Karnataka High Court
Danappa S/O. Bhimappa Malappanavar vs Smt. Sharawwa S/O. Bhimappa ... on 13 January, 2025
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RFA No. 100170 of 2022
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 13TH DAY OF JANUARY, 2025
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO. 100170 OF 2022
(PAR/POS)
BETWEEN:
1. DANAPPA S/O. BHIMAPPA MALAPPANAVAR
AGE. 44 YEARS, OCC. AGRICULTURE,
R/O. ARALIMATTI,
TQ. GOKAK, DIST. BELAGAVI 591307.
2. CHANNAPPA S/O. BHIMAPPA MALAPPANNAVAR
AGE. 39 YEARS, OCC. AGRICULTURE,
R/O. ARALIMATTI,
TQ. GOKAK, DIST. BELAGAVI 591307.
Digitally signed by
...APPELLANTS
BHARATHI H M
Location: HIGH
COURT OF
KARNATAKA (BY SRI. ABHILASH HANAMMANAVAR, ADVOCATE FOR A2;
Date: 2025.01.28
10:16:07 +0530 SRI. D.M. MALLI, ADVOCATE FOR A1)
AND:
1. SMT. SHARAWWA W/O. BHIMAPPA MALAPPANAVAR
AGE. 69 YEARS, OCC. HOUSEHOLD WORK,
R/O. ARALIMATTI,
TQ. GOKAK, DIST. BELAGAVI 591307.
2. SADASHIVA S/O. BHIMAPPA MALAPPANAVAR
AGE. 34 YEARS, OCC. AGRICULTURE,
R/O. ARALIMATTI,
TQ. GOKAK, DIST. BELAGAVI 591307.
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RFA No. 100170 of 2022
3. RAMAPPA S/O. BHIMAPPA MALAPPANNAVAR
AGE. 74 YEARS, OCC. AGRICULTURE,
R/O. ARALIMATTI,
TQ. GOKAK, DIST. BELAGAVI 591307.
4. BASAPPA S/O. DANAPPA MALAPPANNAVAR
AGE. 74 YEARS, OCC. AGRICULTURE,
R/O. ARALIMATTI,
TQ. GOKAK, DIST. BELAGAVI 591307.
5. SMT. CHANNAWWA
W/O. DANAPPA MALAPPANNAVAR
AGE. 34 YEARS, OCC. HOUSEHOLD WORK,
R/O. ARALIMATTI, MUDALGI,
TQ. GOKAK, DIST. BELAGAVI 591312.
6. SMT. PARAVVA W/O. DANAPPA MALAPPANAVAR
AGE. 25 YEARS, OCC. HOUSEHOLD WORK,
R/O. ARALIMATTI, MUDALGI,
TQ. GOKAK, DIST. BELAGAVI 591307.
...RESPONDENTS
(BY SRI. SHRIDHAR HIREMATH, ADVOCATE FOR R1 AND
C/R2;
SRI. S.L. LINGANGOUDAR, ADVOCATE FOR R5;
NOTICE TO R4 SERVED;
R3-NOTICE DISPENSED WITH)
THIS RFA IS FILED UNDER SECTION 96 OF CPC., 1908,
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
05.04.2021 PASSED IN O.S.NO.407/2017 ON THE FILE OF THE
I ADDITIONAL SENIOR CIVIL JUDGE GOKAK, 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 ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
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RFA No. 100170 of 2022
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI)
1. This Regular First Appeal is filed by appellants,
challenging the judgment and preliminary decree dated
05.04.2021, passed in O.S.No.407/2017, by the learned I
Addl. Senior Civil Judge, Gokak (for short, 'trial Court').
2. For convenience, the parties are referred to as
per their ranking before the trial Court. The appellants
were the defendants No.1 and 2, the respondents No.1
and 2 were the plaintiffs, and respondents No. 3 to 6 were
the other defendants. The plaintiffs filed a suit against the
defendants for partition and separate possession in respect
of suit schedule properties.
3. Brief facts leading rise to the filing of this
regular first appeal are as follows:
4. It is the case of the plaintiffs that one Danappa
was the original propositus. He had a wife by name
Nilawwa, who died on 17.11.1995, leaving behind the
plaintiffs and defendants No. 1 and 2 as class I legal heirs.
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It is contended that item No.6 and 7 of the suit schedule
properties are the ancestral properties of the plaintiffs and
defendants and item No.1 to 5 are acquired out of the
joint family nucleus. It is contended that suit schedule
properties are the undivided joint family properties of
plaintiffs and defendants. It is contended that no partition
is effected between the plaintiffs and defendants. The
plaintiffs requested the defendants to effect the partition,
but the defendants refused to effect the same. Hence, a
cause of action arose for the plaintiffs to file a suit for
partition and separate possession. Accordingly, prays to
decree the suit.
5. Defendant No.1 filed a written statement.
Defendant No.2 filed a memo adopting the written
statement filed by defendant No.1. Defendants No.1 and 2
contended that item No.5 of the suit schedule property is
the self acquired property of defendants No.1 and 2. The
said property was purchased by them under a registered
Sale Deed dated 23.10.2003. It is contended that plaintiffs
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and other defendants have no right to claim a share in
item No.5 of the suit schedule property. It is further
contended that plaintiffs and defendants are in joint
possession of the other suit schedule properties, except
item No.5 of the suit schedule property. Hence, pray to
dismiss the suit.
6. The trial Court, based on the pleadings of the
parties, framed the following issues and additional issues:
ISSUES
1. Whether the plaintiffs proves that suit schedule
properties are ancestral joint family properties
of themselves defendants?
2. Whether the defendant No.1 and 2 proves that
Sy.No.78/2 measuring 04 acres situated at
Aralimatti village is their self acquired
property?
3. Whether the plaintiffs are entitled for the reliefs
claimed in the suit?
4. What order or decree?
ADDL. ISSUES
1. Whether the defendants No.5 and 6 proves that
item No.8 is exclusive property of defendant
No.5 and item No.9 and 10 are self acquired
properties of defendant No.6?
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7. The plaintiffs to substantiate their case, plaintiff
No.2 was examined as PW.1 and marked 31 documents as
Exs.P.1 to P.31 and examined one witness as PW.2. In
rebuttal, defendant No.2 was examined as DW.1 and
examined two witnesses as DW.2 and DW.3 and marked
10 documents as Exs.D1 to D.10. The trial Court, after
recording the evidence, hearing both sides and on
assessment of oral and documentary evidence, answered
Issue No.1 in the affirmative, Issue No. 2 and additional
Issue No.1 in the negative, Issue No.3 partly in the
affirmative and Issue No.4 as per the final order, and
partly decreed the suit of the plaintiffs. It is declared that
plaintiffs and defendants No.1 and 2 are entitled to 1/12th
share each in item No.6 and 7, 1/4th share each in Sl.No.1
to 5 and 8 to 10, and also in respect of house properties
bearing GPC.No.609 & GPC.No.770. It is also declared that
defendants No.3 and 4 are entitled to 1/3rd share each in
Sl.No.6 and 7 properties. Plaintiffs are directed to include
house properties bearing GPC.No.607 and GPC.No.770 in
Final Decree Proceedings. The defendant Nos.1 and 2
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aggrieved by the judgment and preliminary decree passed
in O.S.No.407/2017 filed this Regular First Appeal only in
respect of item No.5 of the suit schedule property.
8. Heard the learned counsel appearing for the
defendants No.1 and 2 and the learned counsel for the
plaintiffs.
9. Learned counsel for the defendants No.1 and 2
submits that item No.5 is the self-acquired property of
defendants No.1 and 2 and the same was acquired out of
their own income. It is submitted that the plaintiffs have
no right to claim a share in item No.5 of the suit schedule
property. It is further submitted that the trial Court has
not properly appreciated the material placed on record and
committed an error in granting the share in item No.5 of
the suit schedule property. Hence, on these grounds, they
prayed to allow the appeal.
10. Per contra, learned counsel for the plaintiffs
submits that the family was possessing agricultural lands
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i.e., Sl.No.6 and 7. Defendants No.1 and 2 had purchased
item No.5 of the suit schedule property out of the income
derived from the properties at Sl.Nos.6 and 7 and he
submits that, item No.5 is the joint family property of the
plaintiffs and defendants. He submits that, defendants
No.1 and 2 have not produced any documents, to show
that they had separate source of income for purchasing
item No.5 of suit schedule property. He submits that the
trial Court was justified in granting a share in item No.5 of
the suit schedule property. Hence, on these grounds, he
prays to dismiss the appeal.
11. Perused the records and considered the
submissions of the learned counsel for the parties.
12. The points that arise for our consideration are:
Point No.1: Whether the defendant
No.1 and 2 prove that item No.5 is the self
acquired property of defendants No.1 and 2 ?
Point No.2: What order or decree?
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13. Point No.1: It is the case of the plaintiffs that
Danappa had a wife by name, Nilawwa. They had three
children namely Bhimappa, Ramappa, and Basappa.
Bhimappa died leaving behind Sharawwa. Sharawwa is
Plaintiff.No.1. They had three children named Danappa,
Channappa, and Sadashiva. Danappa is defendant No.1,
Chanappa is defendant No.2, Sadashiva is plaintiff No.2.
Basappa is defendant No.4 and Ramappa is defendant
No.3.
14. It is the case of the plaintiffs that item No.6
and 7 are the ancestral properties of the plaintiffs and
defendants, and out of the income derived from the item
No.6 and 7, the plaintiffs and defendants have purchased
the properties jointly. The suit schedule properties are the
ancestral and joint family properties of the plaintiffs and
defendants. The plaintiffs and defendants are members of
the Hindu Undivided Family and no partition is effected
between the plaintiffs and defendants. The plaintiffs
demanded partition and separate possession, but the
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defendants refused to the same. The plaintiffs to
substantiate their case, examined plaintiff No.2 as PW.1.
He reiterated the plaint averments in his examination-in-
chief and produced the documents marked as Exs.P.1 to
P.31 and also examined one witness as PW.2. In rebuttal,
defendant No.2 was examined as DW.1. He has reiterated
the written statement averments in the examination-in-
chief and he has deposed that item No.5 of the suit
schedule property is the self-acquired property of
defendant Nos.1 and 2 and they had purchased the item
No.5 of the suit schedule property out of their own
income. The defendants have produced the documents
marked as Ex.D1 to D.10 and examined the attesting
witnesses as DW.2 and DW.3. They have deposed that
defendants No.1 and 2 purchased the suit schedule
properties out of their income and it is their self-acquired
property.
15. From the perusal of the entire evidence based
on the record, though it is the defense of defendants No.1
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and 2 that item No.5 is the self acquired property,
admittedly item No.6 and 7 are the ancestral properties
and family had a joint family nucleus. It is well established
principle of law that in a suit for partition and separate
possession, the initial burden is on the plaintiff to establish
the nature of the suit schedule properties. Once the
plaintiff establishes the nature of suit schedule properties,
the burden shifts on the other side to establish that the
property is the self-acquired property. In the instant case,
the defendants except leading oral evidence, have not
produced any records to establish that they were having
separate source of income for purchasing item No.5 of the
suit schedule property. During the cross-examination,
DW.1 has admitted that except the agricultural income, he
had no other avocation. Hence, defendants No.1 and 2
have failed to establish that they have purchased item
No.5 of the suit schedule property out of their own
income. The trial Court considering the admission of DW.1
and documents produced by the plaintiffs, has rightly
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concluded that defendants No.1 and 2 have failed to
establish that it was acquired out of their own income.
16. As observed above, the defendants have failed
to produce the materials, to show that other than
agriculture, they have other occupations and income, to
purchase the item No.5 of the suit schedule property. The
defendants have failed to establish that it was purchased
out of their own income. On the contrary, the plaintiffs
have produced the records to show that it was purchased
out of the income derived from item No.6 and 7 of the suit
schedule properties.
have failed to establish that item No.5 of the suit schedule
property was purchased out of their own income and item
No.5 is the joint family property of the plaintiffs and
defendants. The trial Court was justified in granting share
to the plaintiffs and defendants other than in item No.5 of
the suit schedule property. We do not find any error in the
impugned judgment.
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18. In view of the above discussions, we answer
Point No.1 in the negative. Accordingly, we proceed to
pass the following:
19. Point No.2: Accordingly we proceed to pass
following:
ORDER
i) The Appeal is dismissed.
ii) The judgment and preliminary decree dated
05.04.2021, passed in O.S.No.407/2017, by
the learned I Addl. Senior Civil Judge,
Gokak, is confirmed.
iii) No order as to the cost.
Sd/-
(ASHOK S. KINAGI)
JUDGE
Sd/-
(RAMACHANDRA D. HUDDAR)
JUDGE
