Karnataka High Court
Ningappa And Ors vs Srimanth And Ors on 3 June, 2025
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RFA No. 200155 of 2023
IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH
DATED THIS THE 03RD DAY OF JUNE, 2025
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
RFA NO. 200155 OF 2023 (PAR/POS)
BETWEEN:
1. SRI. NINGAPPA
S/O SIDDAPPA MULLOLI
AGE 61 YEARS, OCCUPATION: AGRICULTURE
2. SMT. GOURAMMA
W/O HANMANTHRAYA
AGE 54 YEARS, OCCUPATION: HOUSEHOLD
3. SRI. PARASURAM
S/O HANMANTHRAYA
AGE 28 YEARS, OCCUPATION: AGRICULTURE
4. SRI. SHIVPUTRAPPA
S/O HANMANTHRAYA
AGE 25 YEARS, OCCUPATION: AGRICULTURE
APPELLANT NO.1 TO 4 ARE RESIDENT OF
YADRAMI, TQ: JEWARGI
NOW UNDER YEDRAMI TALUK
KALABURAGI DISTRICT-585325
5. SMT. DYAVAMMA
W/O SANGAPPA
AGE 76 YEARS, OCCUPATION: HOUSEHOLD
R/O BRAHAMANAMADAVU, SINDAGI TALUK
VIJAYAPURA DISTRICT-586128
...APPELLANTS
(BY SRI.AMEET KUMAR DESHPANDE, SR. COUNSEL FOR
SRI.B BHIMASHANKAR, ADVOCATE)
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RFA No. 200155 of 2023
AND:
SHIVAPPA @ SHIVAREDDY
SINCE DIED BY HIS LRs
1. SRI. SRIMANTH
S/O SHIVAPPA @ SHIVAREDDY MULLOLI
AGE 61 YEARS, OCCUPATION: AGRICULTURE
2. MALINGARAYA
S/O SHIVAPPA @ SHIVAREDDY MULLOLI
AGE 53 YEARS, OCCUPATION: AGRICULTURE
BOTH ARE R/O WARD NO. 6
NEAR NINGARAYANA GUDI, YADRAMI
YADRAMI TALUK, KALABURAGI DISTRICT-585325
3. SMT. GURUBAI
W/O SHIVAPPA @ SHIVAREDDY MULLOLI
AGE 86 YEARS, OCCUPATION: AGRICULTURE
R/O WARD NO. 7, NEAR NINGARAYANA GUDI,
YADRAMI, YADRAMI TALUK
KALABURAGI DISTRICT-585325
4. SMT. MALLAMMA
W/O KAREPPA
AGE 59 YEARS, OCCUPATION: HOUSEHOLD
R/O BRAHAMANAMADAVU, SINDAGI TALUK
VIJAYAPURA DISTRICT-586128
...RESPONDENTS
(BY SRI.DASTAGIR SAHEB B NADAF, ADVOCATE FOR R1 TO R3
& R4)
THIS RFA IS FILED U/S 96 R/W ORDER 41 RULE 1 OF
CPC, AGAINST THE JUDGMENT AND DECREE DATED
31.07.2023 IN O.S. NO. 66/2017 PASSED BY THE LEARNED
SENIOR CIVIL JUDGE & JMFC AT JEWARGI AND DISMISS THE
SUIT OF PLAINTIFF TO MEET THE ENDS OF JUSTICE.
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RFA No. 200155 of 2023
THIS RFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 21.02.2025 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT,
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MS JUSTICE J.M.KHAZI
CAV JUDGMENT
(PER: HON'BLE MS JUSTICE J.M.KHAZI)
In this Regular First Appeal, defendant Nos.1 to 5 have
challenged the judgment and decree passed by the trial Court
granting relief of partition and separate possession of 1/5th
share to the plaintiff in suit schedule properties.
2. For the sake of convenience, parties are referred
to by their ranks before the trial Court.
3. Plaintiff filed the suit seeking partition and
separate possession of 1/5th share in suit schedule properties
consisting of lands in Sy.Nos.261/1 measuring 16 acres 37
guntas and Sy.No.261 /2 measuring 19 acres 18 guntas and 4
residential houses of Yadrami Village.
4. It is the case of the plaintiff that he and
defendants constitute a Hindu joint family and suit schedule
properties are their ancestral and joint family properties.
Parties to the suit are residing separately due to the differences
of opinion between the women folk. About 17 years back he
has purchased land in Sy.No.425 measuring 12 acres as his self
acquired property. Recently, he came to know that defendants
have concocted a bogus partition deed dated 29.05.2017
among themselves and trying to mutate their names on the
basis of illegal partition and hence the suit.
5. Defendants admit the blood relationship between
the parties i.e, plaintiff, defendant No.1, the husband of
defendant No.2 and defendant Nos.5 and 2 are the children of
Siddappa. They also admit that the suit properties were their
ancestral and joint family properties. In addition, Sy.No.425
measuring 12 acres and Sy.No.156, measuring 17 acres 36
guntas purchased in the name of defendant Nos.5 and 6 were
also ancestral and joint family properties. A partition has taken
place between them wherein Sy.No.425 is allotted to the share
of plaintiff, Sy.No.261 is divided between defendant No.1 and
Hanumanthraya and Sy.No.156 is allotted to the share of
defendant Nos.5 and 6. Out of the four residential houses,
plaintiff, defendant No.1 and the wife and children of
Hanumanthraya are residing in one house each. They have
disputed that Sy.No.425 is the self acquired property of plaintiff
and sought for dismissal of the suit.
6. Though initially, defendant Nos.5 and 6 were not
arraigned as parties, later they are impleaded.
7. Based on the pleadings, the trial Court framed
necessary issues.
8. Plaintiff examined himself as PW-1 and two
witnesses as PWs-2 and 3. He got marked Exs.P1 to 20.
9. On the other hand, defendant Nos.1 and 5 are
examined as DWs-1 and 2. Defendants have got examined two
witnesses as DWs-3 and 4. They have relied upon Exs.D1 to 25.
10. The trial Court accepted the case of the plaintiff and
granted 1/5th share in the suit properties.
11. Aggrieved by the same, defendant Nos.1 to 5 have
filed this appeal, contending that the trial Court has not even
looked into the testimony of PWs-1 to 3 and as such failed to
appreciate the admissions given by them. Their evidence clearly
prove that partition has taken place about 30 years back and
since then plaintiff is enjoying land in Sy.No.425, measuring 12
acres fallen to his share. The said land was acquired through the
joint family nucleus, but the same was registered in the name of
plaintiff. Plaintiff never had any separate income of his own.
Sy.No.261, which is item No.1 of suit schedule property is
divided between the other two brothers. The evidence also
proved that the sons of Siddappa Mullolli are allotted one house
each and they are enjoying the same separately. Land in
Sy.No.156, measuring 17 acres 36 guntas is also acquired
through the joint family nucleus, but in the name of defendant
Nos.5 and 6 and it was allotted to their share. As per the
partition, the names of respective parties were mutated in the
revenue records. Suppressing these facts plaintiff has come up
with an unrighteous suit without including Sy.Nos.425 and 156.
The evidence led by the parties clearly established the defence
taken by the defendants. Without proper appreciation of the oral
and documentary evidence placed on record, the trial Court has
decreed the suit. Its findings are contrary to the evidence and
as such perverse and hence the appeal.
12. Learned counsel for respondent Nos.1 to 3 and 6
have relied upon the decision in Vineeta Sharma Vs. Rakesh
Sharma and Ors (Vineeta Sharma)1.
(2020) 9 SCC 1
13. On the other hand, learned counsel representing the
plaintiff supported the judgment and decree passed by the trial
Court and sought for dismissal of the appeal.
14. Heard arguments of both sides and perused the
record.
15. The relationship between the parties is not in
dispute. It is also not in dispute that suit schedule properties
were the ancestral and joint family properties of the parties.
According to the defendants, in addition to the suit properties,
there are two more properties acquired with the aid of joint
family funds i.e., Sy.No.425, measuring 12 acres purchased in
the name of plaintiff and Sy.No.156 measuring 17 acres 36
guntas purchased in the name of defendant Nos.5 and 6 and in
the partition they have been allotted to the name of plaintiff
and defendant Nos.5 and 6 respectively. Defendant more
particularly defendant Nos.5 and 6 does not dispute the fact
that Sy.No.156 was acquired through the joint family nucleus.
However, plaintiff dispute that Sy.No.425 was purchased with
the joint family funds. On the other hand, he claims to be the
absolute owner of this said property and that he has acquired
through the money earned by him, independent of the income
of joint family properties. Despite defendants taking the
specific defence that Sy.Nos.425 and 156 are also joint family
properties, he has not chosen to include the same to the suit.
There was no impediment for the plaintiff to include them to
the suit schedule properties and establish that Sy.No.425 is his
self acquired property. Therefore, since all the properties
belonging to the joint family are not included the suit for partial
partition is not maintainable.
16. Since the plaintiff claim that Sy.No.425 is acquired
by him as his self acquisition, it is necessary to examine
whether he has led sufficient evidence to prove the said fact. At
the out set, it is relevant to note that in the plaint, plaintiff has
given his age as 65 years. The suit is filed in the year 2017,
which gives his year of birth as 1952. It has come in the
evidence that about, 20 years prior to the filing of the suit,
plaintiff was driven out of the joint family and since then he
stayed separately and earned his livelihood. If the plaintiff is
aged 65 years when the suit was filed, when he was driven out
of the joint family, he was aged about 45 years. In the plaint,
plaintiff has pleaded that he purchased Sy.No.425 about 17
years prior to the filing of suit. In other words according to the
plaintiff, he purchased Sy.No.425 after about three years of
leaving the joint family i.e, he was aged about 48 years when
he purchased the said property. It has come in the evidence
that defendant is having five sons and all of them are able-
bodied. Therefore, if really plaintiff has purchased Sy.No.425,
about 17 years back i.e., 3 years after leaving the joint family,
the possibility of acquiring the same through his self acquisition
with the help of his sons cannot be ruled out.
17. Now it is necessary to examine whether the claim
made by the plaintiff regarding acquisition of Sy.No.425 as his
self acquired property is supported by the documents. Plaintiff
has not chosen to produce the original sale deed through which
he purchased Sy.No.425. Therefore, defendants have produced
the copy of the said sale deed at Ex.D12. The fact that land in
Sy.No.425 was acquired as per the sale deed at Ex.D12 is not
in dispute. According to this document, plaintiff is the
purchaser. This document is registered on 12.06.1968 i.e, it
was purchased about 49 years prior to the filing of the suit and
not 17 years back as claimed by the plaintiff. If the age of the
plaintiff was 65 years when the suit was filed, then when land
in Sy.No.425 was purchased on 12.06.1968, plaintiff was aged
around 16 years. In the sale deed, age of plaintiff is given as
21 years. Even where the age of the plaintiff is accepted as 21
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years when the land in Sy.No.425 was purchased, he was in
the joint family and at the said age of 21 years, it cannot be
expected that he could have his separate income, out of which
he purchased the said property. The plaintiff has not led any
evidence to show that when living in the joint family, he had
any independent income, especially when during the course of
cross-examination of the witnesses, it is elicited that except the
income from the suit properties, the family had no other
income, more particularly the plaintiff. Such being the case at
any stretch of imagination, it cannot be accepted that land in
Sy.No.425 is the self acquired property of the plaintiff and he
had independent income to acquire the same. It appears
concealing the true facts, cleverly in the plaint the plaintiff has
pleaded that he acquired land in Sy.No.425 about 17 years
prior to the filing of the suit.
18. As per written statement filed by defendant No.5,
land in Sy.No.156, measuring 17 acres 36 guntas of
Maganagera was also purchased out of the joint family funds
through registered sale dated 17.06.1982 and nominally the
sale deed was executed in the name of defendant Nos.5 and 6.
When defendant Nos.5 and 6, who are the beneficiaries of land
acquired through the said sale themselves are not claiming any
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ownership over the said property as a self acquisition and in
the light of the fact that they are married daughters, it is
proved that the said property was also acquired with the joint
family funds. It appears the intention of the father of plaintiff
was that the properties acquired through these two sale deeds,
would to be allotted to the share of plaintiff and defendant
Nos.5 and 6 so that the other children could share the
remaining properties, including the residential houses.
19. Thus, the evidence placed on record prove that
both Sy.Nos.425 and 156 were acquired with the joint family
funds and as such they are joint family properties. Despite
defendants taking such contention, plaintiff has not chosen to
include these two properties to the suit and therefore a suit for
partial partition is not maintainable. It has come in the
evidence of DW-2 (Defendant No.5) that defendant No.2
Gowramma is her daughter. She is no other than the wife of
Hanumantaraya - the brother of plaintiff. In other words,
defendant No.5 has given her daughter in marriage to her own
younger brother. It has also come in her evidence that she and
defendant No.6 are married to real brothers and one of the
daughter of defendant No.6 is given in marriage to the son of
plaintiff and her other daughter is married to the son of
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defendant No.1. Having regard to the delicate relationship
between plaintiff and defendant Nos.5 and 6, not only as
siblings, but also on account of their relationship through the
marriage of their children, it appears plaintiff is not in favour of
including Sy.No.156 and seek partition. Of course he is having
personal interest in Sy.No.425 by claiming it to be his self
acquisition. He could have included both these properties or at
least Sy.No.425 and prove that it is his self acquired property.
Of course for the reasons enumerated above, plaintiff has failed
to prove that Sy.No.425 is his self acquired property.
20. Now the next question that is required to be
answered is whether already a partition has taken place in the
family of plaintiff and defendants and in the said partition land
in Sy.No.425 is allotted to the share of plaintiff and he and
other defendants are enjoying their respective shares
separately. As already noted during the course of his cross-
examination, plaintiff has admitted that about 20 years prior to
the filing of the suit, he was driven out of the house when he
quarreled with his father and since then he is cultivating and
enjoying land in Sy.No.425 to the exclusion of other members
of the family and no one demanded any income or yield of this
land. He has also admitted that land in Sy.No.261 is divided
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between defendant Nos.1 and 2 and they are enjoying the
same separately since 20 years. The plaintiff has also admitted
that the three houses belonging to the joint family are being
enjoyed by plaintiff, defendant Nos.1 and 2 separately. The
Khatha of these properties are also transferred to the name of
respective parties.
21. The elaborate evidence led by both parties clearly
establish the fact that except the suit properties, the joint
family was not having any other income. When land in
Sy.No.425 was purchased, plaintiff was a minor or at the most
age around 21 years as noted in the sale deed and as such he
never had any income of his own. In fact, he has not led any
evidence to prove that apart from the joint family nucleus, he
was having any other income of his own to purchase the said
property as long back as in 1958.
22. Similarly, the evidence led by the parties also
established the fact that Sy.No.156 measuring 17 acres 36 was
purchased in the name of defendant Nos.5 and 6 out of the
joint family nucleus and the said property is allotted to their
share. Plaintiff is allotted the land in Sy.No.425 and since from
20 years, he is enjoying the same separately. The defendant
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No.1 and the other son Hanumantharaya were allotted land in
Sy.No.261 and accordingly they are enjoying the same. Out of
the four residential houses, three are allotted to the share of
plaintiff, defendant No.1 and Hanumantharaya and they are in
possession and enjoyment of the same. Of course the partition
between the parties is oral and it is acted upon. It appears in
order to make wrongful gain, plaintiff has filed the suit without
including all the properties. Of course, he has failed to prove
the specific case pleaded by him.
23. So far as partition between defendant Nos.2 to 4
are concerned, as per Ex.P20, they have divided the property
fallen to the share of Hanumantharaya among themselves.
Neither plaintiff, nor other defendants have anything to do with
the said property, which was allotted to the share of
Hanumantharaya. Therefore, there was no necessity for them
to include the plaint if other defendants to the said partition.
Plaintiff cannot term the said partition as concocted document.
Of course, it is not binding on the plaintiff. At the same time,
he has nothing to do with the arrangement between defendant
Nos.2 to 4 with regard to the property fallen to the share of
late Hanumantharaya. Therefore, the said partition entered into
between defendant Nos.2 to 4 and that they are trying to get
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their names mutated give rise to a cause of action for the
plaintiff to file this suit is not correct. In fact, in the plaint,
there are no pleadings to the effect that he demanded
partition.
24. On re-appreciation of the entire evidence placed on
record, this Court is of the considered opinion that the trial
Court without proper application of mind and appreciation of
the evidence led by the parties, solely on the basis of the fact
that sale deed of Sy.No.425 is standing in the name of plaintiff
has held that the it is the self acquired property of plaintiff and
that no share is allotted to the plaintiff out of the joint family
properties. Therefore, the conclusions arrived at and the
findings given by the trial Court are perverse. It calls for
interference by this Court.
25. Since already partition has taken place between the
parties the decision in Vineeta Sharma cannot be pressed into
service.
26. In the result the appeal deserves to be allowed
and accordingly the following:
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ORDER
(i) Appeal filed by the appellants/defendant Nos.1
to 5 under Section 96 r/w Order XLI Rule 1 of
CPC is allowed.
(ii) The impugned judgment and degree dated
31.07.2023 in O.S.No.66/2017 on the file of
Senior Civil Judge, Jewargi is hereby set aside.
(iii) Consequently, the suit of the plaintiff is
dismissed with cost.
(iv) The Registry is directed to send back the trial
records along with copy of this judgment
forthwith.
In view of disposal of the appeal, pending
application/s, if any, stands disposed off, as no separate
order is required.
Sd/-
(J.M.KHAZI)
JUDGE
RR
