Karnataka High Court
Sangappa S/O Mallappa Kalligudda vs Hanamagouda S/O Banginagouda Patil on 11 November, 2024
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RFA No. 100359 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 11TH DAY OF NOVEMBER, 2024
PRESENT
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR. JUSTICE T. G. SHIVASHANKARE GOWDA
REGULAR FIRST APPEAL NO. 100359 OF 2018 (PAR/POS)
BETWEEN:
1. SANGAPPA
S/O. MALLAPPA KALLIGUDDA
AGE: 51 YEARS,
OCC: AGRICULTURE,
R/O: ADIHAL, TQ: HUNGUND,
DIST: BAGALKOT-587313.
2. MALLAVVA RAYAPPA NAGABUSI
SINCE DECEASED BY HER LRS.,
2A) SRI. RAYAPPA
S/O. BHEEMAPPA NAGABHUSHI,
AGE: 71 YEARS,
Digitally signed by
CHANDRASHEKAR
LAXMAN KATTIMANI OCC: AGRICULTURE,
Location: HIGH
COURT OF
KARNATAKA
Date: 2024.11.26
15:32:15 +0530
2B) SMT. ERAMMA W/O. PARUSHURAM,
AGE: 37 YEARS,
OCC: HOUSEHOLD WORK,
2C) SMT. BHARATI W/O. NAGARABETTA,
AGE: 34 YEARS,
OCC: HOUSEHOLD WORK,
2D) SRI. AMARESH S/O. RAYAPPA NAGABUSHI,
AGE: 38 YEARS,
OCC: HOUSEHOLD WORK,
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RFA No. 100359 of 2018
ALL ARE R/O: NALATWAD,
KHANABAVI STREET,
DIST : VIJAYAPUR-586124.
...APPELLANTS
(BY SRI. S.B. HEBBALLI, ADVOCATE)
AND:
1. HANAMAGOUDA S/O. BANGINAGOUDA PATIL
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O: CHITAGINAKOPPA, TQ: BAGALKOT,
DIST: BAGALKOT, PIN: 587101.
2. KARIYAPPA S/O. HOLIYAPPA NAGABUSI,
AGE: 61 YEARS, OCC: AGRICULTURE,
R/O: NALATAWAD, TQ: MUDDEBIHAL,
DIST: VIJAYAPURA-589124.
...RESPONDENTS
(BY SRI PRAKSH N. HOSAMANE, ADVOCATE FOR R1;
SRI VIJAYKUMAR B.HORATTI, ADVOCATE FOR R2)
THIS RFA IS FILED UNDER SEC. 96 OF C.P.C., 1908, AGAINST
THE JUDGMENT AND DECREE DATED 25.07.2018 PASSED IN
O.S.NO.42/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE,
HUNGUND, PARTLY DECREEING THE SUIT FILED FOR PARTITION
AND SEPARATE POSSESSION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR. JUSTICE T. G. SHIVASHANKARE GOWDA
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RFA No. 100359 of 2018
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE T. G. SHIVASHANKARE GOWDA)
In this appeal, the defendants No.1 and 2 have
challenged the judgment dated 25.07.2018 passed in
O.S.No.42/2016 by the Senior Civil Judge, Hungund (for
short, 'Trial Court') decreeing the suit of the plaintiff for
partition and separate possession.
2. The parties will be referred to as per their
status before the Trial Court for the sake of convenience.
3. Briefly stated, the plaintiff's case is that, one
Mallappa is the propositus, he had two wives by name
Mallavva and Siddavva. Mallavva had a daughter by name
Dyamavva who died leaving behind the plaintiff. Siddavva
had two children by name Sangappa and Mallavva who are
defendants No.1 and 2. The plaint schedule 'B' properties
are the ancestral properties of propositus and he died
intestate. After his death, his children succeeded to the
said property. The defendant No.3 is no way connected to
the family of the propositus, but in order to siphon to the
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share of the plaintiff in the suit properties, he colluded
with defendant No.1 and mutated his name in the revenue
record. As the 'B' schedule property was going to be
acquired by the Government, the intention of the
defendant No.1 was to swallow the entire compensation.
The plaintiffs demanded defendant No.1 to effect partition
and allot their legitimate share, since it was refused, the
plaintiffs filed the instant suit.
4. The defendant No.1 filed the written statement
and same was adopted by the defendant No.2 whereas
defendant No.3 did not file his written statement. The
defence is total denial. It is contended that Item No.1 to 3
of the 'B' schedule properties were acquired and
compensation was awarded whereas Item No.4, 5 and 7
were granted in favour of the defendant No.1 and there is
no joint family in existence and sought for dismissal of the
suit.
5. Trial Court has framed the following issues:
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i. Whether the plaintiff proves that the suit
schedule properties are ancestral
properties of himself and defendant No.1
and 2?
ii. Whether the plaintiff is entitled to the relief
sought for?
iii. What order or decree?
6. On behalf of the plaintiffs, the 1st plaintiff and
two witnesses were examined as PWs.1 to 3 and
documents Exs.P1 to P20 were marked. On behalf of
defendants, the 1st defendant and one witness were
examined as DWs1 and 2 and Exs.D1 to D8 were marked.
7. After hearing both the parties, the Trial Court
recorded Issue Nos.1 and 2 partly in affirmative and while
answering Issue No.3 decreed the suit in part granting
1/6th share in Item No.4 to 7 of 'B' schedule properties to
the plaintiff so also to the defendant No.1 and 2 and
dismissed the suit in respect of Item No.1 to 3 of the 'B'
schedule properties. Aggrieved by the same, defendants
No.1 and 2 are before this Court on various grounds.
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8. During pendency of the appeal, the defendant
No.2 who is the appellant No.2 died and his legal
representatives were brought on record.
9. Heard arguments of Sri S.B.Hebballi, learned
counsel for the appellants/defendants No.1 and 2, Sri
Prakash N.Hosamane, learned counsel for respondent No.1
and Sri Vijaykumar B.Horatti, learned counsel for
respondent No.2.
10. Sri S.B.Hebballi has argued that as on
01.03.1974, Dyamavva-the daughter of Mallappa was not
cultivating the suit properties. Siddavva and Sangappa
were cultivating the lands. No right vests with Dyamavva
on the suit schedule properties. Sangappa filed the Form
No.7 before Land Tribunal and land was granted in his
name. Only on the ground that the defendants did not
produce the Form No.10, the Trial Court has held the
issues against the defendants. Item No.4, 5 and 7 of the
suit schedule properties are exclusive properties of the
defendants No.1 and 2. Entire case was decided on
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mutation and even if the evidence is accepted holding the
entire properties belonging to the joint family, share needs
to be recalculated. Mutation effected on 03.08.1972 was
as Varsa, Sy.No.29/3 was not included in it. The Trial
Court has committed error in holding that the said
property is also joint family without any basis.
11. The appellants have filed I.A.No.3/2018 under
Order 41 Rule 27 of C.P.C. for production of order sheet of
the Land Tribunal. Learned counsel for the respondent
No.1 has no objection for perusal of the order sheet of the
Land Tribunal. But his contention is that after the death of
Mallappa, Siddavva performed the marriage of Dyamavva
as her guardian. Joint entry is made in the revenue
records in the name of Dyamavva and defendants No.1
and 2. It is not disputed that the suit properties are the
properties belonging to Mallappa, but Dyamavva has a
share in the said properties. Even if the notional partition
is applied there are five sharers including Mallappa. Since
Mallappa is no more, his share has to be divided among
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the remaining children. Then each of the members will get
1/4th share whereas the Trial Court has granted only 1/6th
share which needs modification. Since the Item No.1 to 3
have already submerged to the Almatti Dam and
compensation was received by the defendant No.1,
plaintiff is not pressing their claim over the said properties.
12. We have given our anxious consideration to the
arguments addressed by the learned counsel on both the
sides and perused the material available on record.
13. The points that arise for our consideration are
as under:
i. Whether the plaintiff has any right over
the suit schedule properties?
ii. Whether the apportionment of share by
the Trial Court is proper?
Regarding Point No.(i):-
14. We have carefully perused the pleadings as
well as the evidence of both the parties. Since the plaintiff
is not claiming any right over the Item No.1 to 3 of the
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suit schedule properties as it was submerged to the
Almatti Dam and compensation was already paid to the
defendant No.1, now we are constrained to deal with the
Item No.4 to 7 of the suit schedule properties.
guntas, R.S.No.7 measuring 6 acre 38 guntas,
R.S.No.33/1 measuring 14 guntas of Adihal village,
originally belonged to Basappa who died leaving behind his
son Mallappa the propositus. Mallappa had two wives by
name 1st wife Mallavva and 2nd wife Siddavva. Dyamavva
is the sole daughter of the Mallappa through his 1st wife.
Plaintiff-Hanumagouda is the son of the Dyamavva.
Whereas the defendants No.1 and 2 are the son and
daughters of Siddavva. These properties being the
ancestral properties, plaintiff and defendants No.1 and 2
are entitled to claim share in the said properties, which the
Trial Court has rightly recorded in its finding.
16. The issue is only with respect to the land in
Sy.No.29/3 to an extent of 6 acres which is claimed by the
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defendant No.1 that it was granted to him and it is his
exclusive property. His evidence point out that in the year
1980, the land was granted to him and therefore it is his
self-acquired property. The plaintiff claims that in respect
of the said land the name of Basappa came to be mutated
in the revenue records and for this reason Form No.7 was
filed by defendant No.1 and accordingly grant was made
on behalf of the family. Before the Trial Court though
evidence is placed, the manner of grant before the Land
Tribunal was not placed.
17. Now I.A.No.3/2018 is filed along with order
sheet of the Land Tribunal. The plaintiff has no objection
to consider the said document. On careful perusal of the
order sheet, it is pertinent to note that before the Land
Tribunal, Hungund in case No.KLR-2-SR-4921, one
Sangappa Mallappa Kalligudda is shown as the applicant
who is none other than the 1st defendant. One Mallavva
Mallappa Kalligudda and Dyamavva Mallappa Kalligudda is
shown as respondents. This Mallavva and Dyamavva are
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none other than the mother of the plaintiff and the
defendant No.2. Being minors they have been represented
by Siddavva, the mother of the defendant No.1. The
proceedings before the Land Tribunal point out that when
the Form No.7 was filed, defendant No.1 was minor and he
was represented by one Kariyappa Holiyappa Nagabusi
and not by his natural mother Siddavva.
18. The proceedings before the Land Tribunal
clearly point out that owner of the property was
Uttaradhimath, and the tenancy right was claimed through
the ancestors. And for this reason tenancy was confirmed
in favour of defendant No.1. This goes to show that when
the proceeding was pending before the Land Tribunal,
there was a specific claim to the property belonging to
Uttaradimath by the ancestors of the plaintiff and the
defendants. The plaintiff and the defendants were minors
and they were represented by their guardian before the
Land Tribunal. For the reason the property was being
cultivated by their ancestors land was granted in the name
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of the defendant No.1. This demonstrates the grant
enured benefit of the family. It is pertinent to note that
Dyamavva was the daughter of the 1st wife of Mallappa
and the defendants No.1 and 2 are the children of 2nd wife
Siddavva. They are having a share in the granted property
in the name of the defendant No.1. Accordingly point
No.(i) is answered.
Regarding Point No.(ii):-
19. The plaintiff has sought 1/3rd share in the suit
properties. On careful perusal of the impugned judgment,
the Trial Court has awarded 1/6th share. The allotment of
share has to be made by applying the notional partition as
there are five sharers to the property such as Mallappa,
Dyamavva, Siddavva, Sangappa and Mallavva. Each will
get equal share i.e. 1/5th. As Mallappa is no more, his
share has to be divided among his surviving wife and
children. 1/5th share of Mallappa, if divided among these
four members it comes to 1/20th share. Then each
surviving members of the family is entitled to 1/5th +
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1/20th = 1/4th share. This aspect is lost sight of by the
Trial Court, which needs rectification. Accordingly we
answer Point No.(ii).
20. In view of our discussion on Points No.(i) and
(ii), allowing modification in the extent of shares that the
parties are entitled to as discussed supra, appeal is devoid
of merits in other aspects. In the result, the following:
ORDER
Appeal is allowed in part;
Impugned judgment and decree in allotting
1/7th share each to the plaintiff No.2 and
defendants is hereby modified as supra.
Sd/-
(SREENIVAS HARISH KUMAR)
JUDGE
Sd/-
(T. G. SHIVASHANKARE GOWDA)
JUDGE
CLK
