
application seeking permission to come on record along
with plaintiffs as the legal representatives of deceased
Kempegowda. In the said application, he has stated that
the plaintiffs and defendant No.1 have succeeded to the
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estate of deceased petitioner therein and therefore, they
are entitled to come on record. Further, the plaintiffs in
order to prove that the suit schedule properties are the
joint family properties of the plaintiffs as well as the
defendants, plaintiff No.2 was examined as PW.1 and he
has reiterated the plaint averments in the examination-in-
chief and also produced the documents i.e., Ex.P1 is the
genealogical tree, Ex.P2 is the certified copy of order sheet
in case No.13/1959-60, wherein Kempegowda has
submitted an application before the Special Deputy
Commissioner for inam abolition and the case was
registered as case No.13/1959-60, Ex.P3 is the statement
of Doreswamy i.e., the landlord, who has deposed that
Kempegowda is in possession of the suit schedule
properties, Ex.P4 is the deposition of Kempegowda, who
has deposed that he is in possession of the suit schedule
properties as a tenant, Ex.P5 is the application filed under
Order 22 Rules 3 and 4 of C.P.C., by defendant No.1 filed
before the Special Deputy Commissioner for Inam
Abolition Act. The said application was filed alleging that
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Kempegowda died leaving behind defendant No.1 and
Gowramma i.e., plaintiff No.1 and mother of Kempegowda
as his legal heirs and they have succeeded to the estate of
deceased Kempegowda, Ex.P6 is the copy of application
filed for setting aside abatement and the said application
was filed by defendant No.1 and the said application is
enclosed with an affidavit of defendant No.1, Ex.P7 is the
certified copy of the vakalath filed by defendant No.1,
Gowramma and Kalamma, Ex.P8 is the copy of an
application submitted by Kempegowda on 04.09.1958 for
grant of occupancy right in respect of land bearing
Sy.No.57 measuring 6 acres 16 guntas and Sy.No.60,
Ex.P9 is the copy of order which discloses that the
application submitted by Kempegowda came to be
rejected vide order dated 01.01.1962, Ex.P10 is the form
No.10 issued by Special Tahsildar stands in the name of
defendant No.1, Ex.P11 is the certified copy of the gift
deed executed by defendant No.1 in favour of defendant
Nos.2 and 4, Exs.P12 to P17 are the RTC extracts, Ex.P18
is the demand register extract and Ex.19 is the mutation
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register extract. PW.1 has clearly stated that the suit
schedule properties are the joint family properties of the
plaintiffs and the defendants. The defendants in the course
of cross-examination suggested to PW.1 that Kempegowda
and Hombalegowda were cultivating the land as a tenants.
The said suggestion was denied by PW.1. Further, in order
to prove that the suit schedule properties are the joint
family properties of the plaintiffs and the defendants, the
plaintiffs also examined one Puttaswamaiah as PW.2. He
has deposed that he knows the plaintiffs and the
defendants and they constitute Hindu undivided family
members and jointly in possession of the suit schedule
properties and the suit schedule properties are the joint
family properties. It is contended that Hombalegowda
during his lifetime was managing the suit schedule
properties as kartha i.e., agricultural land measuring 2
acres in Sy.No.57/1 and 4 acres in Sy.No.60 was earlier
belongs to the jagirdar by name Doreswamy Iyangar. The
said Hombalegowda was cultivating the above said land.
After the death of Hombalegowda, his elder son i.e.,
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Kempegowda who is the husband of plaintiff No.1 and
father of plaintiff No.2 came in possession of the suit
schedule properties and he became the manager of joint
family of the plaintiffs and the defendants and
Kempegowda died about 45 years. PW.2 has clearly stated
that Hombalegowda was managing the suit schedule
properties and after his death, Kempegowda came in
possession of the properties and he became the manager
of joint family of the plaintiffs and defendant No.1. The
said fact has not been denied in the course of cross-
examination. Further, PW.3 has also deposed in the same
terms of PW.2. Even in the course of cross-examination, it
is not suggested to either PW.2 or PW.3 that neither
Hombalegowda nor Kempegowda were in possession of
the suit schedule properties as a tenant. In the cross-
examination of these witnesses, the case of the plaintiffs
stands established. It is well known that when a fact
stated in the chief-examination is not disputed in the
cross-examination, it should be deemed to be admitted.
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15. Further, in rebuttal, defendant No.1 was
examined himself as DW.1 and he has reiterated the
written statement averments and he has contended that
he was in possession of the suit schedule properties as a
tenant and he has submitted form No.7 before the Land
Tribunal. The Land Tribunal after holding an enquiry,
granted occupancy right in favour of defendant No.1 and
defendant No.1 being an absolute owner has right to
bequeath the properties. He has deposed that defendant
No.1 has executed a gift deed in favour of defendant Nos.2
and 4 in respect of 'A' and 'B' schedule properties and in
order to substantiate his defence, he has produced the
documents i.e., Ex.D1 is the saguvali chit, which discloses
that the said occupancy right was granted in favour of
defendant No.1, Exs.D2 to D7 are the RTC extracts,
Exs.D8 to D10 are the endorsement, Ex.D11 is the copy of
'D' register, Ex.D12 is the certified copy of the gift deed,
wherein defendant No.1 executed a gift deed in favour of
defendant Nos.2 and 4 in respect of schedule 'A' and 'B'
properties, Ex.D13 is the order passed by the Tahsildar,
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Ex.D14 is the mutation register extract, Ex.D15 is the
Hiduvali certificate, Exs.D16 to D30 are the tax paid
receipts and Ex.D31 is the genealogical tree. During the
course of cross-examination, DW.1 has clearly admitted
that "it is true to suggest that after demise of my father,
brother Kempegowda had submitted an application to the
Special Tahsildar for inam abolition of land in respect of
suit land." The said admission itself is sufficient to hold
that Hombalegowda and Kempegowda were in possession
of the suit schedule properties since from 1959, wherein
Kempegowda has submitted an application as per Ex.D8.
Thus, from the records produced by the plaintiffs as well
as admission of DW.1, in the course of cross-examination,
it is clear that the suit schedule properties are the joint
family properties of the plaintiffs and the defendants and
the Land Tribunal granted the occupancy right to enure
the benefit of the joint family and not in the individual
capacity. Thus, courts below considering the documents
produced by the plaintiffs as well as the defendants and
also not denying the contents of examination-in-chief of
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PW.2 and PW.3, have rightly held that the suit schedule
properties are the joint family properties of the plaintiffs
and the defendants and rightly awarded 1/4th share to the
plaintiffs. The First Appellate Court on re-appreciation of
material evidence on record was justified in dismissing the
appeal filed by the defendants. In view of the above
discussion, I answer substantial question of law in the
negative.
16. In view of the aforesaid facts and circumstances,
I proceed to pass the following:
ORDER
The appeal is dismissed.
The judgment and decrees passed by the
Courts below are hereby confirmed.
No order as to the costs.
Sd/-
JUDGE
SSB
