Karnataka High Court

Sri. Nanjappa @ Nanjundappa vs Sri. Hanumappa on 3 September, 2024

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                                                     NC: 2024:KHC:35881
                                                    RSA No. 191 of 2013




              IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 3RD DAY OF SEPTEMBER, 2024

                                      BEFORE

                     THE HON'BLE MR JUSTICE ASHOK S.KINAGI

               REGULAR SECOND APPEAL NO. 191 OF 2013 (PAR)

              BETWEEN:

              SRI. NANJAPPA @ NANJUNDAPPA
              S/O LATE NARAYANAPPA,
              AGED ABOUT 71 YEARS,
              RESIDING AT NAGAMANGALA VILLAGE,
              JANGAMAKOTE HOBLI, SIDLAGHATTA TALUK,
              CHIKBALLAPURA DISTRICT - 562 105
                                                           ...APPELLANT
              (BY SRI. P N NANJA REDDY, ADVOCATE)

              AND:

              1.   SRI. HANUMAPPA
Digitally          S/O MUNIAPPA,
signed by R        AGED ABOUT 57 YEARS,
DEEPA
Location:     2.   ANITHAMMA
HIGH COURT         W/O LATE DEVARAJA,
OF                 AGED ABOUT 38 YEARS,
KARNATAKA
              3.   CHIKKA LAKSHMAMMA (DEAD)

                   R3 DIED, THE LRS OF R3 ALREADY ON RECORD AS
                   R1, R2 & R4
                   HENCE R1, R2 & R4 ARE TREATED AS LRS OF R3.

              4.   SRI MANJUNATHA
                   S/O MUNIAPPA,
                   AGED ABOUT 41 YEARS,
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                                          NC: 2024:KHC:35881
                                        RSA No. 191 of 2013




    ALL ARE RESIDING AT NAGAMANGALA VILLAGE,
    JANGAMAKOTE HOBLI, SIDLAGHATTA TALUK,
    CHIKKABALLAPURA DISTRICT - 562 105.
                                        ...RESPONDENTS

(BY SRI. B V GANGIREDDY, ADVOCATE FOR R1,R2 & R4
   V/O DATED 20.06.2016 R1, R2 & R4 ARE TREATED AS LRS
OF DECEASED R3)

     THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE
JUDGEMENT & DECREE DTD          29.9.2012 PASSED IN
R.A.NO.6/2006 ON THE FILE OF THE SENIOR CIVIL JUDGE &
JMFC, SIDLAGHATTA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGEMENT AND DECREE DTD 28.11.2005
PASSED IN OS.NO.98/2002 ON THE FILE OF THE PRL. CIVIL
JUDGE (JR.DN) & JMFC., AND ADDL. CIVIL JUDGE (JR.DN)
(ITINERARY) SHIDLAGHATTA.

     THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:


CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI


                    ORAL JUDGMENT

This is a regular second appeal filed by the appellants

to challenge the judgment and decree dated 29.09.2012,

passed in R.A.No.6/2006 by the learned Senior Civil Judge

& JMFC, Sidlaghatta, and the judgment and preliminary

decree dated 28.11.2005, passed in O.S.No.98/2002 by

the learned Additional Civil Judge (Jr.Dn.), Sidlaghatta.

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2. For convenience, parties are referred to as per

their ranking before the trial Court. The appellant is the

plaintiff, and the respondents are the defendants.

3. The brief facts leading rise to the filing of this

appeal are as follows: Plaintiff filed a suit for partition and

separate possession in respect of the suit schedule

property. It is the case of the plaintiff that, one Dasappa

has three sons, namely Hanumappa, Thimmarayappa and

Maliyappa. Hanumappa has three sons, namely

Muniyappa @ Gundanna, Dasappa and Venkatashamappa.

The 2nd son of Dasappa, Sri. Thimmarayappa has no

issues. The 3rd son of Dasappa, Sri. Maliyappa has two

sons, Dasappa and Muniyappa. They had no issues. The

1st son of Dasappa, i.e., Hanumappa, has 3 sons, namely

Muniyappa @ Gundanna, Dasappa and Venkatashamappa.

Muniyappa @ Gundanna has only one son named

Narayanappa, and his wife is Lakshmamma. The 2nd son

of Hanumappa had no issues. The 3rd son of Hanumappa,

namely, Venkatashamappa, has one son, namely,

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Muniyappa. The 3rd son of Dasappa, namely Muniyappa,

has two sons, Dasappa and Muniyappa, and both have no

issues. The son of Muniyappa @ Gundanna has one son,

namely Nanjappa @ Nanjundappa, who is the plaintiff

herein. Venkatashamappa's son Muniyappa has three

sons: Hanumappa, Devaraja and Manjunatha. The wife of

Muniyappa, i.e., Lakshmakka, is alive. The 2nd son of

Muniyappa, namely Devaraj, is dead. Of the above

persons, Nanjappa @ Nanjundappa, i.e., the plaintiff, 1st

defendant Hanumappa, 2nd defendant Anithamma, 3rd

defendant Lakshmamma and 4th defendant Manjunatha

are alive. The suit schedule property is the ancestral

property of the plaintiff. The mother of the plaintiff

obtained a loan from PLD Bank, Sidlaghatta, by

mortgaging the suit schedule property as a security for

repayment of loan amount. The suit schedule property is

in joint possession and enjoyment of both parties, and

there is no division between the joint family members.

The defendants, colluding with each other, are trying to

alienate the suit schedule property. The plaintiff

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demanded for partition and separate possession. But the

defendants refused to effect a partition. Hence, a cause of

action arose for the plaintiff to file the suit for partition and

separate possession.

4. Defendants No.1 to 4 filed the written statement

contending that the plaintiff is not concerned with the

defendants' family. It is contended that the original

kartha of the defendants' family was Hanumanthappa.

After his demise, his wife and sons succeeded in his

estate. Devaraj died, leaving behind his wife, defendant

No.2 and his minor sons. It is contended that the suit

schedule property originally belonged to one Ramakka,

wife of Channarayappa and his brother-in-law's sons,

namely Dodda Machanna and Chikka Machanna. They

have sold 2 acres 20 guntas in Sy. No.156/3 under

registered sale deed dated 12.04.1950, to

Venkataswamappa. The said survey number was

surveyed during the year 1951. Venkataswamappa has

purchased 2 acres 20 guntas, and he also possesses the

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remaining 1 acre 3 guntas of land in Sy.No156/3. The

khatha stood in his name till 1998-99. It is contended

that after the death of Venkataswamappa, his son and his

grandson, got partitioned the suit schedule property.

Defendant No.1 was allotted 1 acre 4 guntas; defendant

No.2 was allotted 1 acre 4 guntas, and defendant No.3

was allotted 11 guntas and defendant No.4 was allotted 1

acre 4 guntas of land. Based on the said partition, khatha

was mutated in the names of respective parties. It is

contended that the plaintiff is not concerned with the suit

schedule property and is not entitled to claim any share in

the suit schedule property. On these grounds, the

defendants sought dismissal of the suit.

5. The Trial Court, based on the above said

pleadings, framed the following issues:

(1) Whether plaintiff proves that suit schedule property is ancestral property of plaintiff and defendants ?

(2) Whether defendants prove that there has already been partition in the suit schedule property?

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(3) Whether plaintiff entitled his share in suit schedule property? If entitled, what extent?

(4) What order or decree?

6. To prove the plaintiff's case, the plaintiff

examined himself as PW-1, examined one witness as PW-

2, and marked 16 documents as Exs.P1 to P16. In

rebuttal, the defendants examined defendant No.1 as DW-

1, examined two witnesses as DW-2 & DW-3, and marked

21 documents as Exs.D1 to D21. On assessing the oral

and documentary evidence of the parties, the trial Court

answered issues Nos.1 and 3 in the negative, issue No.2 in

the affirmative, and issue No.4 as per the final order.

Consequently, the plaintiff's suit was dismissed.

7. The plaintiff, aggrieved by the judgment and

decree passed in the above-said suit, filed an appeal in

R.A.No.6/2006. The First Appellate Court, after hearing

the parties, as framed the following points for

consideration:

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(1) Whether the trial Court is justified in holding that the plaintiff has failed to prove the suit schedule properties are the ancestral and joint family properties of plaintiff and defendants?

(2) Whether the trial Court is justified in holding that the suit schedule properties are the self acquired properties of Venkataswamappa?

(3) Whether the trial Court is justified in holding that the plaintiff is not entitled to share in the suit schedule properties? (4) Whether the respondent has made out a

Rule 27 CPC?

(5) Whether the judgment and decree of the trial Court warrants interference? (6) What order?

8. The First Appellate Court, after hearing the

learned counsel for the parties and re-assessing the oral

and documentary evidence, answered points No.1 to 3 in

the affirmative; points No.4 and 5 in the negative; and

point No.6 as per the final order, and consequently

dismissed the appeal filed by the plaintiff, confirming the

judgment and decree passed by the trial Court. The

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plaintiff, aggrieved by the judgments and decrees passed

by the courts below, has filed this second appeal.

9. This court admitted the appeal on 27.01.2020, to

consider the following substantial question of law :

(1) Whether both the trial Court and the first Appellate Court were justified in not returning any finding regarding the relationship of the parties in the light of the contentions of the defendants that, the plaintiff and the defendants were from two different and unconnected families? (2) Whether in the absence of any evidence, both the trial Court and the first Appellate Court were justified in holding that, the suit property was the self-acquisition of the defendants in the light of Exs.P9 and P10?

10. Heard learned counsel for the parties.

11. Learned counsel for the plaintiff submits that the

suit schedule property is the ancestral property of the

plaintiff and defendants, and the plaintiff and defendants

are the members of the Hindu undivided family. There is

no partition affected between them. Hence, the plaintiff

demanded partition and separate possession, but the

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defendants refused to effect partition. He submits that the

courts below have committed an error in recording a

finding that the suit schedule property is not the ancestral/

joint family property of the plaintiff and defendants. He

submits that the plaintiff has produced the mortgage deed,

which discloses that the plaintiff, his mother and others

have executed the mortgage deed in favour of PLD Bank,

wherein the mother of the plaintiff had obtained a loan by

mortgaging the suit schedule property. Hence, the trial

Court ought to have considered the mortgage deed at

Ex.P9 and could have concluded that the suit schedule

property is the ancestral/joint family property of the

plaintiff and the defendants. Hence, the trial Court

committed an error in dismissing the plaintiff's suit.

Further, the first Appellate Court, without properly re-

assessing the oral and documentary evidence, affirmed

the judgment and preliminary decree passed by the trial

Court. The impugned judgments passed by the courts

below are arbitrary and erroneous. Hence, on these

grounds, he prays to allow the appeal.

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12. Per contra, learned counsel for the defendants

submits that in a suit for partition and separate

possession, the initial burden is on the plaintiff to establish

that the suit schedule property is the ancestral/joint family

property of the plaintiff and the defendants. In the instant

case, the plaintiff has failed to establish that the suit

schedule property is the ancestral/joint family property of

the plaintiff and defendants. He further submits that the

suit schedule property was purchased under the registered

sale deed dated 12.04.1950. He submits that there is a

presumption regarding the joint family, but there is no

presumption regarding the joint family properties. He

submits that the plaintiff has not produced any records to

establish that the family possessed sufficient nucleus for

purchasing the suit schedule property. Both the courts

below have rightly recorded a finding that the plaintiff has

failed to discharge the burden of proof to establish that the

suit schedule property is the joint family property and was

purchased out of a joint nucleus. Hence, on these

grounds, he submits that the impugned judgments passed

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by the courts below are just and proper and do not call for

interference, and prayed to dismiss the appeal.

13. Perused the records and considered the

submissions of the learned counsel for the parties.

14. Substantial questions of law No.1 and 2: As

these questions are interrelated, they are taken together

for common discussion to avoid repetition of facts. The

plaintiff, to substantiate his case, examined himself as PW-

1. He reiterated the plaint averments in the examination-

in-chief, and to prove his case, he produced documents.

Ex.P1 is the genealogical tree; Ex.P2 is the certified copy

of the registered sale deed which discloses that

Venkataswamappa purchased the suit schedule property;

Ex.P3 is the RTC extract in respect of Sy.No.156/3/B which

discloses that the said property stands in the name of

Venkataswamappa; Exs.P4 and P5 are the encumbrance

certificate which discloses that the said property was

mortgaged as security in favour of PLD Bank, Sidlaghatta

on 25.10.1967; Ex.P6 is Form No.5; Ex.P7 is the index of

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lands; Ex.P8 is the endorsement issued by the Village

Accountant; Ex.P9 is the mortgage deed executed by the

plaintiff, his mother and others in favour of PLD Bank;

Ex.P10 is the 'Lavani patra'; Ex.P11 is the genealogical

tree; Ex.P12 is the order passed by the Assistant

Commissioner; Ex.P13 is the order passed by the Tahsildar

in Revision; Ex.P14 to P16 are the RTC extracts in respect

of the suit land. It was suggested to PW-1 that the

defendants have effected partition amongst themselves in

respect of the suit schedule property. PW-1 denied the

said suggestion.

15. The plaintiff also examined one Anjinappa, PW-

2, who deposed that the plaintiff and defendants are

members of an undivided Hindu joint family. The plaintiff

and defendants enjoy the suit schedule property jointly,

and there is no division amongst the family members. On

perusing the cross-examination of PW-2, it is clear that

PW-2 is not aware of the family affairs of the plaintiff and

defendants.

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16. Defendant No.1 was examined as DW-1. He has

reiterated the written statement averments in the

examination-in-chief and contended that

Venkataswamappa purchased the suit schedule property

under the registered sale deed. The said property was

divided amongst the defendants, and the plaintiff has no

right, title or interest over the suit schedule property and,

hence, has no right to claim a share in the suit schedule

property. The defendants have produced documents to

establish that Venkataswamappa purchased the suit

schedule property. Ex.D1 is the certified copy of

registered sale deed; Ex.D2 is the index of lands in respect

of the suit schedule property which discloses that the said

land was in the name of Venkataswamappa; Ex.D3 is Form

No.5 i.e., ROR which discloses that Venkataswamappa is

the owner in possession of the suit schedule property;

Ex.D4 is Form No.12 which discloses that partition was

effected amongst the defendants and in the said partition,

respective portions of the properties were fallen to their

shares and on the basis of partition, mutation was effected

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in the names of defendants; Exs.D5 to D13 are the RTC

extracts which discloses that Venkataswamappa is the

owner and in possession of he suit schedule property;

Exs.D14 and D15 are the land revenue receipts; Exs.D16

and D17 are the endorsement issued by the Tahsildar

dated 19.11.1996; Ex.D18 is Form No.5; Ex.D19 is the

partition deed which discloses that the partition was

effected amongst the defendants; Ex.D20 is the

genealogical tree; Ex.D21 is the order passed by the

Tahsildar.

17. The plaintiff has filed a suit for partition and

separate possession, the initial burden is on the plaintiff to

establish the nature of the suit schedule property. The

same was purchased in the name Venkataswamappa. The

plaintiff has not produced evidence that, his family

possessed sufficient nucleus to purchase the suit schedule

property. Except for the oral evidence of PW-2, he has not

produced any other records to show that the family

possessed the properties, from which the family was

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getting income. In the absence of material on record to

establish that the suit schedule property was purchased

out of the joint family nucleus, this Court cannot hold that

the suit schedule property is the joint family property of

the plaintiff and defendants. It is a well-established

principle of law that there is a presumption regarding the

joint family, but there is no presumption regarding joint

family properties. The Hon'ble Apex Court in the case of

MAKHAN SINGH (D) BY LRS. VS. KULWANT SINGH, reported

in AIR 2007 SC 1808, has held as under:

"9. The High Court has also rightly observed that there was no presumption that the property owned by the members of the Joint Hindu Family could a fortiori be deemed to be of the same character and to prove such a status it had to be established by the propounder that a nucleus of Joint Hindu Family income was available and that the said property had been purchased from the said nucleus and that the burden to prove such a situation lay on the party, who so asserted it. The ratio of K.V.Narayanaswami Iyer case (supra) is thus clearly applicable to the facts of the case. We are therefore in full agreement with the High Court on

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this aspect as well. From the above, it would be evident that the High Court has not made a simpliciter re-appraisal of the evidence to arrive at conclusions different from those of the courts below, but has corrected an error as to the onus of proof on the existence or otherwise of a Joint Hindu Family property."

18. The courts below have recorded a finding that

the plaintiff has failed to establish that the suit schedule

property was purchased in the name of Venkataswamappa

out of the joint family nucleus and has held that the suit

schedule property is not the joint family property of the

plaintiff and defendants and also held that the defendants

have proved that there was partition effected amongst

them. They are in possession of the suit schedule

property. The plaintiff has failed to discharge the initial

burden regarding establishing that the suit schedule

property is the joint family property of the plaintiff and

defendants. As observed above, no documents have been