Karnataka High Court
Shri. Anand S/O Rajaram Patil vs Sri. Prakash S/O Dattu Patil on 11 June, 2025
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RFA No. 100232 of 2017
HC-KAR
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 11TH DAY OF JUNE 2025
PRESENT
THE HON'BLE MR. JUSTICE R.NATARAJ
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
REGULAR FIRST APPEAL NO. 100232 OF 2017 (PAR/POS)
BETWEEN:
SHRI. ANAND S/O. RAJARAM PATIL
AGE: 37 YEARS, OCC: AGRICULTURE,
R/O: HONGA, TAL: AND DIST: BELAGAVI.
...APPELLANT
(BY SRI. CHETAN MUNNOLI, ADVOCATE)
AND:
1. SRI. PRAKASH S/O. DATTU PATIL
AGE: 56 YEARS, OCC: AGRICULTURE,
R/O. LAXMI GALLI, HONAGA,
TAL AND DIST: BELAGAVI.
2. SRI. PAPPU S/O. SIDDAPPA PATIL
AGE: 36 YEARS, OCC: AGRICULTURE,
Digitally signed by
R/O. LAXMI GALLI, HONAGA,
MOHANKUMAR B
SHELAR
TAL AND DIST: BELAGAVI.
Location: HIGH
COURT OF
KARNATKA
3. SRI. SACHIN S/O. SIDDAPPA PATIL
DHARWAD
BENCH AGE: 34 YEARS, OCC: AGRICULTURE,
Date: 2025.06.19
14:55:16 +0530 R/O. LAXMI GALLI, HONAGA,
TAL AND DIST: BELAGAVI.
4. SMT. FAKIRABAI W/O. OMANI PATIL
AGE: 60 YEARS, OCC: HOIUSEHOLD WORK,
R/O. LAXMI GALLI, HONAGA,
TAL AND DIST: BELAGAVI-590001.
SRI. PARASHURAM OMANI PATIL
SINCE DECEASED BY HIS LR's.
5. SMT. LAXMI @ GOPIKA W/O. PARASHURAM PATIL,
AGE: 41 YEARS, OCC: HOUSEHOLD WORK,
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RFA No. 100232 of 2017
HC-KAR
R/O. GUGRENATTI,
TAL AND DIST: BELAGAVI.
6. KUMARI MUKTA D/O. PARASHURAM PATIL
AGE: 19 YEARS, OCC: STUDENT,
R/O: GUGRENATTI,
TAL AND DIST: BELAGAVI-590001.
7. SRI. SANJAY S/O. SUBRAO PATIL
AGE: 38 YEARS, OCC: AGRICULTURIST,
R/O. LAXMI GALLI, HONAGA,
TAL AND DIST: BELAGAVI-590001.
8. SRI. RAJU S/O. SUBRAO PATIL
AGE: 34 YEARS, OCC: AGRICULTURIST,
R/O. LAXMI GALLI, HONAGA,
TAL AND DIST: BELAGAVI-590001.
9. SRI. RAMACHANDRA S/O. BHAIRUI PATIL
SINCE DECEASED BY HIS LR's.
9(A). SMT. SHANTA W/O. RAMACHANDRA PATIL
RESPONDENT NO.9(B) AND 9(C) ARE TREATED AS
LR's OF DECEASED RESPONDENT NO.9(A)
9(B). NAGESH S/O. RAMACHANDRA PATIL
AGE: 51 YEARS, OCC: AGRICULTURE,
R/O. PATIL GALLI, HONAGA-591156,
TAL AND DIST: BELAGAVI.
9(C). SMT. PRABHAVATI W/O. YALLAPA JANGLE
AGE: 49 YEARS, OCC: HOUSEHOLD WORK,
R/O. TANAJI GALLI, HONAGA-590001,
TAL AND DIST: BELAGAVI.
...RESPONDENTS
(BY SRI. GIRISH A.YADAWAD, ADVOCATE FOR R2 AND R8;
SRI. VITTHAL S.TELI, ADVOCATE FOR R5 AND R6;
NOTICE TO R1, R4, R7, R9(B AND C) ARE SERVED;
APPEAL AGAINST R9 STANDS ABATED;
R9(A)-DIED; NOTICE TO R3 IS HELD SUFFICIENT)
THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED 17.04.2017 PASSED IN O.S.
NO.229/2011 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL
JUDGE AND CHIEF JUDICIAL MAGISTRATE BELAGAVI, DISMISSING
THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.
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RFA No. 100232 of 2017
HC-KAR
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE R.NATARAJ
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE R.NATARAJ)
The plaintiff in O.S.No.229/2011, on the file of the I
Additional Senior Civil Judge & CJM, Belagavi, at Belagavi
(hereinafter referred to as the 'trial Court' for short) has
filed this regular first appeal challenging the judgment and
decree dated 17.04.2017 passed in the above suit, by
which his suit for partition and separate possession of his
share in the suit properties was dismissed.
2. The parties shall henceforth be referred to as
they were arrayed before the trial Court.
3. The suit in O.S.No.229/2011 was filed for
partition and separate possession of the plaintiff's share in
the suit schedule properties. The suit schedule properties
were land bearing R.S.No.534/3 and R.S.No.534/4, both
situate at Honga, Belagavi Taluk. The plaintiff claimed that
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he and defendants were members of a coparcenery. He
claimed that Sy.No.534 measuring 1 acre 38 guntas was
the joint family ancestral property of four brothers namely
Topanna, Siddappa, Paramanna and Omanna who were
sons of Bhairu. They were cultivating separate strips of the
above land and their names were entered in the revenue
records as per cultivation and enjoyment, though there
was no actual partition by metes and bounds. He claimed
that he and the defendants succeeded to the properties
and they continued to be in possession. Defendant No.1
who is the descendent of Topanna was in possession of 32
guntas which is numbered as R.S.No.534/3. The plaintiff
who is the descendant of Paramanna was in possession of
22 guntas which is numbered as R.S.No.534/2. The father
of defendants No.2 and 3 namely Sri.Siddappa was in
possession and cultivation of 8 guntas of land which is
numbered as R.S.No.534/4. The father of the defendants
No.4 to 7 namely Sri.Omanna was in possession of
R.S.No.534/1. The plaintiff claimed that the father of
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defendants No.2 and 3 had sold away the land bearing
R.S.No.534/4 without the consent, notice and knowledge
of the plaintiff and other defendants. He contended that
the suit lands lay in adjacent to the National Highway No.4
and due to the formation of the road, the land became
uncultivable and the portions of land possessed by the
plaintiff and the defendants could not be identified. He
contends that defendant No.1 with an intention to make
illegal gain tried to alienate R.S.No.534/3 without the
notice and knowledge of the plaintiff. On coming to know
of such attempt, the plaintiff demanded partition and
separate possession of his lawful share in the suit
properties which were refused by the defendants.
Therefore, the plaintiff was advised to file a suit for
partition of his 1/4th share in the suit schedule properties
by metes and bounds.
4. Defendant No.1 contested the suit and claimed
that there was no joint family comprised of the plaintiff
and the defendants since the last more than 100 years. He
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also claimed that the plaintiff and the defendants were in
possession of their respective properties and they were
cultivating them. He claimed that the plaintiff who got
R.S.No.534/2 as his share, got it converted for non-
agricultural purposes and formed three plots and sold one
of them to a Muslim gentleman and constructed building in
the remaining portion. He contended that Sy.No.534 of
Honga measuring 1 acre 38 guntas was not a joint family
property as contended by the plaintiff as there was already
a partition long back and the parties were enjoying their
property separately. He contended that the land bearing
Sy.No.534 was reassigned as R.S.Nos.534/1, 534/2,
534/3 and 534/4 and separate diary entries were certified
by the revenue authorities namely M.E.No.1997 dated
07.10.1976 in respect of R.S.No.534/3 and M.E.No.5124
dated 7.6.1992 in respect of R.S.No.534/2. He contended
that there were several other properties and the plaintiff
had selectively claimed share only in the landed
properties. He also claimed that the suit without
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impleading the female members of the family was not
maintainable.
5. Defendants No.2, 6 and 7 on the other hand
conceded to the claim of the plaintiff and demanded their
share in the suit properties.
6. Defendants No.4 and 5 on the other hand filed
a separate written statement inter alia contending that the
father of the plaintiff has not arrayed in the suit. It is
contended that defendant No.5 had five sons and the
plaintiff had deliberately not shown the genealogy of all
the five children. They also claimed that the plaintiff was
not in joint possession of the suit properties as contended.
7. The legal heirs of defendant No.5 namely
defendants No.5(A) and 5(B) conceded to the case of the
plaintiff and claimed their share.
8. Based on these contentions, the trial Court
framed the following issues:
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"1. Whether the plaintiffs are entitled for relief sought
for? If yes, what is the quantum in each item of suit
lands?
2. What decree or order?
Additional issues:
1. Whether plaintiffs prove that, they and defendants are
joint owners and possessors of suit land as on the
date of suit?
2. Whether plaintiffs prove that, sale deed executed by
Siddappa in favour of defendant No.8 with respect of 8
gunthas of land is not binding on them?
3. Whether suit of plaintiffs is bad for non-joinder of
necessary parties?
4. Whether suit is bad for non-inclusion of other
properties?
5. Whether court fees paid is insufficient?
6. Does Defendant No.1 proves that there was partition
more than 100 years ago?
7. Is the suit barred by limitation?"
8. The plaintiff was examined as PW.1 and also
examined his father as PW.2 and marked Exs.P.1 to P.5.
The defendants examined defendant No.2 as DW.1.
9. Based on the oral and documentary evidence, the
trial Court held that Ex.P.1 to Ex.P.4 showed that
Sy.No.534 was bifurcated and separate numbers were
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assigned as R.S.Nos.534/1, 534/2, 534/3 and 534/4. It
noticed that PW.1 admitted that Sy.No.534 was divided
about 25 years ago. It also noticed that PW.1 admitted
that R.S.No.534/1 stood in the name of defendants No.4
and 5, R.S.No.534/2 stood in his name, R.S.No.534/3
stood in the name of defendant No.1 and R.S.No.534/4
stood in the name of father of defendants No.2 and 3.
PW.1 also admitted that the names of the aforesaid were
appearing in the revenue records for more than 40 to 50
years and that they were in possession of their respective
portions. It noticed that PW.1 also admitted the mutation
entries that were certified. The trial Court therefore held
that the division of Sy.No.534 into four portions was done
almost 50 to 60 years ago. It also noticed the admission
made by the PW.1 that since 50 to 60 years, the plaintiff
and defendants were residing separately and there was a
partition of other properties which were separately
cultivated and maintained and the income generated from
those properties were utilized separately. It therefore held
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that there was a partition between the plaintiff and the
defendants in respect of other properties and hence, the
contention of the plaintiff that there was no partition of
Sy.No.534 cannot be accepted.
10. It referred to the evidence of PW.2 who
deposed that he had partitioned all his properties amongst
his children. He also admitted that in Sy.No.534, there
were four divisions and the names of the persons who
were entitled to portions of the Sy.No.534 were mentioned
in the respective survey numbers and they were in
possession and enjoyment. The trial Court therefore held
that PW.1 and PW.2 categorically admitted that there was
a partition of the properties long back including the land
bearing Sy.No.534 and that they are in lawful possession
of their respective shares.
11. It also noticed that PW.1 had admitted that
R.S.No.534/2 fell to his share and that he had sold a piece
of that land to one Mr.Moula. He also admitted that in the
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remaining portion of the land of R.S.No.534/2, he had
constructed buildings. He also admitted that defendants
No.6 and 7 had constructed their respective houses in
R.S.No.534/1. Therefore, the trial Court held that the
plaintiff failed to prove that he and the defendants were
joint owners in possession and enjoyment of the suit
properties and that defendant No.1 had proved that there
was a partition long back. Consequently, it held that the
sale by Siddappa in favour of defendant No.8 in respect of
the land bearing R.S.No.534/4 was valid. It further held
that the suit without including all the properties of the
family was not maintainable and the suit was hit by non-
joinder of necessary parties. It also held that the suit for
partition was highly belated as the plaintiff had admitted
that there was a division of the properties nearly 50 to 60
years ago. Consequently, it held that the plaintiff is not
entitled to relief of partition and separate possession and
dismissed the suit. Being aggrieved by the said judgment
and decree, this appeal is filed.
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12. Sri.Chetan Munnoli, learned counsel for the
appellant contended that though the plaintiff admitted that
Sy.No.534 was divided into four pieces and re-assigned as
R.S.Nos.534/1, 534/2, 534/3 and 534/4, there was no
actual partition of the said property and that the parties
were enjoying the portions based on their convenience. He
contends that the salient feature of a Hindu Family is that
it is joint and therefore, the properties held by it should
also be deemed to the property belonging to the family.
He contends that it is for the defendants to establish that
there was a partition of the property of the family and the
suit properties were also subject to division. He therefore
contends that in the light of the contention of the
defendants that the suit properties were divided, they
have admitted that the suit properties were earlier owned
and possessed by the joint family. Therefore, he contends
that the only defence that the defendants can take is that
there was a prior partition. He contends that though the
defendants had taken such a defence, they had not
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produced any document in that regard and hence, the
findings of the trial Court that there was a prior partition is
without any basis and deserves to be interfered.
13. Sri.Vitthal S.Teli., learned counsel for
respondents No.5 and 6 (i.e. defendants No.5A and 5B) on
the other hand contended that PW.1 and PW.2 had
categorically admitted the fact that Sy.No.534 was
bifurcated into R.S.Nos.534/1, 534/2, 534/3 and 534/4.
He contends that R.S.No.534/2 was allotted to the share
of the plaintiff and his name was entered in the revenue
records. Likewise, the names of the other defendants were
entered in the revenue records in respect of the other
portions. He contends that the R.S.No.534/4 was sold
away by Siddappa long back while R.S.No.534/2 which
belonged to the plaintiff was converted to non-agricultural
use and a portion of the said property was conveyed by
the plaintiff to one Moula and he had developed the
remaining portion by constructing house. He therefore
contends that even as per the case of the plaintiff, the
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plaintiff was in lawful possession of the property that was
allotted to his share. He contends that since this
arrangement is in existence from about 50 to 60 years as
admitted by the plaintiff, he was bound to prove that this
was not a partition of the property. He contends that the
members of the joint family can effect the partition of the
property orally and there is no prohibition for such oral
partition. He contends that such oral partition can be
proved by the conduct of the parties and the way they
have enjoyed the properties that fell to their shares, etc.
He contends that division of Sy.No.534 into four portions
and registering the names of the concerned persons in the
revenue records and they being in possession of their
respective shares shows that the parties have agreed that
there was a partition of the properties. He therefore
contends that the plaintiff had filed a mischievous suit
seeking partition of the property which is already
partitioned. He contends that PW.2 admitted this fact in
very categorical terms and therefore, there is no sign of
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any doubt that the suit properties were partitioned long
back and the members of the family were in respective
possession of their respective shares.
14. He contends that the very fact that the plaintiff
has got the property that was allotted to his share
converted to non-agricultural purpose and thereafter sold
it to one Moula establishes beyond doubt that the plaintiff
had also accepted this partition. He contends that the
plaintiff never objected against Siddappa selling
R.S.No.534/4 and also against defendants No.6 and 7
constructing buildings in their respective properties.
Therefore, he contends that the instant suit is a
mischievous attempt by the plaintiff to extract more
property from the defendants.
15. We have considered the submissions of the
learned counsel for the plaintiff and the learned counsel
for defendants No.5A and 5B.
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16. Since the questions of fact lie on a narrow
compass and the trial Court has dismissed the suit based
on the evidence of the plaintiff, we do not see any
substantial question of law or fact that requires to be
deeply examined by this Court. Therefore, we do not deem
it appropriate to admit this appeal and dispose of the
same at the stage of admission.
17. After having heard the learned counsel for the
plaintiff, learned counsel for defendants No.5A and 5B and
on perusing the plaint, written statement, and the
depositions of PW.1 and PW.2 which was furnished to us
by the learned counsel for the plaintiff and the judgment
and decree of the trial Court we find that the following
point arises for consideration:
Whether the plaintiff proved that the suit
properties belonged to the joint family and
whether the plaintiff was entitled to a share
therein ?
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18. The plaintiff in his plaint claimed that the land
bearing Sy.No.534 was an ancestral property belonging to
the joint family comprised of Topanna, Sididappa,
Paramanna and Omanna. He admitted that four brothers
were cultivating separate portions of Sy.No.534 and that
their names were entered in the revenue records as per
their cultivation and enjoyment. He admitted that
Sy.No.534 was bifurcated into R.S.Nos.534/1, 534/2,
534/3 and 534/4 as per possession and enjoyment. He
also admitted that the land bearing R.S.No.534/4 which
fell to the share of Siddappa was alienated by him but he
did not object it. He also admitted that mutation entries
were made in M.E.No.5124 dated 07.06.1992 in respect of
R.S.No.534/2 which fell to the share of his father. He also
admitted that R.S.No.534/1 and R.S.No.534/4 were
certified in the names of other defendants while
R.S.No.534/3 was certified in the name of defendant No.1.
He also admitted that these divisions of Sy.No.534 took
place almost 50 to 60 years ago. He also admitted that
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since from last 50 to 60 years, all the members of the
family were residing separately and that there was
partition of other properties of the family. He also
admitted that the other properties were separately
cultivated and maintained and the income generated from
such properties was utilized separately.
19. PW.2, the father of the plaintiff also admitted
that there were four divisions of Sy.No.534 and that the
names of the sharers as per earlier partition were entered
in revenue records. In addition, the plaintiff admitted that
R.S.No.534/2 which was allotted to him was converted to
non-agricultural residential use and he sold a portion of
the said property to one Moula and constructed in the
remaining portion. Likewise, he admitted that defendants
No.6 and 7 had constructed their houses in R.S.No.534/1
which was not obstructed by him. It is therefore evident
that the predecessors of the plaintiff and defendants were
divided long back and were in possession of their
respective portions. There is no justification offered by the
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plaintiff to justify the division of Sy.No.534 into four bits
and the continuation of the revenue records in the names
of the predecessors of the plaintiff and defendants. The
way in which the parties have dealt with their properties
establishes that all the parties have understood that the
suit property was partitioned. This apart, PW.2 had
admitted that in respect of other properties of the family,
there was a partition and that in respect of Sy.No.534, the
names of the sharers as per the earlier partition was
entered in the revenue records. Therefore, there is
clinching evidence which shows that there is prior partition
of Sy.No.534 and that the same was divided between the
predecessors of the plaintiff and the defendants long back.
Under the circumstances, the trial Court was justified in
holding that the plaintiff and the defendants did not
presently constitute a joint family and that the suit
properties were divided long back between the
predecessors of the plaintiff and the defendants. There is
no error in the appreciation of facts and application of law
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by the trial Court warranting interference with the
judgment and decree.
20. In view of the above, we hold that the plaintiff
had failed to prove that the suit properties were the joint
family ancestral properties and that there was a prior
partition of the suit property and hence, the plaintiff is not
entitled to seek for partition and separate possession of
his share in the suit properties. Hence, the regular first
appeal lacks merits and is dismissed.
21. No order as to costs.
Sd/-
(R.NATARAJ)
JUDGE
Sd/-
(RAJESH RAI K)
JUDGE
RH
Ct:vh
