Karnataka High Court
Sri. Govindappa vs Sri Narayanappa on 2 June, 2025
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RSA No. 1618 of 2013
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 1618 OF 2013 (PAR)
BETWEEN:
SRI. GOVINDAPPA
S/O. LATE MUNISHAMAPPA,
AGED ABOUT 82 YEARS,
R/AT JANGAMAKOTTE VILLAGE,
AND HOBLI,
SIDLAGHATTA TALUK,
CHIKKABALLAPURA DISTRICT - 562 101
...APPELLANT
(BY SRI. KALYAN R., ADVOCATE)
AND:
Digitally signed 1. SRI NARAYANAPPA
by SUNITHA K S/O. LATE MUNISHAMAPPA,
S AGED ABOUT 81 YEARS
Location: HIGH
COURT OF 2. SMT YELLAMMA
KARNATAKA W/O.CHANNAPPA
AGED ABOUT 57 YEARS,
BOTH ARE RESIDING AT
JANGAMAKOTTE VILLAGE AND HOBLI,
SIDLAGHATTA TALUK,
CHIKKABALLAPURA DISTRICT - 562 101
...RESPONDENTS
(R2 SERVED
V/O DATED 13.01.2020 APPEAL AGAINST R1 IS ABATED)
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RSA No. 1618 of 2013
HC-KAR
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DTD 31.5.2013 PASSED IN
R.A.NO.35/2011 ON THE FILE OF SENIOR CIVIL JUDGE AND
JMFC, SIDLAGHATTA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGEMENT AND DECREE DTD 30.10.2010
PASSED IN OS.NO.220/2006 ON THE FILE OF ADDITIONAL
CIVIL JUDGE (JR.DN.) AND JMFC, SIDLAGHATTA.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
This Regular Second Appeal is filed by the appellant
challenging the judgment and decree dated 31.05.2013,
passed in R.A.No.35/2011 by the learned Itenerary Senior
Civil Judge and JMFC, Sidlaghatta and the judgment and
decree dated 30.10.2010 passed in O.S.No.220/2006 by
the learned Civil Judge (Jr.Dn.) and JMFC, Sidlaghatta.
2. For convenience, the parties are referred to
based on their rankings before the trial Court. The
appellant was the plaintiff, and the respondents were the
defendants.
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3. Brief facts, leading rise to the filing of this
appeal are as follows:
The plaintiff filed a suit against the defendants for
partition and separate possession. It is the case of the
plaintiff that Munishamappa had three sons, namely,
Narayanappa, who is defendant No.1, Govindappa, the
plaintiff and Channappa, who is no more, and defendant
No.2 is the wife of Channappa. The plaintiff's father had
not acquired any properties during his lifetime. The
plaintiff, defendant No.1 and the deceased Channappa
were living jointly, forming a joint family nucleus, and
were earning money through their hard work. The plaintiff
and his brothers contributed to purchase the suit schedule
properties in favour of defendant No.1 with the consent of
other members, who was the kartha and the manager of
the joint family. It is contended that since the date of
purchasing the suit schedule properties, the plaintiff and
defendants are in joint possession and enjoyment of the
suit schedule properties. It is contended that, defendant
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No.1 in collusion with defendant No.2 tried to alienate suit
properties. The plaintiff demanded partition and separate
possession, but the defendants refused to effect a
partition. Hence, a cause of action arose for the plaintiff
to file a suit for partition and separate possession and
accordingly, prays to decree the suit.
3.1. Defendant No.1 filed a written statement
denying the averments made in the plaint, and it is denied
that suit schedule properties were purchased out of the
joint family nucleus. It is contended that defendant No.1,
by doing coolie work with hard labour, has purchased item
No.2 of the suit schedule property under a registered sale
deed dated 07.01.1956 from Nanjappa Setty. It is
contended that khata was changed in his name. It is also
contended that, defendant No.1 purchased item No.1 of
the suit schedule property under a registered sale deed
dated 10.10.1957 from M.P.Appishamappa. Neither the
plaintiff nor defendant No.2 has any right or title over the
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suit schedule properties. Hence, prays to dismiss the suit
against defendant No.1.
3.2. Defendant No.2 sought a counterclaim and
contended that defendant No.2 got a right of 1/3rd share
in the suit schedule properties and, accordingly prays to
decree the suit of the plaintiff.
3.3. The trial Court, based on the pleadings of the
parties, framed the relevant issues.
3.4. The plaintiff, to substantiate his case, examined
himself as PW.1, examined two witnesses as PWs.2 and 3
and marked 11 documents as Exs.P1 to P11. Conversely,
the son of defendant No.1 i.e., the Power of Attorney
holder of defendant No.1 was examined as DW.1,
examined two witnesses as DWs.2 and 3, and marked 54
documents as Exs.D1 to D54. The trial Court, after
recording the evidence, hearing both sides, and on
assessing the verbal and documentary evidence, dismissed
the suit of the plaintiff vide judgment dated 30.10.2010.
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3.5. The plaintiff, aggrieved by the judgment and
decree passed in O.S.No.220/2006, preferred an appeal in
R.A.No.35/2011 on the file of Itenerary Senior Civil Judge
and JMFC, Sidlaghatta. The First Appellate Court, on
reassessing the verbal and documentary evidence,
dismissed the appeal vide judgment dated 31.05.2013.
3.6. The plaintiff, aggrieved by the impugned
judgments, filed this regular second appeal.
4. Heard the arguments of learned counsel for the
plaintiff.
5. Learned counsel for the plaintiff submits that
the suit schedule properties were purchased in the name
of defendant No.1 out of a joint family nucleus, and the
suit schedule properties are the joint family properties of
the plaintiff and the defendants. The plaintiff and
defendants are members of a Hindu undivided joint family,
and the plaintiff, as a member of the family, is entitled to
a share in the suit schedule properties. He submits that
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the plaintiff has contributed to purchase the suit schedule
properties in the name of defendant No.1. The said aspect
has not been adequately appreciated by the courts below,
and committed an error in passing the impugned
judgments. Hence, on these grounds, prays to allow the
appeal.
6. Perused the records, and considered the
submissions of the learned counsel for the plaintiff.
7. It is the case of the plaintiff that suit schedule
properties were purchased in the name of defendant No.1
out of joint family funds, the suit schedule properties are
the joint family properties, and the plaintiff, being a
member of the joint family, is entitled to a share in the
suit properties. The plaintiff, to substantiate that the suit
schedule properties were purchased out of the joint family
nucleus in the name of defendant No.1, has not produced
a single scrap of paper and also produced documents to
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establish that the plaintiff has contributed for purchasing
the suit schedule properties.
8. Conversely, defendant No.1 contended that said
properties were purchased by doing coolie work with hard-
earned money, and the sale deeds are in the name of
defendant No.1. Further, the defendants produced the
registered sale deed marked as Ex.D1. From the perusal
of the recital of Ex.D1, it discloses that defendant No.1
had paid the entire sale consideration amount regarding
the suit schedule property at item No.1. Furthermore, it is
a well-established principle of law that there is a
presumption regarding the joint family, and there is no
presumption regarding the joint family property. In a suit
for partition and separate possession, the initial burden is
on the plaintiff to establish that the suit schedule
properties are the ancestral/joint family properties of the
plaintiff and defendants. The Hon'ble Apex Court, in the
case of MAKHAN SINGH (D) BY LRS VS KULWANT SINGH
reported in AIR 2007 SC 1808, held that there is a
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presumption regarding joint family and not regarding joint
family property and that the onus regarding joint family
property is on the person who pleads that it is brought out
of the joint family nucleus.
9. Admittedly, in the instant case, the plaintiff has
not produced any records to establish that the family
possessed a sufficient nucleus for purchasing the suit
schedule properties. Both the courts below have
concurrently recorded finding of facts against the plaintiff
that the plaintiff has failed to prove that the suit schedule
properties are joint family properties, and that the plaintiff
had contributed for purchasing the suit schedule
properties. Defendant No.1, by producing the original
registered sale deeds marked as Ex.D1 and Ex.D36, has
established that the suit schedule properties are the self-
acquired properties of defendant No.1. Both the Courts
below have rightly considered the evidence on record, and
passed the impugned judgments. I do not find any error in the
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impugned judgments or any substantial question of law
that arises for consideration in this appeal.
10. Accordingly, I proceed to pass the following:
ORDER
i. The Regular Second Appeal is dismissed.
ii. The judgments and decrees passed by the
Courts below are hereby confirmed.
No order as to the costs.
Sd/-
(ASHOK S.KINAGI)
JUDGE
SKS
