(PER: THE HON'BLE MR. JUSTICE R.NATARAJ)
The defendants No.2, 3, 4 and 5 in O.S. No.27/2020 on the
2. For the sake of convenience and easy understanding,
3. The suit in O.S. No.27/2020 was filed for partition
lands and a residential property. The plaintiff claimed that
were his nephews and niece. Since the suit schedule No.7
also arrayed as formal parties in the suit.
4. The plaintiff claimed that his father had three sons
namely Ramanagouda, Shankaragouda and the plaintiff.
they were cultivating separately. Plaintiff claimed that the land
the husband of defendant No.1 in the year 1975. It was
defendants No.2 to 5. Plaintiff claimed that the defendants
half share in the suit properties.
5. Defendants No.1 to 5 contested the suit and filed
the genealogy furnished by the plaintiff was not correct.
given in adoption. They contended that suit items No.2 to 8 were
respective shares. In so far as item No.1 of suit 'A' property was
to him by the Tribunal. They contended that by taking advantage
suit including the item No.1 of suit 'A' property. They contended
over which the plaintiff had no right, title or interest.
6. Defendants No.6 to 10 were placed ex parte.
7. Based on these contentions, the Trial Court framed
8. Whether the plaintiff is entitled for the reliefs as prayed
for?
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9. What order or decree?
The plaintiff was examined as P.W.1 and he marked Exs.P.1 to
P.19. Plaintiff examined two witnesses as P.Ws.2 and 3.
Defendant No.2 was examined as D.W.1 and he marked Exs.D.1
to D.8.
8. The Trial Court noticed the evidence of D.W.1
wherein he admitted that except the land in Sy.No.61/1, all
other suit properties were cultivated jointly by the plaintiffs and
the defendants. In so far as the Sy.No.61/1 was concerned, it
noticed that it was cultivated earlier by the propositus
Sri. Yallappagouda Patil and after his death, the father of D.W.1
was cultivating it. The Trial Court, therefore, held that
defendants had admitted that the land bearing Sy.No.61/1 was
earlier cultivated by the propositus Mr.Yallappagouda Patil and
that such cultivation continued after his death by the father of
defendants No.2 to 6. Therefore, it held that the plaintiff is
entitled to half share in A1 to A6 properties and B Schedule
property which, apparently, was also the property held jointly by
the family. In so far as suit item A7 and A8 properties were
concerned, it referred to the deposition of D.W.1 wherein he
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admitted that in Sy.No.174/2 (item No.A7 property), he and the
plaintiff were entitled to half share and the remaining half was to
go to defendants No.6 and 7. Likewise, in respect of Sy.No.82/1,
he admitted that the plaintiff and himself were entitled to half
share while the remaining half were to go to defendants No.8 to
10. Therefore, the Trial Court decreed the suit declaring that the
plaintiff is entitled to half share in A1 to A6 and B suit schedule
properties and 1/4th share in A7 and A8 suit schedule properties.
9. Being aggrieved by the aforesaid judgment and
decree, the defendants No.2 to 5 have filed this appeal.
10. Learned counsel for defendants submitted that the
suit item No.1 belonged to the father of defendants No.2 to 5 as
it was he who had filed an application for re-grant of the land.
She contends that the suit item No.1 was "Totaganti Chakra
Inama land" and that the same was cultivated by the father of
defendants No.2 to 5 as a tenant and in view of such cultivation,
the land was granted to him. She also contends that the father
of defendants No.2 to 5 had paid premium for grant of land and
that he was cultivating the land exclusively and the plaintiff had
no right, title or interest in this item No.1 property. She also
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contends that there was a prior partition of item Nos.2 to 6 in
the year 1976 and accordingly, the plaintiff and defendants were
enjoying their respective properties. Therefore, she contends
that the suit item No.1 which was granted to the father of the
defendants in the year 1975, was his independent property
which was not available for partition. Thus, she contends that
the impugned judgment and decree passed by the Trial Court is
erroneous as it has ignored the consequences of grant of land
under the provisions of the Karnataka Land Reforms Act.
11. Per contra, learned counsel for the plaintiff submitted
that defendants No.2 to 5 have categorically admitted that the
suit items No.A2 to A6 were ancestral joint family properties. He
contends that even item Nos.7 and 8 are also properties of
plaintiffs and defendants. He contends that since defendants
No.2 to 5 have claimed that suit items A2 to A6 were partitioned
in the year 1976, there is not much dispute between the plaintiff
and the defendants that the properties belonged to the joint
family comprising. In so far as item No.1 is concerned, he
contends that the same was undisputedly granted to the father
of defendants No.2 to 5 as he was the eldest male member who
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was looking the affairs of the family. He contends that D.W.1,
who was examined before the Court, had categorically admitted
that suit item No.1 was cultivated by Yallappa Gouda Patil, the
grandfather of defendants No.2 to 5 and after his death, the
father of defendants No.2 to 5 was cultivating it and that the
application for grant of land was filed by the father of defendants
No.2 to 5. Therefore, he contends that the grant of land enured
to the benefit of the family and, for all practical purposes, was a
part of the joint family property which was available for partition
between the plaintiff and defendants No.2 to 5. He contended
that no properties were separately cultivated by the plaintiff and
the father of defendants No.2 to 5 and there was no partition by
metes and bounds and hence, the plaintiff was entitled to an
equal share in the suit properties. He further contends that
though defendants No.2 to 5 contended that there was prior
partition in the year 1976, no document of whatsoever nature
was produced before the Trial Court to establish the said fact.
Further, he contends that defendants No.2 to 5 did not place on
record the order of grant made by the Land Tribunal, the Form
No.7 filed by them seeking grant of occupancy rights and
therefore, an adverse inference has to be drawn against the
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defendants. He contends that if only these documents were
placed before the Court, it would have certainly decided the
dispute between the parties. Thus, he contends that the
impugned judgment and decree of the Trial Court is just and
property in the facts and circumstances of the case and does not
warrant any interference.
12. We have considered the submissions of the learned
counsel for the plaintiff and the learned counsel for defendants
No.2 to 5. We have also perused the records of the Trial Court as
well as the judgment and decree passed by it.
13. In view of the above, the following points arise for
our consideration in this appeal.
i) Whether the grant of Survey No.61/1 to the
father of defendants 2 to 5 enure to the benefit
of family or whether the father of defendants 2
to 5 became the full and absolute owner of the
said property?
ii) Whether the impugned judgment and decree
passed by the Trial Court is just and proper and
whether there is sufficient evidence to justify the
same?
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14. The suit claim proceeds on the footing that the
plaintiff and defendants 1 to 5 were members of a joint family
and that schedule A1 to A6 and half share in A7 and A8 belonged
to the joint family and that all of them were in joint possession
and enjoyment of the same. Likewise, it was contended that suit
schedule 'B' property was also jointly owned and possessed by
the plaintiff and defendants 1 to 5. It was claimed that in so far
as schedule A2 to A8, the names of the plaintiff and defendants
were jointly entered in the revenue records. However insofar as
schedule item No.A1 is concerned, the name of the defendants 1
to 5 were entered illegally in the year 2019. It was contended
that the schedule item A1 was land bearing Survey No.61/1,
which was cultivated by the propositus-Yallappagouda Patil as a
tenant and the RTCs for the year 1974-75 and prior thereto
established the said fact. It was contended that the said land
vested in the State Government on 24.07.1974, which is evident
from the Mutation Entry in D.No.1626. Later, the State
Government constituted the Land Tribunal to consider
applications for re-grant of the land that had vested in the State
Government. The father of defendants 2 to 5 had filed an
application for re-grant and consequently, on 06.05.1978, it was
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re-granted to the father of the defendants 2 to 5. It was
contended that even the said land was also cultivated jointly by
the plaintiff and defendants. It was claimed that the defendants
refused to partition the suit schedule properties, which compelled
the plaintiff to seek partition and separate possession of his
share in the suit schedule properties.
15. The defendant No.2 filed a written statement inter
alia contending that the suit items 2 to 8 were cultivated jointly
by the plaintiff and defendants and that in the year 1976, there
was a partition between the plaintiff and the father of defendants
2 to 5, in terms of which, each of them were entitled to half
share in suit items 1 to 6 and 1/4th share in suit items 7 and 8. It
was contended that the plaintiff was in separate possession of
his share and was cultivating the same while the defendants
were cultivating the property that fell to their share. It is also
contended that the father of the plaintiff died on 29.10.1963. It
was claimed that the father of the propositus-Yallappagouda Patil
never cultivated the land in Survey No.61/1 and that his name
was entered in the revenue records by oversight. It was
contended that suit item No.1 was earlier cultivated by
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Channabasappa Balappa Totaganti and that the father of the
defendants 2 to 5 was cultivating it as a tenant. It was claimed
that in the year 1976, there was misunderstanding between the
plaintiff and the father of defendants 2 to 5 and that the elders
in the family had advised them to divide the properties equally
and cultivate them. It is claimed that the land bearing Survey
No.61/1 was granted to the father of the defendants 2 to 5 and
Form No.10 was issued on 27.04.1981. Therefore, it was
contended that from the date of grant, the father of the
defendants 2 to 5 was in lawful possession and enjoyment of the
suit item 'A' property exclusively and that the plaintiff had no
right, title or interest in the said properties.
16. The plaintiff, who was examined as PW1, denied that
he and his brother had partitioned the properties of the family in
the year 1976. He also denied that from that day onwards, they
were in separate possession of their respective shares. He
admitted that, his ration card and the ration card of the
defendants showed that they were two separate families. He also
denied the suggestion that except Survey No.61/1, all other
properties were properties of the joint family. Ex.P11 was
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confronted to PW1 and it was suggested that the land bearing
Survey No.61/1 stood in the name of Channabasappa Balappa
Totagunti and that in Ex.P12 his name was rounded off and the
name of the father of defendants 2 to 5 was entered. Similarly,
Ex.P13 and 14 continued in the name of the father of defendants
2 to 5. He also admitted that the said land vested in the State
Government after the Abolition of Inams and that on
06.07.1981, the land was granted to the father of the
defendants, who paid the premium. However, he contended that
the premium was paid on behalf of the joint family. He admitted
that Form No.10 was also issued in the name of the father of
defendants 2 to 5. To a question whether he had any document
to show that the land bearing Survey No.61/1 was granted on
behalf of the family, PW1 stated that he did not have any
document regarding the same.
17. PW2 was an elder in the village, who had mediated
the dispute between the defendants 2 to 5 and the plaintiff. He
deposed that plaintiff and defendants were in joint possession of
the suit properties and that they had established separate
kitchen for sake of convenience but were all cultivating the
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properties jointly. He deposed that he had advised the plaintiff
and the defendants to divide the suit survey No.61/1 in equal
shares, which was denied by the defendants. He deposed that
there was no partition between the plaintiff and the defendants.
He deposed that certain money was credited into an account
under the Pradhan Mantri Phasal Beema Yojana in respect of
certain crop loss and that he advised the plaintiff to handover a
sum of ₹70,000/- to the defendants. He also deposed that a sum
of ₹37,000/- which was paid by the State Government towards
compensation of damage caused to the house due to floods was
shared between the plaintiff and defendants. Insofar as suit item
No.1 is concerned, suggestions were made to this witness that
he was deposing falsely that the property bearing Survey
No.61/1 was cultivated jointly and such suggestions were all
denied by him.
18. PW3 was also another elder in the village, who had
mediated the dispute between the plaintiff and defendants and
his evidence is almost on similar lines.
19. The defendant No.2 was examined as DW1. In his
chief-examination, he reiterated the assertions made in the
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written statement. However, in his cross-examination, he
admitted that the eldest son namely Ramanagouda was given in
adoption and that his father had died in the year 2009. He
specifically deposed as follows:
"1. ªÉÆzÀ®£Éà ªÀÄUÀ gÁªÀÄ£ÀUËqÀ ¨ÉÃgÉ PÀÄlÄA§PÉÌ
zÀvÀÄÛºÉÆÃVzÁÝgÉAzÀgÉ ¸Àj. ±ÀAPÀgÀUËqÀ 2009 gÀ°è
wÃjPÉÆArzÁÝgÉ. £À£Àß vÀAzÉUÉ 3 d£À UÀAqÀÄ ªÀÄPÀ̼ÀÄ 1
ºÉtÄÚªÀÄUÀ¼ÀÄ. ¥ÀæwªÁ¢ 1 jAzÀ 5 gÀªÀgÀÄ £À£Àß vÀAzÉAiÀÄ
ªÁgÀ¸ÀÄzÁgÀgÀÄ JAzÀgÉ ¸Àj. ªÁ¢ £À£Àß aPÀÌ¥Àà JAzÀgÉ ¸Àj.
EµÀÄÖ d£ÀgÀ£ÀÄß ºÉÆgÀvÀÄ¥Àr¹ £ÀªÀÄä PÀÄlÄA§zÀ°è ¨ÉÃgÉ AiÀiÁgÀAiÀÄ
E®è JAzÀgÉ ¸Àj.
2. £ÁªÀÅ ªÀÄvÀÄÛ ªÁ¢ zÁªÁ ¸ÀévÀÄÛUÀ¼À£ÀÄß MmÁÖV ªÀåªÀ¸ÁAiÀÄ
ªÀiÁqÀÄwzÉݪÉAzÀgÉ ¸ÁQëAiÀÄÄ ¸ÀªÉð £ÀA.61/1£ÀÄß ºÉÆgÀvÀÄ¥Àr¹
G½zÀ J®è ¸ÀévÀÄÛUÀ¼À£ÀÄß MmÁÖV ªÀiÁqÀÄwÛzÉݪÉAzÀÄ £ÀÄqÀÄAiÀÄÄvÁÛgÉ.
¸ÀzÀj ¸ÀévÀÛ£ÀÄߣÁ£ÀÄ ªÀÄvÀÄÛ ªÁ¢ MmÁÖV ªÀåªÀ¸ÁAiÀÄ ªÀiÁqÀÄwÛzÀÝgÀÄ
¸ÀºÀ ¸ÀļÀÄî ºÉüÀÄwÛzÉÝ£ÉAzÀgÉ ¸ÀjAiÀÄ®è. ¸ÀªÉð £ÀA,61/3£ÀÄß £À£Àß
CdÓ gÉÊvÀgÉAzÀÄ ¸ÁUÀĪÀ½ ªÀiÁqÀÄwÛzÀÝgÀÄ JAzÀgÉ ¸Àj. £À£Àß vÁvÀ
wÃjPÉÆAqÀ £ÀAvÀgÀ, £À£Àß vÀAzÉ ªÀÄvÀÄÛ ªÁ¢ dUÀ¢Ã±À ªÀåªÀ¸ÁAiÀÄ
ªÀiÁqÀÄwÛzÀÝgÀÄ JAzÀgÉ ¸ÁQë £À£Àß vÀAzÉ ªÀiÁvÀæ ªÀÄqÀÄwÛzÀÝgÀÄ JAzÀÄ
£ÀÄrAiÀÄÄvÁÛgÉ. 1973gÀ vÀ£ÀPÀ £À£Àß vÁvÀ AiÀÄ®è£ÀUËqÀ£À ºÉ¸Àj£À°è
PÀAzÁAiÀÄ zÁR¯ÉUÀ¼ÀÄ EzÀݪÀÅ JAzÀgÉ ¸ÀjAiÀÄ®è."
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20. Ex.P15 was also confronted to DW1, which was
revenue records up to the year 1973 wherein the name of
Yallappagouda Patil as shown as the cultivator in respect of suit
item No.A1. This witness admitted the correctness of Ex.P15. He
also admitted that after the death of Yallappagouda Patil, it was
his father, who was the eldest male member in the family and
that he was also the 'Karta' of the family. Though he claimed
that there was a partition of the properties in the year 1975, no
document to establish the said fact was placed on record. As a
matter of fact, in his further cross-examination, he deposed as
follows:
"4. £À£Àß vÁvÀ wÃjPÉÆAqÀ £ÀAvÀgÀ, £ÀªÀÄä PÀÄlÄA§PÉÌ £ÀªÀÄä vÀAzÉ
»jAiÀÄ ªÀÄUÀ JAzÀgÉ ¸ÁQëAiÀÄÄ £À£Àß vÀAzÉAiÀÄ 2£Éà ªÀÄUÀ JAzÀÄ
£ÀÄqÀÄAiÀÄÄvÁÛgÉ. £À£Àß zÉÆqÀØ¥Àà gÁªÀÄ£ÀUËqÀ zÀvÀÄÛ ºÉÆÃzÀ £ÀAvÀgÀ,
£À£Àß vÀAzÉ »jAiÀÄ ªÀÄUÀ JAzÀgÉ ¸Àj. £À£Àß vÀAzÉ £ÀªÀÄä
PÀÄlÄA§zÀ »jvÀ£À ªÀiÁqÀÄvÀÄÛzÀÝgÀÄ JAzÀgÉ ¸Àj. zÁªÁ
¸ÀévÀÄÛUÀ½UÉ ¸ÀA§A¢ü¹zÀAvÉ EzÀĪÀgÉUÉ ªÁ¢ ªÀÄvÀÄÛ £À£Àß vÀAzÉ
£ÀqÀÄªÉ AiÀiÁªÀÅzÉà ¥Á®ÄªÁnßAiÀiÁV®è JAzÀgÉ ¸ÀjAiÀÄ®è.
¸ÁQëAiÀÄÄ ªÀÄÄAzÀĪÀgÉzÀÄ ¥Á®ÄªÁnßAiÀiÁVzÉ JAzÀÄ
£ÀÄrAiÀÄÄvÁÛgÉ. ¥Á®ÄªÁnßAiÀiÁzÀ §UÉÎ zÁR¯É ºÁdgÀÄ ¥Àr¹®è.
1975gÀ°è »jAiÀÄgÀ ¸ÀªÀÄPÀëªÀÄ ¥Á®ÄªÁnß ªÀiÁrPÉÆArzÉÝãÉAzÀÄ
¸ÀļÀÄî ºÉüÀÄwÛzÉÝãÉAzÀgÉ ¸ÀjAiÀÄ®è."
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21. As regards suit items 7 and 8 are concerned, he
deposed as follows:
"7. ¸ÀªÉð £ÀA.61/1 gÀ°è ªÁ¢UÉ ¨sÁUÀA±À EzÉ JAzÀgÉ ¸ÀjAiÀÄ®è.
G½zÀ ¸ÀévÀÄÛUÀ¼ÀÄ £ÀªÀÄä ªÀÄvÀÄÛ ªÁ¢AiÀÄ ºÉ¸Àj£À°è dAnAiÀiÁVzÉ
JAzÀgÉ ¸Àj. £ÀªÀÄä ªÀÄ£É £À£Àß vÀAzÉ ªÀÄvÀÄÛ ªÁ¢AiÀÄ ºÉ¸Àj£À°è
dAn¬ÄzÉ JAzÀgÉ ¸Àj.
8. ¸ÀªÉð £ÀA.174/2 ¸ÀéwÛ£À°è £À£ÀUÉ ªÀÄvÀÄÛ ªÁ¢UÉ CzsÀ𠻸Éì EzÉ
JAzÀgÉ ¸Àj. ¥ÀæwªÁ¢ 6 ªÀÄvÀÄÛ 7gÀªÀgÉUÉ CzsÀ𠻸Éì EzÉ JAzÀgÉ
¸Àj. ¸ÀªÉð £ÀA.82/1gÀ 5 JPÀgÉ 37 UÀÄAmÉAiÀÄ°è £À£ÀUÉ ªÀÄvÀÄÛ
ªÁÀ¢UÉ CzsÀ𠻸Éì EzÉ JAzÀgÉ ¸Àj. CzÉà jÃw ¥ÀæwªÁ¢ 8
jAzÀ 10gÀªÀgÉUÉ ¸ÀzÀj ¸ÀéwÛ£À°è CzsÀ𠻸Éì EzÉ JAzÀgÉ ¸Àj.
ªÁ¢UÉ ¸ÀªÉð £ÀA.61gÀ°è ¨sÁUÁA±À PÉÆqÀÀ¨ÉÃPÁUÀÄvÀÛzÉAzÀÄ ¸ÀļÀÄî
¥ÀæªÀiÁt ¥ÀvÀæ ¸À°è¹ ¸ÀļÀÄî ¸ÁQë £ÀÄqÀÄAiÀÄÄwÛzÉÝãÉAzÀgÉ ¸ÀjAiÀÄ®è."
22. The document that was placed on record insofar as
Survey No.61/1 is an order passed by the Special Tahsildar
directing payment of compensation to Channabasappa Balappa
Totaganti in view of the grant of the land bearing Survey
No.61/1 to the father of the defendants 2 to 5. The other
document is Form No.10 issued by the Tahsildar pursuant to the
grant of the land bearing Survey No.61/1. Except these two
documents, the defendants did not produce any material to
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establish that the land in question was not cultivated by
Yallappagouda Patil prior to the same being granted to their
father. The Form No.7 filed by their father would have thrown
light on the way the land was cultivated, but the same was not
produced and marked before the Trial Court. Likewise, the
defendants must have placed on record the deposition before the
Land Tribunal to establish that it was cultivated exclusively by
the father of the defendants, which too was not done. The
defendants for reasons unknown did not produce the order of the
Land Tribunal granting Survey No.61/1. Therefore, it is more
evident that the defendants have tried to suppress material
information from the Court and it is not as if the defendants
were not in possession of the said documents or that it was not
possible for them to secure the same through process of the
Court. Consequently, an adverse inference deserves to be drawn
against the defendants 1 to 5.
23. In view of revenue entries viz., Ex.P11, 12 and 15,
that stood in the name of the propositus-Yallappagouda Patil,
which was much prior to the land being granted to the father of
the defendants, it has to be irresistibly held that the land bearing
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Survey No.61/1 was cultivated by the propositus on behalf of the
family and that the right to seek for grant of the land was
conferred on the father of defendants No.2 to 5 by virtue of prior
cultivation of the land by the propositus. Therefore, it has to be
held that the grant of land in Survey No.61/1 enured to the
benefit of the members of the joint family, where the plaintiff
also had undivided share in the properties. In support of the
claim of the defendants 1 to 5 that there was a prior partition,
there is not even a shred of evidence. No circumstances such as
division of the properties by drawing ridge lines over the
properties or fencing the properties separately or creating
encumbrance on their properties etc., were pleaded or proved.
Under the circumstances, the claim of defendants that there was
a prior partition of the properties was not proved. Hence, the
plaintiff was entitled to succeed in the suit.
24. In that view of the matter, we answer the points for
consideration framed by us as follows:
i) The grant of Survey No.61/1 of Budihal village in
favour of father of defendants 2 to 5 enured to
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the members of the joint family and was not the
exclusive property of father of defendants 2 to 5.
ii) That the impugned judgment passed by the Trial
Court is just and proper and the findings recorded
by it are based on evidence recorded before it.
Hence, the appeal lacks merit and is accordingly
dismissed.
No costs.
Sd/-
(R.NATARAJ)
JUDGE
Sd/-
(RAJESH RAI K)
JUDGE
KMS,YAN
Ct:vh
