Karnataka High Court
Sri Basavanni vs Sri Babu on 11 June, 2025
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA No. 149 of 2007
HC-KAR
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 11TH DAY OF JUNE 2025
BEFORE
THE HON'BLE MR. JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO.149 OF 2007 (INJ)
BETWEEN:
1. SRI. BASAVANNI S/O. CHANNAPPA MALAKAYI,
AGED 64 YEARS, OCC: RETIRED PENSIONER,
R/O: BAZAAR ROAD, TALUK: HUKKERI,
DIST: BELAGAVI.
2. SRI. CHANDRASHEKAR
S/O. CHANNAPPA MALAKAYI,
AGED 54 YEARS, OCC: RETIRED PENSIONER,
R/O: BAZAAR ROAD, TAL: HUKKERI,
NOW R/O: DAVANGERI, TAL: DAVANGERI,
DIST: DAVANGERE.
... APPELLANTS
Digitally signed
(BY SRI. SHIVRAJ S. BALLOLI, ADVOCATE)
by SAROJA
HANGARAKI
Location: High
Court of AND:
Karnataka,
Dharwad Bench,
Dharwad
1. SHRI BABU S/O. CHANNAPPA MALAKAYI,
SINCE DECEASED REPRESENTED BY HIS LRS,
RESPONDENT NO.2 AND
RESPONDENT NOS. 3(A) TO 3(D).
2. SHRI MALLAPPA S/O. BABU MALAKAYI,
AGE: 34 YEARS, OCC: AGRICULTURE,
R/O: HUKKERI, TAL: HUKKERI,
DIST: BELAGAVI.
3. SRI. VIRUPAXI S/O. BABU MALAKAYI,
SINCE DECEASED REPRESENTED BY HIS LRS.
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RSA No. 149 of 2007
HC-KAR
3A. SMT. LAXMI W/O. VIRUPAXI MALAKAYI,
AGE: 35 YEARS, OCC: STUDENT,
R/O: KOTAGI GALLI, HUKKERI,
TAL: HUKKERI, DIST: BELAGAVI.
3B. SHRI. RAHUL S/O. VIRUPAXI MALAKAYI,
AGE: 13 YEARS, OCC: STUDENT,
R/O: KOTAGI GALLI, HUKKERI,
TAL: HUKKERI, DIST: BELAGAVI.
3C. SHRI. VINAYAK S/O. VIRUPAXI MALAKAYI,
AGE: 9 YEARS, OCC: STUDENT,
R/O: KOTAGI GALLI, HUKKERI,
TAL: HUKKERI, DIST: BELAGAVI.
3D. SMT. MAHADEVI W/O. BABU MALAKAYI,
AGE:62 YEARS, OCC: HOUSEHOLD WORK,
R/O: BAZAR ROAD, NANDI KOLI GALLI,
HUKKERI, TAL: HUKKERI, DIST: BELAGAVI.
SINCE DECEASED HER LRS
RESPD. 3(A) TO 3(C) ARE
ALREADY ON RECORD.
... RESPONDENTS
(BY SRI. B.S.KAMATE, ADVOCATE FOR R2 AND R3 (A - C);
R3 (A) TO R3(D) ARE SERVED;
V/O DATED: 11.07.2017 R2 IS LRS OF DECEASED R1)
THIS RSA IS FILED UNDER SECTION 100 CPC PRAYING TO
SET ASIDE THE JUDGMENT AND DECREE DATED 20.09.2006
PASSED IN R.A.63/2004 ON THE FILE OF CIVIL JUDGE (SR.DN)
HUKKERI REVERSING THE JUDGMENT AND DECREE DATED
11.10.2004 PASSED IN O.S.23/2003 ON THE FILE OF CIVIL
JUDGE (JR.DN) HUKKERI BY ALLOWING THE APPEAL TO MEET
THE ENDS OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ORDERS THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RSA No. 149 of 2007
HC-KAR
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL)
1. The plaintiffs, being aggrieved by the judgment
and decree dated 20.09.2006, passed in R.A. No.63/2004
on the file of the Civil Judge (Sr. Dn.), Hukkeri (for short
"the First Appellate Court"), are before this Court.
2. By the aforesaid judgment and order, the First
Appellate Court, while allowing the appeal filed by the
defendants, set aside the judgment and decree, dated
11.10.2004 passed in O.S. No.23/2003 on the file of the
Civil Judge (Jr. Dn.), Hukkeri (for short "the trial Court"),
which had granted the relief of permanent injunction in
favour of the plaintiffs, restraining the defendants from
interfering with their peaceful possession and enjoyment of
the suit properties.
3. Brief facts of the case are that, the plaintiffs and
defendant No.1 are full brothers. That in terms of a
registered deed of partition, dated 06.04.1979 plaintiffs
and defendant No.1 divided joint family properties,
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consisting of both landed as well as residential properties.
That the land bearing R.S. Nos.272/1, 272/2 & 272/3,
totally measuring 8 acres and 22 guntas, was jointly
allotted to the share of plaintiffs, while the land bearing
R.S. No.212/2, totally measuring 10 acres 30 guntas, was
allotted to the share of defendant No.1. Similarly, the house
property bearing CTS No.1353, measuring East-West - 40
feet, North-South - 12.6 feet was jointly allotted to the
share of plaintiffs. In addition, the plaintiffs were also
allotted the property bearing CTS No.1336, which is an
open site measuring East-West - 10 feet and North-South -
20 feet. The subject matter of the suit comprise portions of
property in CTS No.1353 and CTS No.1336, which is the
open site jointly allotted to the plaintiffs. That plaintiff Nos.1
and 2 were employees of Karnataka Police Department,
plaintiff No.1 has retired, and plaintiff No.2 is serving at
Davanagere Town. That, plaintiffs are residing in the
property bearing CTS No.1353 and are also using the open
site bearing CTS No.1336 for storing manure. That they
have been in possession and enjoyment of their respective
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shares, exercising absolute ownership over the same in
terms of the aforesaid deed of partition. That defendant
Nos.2 and 3 are the sons of defendant No.1, who at the
instigation of defendant No.1, were interfering with the
plaintiffs' peaceful possession and enjoyment of the suit
properties. Hence, the plaintiffs filed a suit for permanent
injunction.
4. The defendants appeared and filed their written
statement, denying the averments made in the plaint
contended, inter alia, that the description of the suit
properties as provided by the plaintiffs was incorrect. They
alleged that the partition deed was fraudulent and created
by the plaintiffs by taking advantage of the illiteracy of
defendant No.1. No varadhi was given to the concerned
authorities regarding the alleged partition deed. The names
of the parties were not entered in respect of the properties
as per the deed of partition. The name of defendant No.1
continues to be reflected in the records relating to the suit
properties. The partition deed has not been acted upon till
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date. Defendant No.1 has been in exclusive possession and
enjoyment of the suit properties. Defendant No.1 has
constructed a house in the open site and has been using it
for storing agricultural implements and produce, and for
rearing cattles. The plaintiffs are not in possession of the
suit properties. That defendant No.1 has installed the idol of
Goddess Laxmidevi and performs pooja during fairs and
festivals. The plaintiffs have no right to offer pooja to the
said Goddess Laxmidevi. As the plaintiffs are not in
possession and enjoyment of the suit properties, they are
not entitled to the relief of injunction as sought for. Hence,
sought dismissal of the suit.
5. Based on the pleadings, the trial Court framed
the following issues for its consideration:
1. Whether the plaintiffs prove that they are in
exclusive and lawful possession and enjoyment
of the suit properties?
2. If so, is there any interference by the
defendants with the plaintiffs' peaceful
possession enjoyment of the suit properties?
3. What order or decree?
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6. Plaintiff No.1 examined himself as PW1 and
marked 10 documents as Exs.P1 to P10. Defendant No.1
examined himself as DW1 and marked 5 documents as
Exs.D1 to D5.
7. Upon appreciation of the evidence, the trial Court
answered issue Nos.1 and 2 in the affirmative and
consequently decreed the suit as prayed for.
8. Being aggrieved, the defendants preferred an
appeal in R.A. No.63/2004. The First Appellate Court
framed the following points for its consideration:
1. Whether the impugned judgment and decree is
not sustainable for the wrong and erroneous
approach therefore calls for interference?
2. What order?
9. On re-appreciation of the evidence, the First
Appellate Court answered point No.1 in the affirmative and
consequently allowed the appeal by setting aside the
judgment and decree passed by the trial Court.
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10. Being aggrieved, the plaintiffs have approached
this Court by filing the present Regular Second Appeal.
11. This Court, by order dated 04.04.2007 admitted
the above appeal to consider the following substantial
question of law:
"Whether the lower appellate Court was
justified in reversing the judgment of the trial
Court on the ground that the registered partition
deed is not acted upon insofar as the house
property is concerned?
12. Learned counsel appearing for the appellants,
while reiterating the grounds urged in the memorandum of
appeal, submitted that the First Appellate Court grossly
erred in allowing the appeal filed by the defendants and in
setting aside the judgment and decree passed by the trial
Court, without appreciating the fact that defendant No.1
had, during the trial, admitted the due execution of the
deed of partition. It was further submitted that there was a
severance of joint status and the suit properties were
exclusively allotted to the plaintiffs pursuant to the deed of
partition. That since the factum of partition has been
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proved, the First Appellate Court could not have held that
the partition effected in respect of the house properties was
not acted upon. He submits that there cannot be an option
of election to the parties to the partition deed. Merely
because mutation entire were not effected in respect of the
suit properties and revenue entries reflected in the joint
names of plaintiff and defendant No.1 same could not be a
ground to draw inference that the partition that was
effected was not acted upon. Hence, he submits that the
First Appellate Court was not justified in reversing the
judgment and decree passed by the trial Court and seeks
substantial question of law to be answered in the negative
in favour of the appellants.
13. Per contra, learned counsel appearing for the
respondents-defendants submitted that though there was
partition of the family properties, as regards the suit
schedule properties, it was an understanding between the
parties that the same would be retained and held jointly. It
is in furtherance to such an understanding that defendant
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No.1 had installed idol of Goddess of Laxmidevi and he has
been performing annual fair and festival. It is for this
reason though partition was effected, revenue entries were
not mutated and parties continue to enjoy the suit
properties jointly. In that view of the matter, if an order of
injunction is granted in favour of the plaintiffs, same would
not only be contrary to the factual aspect of the matter, but
also to the law. He submits even for the purpose of
consideration of grant of permanent injunction, the plaintiffs
required to prove their lawful possession and the lawful
possession can be ascertained only by the entries in the
revenue records which admittedly not having been effected,
an inference is required to be drawn with regard to the
plaintiffs not being in lawful possession of the suit
properties. He submits no error can be found in the
judgment and order passed by the First Appellate Court. No
substantial question of law would arise for consideration.
Hence, seeks for dismal of the appeal.
14. Heard. Perused the records.
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15. Though in the written statement, defendant No.1
sought to contend that there was no partition of the
properties and document Ex.P1-partition deed was obtained
fraudulently by plaintiff Nos.1 and 2, in later course of the
proceedings, he has admitted to the factum of execution of
said deed of partition. However, a specific stand is taken to
the effect that except the suit schedule properties, parties
had effected and acted upon the terms of partition as per
Ex.P1. The aforesaid aspect of the matter is consistently
pleaded, argued and emphasized by the defendants both
before the trial Court as well as the First Appellate Court.
The trial Court on appreciation of evidence has come to the
conclusion that the plaintiffs and defendant No.1 have been
residing separately and cultivating their shares of landed
properties separately for the last 25 years. That there was
severance of the joint family status of the plaintiffs and
defendant No.1 which is evident from the records made
available by the parties. The trial Court has also found that
merely because the names of the plaintiffs and the
defendant No.1 are reflected jointly in the property card,
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the same cannot be a conclusive proof of joint ownership of
the plaintiffs and defendants over the suit properties.
Revenue entries carrying presumptive value is always
rebuttable. That the factum of execution of the registered
deed of partition as per Ex.P1 would be sufficient to rebut
the presumption of the revenue entries of the joint
possession. Consequently, decreed the suit as sought for.
16. The First Appellate Court however, though
accepted the execution and registration of deed of partition
- Ex.P1, however, went on to hold that mere execution of
deed of partition would not be sufficient to prove the
severance of the joint family status unless the same is
acted upon and evidence in this regard is produced by way
of revenue records. Accordingly allowed the regular appeal.
17. Admittedly there is registered deed of partition
entered into between the parties as per Ex.P1. In the light
of admission of execution and registration of deed of
partition as per Ex.P1, the conclusion that needs to be
drawn is that there was severance of the joint family status
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and joint family properties, in terms of the said deed of
partition. Once that is established in the absence of any
pleas of there being any re-union of respective shares,
there cannot be any presumption of jointness and treating it
as joint family properties. Interestingly, as noted above,
defendant No.1 has taken a plea that except the suit
schedule properties, the deed of partition has been acted
upon. As rightly contended by the learned counsel for the
appellants, document at Ex.P1 has to be read as a whole
and effect of it should be given and in the absence of any
express clause in the said registered instrument, oral
evidence to the contrary cannot be countenance.
18. In term of Section 133 of the Land Revenue Act,
the revenue entries would carry rebuttable presumption
until contrary is proved. The presumption attached to the
revenue entries with regard to existence of joint names of
the plaintiffs and defendant No.1 stood rebutted in view of
admitted position of execution of deed of partition at Ex.P1,
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which aspect of the matter has been lost sight of by the
First Appellate Court.
19. In view of the above fact and circumstance and
reasons, this Court is of the considered view that in the
absence of any acceptable legal evidence in the matter, the
First Appellate Court was not justified in reversing the
judgment and decree passed by the trial Court on the
premise that the registered deed of partition - Ex.P1 was
not acted upon insofar as the suit properties concerned. The
substantial questions of law is answered accordingly.
20. Accordingly, the following:
ORDER
(i) The appeal is allowed.
(ii) The impugned judgment and order dated
judgment and decree dated 20.09.2006,
passed in R.A. No.63/2004 on the file of the
Civil Judge (Sr. Dn.), Hukkeri at Hukkeri, is
set aside.
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(iii) The judgment and decree in dated
11.10.2004 passed in O.S. No.23/2003 on
the file of the Civil Judge (Jr. Dn.), Hukkeri,
is confirmed.
Sd/-
(M.G.S. KAMAL)
JUDGE
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