Karnataka High Court
Suresh S/O. Virupaxappa Yaligar vs Tipanna S/O. Siddappa Yaligar on 14 November, 2024
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RSA No. 5391 of 2011
C/W RSA No. 5392 of 2011
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 14TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
RSA NO. 5391 OF 2011 (PAR)
C/W. RSA NO. 5392 OF 2011 (PAR)
IN RSA 5391/2011:
BETWEEN:
1. SURESH S/O. VIRUPAXAPPA YALIGAR,
AGED ABOUT 47 YEARS, OCC. AGRICULTURE,
R/O. GADAG.
2. SATISH S/O. VIRUPAXAPPA YALIGAR,
AGED ABOUT 45 YEARS, OCC. AGRICULTURE,
R/O. GADAG.
Digitally
signed by
VISHAL
3. ANAND S/O. VIRUPAXAPPA YALIGAR,
VISHAL NINGAPPA
NINGAPPA
PATTIHAL
PATTIHAL
Date:
SINCE DEAD BY HIS LRS,
2024.11.20
12:14:10
+0530
3A. LAXMIBAI W/O. LATE ANAND YELIGAR,
AGED ABOUT 47 YEARS,
3B. YASHODA D/O. LATE ANAND YELIGAR,
AGED ABOUT 12 YEARS,
3C. NAGARAJ S/O. LATE ANAND YELIGAR,
AGED ABOUT 11 YEARS,
3D. SHIVARAJ S/O. LATE ANAND YELIGAR,
AGED ABOUT 09 YEARS,
4. INDUMATI W/O. VIRUPAXAPPA YALIGAR,
AGED ABOUT 65 YEARS,
3B TO 3D ARE MINORS REPRESENTED BY
GUARDIAN MOTHER 3A.
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RSA No. 5391 of 2011
C/W RSA No. 5392 of 2011
ALL ARE RESIDENT IN PERMANENT ADDRESS,
VAKKALGERE ONI, YELIGAR LANE,
GADAG-582101.
... APPELLANTS
(BY SRI. K RAGHAVENDRA RAO AND
SRI. V V VIDYA, ADVOCATES)
AND:
1. TIPANNA S/O. SIDDAPPA YALIGAR,
AGED ABOUT 52 YEARS, OCC. AGRICULTURE,
VAKKALGERE ONI, YALIGAR LANE,
GADAG-582101.
2. ISHWARAPPA S/O. RAMACHANDRA YALIGAR,
AGED ABOUT 49 YEARS, OCC. AGRICULTURE,
VAKKALGERE ONI, YALIGAR LANE,
GADAG-582101.
3. SHIVAJI SIDDAPPA YALIGAR
AGED ABOUT 47 YEARS, OCC. SERVICE SNCO'S
MESS.NO.11, BRD OF STN OJHAR,
PO.NASIK, MAHARASTRA.
NOW AT VAKKALGERE ONI, YELIGAR LANE,
GADAG-582101.
4. PADMAWWA RAMACHANDRA YALIGAR,
AGED ABOUT 68 YEARS, OCC. HOUSEHOLD WORK,
VAKKALGERE ONI, YELIGAR LANE,
GADAG-582101.
5. DATTARAYA RAMACHANDRA YALIGAR
AGED ABOUT 47 YEARS, OCC. SERVICE,
R/O. HULKOTI CHAL,
DAJIBANPETH, HUBLI-580029.
6. MADAN RAMACHANDRA YALIGAR
AGED ABOUT 45 YEARS,
R/O: HULKOTI CHAWL,
DAJIBANPETH, HUBLI-580029.
7. UMA RAMACHANDRA YALIGAR
AGED ABOUT 37 YEARS, OCC. HOUSEHOLD WORK,
R/O. HULKOTI CHAWL,
DAJIBANPETH, HUBLI-580029.
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RSA No. 5391 of 2011
C/W RSA No. 5392 of 2011
8. YANKAWA KASHAPPA YALIGAR
AGED ABOUT 45 YEARS, OCC. HOUSEHOLD WORK,
VAKKALGERE ONI, YELIGAR LANE,
GADAG-582101.
9. PARASHURAM KASHAPPA YALIGAR
AGED ABOUT 42YEARS, OCC. SERVICE,
VAKKALGERE ONI, YELIGAR LANE,
GADAG-582101.
10. HANAMANTAPPA KASHAPPA YALIGAR
AGED ABOUT 40 YEARS, OCC. WIREMAN,
VAKKALGERE ONI, YELIGAR LANE,
GADAG-582101.
11. BABU KASHAPPA YALIGAR
AGED ABOUT 39 YEARS,
VAKKALGERE ONI, YELIGAR LANE,
GADAG-582101.
12. RAMESH KASHAPPA YALIGAR
AGED ABOUT 37 YEARS,
VAKKALGERE ONI, YELIGAR LANE,
GADAG-582101.
13. SHEKAWWA D/O. KASHAPPA YALIGAR,
AGED ABOUT 35 YEARS, OCC. HOUSEHOLD WORK,
VAKKALGERE ONI, YELIGAR LANE,
GADAG-582101.
14. UMA D/O. KASHAPPA YALIGAR,
AGED ABOUT 32 YEARS, OCC. HOUSEHOLD WORK,
VAKKALGERE ONI, YELIGAR LANE,
GADAG-582101.
15. MADIWALAYYA S/O. PAPAYA HIREMATH,
AGED ABOUT 67 YEARS, OCC. AGRICULTURE,
R/O. USAGEEN GATTI, NEAR GANJI BASAVESHWAR
TEMPLE, GADAG-582101.
16. SMT. GOURAWA W/O. IRAYYA HIREMATH,
AGED ABOUT 60 YEARS, OCC. HOUSEHOLD WORK,
R/O. USAGEEN GATTI, NEAR GANJI BASAVESHWAR
TEMPLE, GADAG-582101.
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RSA No. 5391 of 2011
C/W RSA No. 5392 of 2011
17. SHEKHARAYYA S/O. IRAYYA HIREMATH,
AGED ABOUT 40 YEARS, OCC. AGRICULTURE,
R/O. USAGEEN GATTI, NEAR GANJI BASAVESHWAR
TEMPLE, GADAG-582101.
18. SANGAYYA S/O. IRAYYA HIREMATH,
AGED ABOUT 38 YEARS, OCC. AGRICULTURE,
R/O. USAGEEN GATTI, NEAR GANJI BASAVESHWAR
TEMPLE, GADAG-582101.
19. SOMAYYA S/O. IRAYYA HIREMATH,
AGED ABOUT 36 YEARS, OCC. AGRICULTURE,
R/O. USAGEEN GATTI, NEAR GANJI BASAVESHWAR
TEMPLE, GADAG-582101.
20. PANCHAXARAYYA IRAYYA HIREMATH
AGED ABOUT 28 YEARS, OCC. AGRICULTURE,
R/O. USAGEEN GATTI, NEAR GANJI BASAVESHWAR
TEMPLE, GADAG-582101.
21. PUSHPAVATI D/O. IRAYYA HIREMATH,
AGED ABOUT 26 YEARS,
R/O. USAGEEN GATTI, NEAR GANJI BASAVESHWAR
TEMPLE, GADAG-582101.
22. SHADAXARAYYA IRAYYA HIREMATH
AGED ABOUT 24 YEARS,
R/O. USAGEEN GATTI, NEAR GANJI BASAVESHWAR
TEMPLE, GADAG-582101.
23. VIJAYA S/O. IRAYYA HIREMATH,
AGED ABOUT 22 YEARS, OCC. STUDENT,
R/O. USAGEEN GATTI, NEAR GANJI BASAVESHWAR
TEMPLE, GADAG-582101.
24. MAMMUSAB @ FARUKSAB
S/O. ALISAB PINJAR @ TATTIMANI,
AGED ABOUT 60 YEARS, OCC. AGRICULTURE,
R/O. USAGEEN GATTI, NEAR GANJI BASAVESHWAR
TEMPLE, GADAG-582101.
25. MALIKSAB @ MEERASAB
S/O. ALISAB PINJAR @ TATTIMANI,
AGED ABOUT 50 YEARS, OCC. AGRICULTURE,
R/O. USAGEEN GATTI, NEAR GANJI BASAVESHWAR
TEMPLE, GADAG-582101.
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RSA No. 5391 of 2011
C/W RSA No. 5392 of 2011
26. SAKAMSAB @ BABISAB
S/O. ALISAB PINJAR @ TATTIMANI
AGED ABOUT 38 YEARS, OCC. AGRICULTURE,
R/O. USAGEEN GATTI, NEAR GANJI BASAVESHWAR
TEMPLE, GADAG-582101.
27. IMAM HUSSEIN SAB
S/O. JANDISAB ABBIGERI,
AGED ABOUT 52 YEARS, OCC. AGRICULTURE,
R/O. USAGEEN GATTI, NEAR GANJI BASAVESHWAR
TEMPLE, GADAG-582101.
28. FAKARUSAB
S/O. ALISAB PINJAR @ TATTIMANI,
AGED ABOUT 59 YEARS, OCC. AGRICULTURE,
R/O. BETGERI, NEAR MILAR TEMPLE,
DIST. GADAG.
29. NOORSAB S/O. ALISAB PINJAR @ TATTIMANI,
AGED ABOUT 64 YEARS, OCC. AGRICULTURE,
R/O. BETGERI, NEAR MILAR TEMPLE,
DIST. GADAG.
30. BABUSAB S/O. ALLASAB PINJAR @ TATTIMANI,
AGED ABOUT 34 YEARS, OCC. AGRICULTURE,
R/O. BETGERI, NEAR MILAR TEMPLE,
DIST. GADAG.
31. VIJAYA S/O. VIRUPAXAPPA YALIGAR,
AGED ABOUT 42 YEARS, VAKKALGERI ONI,
YALIGAR LANE, GADAG-582101.
... RESPONDENTS
(BY SRI. H N GULARADDI, ADVOCATE FOR R2 TO R26, R28, R30;
R1, R2, R3, R7, R16, R29, R31 ARE NOTICE SERVED;
SRI. J.S.SHETTY, ADVOCATE FOR R9 TO R14;
SRI. K.L.PATIL, ADVOCATE FOR R18 TO R23;
R8, R15, R27 STANDS ABATED;
NOTICE TO R6 IS HELD SUFFICIENT; R4 AND R5 ARE DISMISSED)
THIS RSA IS FILED U/SEC.100 OF CPC., 1908, AGAINST THE
JUDGMENT AND DECREE DATED 19.01.2011 PASSED IN
R.A.NO.11/2004 ON THE FILE OF THE FAST TRACK AT GADAG,
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RSA No. 5391 of 2011
C/W RSA No. 5392 of 2011
DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT DATED
28.10.2004 AND THE DECREE PASSED IN OS.NO.93/1996 ON THE
FILE OF THE CIVIL JUDGE (SR.DN.) AND CJM GADAG, DECREEING THE
SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.
IN RSA 5392/2011:
BETWEEN:
1. INDUMATI W/O. VIRUPAXAPPA YALIGAR,
AGED ABOUT 65 YEARS,
2. SURESH S/O. VIRUPAXAPPA YALIGAR,
AGED ABOUT 47 YEARS,
3. SATISH S/O. VIRUPAXAPPA YALIGAR,
AGED 45 YEARS,
4. ANAND S/O. VIRUPAXAPPA YALIGAR,
SINCE DEAD BY HIS LRS.,
4A.
LAXMIBAI W/O. LATE ANAND YELIGAR,
AGED ABOUT 47 YEARS,
4B. YASHODA D/O. LATE ANAND YELIGAR,
AGED ABOUT 19 YEARS,
4C. NAGARAJ S/O. LATE ANAND YELIGAR,
AGED ABOUT 16 YEARS,
4D. SHIVARAJ S/O. LATE ANAND YELIGAR,
AGED ABOUT 13 YEARS,
4C AND 4D ARE MINORS REPRESENTED BY GUARDIAN
MOTHER 4A.
APPELLANTS NO.1 TO 4D ARE RESIDENTS OF
GADAG TALUK, GADAG-572101.
... APPELLANTS
(BY SRI. K RAGHAVENDRA RAO AND V VIDYA, ADVOCATES)
AND:
1. DATTATREYA S/O. RAMACHANDRA YALIGAR,
AGED ABOUT 54 YEARS,
R/AT. HULKOTI CHAWL,
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RSA No. 5391 of 2011
C/W RSA No. 5392 of 2011
DAJIBANPETH, HUBLI-580028.
2. MADAN S/O. RAMACHANDRA YALIGAR,
AGED ABOUT 46 YEARS,
R/AT. HULKOTI CHAWL,
DAJIBANPETH, HUBLI-580028.
3. UMA W/O. RAMACHANDRA YALIGAR,
AGED ABOUT 75 YEARS,
R/AT. HULKOTI CHAWL,
DAJIBANPETH, HUBLI-580028.
4. TIPPANNA S/O. SIDDAPPA YALIGAR,
AGED ABOUT 52 YEARS,
R/AT. GADAG-582101.
5. SHIVAJI S/O. RAMACHANDRA YALIGAR,
AGED ABOUT 47 YEARS,
R/AT. SNCO MESS.NO.11,
BRD OF STN OJHAR PO.
NASIK, MAHARASTRA.
... RESPONDENTS
(BY SRI. V P KULKARNI, ADVOCATE FOR C/R1-R3;
R4, R5 ARE NOTICE SERVED;
R6 NOTICE IS HELD SUFFICIENT)
THIS RSA IS FILED U/SEC.100 OF CPC., 1908, AGAINST THE
JUDGMENT AND DECREE DATED 19.01.2011 PASSED IN
R.A.NO.10/2004 ON THE FILE OF THE FAST TRACK AT GADAG,
DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT DATED
28.10.2004 AND THE DECREE PASSED IN OS.NO.123/1995 ON THE
FILE OF THE CIVIL JUDGE (SR.DN.) AND CJM GADAG, DECREEING THE
SUIT FILED FOR DECLARATION AND INJUNCTION.
THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
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RSA No. 5391 of 2011
C/W RSA No. 5392 of 2011
ORAL JUDGMENT
1. Both the appeals are taken up together, as they
arise out of a common judgment and decree.
2. RSA No.5391/2011 is preferred by the plaintiffs
in O.S. No.93/1996, assailing the concurrent findings of
facts recorded by the Courts below, dismissing the suit of
the plaintiff.
3. RSA No.5392/2011 is preferred by the
defendants in O.S. No.123/1995 against the concurrent
findings of facts recorded by the Courts below, whereby,
the suit seeking declaration that the plaintiffs are the
absolute owners of R.S. No.602/1 measuring 10 acres 3
guntas was decreed by the Courts below.
4. The parties herein are referred to as per the rank
before the trial Court in O.S. No.93/1996, for the sake of
convenience.
5. Brief facts of the case are that, the plaintiffs in
O.S. No.93/1996 filed suit for partition and separate
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possession of their 1/6th share in the joint family properties
contending that Siddappa, the original propositus had six
sons and after his death his six sons inherited the suit
properties, which are the ancestral joint family properties.
It is the case of the plaintiffs that in the year 1973 there
was a partition effected amongst the sons of the propositus
and their names were entered in the revenue records to the
respective lands allotted in the said partition. The case of
the plaintiffs is that, partition of the year 1973 was
inequitable and thus, with the intervention of the elders
once again partition has taken place in the year 1979. At
that time, two sons of the propositus namely
Ramachandrappa and Veerupaxappa were no more and the
elders prepared the memo of partition and accordingly vardi
was given to enter the names of the parties, as effected in
the partition of the year 1979.
6. Challenging the entries of the names of the
plaintiffs, defendant Nos.4 to 7 initiated revenue
proceedings before the revenue authorities. The case of the
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plaintiffs is that partition which was effected in the year
1973 was inequitable and the plaintiffs are filed the present
suit seeking for reopening of partition for equitable shares.
7. On notice, defendant Nos.1 to 3 admitted the
plaint averments.
8. Defendant No.5 filed separate written statement,
which was adopted by defendant Nos.4, 6 & 7. The case of
defendant Nos.4 to 7 is that the suit properties lost
character of the joint family after the partition of the year
1973 and six sons of the propositus have divided the suit
properties and there is an equitable partition, the
defendants denied about any fresh partition effected in the
year 1979. It is further averred that defendants have filed
O.S. No.123/1995 seeking for declaration that they are the
owners of R.S. No.602/1 which fell to the share of
Ramachandrappa in the partition that was effected in the
year 1973.
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9. O.S. No.123/1995 is filed by the legal heirs of
Ramachandrappa (defendant Nos.4 to7 in O.S. No.93/1996)
seeking to declare themselves as absolute owners of R.S.
No.602/1 and for perpetual injunction restraining the
defendants from interfering with the lawful and peaceful
possession and enjoyment of the suit property. Plaintiffs in
O.S. No.123/1995 specifically contended that in the oral
partition of the year 1973, the following lands were allotted
to the respective sharers:
R.S. No. A. - G. Assessment Owner
592 4 - 24 9.43 Ramachandrappa
i)
602/1 10 - 03 21.67 Iligar
412/2 13 -05 29.92
ii) Kashayya Iligar
601/2/3 5 -07 10.46
293/2 4 - 30 7.46
iii) Veerupaxappa Iligar
293/1 5 - 23 8.84
iv) 412/1 12 - 00 24.00 Tippanna Iligar
v) 292/3 7 - 15 12.17 Osjwarappa Iligar
403/1+2A
vi) 4 - 00 9.17 Shivaji Iligar
+1+2B/2/1
And in light of the partition effected, the plaintiffs are the
absolute owners of R.S. No.602/1, which fell to the share of
Ramachandrappa, the father of the plaintiffs. The plaintiffs
contended that the alleged partition pleaded by the plaintiff
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in O.S. No.93/1996 of the year 1979 is not binding on the
plaintiffs, as the plaintiffs are not parties to the said
partition and based on the vardi, the names of the plaintiffs
in O.S. No.93/1996 have been entered.
9. The defendants in O.S. No.123/1995 are the
plaintiffs in O.S. No.93/1996 and similar pleadings as raised
in O.S. No.93/1996 has been pleaded in the written
statement.
10. The Trial Court based on the pleadings, framed
the necessary issues.
11. In order to substantiate their claim, plaintiff No.1
in O.S. No.123/1995 was examined as PW1 and marked
four documents at Exs.P1 to P4. Defendant No.5 in O.S.
No.123/1995 and the second plaintiff in O.S. No.93/1996
examined himself as DW1 and marked documents at
Exs.D1 to D32; defendant No.17 in O.S. No.93/1996 was
examined as DW2 and marked documents at Exs.D34 and
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D35; defendant No.28 was examined as DW3 and marked
documents at Exs.D37 to D49.
12. The trial Court based on the pleadings, oral and
documentary evidence arrived at a conclusion that -
(i) the plaintiff in O.S. No.93/1996 has failed to prove
that there was a partition of the year 1973 was
inequitable;
(ii) the plaintiffs failed to prove the partition has again
taken place in the year 1979 and accordingly a vardi
was given;
(iii) the plaintiffs in O.S. No.123/1995 proved that they
are the absolute owners of R.S. No.602/1, measuring
10 acres 3 guntas.
13. The trial Court by the judgment and decree,
decreed the suit of the plaintiffs in O.S. No.93/1996 in part
holding that the plaintiffs are entitled for 1/6th share in the
house property bearing CTS Nos.2938 and 2968. The
plaintiffs in O.S. No.123/1995 were declared as absolute
owners of R.S. No.602/1 measuring 10 acres 3 guntas.
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14. Aggrieved, the plaintiffs in O.S. No.93/1996 and
defendants in O.S. No.123/1995 preferred appeal in R.A.
Nos.10/2004 and 11/2004. The First Appellate Court while
re-appreciating and re-considering the entire oral and
documentary evidence, affirmed the judgment and decree
of the trial Court. Aggrieved, the plaintiffs in O.S.
No.93/1996 and defendant Nos.123/1995 are before this
Court in these Regular Second Appeals.
15. Heard the learned counsel appearing for the
appellants and the learned counsel appearing for
respondents and perused the materials on record.
16. The family genealogy tree is culled out as under:
Siddappa (Died in 1962
= Laxmawa (Died in 1977)
Ramachandrappa Virupaxappa Ishwarappa Shivaji
(Died In 1976) (Died in 1974) (D2) (D3)
PADMAWA (D4) = Indumati (P5) Tippanna (D1)
Dattatraya Madan Uma Suresh Satish Vijay Anand
(D5) (D6) (D7) (P1) (P2) (P3) (P4)
Kashappa (died in 1980) = Yankawa (D8)
Parasappa Hanamantappa Babu Ramesh Shekawa Uma
(D9) (D10) (D11) (D12) (D13) (D14)
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17. The relationship between the parties is not in
dispute. It is also not in dispute that the suit properties are
the ancestral joint family properties of Siddappa, the
original propositus and the original propositus had six sons.
The plaintiffs in O.S. No.123/1995 are the legal heirs of
Ramachandrappa, the first son of Siddappa. The undisputed
fact is that there was a partition effected amongst the sons
of Siddappa in the year 1973. According to the plaintiffs in
O.S. No.93/1996, the partition effected in the year 1973
was inequitable and as such, there was a fresh partition in
the year 1979 and accordingly a vardi was submitted and
the names of the plaintiffs was recorded in the revenue
records. The fresh partition as contended by the plaintiffs in
the year 1979 is without the plaintiffs in O.S. No.123/1995
being party to the said partition. The entry of the names of
the plaintiffs in O.S. No.93/1996 is pursuant to the alleged
partition effected in the year 1979 is admittedly without
including all the coparceners of the original propositus,
namely Siddappa. The partition of the year 1973 having not
been in dispute and the parties having acted upon and the
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revenue entries being effected, the plaintiffs in O.S.
No.93/1996 had to substantiate that the earlier partition of
the year 1973 was inequitable and as such including all the
coparceners fresh partition was effected in the year 1979,
in the absence of all the coparceners in the alleged partition
of the year 1979 and more so when the alleged partition is
not evidenced by any document, it is only based on a mere
vardi which is said to have been submitted before the
revenue authorities. The Apex Court in the case of Suraj
Bhan and others vs. Financial Commissioner and
others1 has held that an entry in revenue records does not
confer title on a person whose name appears in record-of-
rights. Entries in revenue records have only "fiscal
purpose" i.e. payment of land revenue and no ownership is
conferred on the basis of such entries. and the law is well
settled that mere entry in the revenue records without
there being a registered document would not confer valid
title in favour of the said person.
(2007) 6 SCC 186
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18. The trial Court considering the oral and
documentary evidence rightly arrived at a conclusion that
the plaintiffs in O.S. No.93/1996 have failed to prove that
there was inequitable partition in the year 1973 and the suit
seeking reopening of the partition is not made out by the
plaintiffs. The trial Court arrived at a conclusion that the
plaintiffs were entitled for 1/6th share in the house property
which were not part of the partition of the year 1973. The
declaration granted in favour of the plaintiffs in O.S.
No.123/1995, is in light of the partition which is
undisputedly effected in the year 1973. The trial Court has
rightly held that the plaintiffs in O.S. No.123/1995 are to be
declared as the absolute owners in R.S. No.602/1. The First
Appellate Court being the last fact finding Court re-
appreciated and reconsidered the entire oral and
documentary evidence independently and arrived at a
conclusion that the plaintiffs in O.S. No.123/1995 have
failed to prove that the partition of the year 1973 was
inequitable and about any fresh partition being effected in
the year 1979. The partition of the year 1979 as alleged by
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the plaintiffs was rightly not accepted by both the Courts
below, as it was not a valid partition between all the family
members of the family of Siddappa and the partition is not
evidenced by any document but by only mere vardi. The
manner in which the Courts below have assessed the entire
oral and documentary evidence, this Court is of the
considered view that the same does not warrant any
interference under Section 100 of CPC and no substantial
questions of law arise for consideration, and this Court pass
the following:
ORDER
(i) The Regular Second Appeals are hereby dismissed.
(ii) The judgment and decree of the Courts below stand
confirmed.
Sd/-
(JUSTICE K.S.HEMALEKHA)
Vnp / ykl / CT: PA
LIST: 4 SL: 2
