Karnataka High Court
Huligemma W/O Late Hanumanthappa vs Kenhappa H D S/O. Thimmappa C on 14 February, 2025
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RFA No. 100143 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 14TH DAY OF FEBRUARY, 2025
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE UMESH M ADIGA
REGULAR FIRST APPEAL NO. 100143 OF 2021 (PAR/POS)
BETWEEN:
1. SMT. HULIGEMMA W/O LATE HANUMANTHAPPA
AGE. 82 YEARS,
2. SRI. THIPPESWAMY S/O. LATE HANUMANTHAPPA
AGE. 56 YEARS,
3. SRI. THIPPERUDRA S/O. LATE HANUMANTHAPPA
AGE. 50 YEARS,
APPELLANT NOS. 1 TO 3 ARE PERMANENT
R/O. VENIVEERAPURA VILLAGE POST
TQ AND DIST. BALLARI-583115.
...APPELLANTS
(BY SRI. MAHENDRA N, ADV)
AND:
1. SRI. KENHAPPA H.D S/O. THIMMAPPA C.
AGE. 56 YEARS,
MOHANKUMAR
B SHELAR 2. SRI. SREENIVASA H.D. S/O. THIMMAPPA.C.
(SINCE DECEASED BY HIS LR'S.,)
Digitally signed by
MOHANKUMAR B 2a. SMT. NEELAMMA W/O LATE. SRINIVASA H.D
SHELAR
Date: 2025.03.01 AGE: 43 YEARS,
11:18:56 +0530
2b. ROOPA D/O LATE. SRINIVASA H.D
AGE: 24 YEARS,
2c. MUNIYAPPA S/O LATE. SRINIVASA H.D
AGE: 23 YEARS,
2d. VENKATESH S/O LATE. SRINIVASA H.D
AGE: 21 YEARS,
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RFA No. 100143 of 2021
ALL ARE R/AT: ANANTHASHAYANA GUDI
PANDURANDA COLONY, HOSPET TALUK
OLD BALLARI DISTRICT,
NEW VIJAYANAGARA DISTRICT -583201.
3. SMT. KENCHAMMA W/O. DUBBA GALEPPA
D/O THIMMAPPA C., AGE. 54 YEARS,
R/AT. MALAPANGUDI VILLAGE
PANDURANGA COLONY, HOSPET TALUK,
OLD BALLARI DISTRICT
NEW VIJAYANAGARA DISTRICT-583201.
4. SMT. SHANTHAMMA W/O RAMAPPA
D/O. THIMMAPPA C, AGE. 48 YEARS,
R/AT. NEW AMARAVATHI
HOSPET TALUK, OLD BALLARI DISTRICT
NEW VIJAYANAGARA DISTRICT-583201.
5. SMT. GEETHAMMA W/O. THALAVARA HULUGAPPA
D/O. THIMMAPPA C, AGE. 46 YEARS,
R/AT. ORAVAL VILLAGE, BALLARI TALUK,
BALLARI DISTRICT-583116.
6. THE SPECIAL LAND ACQUISITION OFFICER
K.I.A.D.B. KAROOR INDUSTRIAL AREA,
P.B.ROAD, DAVANAGERE-577006.
...RESPONDENTS
(BY SRI. F.V. PATIL AND SMT. PALLAVI PACHHAPURE,
ADVS FOR R1, R3 TO R5.
R2 DEAD. NOTICE TO R2 (A TO D) ARE SERVED,
SRI. P.N. HATTI, HCGP FOR R6)
THIS RFA IS FILED UNDER ORDER XLI RULE 1 READ WITH
SEC. 96 OF CPC., 1908, AGAINST THE JUDGMENT AND DECREE DTD
28.07.2021 PASSED IN O.S.NO.286/2015 ON THE FILE OF THE II
ADDITIONAL SENIOR CIVIL JUDGE, BALLARI, PARTLY DECREEING
THE SUIT FILED FOR PARTITION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RFA No. 100143 of 2021
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
CORAM: AND
THE HON'BLE MR. JUSTICE UMESH M ADIGA
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI)
This Regular First Appeal is filed by the appellants,
challenging the judgment and preliminary decree dated
28.07.2021 passed in O.S.No.286/2015 by the learned II
Additional Senior Civil Judge, Ballari.
2. For convenience, the parties are referred to, based
on their rankings, before the trial Court. The appellants
were defendant Nos.1 to 3, respondent Nos.1 to 5 were
the plaintiffs and respondent No.6 was defendant No.4.
3. Brief facts, leading rise to the filing of this regular
first appeal, are as follows:
The plaintiffs filed a suit against the defendants for a
partition and separate possession regarding the suit
schedule properties. It is the case of the plaintiffs that
Late Sannappa was the propositus of the family of the
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plaintiffs and defendants No.1 to 3. Sannappa had two
sons viz. Hanumanthappa and Thimmappa. The plaintiffs
are the sons and daughters of late Thimappa. Defendant
No.1 is the wife and defendants No.2 and 3 are the sons of
late Hanumanthappa. The original propositus, Sannappa,
owned and possessed the suit schedule properties, and he
was in possession of and was cultivating item nos.1 to 5 of
the suit schedule properties till his death. After the death
of Sannappa, Thimmapa and Hanumanthappa continued in
possession of and were cultivating the suit schedule
properties. The father of the defendant No.2 and 3,
Hanumanthappa, was the elder son of the late Sannappa
and as such, he was acting as the kartha of the family.
The father of the plaintiffs and defendants were living
jointly, which constituted a joint Hindu family.
Hanumanthappa, being the elder son of late Sannappa,
was acting as a kartha of the joint family consisting of
Smt.Thayamma, wife of late Sannappa & mother of
Hanumanthappa and Thimappa, and was cultivating item
nos.1 to 5 of the suit schedule properties.
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Hanumanthappa, acting as kartha of the joint family,
applied for 'rathawari patta' of the aforesaid suit schedule
properties for and on behalf of the joint family. The land
Tribunal granted patta in his favour in 1975-76. Since the
date of the grant, the plaintiffs' father and defendants
were in joint and constructive possession over the suit
schedule properties. Hanumanthappa and Thimappa died
intestate, leaving behind the plaintiffs and defendants as
their legal heirs. Defendants No.2 and 3 by playing fraud
and misrepresentation with the revenue officers, mutated
their names in the record of rights without the consent or
knowledge of the plaintiffs. The plaintiffs learnt about the
illegal mutation order passed in favour of the defendants.
The plaintiffs, demanded the defendants, for partition and
separate possession several times. The defendants did
not heed to the request made by the plaintiffs. Defendant
No.4, the Special Land Acquisition Officer, acquired items
no.1 to 5 of the plaint schedule properties for the
development of industries, under the Land Acquisition Act,
1894 and defendants No.1 and 2 were making hectic
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efforts to get compensation from defendant No.4. Hence,
a cause of action arose for the plaintiffs to file a suit for
partition and separate possession. Accordingly, he prays to
decree the suit.
3.1. Defendants No.1 to 3 filed a common written
statement. Except admitting the relationship between the
parties, they denied all the averments made in the plaint.
It is contended that the plaint schedule item nos.1 to 5
were not acquired by late Sannappa. It is contended that
late Sannappa acquired and owned the land bearing
Sy.No.274B/1, measuring 8 acres 52 cents and a house
mentioned in the plaint schedule item No.6. It is
contended that after the demise of late Sannappa,
Sy.No.274B/1 was divided equally between
Hanumanthappa and Thimmappa to the extent of 4.26
acres each. The plaintiffs' father, Thimmappa, shifted his
residence from Veniveerapur to Hospet as he had secured
employment in the Railway department. He served in the
Railways for many years and retired from the service. He
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sold the land bearing Sy.No.274B/1, fallen to his share
measuring to an extent of 4 acre 26 cents, under three
registered sale deeds, to three different persons. So no
joint family status existed between the plaintiffs' father
i.e., Thimmappa and the father of defendants No.2 and 3
i.e., Hanumanthappa. The plaintiffs' father settled at
Hosapete, acquired landed properties and built a valuable
house at Hosapete. The plaintiffs have suppressed the
material facts and filed the present suit. It is contended
that, suit schedule Sl. No.6 property is available for
partition between Hanumanthappa and Thimmappa. It is
further contended by the defendants that,
Hanumanthappa continued the agricultural activities.
Insofar as the suit schedule properties i.e. items Nos.1 to
5, are the tenanted lands cultivated by Hanumanthappa
and he was not representing any joint family consisting of
himself and his brother Thimappa. It is contended that
the Tahasildar granted tenancy rights regarding the plaint
schedule item nos.1 to 5 properties in 1982 and item No.7
of the suit schedule property is the self acquired house
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property of Hanumanthappa. Hence, they contended that
the suit filed by the plaintiffs is not maintainable. It is
contended that there is no cause of action for the plaintiffs
to file the suit for partition and separate possession. It is
further contended that the plaintiffs are not entitled to
payment of compensation from the SLAO i.e., defendant
No.4. Hence, prays to dismiss the suit.
3.2. Further, the plaintiffs during the pendency of the
suit, filed an application for amendment to the plaint. The
said application was allowed and the plaintiffs carried out
the amendment. Defendant No.2 filed an additional written
statement contending that, the plaintiffs have no right in
items No.1 to 5 of the suit schedule properties and they
are not entitled for any compensation and contended that,
only defendant No.1 to 3 are the parties to the acquisition
proceedings. The gazette notification was published in the
names of defendants No.1 to 3. It is contended that, the
plaintiffs without challenging the acquisition notification,
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cannot maintain the suit. Hence, he prays to dismiss the
suit.
3.3. The trial Court, based on the pleadings of the
parties, framed the issues and additional issues :
issues
"1. Whether the plaintiffs proves that suit schedule
properties are the joint family properties of
plaintiffs and defendants No.1 to 3?
2. Whether defendant No.1 to 3 proves that the
father of the plaintiffs Thippe Swamy, husband
of the defendant No.1 and father of the
defendants No.2 and 3 Hanumanthappa served
themselves both in status and properties and
got divided the ancestral properties long back?
3. Whether the defendants No.1 o 3 proves that
suit schedule properties are the separate
properties of father of the defendant Nos.2 and
3 and the husband of defendant No.1
Hanumanthappa?
4. Whether plaintiffs proves that in view of the
acquisition of the suit schedule item Nos. 1 to 5
properties by the KIADB the instant suit for the
relief of partition in respect of suit schedule
item No.1 to 5 properties is maintainable before
this court?
5. Whether the plaintiffs are entitle for the relief's
sought for?
6. What order or Decree?
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ADDITIONAL ISSUES
1. Whether the defendant Nos. 1 to 3 proves that
the suit of the plaintiffs is barred by law of
limitation?
2. Whether the defendant Nos. 1 to 3 proves that
the valuation of the suit and the court fee paid
is incorrect?"
3.4. The plaintiffs, to substantiate their case, examined
plaintiff No.1 as PW.1, and marked 45 documents as
Exhibits P.1 to P.45. On the other hand, defendant No.2
was examined as DW.1, and marked 51 documents as
Exhibits D.1 to D.51.
3.5. After recording the evidence, hearing on both
sides, and on the assessment of the oral and documentary
evidence. The trial Court, answered issue No.1, 4 and 5 in
the affirmative, issue nos.2, 3, additional issue No.1 and 2
in the negative, and issue No.6 as per the final order.
3.6. The suit of the plaintiffs was partially decreed
with cost vide judgment dated 28.07.2021 holding that the
plaintiffs jointly are entitled to half share in the
compensation amount of Rs.4,31,02,000/- awarded by
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defendant No.4 regarding the acquisition of properties at
Sl.Nos.1 to 5 of the plaint schedule, and further, held that
the plaintiffs are jointly entitled to a half share in the suit
schedule property at Sl.No.6 by partition and separate
possession.
3.7. The defendants, aggrieved by the judgment and
preliminary decree passed in O.S.No.286/2015, filed this
Regular First Appeal.
4. Heard learned counsel for the defendants, and the
learned counsel for the plaintiffs.
5. Learned counsel for the defendants submits that
the suit schedule item nos.1 to 5 properties are the self-
acquired properties of Hanumanthappa. He submitted
that, tenancy rights were granted in favour of
Hanumanthappa in his individual capacity, and not to inure
to the benefit of the joint family. He submits that the
plaintiffs have no right to claim a share in item Nos.1 to 5
of the suit schedule properties. He further submits that,
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the land bearing Sy.No.274B/1 measuring 8 acres 2 cents
was the only property owned by Sannappa, and after his
death, Hanumanthappa and Thimmappa got the properties
divided and each of them were allotted a share to the
extent of 4.26 acres. Further, as of the date of filing the
suit, there is severance of status and the said schedule
properties are not the joint family properties of plaintiffs
and defendants, and they were not members of the joint
family. The trial Court, without considering the said
aspect, has passed the impugned judgment. PW.1 has
admitted regarding the partition regarding the land in
Sy.No.274B/1. When there is a partition and severance of
status, the trial Court ought to have dismissed the suit,
but on the contrary, has decreed the suit of the plaintiffs
in part. He also submits that the plaintiffs have not
included the particulars of the property purchased by
Thimmappa. Hence, the suit is not maintainable for non-
joinder of necessary properties. Hence, on these grounds,
he prays to allow the appeal.
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6. Per contra, learned counsel for the plaintiffs,
Smt.Pallavai Pachhapure, submits that, to show that the
Land Tribunal granted occupancy rights in favour of
Hanumanthappa in his individual capacity, the defendants
have not produced any records. She also further, submits
that the landlord has given a statement before the Land
Tribunal stating that, Hanumanthappa was in possession
of the suit schedule properties item Nos.1 to 5 for 20
years. She submits that, if the said statement is taken
into consideration, the age of the deceased
Hanumanthappa would have been 13 years in 1947, and
he was incompetent to enter into a contract as per Section
11 of the Indian Contract Act. She submits that, a minor
is incompetent to enter into a contract. The Land Tribunal
granted occupancy rights in favour of Hanumanthappa as
he was a elder male member of the family. She submits
that Sannappa was in possession of item nos.1 to 5 of the
suit schedule properties and after his demise,
Hanumanthappa, being the elder member of the family,
his name came to be mutated/entered in the revenue
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records and he has filed form No.7 for and on behalf of the
joint family, and the Land Tribunal granted occupancy
rights for the benefit of the family, and not in his individual
capacity. She further submits that, Hanumanthappa and
Thimmappa, have jointly executed a registered mortgage
deed as per Exs.P.43 and 44 which discloses that, they
were the joint owners of the suit schedule properties. She
further submits that, the defendants did not produce form
No.7 submitted before the Land Tribunal, and that the
records were called for from the Land Tribunal. The trial
Court perused the records of the Land Tribunal, and found
that Form No.7 was missing from the file. She submits
that the defendants did not produce any record to show
that Hanumanthappa was a major as of the date of death
of Sannappa. She submits that the trial Court was
justified in passing the impugned judgment. Hence, on
these grounds, she prays to dismiss the appeal.
7. Perused the records, and considered the
submissions of the learned counsel for the parties.
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8. The points, that arise for our consideration are :
i) Whether the plaintiffs prove that the suit schedule
properties are the joint family properties of the plaintiffs
and defendants No.1 to 3 ?
ii) Whether defendants No.1 to 3 prove that the suit
schedule items nos.1 to 5 of the suit schedule properties
are the separate properties of Hanumanthappa ?
iii) Whether defendants No.1 to 3 prove that the judgment
and decree passed by the trial Court is perverse and
arbitrary?
iv) What order or decree ?
9. Since points No.1 and 2 are interlinked, they are
discussed together to avoid repetition of facts.
The plaintiffs to prove their case, plaintiff No.1 was
examined as PW.1. He reiterated the plaint averments in
the examination in chief and to prove the oral evidence,
produced the documents. Ex.P.1 is the genealogical tree
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which discloses that Sannappa had two sons i.e.
Hanumanthappa and Thimmappa. Plaintiffs belongs to the
Thimmappa's branch whereas defendants belongs to
Hanumanthappa's branch. Ex.P.2 is the RTC extract of the
land bearing Sy.No.391A standing in the name of
Hanumanthappa; Ex.P.3 is the RTC extract of the land
bearing Sy.No.391A standing in the name of
Hanumanthappa; Ex.P.4, is the RTC extract of the land
bearing survey No. 391A standing in the name of
Hanumanthappa; Ex.P.5 is the RTC extract of the land
bearing Sy.No.392A standing in the name of the
Hanumanthappa; Ex.P.6 is the RTC extract of the land
bearing Sy.No.391/A/2 standing in the name of the
Hanumanthappa; Ex.P.7 is the RTC extract of the land
bearing Sy.No.394 standing in the name of the
Hanumanthappa; Ex.P.8 is the RTC extract of the land
bearing Sy.No.394 standing in the name of the
Hanumanthappa; Ex.P.9 is the RTC extract of the land in
Sy.No.394 standing in the name of the Hanumanthappa;
Ex.P.10 is the RTC extract of the land in Sy.No.394
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standing in the name of the Hanumanthappa; Ex.P.11 is
the RTC extract of the land in Sy.No.394 standing in the
name of Hanumanthappa to the extent of half portion;
Ex.P.12 is the RTC extract of the land in Sy.No.394/1A
standing in the name of Hanumanthappa; Ex.P.13 is the
RTC extract of the land in Sy.No.391/A/1a standing in the
name of Hanumanthappa; Ex.P.14 is the RTC extract of
the land in Sy.No.391/A/1a standing in the name of
Hanumanthappa; Ex.P.15 is the RTC extract of the land in
Sy.No.391/A/1a standing in the name of Hanumanthappa;
Ex.P.16 to P.20 are the RTC extract of the lands in
Sy.No.394/2 standing in the name of Hanumanthappa and
KIADB respectively; Ex.P.21 is the RTC extract of the land
in Sy.No.392A standing in the name of Hanumanthappa;
Ex.P.22 is the RTC extract of the land Sy.No.391/A
standing in the name of Hanumanthappa; Ex.P.23 to P.42
are the record of rights extract of the lands in Sy
Nos.392/A, 394/2, 391/A/2, and 393 standing in the name
of Hanumanthappa and KIADB respectively; Ex.P.43 and
P.44 are the certified copies of the mortgage deeds.
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Ex.P43 discloses that Hanumanthappa and Thimappa had
executed a registered mortgage deed regarding the land
bearing Sy.No.274B/1 measuring 8 acres 52 guntas,
Sy.No.393 measuring 3 acres 40 guntas, and Sy.No.394
measuring 9 acres 20 guntas; Ex.P.44 is the registered
mortgage deed executed by Hanumanthappa and
Thimappa regarding the land in Sy.No.274B/1 and 394
and the said documents were executed on 12.08.1983 and
11.08.1988. Exs.P.43 and P.44 discloses that
Hanumanthappa and Thimmappa mortgaged the
properties; Ex.P.45 is the certified copy of the sale deed.
9.1. During the course of cross examination of PW.1,
it is elicited that the grandfather had two sons viz.,
Hanumanthappa and Thimmappa, and his father was
working in Railway Department. It was denied that, in
1957, his father started working in the Railway
department at Hosapete. It is elicitated that, the suit
properties are the Sy.Nos.391 to 394 and they totally
measure 26 acres, and admits that the plaintiffs have not
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shown the boundaries of the suit schedule properties. It
was elicited that, to show that it was a joint family
property, the plaintiffs have produced form No.7 and it is
also elicitated that, PW.1 knows reading and writing in
Kannada, and he does not know English. PW.1 denies
that, item nos.1 to 5 was cultivated by Hanumanthappa,
and the land Tribunal granted occupancy rights in favour
of Hanumanthappa. It is denied that, the entire 26.01
guntas belongs to the father of the defendants. The father
of PW.1 died about 5 years back. During the life time of
Thimmappa, occupancy rights were granted in favour of
Hanumanthappa as per the order passed by the Land
tribunal. The said suggestion was denied by PW.1 and it is
denied that the plaintiffs have no right to claim any share
in the agricultural lands viz. suit schedule items 1 to 5 of
the suit schedule properties, and he admits that
Sy.No.274B/1 measuring 8 acres 52 cents belongs to
Sannappa i.e., the grandfather. He admits that there was
a partition in the said land between Hanumanthappa and
Thimmappa and in the said partition, Hanumanthappa got
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4.26 acres and Thimmappa got 4.26 acres each and
Thimmappa sold the properties fallen to his share, and he
denied that, his father has constructed two houses at
Hosapete by investing Rs.50,00,000/-.
9.2. In rebuttal, defendant No.2 was examined as
DW.1. He reiterated the written statement averments in
the examination-in-chief, and to prove the defence,
produced the copy of Ex.D.1 to D.10 which are the copy of
the notices issued by the KIADB, Ex.D.11 to D.15 are the
letter of information issued by KIADB, dated 10.07.2014;
Ex.D16 to D.20 are letters of information issued by KIADB,
dated 26.08.2014; Ex.D.21 to D.25 are the letters of
information issued by KIADB, dated 22.11.2014; Ex.D.26
is the order sheet of Special Land Acquisition Officer,
KIADB, dated 26.08.2015; Ex.D.27 is the Form No.10
which discloses that, the lands were granted in the name
of Hanumanthappa. Ex.D.28 is the entire records before
the Land Tribunal. From a perusal of Ex.D.28 we could not
find Form No.7 in the entire records of the Land Tribunal.
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Ex.D.29 is the acknowledgement by Tahasildar, Ballari
dated 10.10.2017, Ex.D.30 is the certified copy of the
proceedings before the Land Tribunal Ex.D.31 to D.35 are
the record of rights extract of the land Sy.No.274B/1 &
274/B/1-b standing in the name of Hanumanthappa;
Ex.D.36 to D.38 are the certified copies of the mutations;
Ex.D.39 is the record of rights extract of the Land Sy.
No.274/B/1-a standing in the name of Thippeswamy;
Ex.D.40 is the mutation extract, and Exs.41 to 51 are the
record of rights extract of the Lands in Sy.Nos. 391/A/2,
392/A, 393, 394, 403/2, 404 and 394/2 (in 1977)
standing in the name of Hanumanthappa.
9.3. From the perusal of the entire evidence on record,
it discloses that, earlier, Sannappa was in possession of
item nos.1 to 5 of the suit schedule properties, and after
his death, Hanumanthappa, being the eldest son of
Sannappa, submitted Form No.7 before the Land Tribunal,
and further the landlord gave a statement before the Land
Tribunal stating that, Hanumanthappa was in possession
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of the suit schedule properties for 20 years. If the
statement of the landlord is accepted, that means when
the land was leased, Hanumanthappa was a minor and
that when the land was leased in 1977, admittedly,
Hanumanthappa was a minor in 1957, and he died in 1999
at the age of 50 years. From the perusal of records, the
land in Sy.No.274B/1 was owned and possessed by
Sannappa and there was a partition between
Hanumanthappa and Thimmappa regarding the land in
Sy.No.274B/1 and in the said partition, share to the extent
of 4.26 acres each was fallen to the share of
Hanumanthappa and Thimmappa, respectively.
9.4. The trial Court has recorded a finding that, as per
the landlord's say, she leased the properties in 1957. In
1957, Hanumanthappa was a minor and he was aged
about 13 years, and that, a minor cannot cultivate the
land as a tenant. Further, a minor is not competent to
enter into a contract as per Section 11 of the Indian
Contract Act, 1872. As per Section 11 of the Indian
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Contract Act, 1872, every person is competent to contract
who is of the age of major according to the law to which
he is subject and who is of a sound mind, and is not
disqualified from contracting by any law to which he is
subject.
9.5. Admittedly, Hanumanthappa was a minor in 1957,
and he was incompetent to enter into a contract, as
Sannappa was in possession of the suit schedule
properties and after his demise, Hanumanthappa being the
elder member of the joint family, has submitted Form No.7
for the grant of occupancy rights regarding item No.1 to 5
of the suit schedule properties, and DW.1 has admitted in
the course of cross examination. He admits that, his
father has submitted Form No.7 regarding item Nos.1 to 5
as a Manager of the family. The said admission is
sufficient to hold that Hanumanthappa has submitted Form
No.7 as an elder member of the family, and not in his
individual capacity. The suit schedule item Nos.1 to 5 and
6 are the joint family properties of the plaintiffs and
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defendants No.1 to 3. The plaintiffs are entitled to a half
share in item nos.1 to 6 of the suit schedule properties.
The plaintiffs have proved that item No.1 to 6 are the joint
family properties, they are the members of a Hindu joint
family, and no partition is effected between the plaintiffs
and defendants No.1 to 3.
9.6. As we have observed above, the suit schedule
properties, item nos.1 to 6, are the joint family properties
of the plaintiffs and defendants. Occupancy rights granted
in favour of Hanumanthappa is for the enure of the joint
family and not in the individual capacity. Hence, the said
properties are not the separate properties of
Hanumanthappa. The plaintiffs have a share in the suit
schedule properties. In view of the above discussion, we
answer point No.1 in the affirmative and point No.2 in the
negative.
Re.point No.3
10. The trial Court considering the entire material on
record, admission of DW.1 that Hanumanthappa, as a
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Manager of the family, submitted form No.7 before the
Land Tribunal, and also Ex.P.43-registered mortgage
executed in favour of the Society and Ex.P.44 is another
certified copy of the mortgage deed dated 11.8.1998
executed by Hanumanthappa and Thimappa in favour of
the society regarding the land in Sy.No.274B/1 and
Sy.No.394, decreed the suit of the plaintiffs in part. In a
suit for partition and separate possession, the initial
burden is on the plaintiffs to establish the relationship and
nature of suit schedule properties.
10.1. Admittedly, in the instant case, the plaintiffs
have discharged the burden of proof. The burden is
shifted on defendants No.1 to 3. Defendants No.1 to 3 did
not produce form No.7 to establish that form No.7 was
submitted to the Land Tribunal in the individual capacity,
and not for the benefit of the family. In the absence of
Form No.7, the trial Court was justified in recording its
finding that the suit item nos.1 to 6 of the suit schedule
properties are the joint family properties of the plaintiffs
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and defendants No.1 to 3 and rightly granted a half share
to the plaintiffs, and half share to defendants No.1 to 3.
Admittedly, item nos.1 to 5 of the suit schedule properties
were acquired by defendant No.4, and the compensation
amount was deposited before the trial Court. The plaintiffs
are entitled to a half share in the compensation amount,
and defendants No.1 to 3 are entitled to a half share. The
impugned judgment passed by the trial Court is just and
proper, and does not call for any interference. In view of
the above discussion, we answer point No.3 in the
negative.
Re.Point No.4 :
11. As, We have answered points No.1 to 3 in favour of
the plaintiffs. Accordingly, we proceed to pass the
following :
ORDER
i) The Appeal is dismissed.
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ii) The impugned judgment and decree dated
28.07.2021 in O.S No.286/2015 passed by the
II Additional Senior Civil Judge, Ballari, is
hereby confirmed.
No order as to the cost.
Sd/-
(ASHOK S. KINAGI)
JUDGE
Sd/-
(UMESH M ADIGA)
JUDGE
rs
CT: BSB
