Karnataka High Court
Awalabai W/O Kallappa Belwatkar vs Avvakka W/O Bhomani Patil on 27 February, 2025
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RSA No. 5977 of 2010
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 27TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 5977 OF 2010 (PAR-)
BETWEEN:
1. SMT. WALABAI
W/O. KALLAPPA BELWATKAR,
AGE: 60 YEARS,
OCC: HOUSEHOLD,
R/O: MACHHE VILLAGE,
TQ and DIST: BELGAUM.
SINCE DECEASED BY HIS LRS.
1A. SHRI. KALLAPPA NAGO PATIL,
AGE: 60 YEARS,
OCC: AGRICULTURE,
R/O. MACCHE,
TALUK AND DISTRICT: BELGAVI
(HUSBAND OF DECEASED APPELLANT NO.1)
1B. SHRI. KRISHNA
S/O. KALLAPPA PATIL,
Digitally AGE: 35 YEARS,
signed by
VN OCC: AGRICULTURE,
BADIGER R/O. MACCHE, TALUK AND DISTRICT: BELGAVI
Location: (SON OF DECEASED APPELLANT NO.1)
High
Court of
Karnataka, 2. SMT. SUMAN
Dharwad
Bench W/O. MARUTI DESURKAR,
AGE: 55 YEARS,
OCC: HOUSEHOLD,
R/O: BAILUR VILLAGE,
TQ: KHANAPUR, DIST: BELGAVI.
3. SMT. BHOMAKKA
W/O. SAHADEV ANGOLKAR,
AGE: 45 YEARS,
OCC: HOUSEHOLD,
R/O: YELLUR VILLAGE,
TQ and DIST: BELGAUM.
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RSA No. 5977 of 2010
4. MISS. SUREKHA
D/O. DEVAPPA YALLURKAR,
AGE: 33 YEARS,
OCC: AGRICULTURE,
R/O: MACHHE VILLAGE,
TQ and DIST: BELGAVI.
...APPELLANTS
(BY SRI. H. R. DESHPANDE, SMT. USHA H. DESHPANDE AND
SRI. SHIRKANT R. SATTIGERI, ADVOCATES)
AND:
1. SMT. AVVAKKA
W/O. BHOMANI PATIL,
AGE: 60 YEARS,
OCC: HOUSEHOLD WORK,
R/O: ANAND GALLI, MACHHE,
TQ and DIST: BELGAVI.
2. SHRI. BHARMA
S/O. BHOMANI PATIL,
AGE: 35 YEARS,
OCC: AGRICULTURE,
R/O: ANAND GALLI, MACHHE,
TQ and DIST: BELGAVI.
3. SMT. DEVAKKA
W/O. VITHAL GADAKATI,
AGE: 65 YEARS,
OCC: HOUSEHOLD,
R/O: KHANAPUR ROAD,
BRAMHA NAGAR, BELGAVI.
4. SMT. LATA W/O. SHANKAR PATIL
AGE: 40 YEARS,
OCC: HOUSEHOLD WORK,
R/O: KHANAPUR ROAD,
BRAMHA NAGAR, BELGAVI.
5. SMT. RATNA
W/O. SUBHASH BALEKUNDRI,
AGE: 50 YEARS,
OCC: HOUSEHOLD WORK,
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RSA No. 5977 of 2010
R/O: KHANAPUR ROAD,
BRAMHA NAGAR,
BELGAVI.
6. SMT. MALLAWWA
W/O. GANAPATI LAD,
AGE: 48 YEARS,
OCC: HOUSEHOLD WORK,
R/O: YADOGA VILLAGE,
TQ: KHANAPUR, DIST: BELGAVI.
6A. SMT. DEVAKABAI
W/O. REMAIN KARDI,
AGE: 70 YEARS, OCC: HOUSEWORK,
R/O: KASBA NANDGAD,
TALUK KHANAPUR,
DIST: BELAGAVI.
6B. SMT. GANGU PATIL,
AGE: 60 YEARS,
OCC: HOUSEWORK,
R/O.TORALI, TQ: KHANAPUR,
DIST: BELAGAVI.
6C. SMT. SULABAI
W/O BALU PATIL,
AGE: 45 YEARS,
OCC: HOUSE WORK,
R/O. KUDAREMANI, TQ: BELAGAVI,
DIST: BELAGAVI.
6D. SMT. SUNANDA
W/O. MADHUKAR GURAV,
AGE: 45 YEARS,
OCC:HOUSEWORK,
R/O. YADOGA, TQ: KHANAPUR,
DIST: BELAGAVI.
6E. SHRI. MOHAN
S/O. GANAPATI LAD,
AGE: 35 YEARS,
OCC: HOUSEWORK,
R/O. KUKKARWADI,
TQ: KHANAPUR,
DIST: BELAGAVI.
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RSA No. 5977 of 2010
6F. SHRI. MOHAN
S/O. GANAPATI LAD,
AGE: 35 YEARS,
OCC: AGRICULTURE,
R/O. YADOGA, TQ: KHANAPUR,
DIST: BELAGAVI.
7. SHRI. CHANGAPPA @ BALU
S/O. HUVAPPA INGALE,
AGE: 42 YEARS,
OCC: AGRICULTURE,
R/O: KALLUR,
AT PRESENT OF GANAPAT GALLI,
MAJAGAON, TQ and DIST: BELGAVI.
...RESPONDENTS
(BY SRI. SUNIL S. DESAI, ADVOCATE FOR R1-R5;
R6(A)(B) AND R6(E) - HELD SUFFICIENT;
R6(C), (D), (E), (F) AND R7 ARE SERVED UNREPRESENTED)
------
THIS RSA IS FILED UNDER SECTION 100 OF C.P.C., PRYAING
TO SET ASIDE THE IMPUGNED JUDGMENT AND DECREE DATED
09.12.2003 PASSED BY THE LEARNED III ADDITIONAL CIVIL JUDGE
JUNIOR DIVISION BELGAUM IN O.S.NO.220/1998 AND CONFIRMED
BY THE LEARNED PRESIDING OFFICER, FAST TRACK COURT-III, AND
ADDL. MACT, BELGAUM, IN R.A.NO.208/2007 DATED 21.09.2010
AND DISMISSING THE SUIT OF THE RESPONDENTS/PLAINTIFFS AS
PRAYED FOR BY ALLOWING THIS REGULAR SECOND APPEAL WITH
COSTS TO PROMOTE THE ENDS OF JUSTICE.
THIS APPEAL COMING ON FOR FURTHER HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 5977 of 2010
CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH
ORAL JUDGMENT
This appeal is preferred by defendant No.2 to 5,
challenging the judgment and decree dated 21.09.2010 in
R.A.No.208/2007 on the file of Presiding Officer, Fast Track
Court-III and Additional M.A.C.T., Belgaum (for short "the First
Appellate Court") dismissing the appeal and confirming the
judgment and decree dated 09.12.2003 in O.S.No.220/1998 on
the file of III-Additional Civil Judge (Jr.Dn), Belgaum (for short
"the Trial Court") decreeing the suit of the plaintiff.
2. For the sake of convenience, parties are referred to
as per their rank before the Trial Court.
3. It is the case of the plaintiff that the land bearing
Sy.No.495/7 measuring 24 Guntas, land bearing Sy.No.495/10
measuring 31 Guntas and land bearing Sy.No.425 measuring 2
Acres 32 guntas situate at Desur village, Belagavi Taluk and
District are the suit schedule properties. It is stated in the
plaint that the father of the plaintiff-Gavadu had three children
viz., Devappa (husband of defendant No.1 and father of
defendant No.2 to 5), Bhomani (plaintiff) and Smt.Mallawwa
(defendant No.6). It is stated that the suit schedule 'A' and 'B'
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properties are tenanted properties and belonged to the joint
family of plaintiff and defendants. It is stated that the land
Tribunal, by its order dated 20.11.1979, granted occupancy
right in favour of deceased Devappa and therefore, the said
property is the joint family property of plaintiff and defendants.
It is also stated that the land bearing Sy.No.425 (Schedule 'C'
property) was purchased by the defendant No.7 and deceased
Devappa and therefore, sought for half share in the property.
Hence, plaintiff filed O.S.No.220/1998 seeking relief of partition
and separate possession in respect of suit schedule properties.
3.1. On service of notice, defendant No.1 to 5 entered
appearance and contested the matter. Defendant No.6 served
remained absent. Defendnat No.7 died during the pendency of
the suit and his legal representative/Defendant No.7A has filed
written statement contending that the deceased Devappa had
no right over land bearing Sy.No.425 except 20 guntas of land.
It is stated that the said property was purchased by Devappa
and defendant No.7. Hence, sought for dismissal of the suit.
3.2. Defendant No.1 to 4 adopted the written statement
of defendant No.5 wherein it is stated that the tenanted land
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was granted to the Devappa as he alone was cultivating the
land in question and therefore, sought for dismissal of the suit.
3.3. The Trial Court, based on pleadings on record,
formulated issues for its consideration. In order to establish
their case, plaintiff has examined two witnesses as PW1 and
PW2 and produced 8 documents and same were marked as
Ex.P1 to Ex.P8. Defendants have examined 5 witnesses as DW1
to DW5 and produced 15 documents and same were marked as
Ex.D1 to Ex.D15.
3.4. The Trial Court, after considering the material on
record, by its judgment and decree dated 09.12.2003 held that
the plaintiff is entitled for half share in suit schedule 'A' and 'B'
properties and also half share in land bearing Sy.No.425 out of
half share of the late Devappa. Feeling aggrieved by the same,
the defendant No.1 to 5 preferred R.A.No.208/2007 before the
First appellate Court and same was contested by the plaintiff.
The First Appellate Court, after re-appreciating the material on
record, by its judgment and decree dated 21.09.2010
dismissed the appeal, consequently, confirmed the judgment
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and decree in O.S.No.220/1998. Feeling aggrieved by the
same, the defendants No.1 to 5 have preferred this appeal.
4. This Court, vide order dated 03.03.2017,
formulated the following substantial questions of law.
"Whether in the facts and circumstances of
the case the Courts below have erred in law
in holding that grant of A and B schedule
lands to the name of Devappa enures to the
benefit of the joint family, and hence, those
two properties can be partitioned?"
5. I have heard Sri.H.R.Deshapande, learned counsel
appearing for the appellant and Sri.Sunil S Desai, learned
counsel appearing for the respondents.
6. It is contended by Sri.H.R.Deshpande, learned
counsel appearing for the appellant, that the land bearing
Sy.No.495/7 and land bearing Sy.No.495/10 were tenanted
lands granted to the father of the defendant No.2 to 5-Devappa
as per the Land Tribunal Order at Ex.D5 and also contended by
referring to Ex.D12 that late Devappa was in cultivation of the
land during 1964-65 onwards and therefore, submitted that
both the Courts below have committed an error in
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misconstruing Ex.D12 and Ex.D5. Accordingly, sought for
interference of this Court.
7. Per contra, learned counsel appearing for the
respondents sought to justify the impugned judgment and
decree passed by both the Courts below.
8. Having taken note of the submission made by the
learned counsel for the parties, I have carefully examined the
findings recorded by both the Courts below and perused the
material on record. It is relevant to extract the genealogy of
the parties to understand the relationship and the same is as
under:
Gavadu (Dead)
= Konatai (Died in 1975)
Devappa Bhomani Mallawwa
(Plaintiff)
Changubai (wife)
Defendant No.1
Awalabai Suman Bhomakka Surekha
(Def.No.2) (Def.No.3) (Def.No.4) (Def.No.4)
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9. It is not in dispute that the original propositus-
Gavadu had three children viz., Devappa (husband of
defendant No.1 and father of defendant No.2 to 5), Bhomani
(plaintiff) and Smt.Mallawwa (Defendant No.6). Late Devappa
and defendant No.7 had purchased the land bearing Sy.No.425
jointly as per the registered sale deed dated 01.04.1968
(Ex.P1). Therefore, I am of the opinion that both Devappa and
Defendant No.7 are entitled for half share each in respect of
land bearing Sy.No. 425. Insofar as land bearing Sy.No.495/7
and land bearing Sy.No.495/10 measuring 24 Guntas and 31
Guntas, respectively, are situate at Machche village. This was
also admitted by the plaintiff that the father of the plaintiff, was
a coolie and has migrated to Machche village from Desur. In
the backdrop of these aspects, these two items of properties,
as per Ex.D12-RTC extract, shows that late Devappa was in
cultivation of the land since 1964-65. Order dated 20.01.1979
(Ex.P2 & Ex.D5) by the Land Tribunal shows that Devappa was
cultivating the land personally and the land Tribunal granted
occupancy right insofar as lands bearing Sy.No.495/7 and
Sy.No.495/10.
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10. Taking into consideration the deposition of PW1, in
the cross-examination dated 09.10.2002, as it is admitted by
the PW1 that her father-Gavadu did not acquire any property
during his lifetime and the plaintiff has not shown any
document to substantiate that PW1 was cultivating the land as
a tenant and in that view of the matter, following the
declaration of law made by the Division Bench of this Court in
the case of Channappa Moolya v. Seju Moolya land others1
wherein this Court held that, clear admission in Form No.7 filed
by one of the brothers that land was cultivated, would
substantiate the cultivation of land in question and in that view
of the matter, the Trial Court has committed and error in
arriving at a conclusion to grant half share in suit schedule 'A'
and 'B' properties as well as 1/4th share in the land bearing
Sy.No.425. The said error, which is glaring on record, has not
been considered by the First Appellate Court by re-appreciating
the material on record as required under Order XLI Rule 31 of
the Code of Civil Procedure, 1908 (for short "CPC"). In that
view of the matter, both the Courts below have committed an
error in misconstruction of Ex.D12 and Ex.D5 and therefore,
2013 (4) KCCR 3266
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the substantial question of law framed above favour defendant
No.1 to 5. Accordingly, I pass the following:
ORDER
i) The appeal is allowed.
ii) The judgment and decree dated 26.09.2010 in
R.A.No.208/2007 on the file of Presiding
Officer, Fast Track Court- III and Additional
M.A.C.T., Belgaum and the judgment and
decree dated 09.12.2003 in O.S.No.220/1998
passed by the III-Additional Civil Judge
(Jr.Dn), Belgaum are hereby set aside.
iii) Suit in O.S.No.220/1998 on the file of III-
Additional Civil Judge (Jr.Dn), Belgaum is
hereby dismissed.
Sd/-
(E.S.INDIRESH)
JUDGE
YAN
