Karnataka High Court

Tammanna vs Sri Sannatamma on 5 March, 2025

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                                                                 NC: 2025:KHC-D:4278
                                                              RSA No. 3202 of 2007




                                   IN THE HIGH COURT OF KARNATAKA,
                                             DHARWAD BENCH
                                 DATED THIS THE 5TH DAY OF MARCH, 2025
                                                 BEFORE
                                 THE HON'BLE MR. JUSTICE E.S.INDIRESH
                             REGULAR SECOND APPEAL NO. 3202 OF 2007 (PAR-)
                      BETWEEN:
                      TAMMANNA
                      S/O. HANUMANTHAPPA JEKINAKATTI @ WADDAR,
                      AGE: 56 YEARS, OCC: AGRICULTURE,
                      R/O. PALA VILLAGE, TQ: MUNDGOD, DIST: U.K.
                                                                           ...APPELLANT
                      (BY SRI. S.G. KADADAKATTI, ADVOCATE)
                      AND:
                      1.      SRI. SANNATAMMA
                              S/O. HANUAMANTHA @ HANUMANTHAPPA
                              JEKINAKATTI @ WADDAR,
                              AGE: 46 YEARS, OCC: AGRICULTURE,
                              R/O. PALA VILLAGE, TQ: MUNDGOD, DIST: U.K.

                      2.      SRI. BALAPPA
                              S/O. HANUAMANTHAPPA JEKINAKATTI,
Digitally signed by           SINCE DECEASED BY HIS LR.S
MOHANKUMAR B
SHELAR
Location: HIGH
COURT OF              2(A)    HANUMAVVA W/O. BALAPPA JEKINAKATTI,
KARNATAKA
DHARWAD BENCH                 AGE: 60 YEARS, OCC: AGRICULTURE,
Date: 2025.03.07
16:18:45 +0530                R/O. PALA VILLAGE, TQ: MUNDGOD, DIST: U.K.

                      2(B)    HANUMANTAPPA S/O. BALAPPA JEKINAKATTI,
                              AGE: 45 YEARS, OCC: AGRICULTURE,
                              R/O. PALA VILLAGE, TQ: MUNDGOD, DIST: U.K.

                      2(C)    ASHOK S/O. BALAPPA JEKINAKATTI,
                              AGE: 40 YEARS, OCC: AGRICULTURE,
                              R/O. PALA VILLAGE, TQ: MUNDGOD, DIST: U.K.
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                                        NC: 2025:KHC-D:4278
                                       RSA No. 3202 of 2007




3.    SRI. SUNKA @ SUNKAPPA,
      S/O. HANUMANTHAPPA JEKINAKATTI,
      AGE: 57 YEARS, OCC: AGRICULTURE,
      R/O. PALA VILLAGE, TQ: MUNDGOD, DIST: U.K.

4.    SRI. JAYAPPA
      S/O. HANUMANTHAPPA JEKINAKATTI,
      AGE: 54 YEARS, OCC: AGRICULTURE,
      R/O. PALA VILLAGE, TQ: MUNDGOD, DIST: U.K.

5.    SRI. CHENNAPPA
      S/O. HANUMANTHAPPA JEKINAKATTI,
      AGE: 41 YEARS, OCC: AGRICULTURE,
      R/O. PALA VILLAGE, TQ: MUNDGOD, DIST: U.K.

6.    SRI. MAHADEV
      S/O HANUMANTHAPPA JEKINAKATTI,
      AGE: 39 YEARS, OCC: SERVICE,
      R/O. PALA VILLAGE, TQ: MUNDGOD, DIST: U.K.

7.    SRI. RAMANNA
      S/O. HANUMANTHAPPA JEKINAKATTI,
      AGE: 37 YEARS, OCC: AGRICULTURE,
      R/O. PALA VILLAGE, TQ: MUNDGOD, DIST: U.K.

8.    SMT. RENUKA (HANUMAVVA),
      W/O. BHEEMAPPA HULLENAVAR,
      AGE: 45 YEARS, OCC: HOUSEHOLD,
      R/O. GODLA, PO: KUPPAKADDI,
      TQ: SIRSI, DIST: U.K.

9.    SMT. HANUMAVVA
      W/O. HANUMANTHAPPA JEKINAKATTI,
      SINCE DECEASED BY HER LR'S
      APPELLANT AND RESPONDENT NO.1 TO 8 AND 10

10.   SRI. FAKKIRAPPA S/O. HANUMANTH @
      HANUMANTHAPPA JEKINAKATTI (WADDAR),
      SINCE DECEASED BY HIS LR'S.
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                                          NC: 2025:KHC-D:4278
                                       RSA No. 3202 of 2007




10(A) MANJAPPA S/O. FAKKIRAPPA JEKINAKATTI (WADDAR)
      AGE: 32 YEARS, OCC: AGRICULTURE,
      R/O. PALA VILLAGE,
      NOW C/O. LAXMAPPA
      R/O. RAMAPUR, POST: PALA VILLAGE,
      TQ: MUNDAGOD, DIST: U.K.

10(B) AKKAMMA W/O. LAXMAPPA,
      AGE: 40 YEARS, OCC: HOUSEHOLD,
      R/O. RAMAPUR, POST: PALA VILLAGE,
      TQ: MUNDAGOD, DIST: U.K.
                                                ...RESPONDENTS
(BY SRI. DINESH M. KULKARNI, ADVOCATE FOR R1-R7;
    R2(A)-R2(C), R8, R10(A & B) ARE SERVED & UNREPRESENTED)

      THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
DATED 12.11.2007 PASSED BY THE CIVIL JUDGE (SR. DN) YELLAPUR
IN R.A.NO.05/2007 BY REVERSING THE JUDGMENT AND DECREE
PASSED BY THE LEARNED CIVIL JUDGE (JR.DN.) MUNDAGOD DATED
24.11.2006 PASSED IN O.S.NO.33/2004 AND ETC.

     THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

CORAM:   THE HON'BLE MR. JUSTICE E.S.INDIRESH

                     ORAL JUDGMENT

This appeal is filed by the defendant No.1

challenging the judgment and decree dated

12.11.2007 passed in RA No.5 of 2007 on the file of

the Civil Judge (Sr.Dn.), Yellapura. Uttara Kannada,

allowing the appeal and modifying the judgment and

decree dated 24.11.2006 passed in OS No.33 of 2004

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on the file of the Civil Judge, (Jr. Dn.), Mundgod,

dismissing the suit of the plaintiff.

2. For the sake of convenience, the parties in this

appeal shall be referred to in terms of their status and

ranking before the trial Court.

3. The plaint averments are that, the plaintiff and

defendant Nos.1 to 8 are the sons and daughter of

one Hanumantha @ Hanumanthappa Jekinakatti, @

Waddar and Hanumavva (Defendant No.9). It is stated

in the plaint that, father of plaintiff-Hanumanthappa

was cultivating the land bearing Sy.No.191 at Palla

Village, Mundgod Taluk, since 1948. It is also stated

that, Hanumanthappa died on 06.09.1971 leaving

behind the plaintiff and defendant Nos. 1 to 9 as his

legal representatives and thereafter, the mutation

entry was changed in favour of defendant No.1 as a

Kartha of the joint family. It is also stated that, the

Land Tribunal vide order dated 22.12.1975 granted

NC: 2025:KHC-D:4278

occupancy rights in respect of subject land to the

defendant No.1 as the defendant No.1 filed an

application in Form No.VII. Schedule 'B' property is

the non-agricultural family property and as such, it is

the case of the plaintiff that, the suit schedule

properties are the joint family properties of late

Hanumanthapp and plaintiff and defendant Nos. 1 to 9

being the legal representatives, are entitled for share

in the joint family properties. Accordingly, plaintiff

sought for partition and separate possession in OS

No.33 of 2004 on the file of the Trial Court.

4. After service of summons, the defendant Nos.1 to

7 entered appearance and defendant Nos. 2, 5 to 7

filed separate written statement denying the

averments made in the plaint, however, admitted the

relationship with the plaintiff. Defendant No.4 has filed

memo adopting the written statement filed by

defendant Nos.2 and 5 to 7. Defendant No.1 filed

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separate written statement, denying the relief sought

for in respect of the schedule property on the ground

that, the schedule property was in cultivation of

defendant No.1 and as such, he filed application

seeking occupancy rights and therefore, the Land

Tribunal has granted occupancy rights in favour of

defendant No.1. Hence, defendant No.1 sought for

dismissal of the suit insofar as schedule 'A' property.

5. Defendant No.3 entered appearance, however,

he has not contested the matter. Defendant Nos. 8 to

10 placed ex-parte.

6. On the basis of the rival pleadings, the trial Court

has formulated issues for its consideration.

7. In order to establish their case, plaintiff has

examined herself as PW1 and got marked 14

documents as Exs.P1 to P14. On the other hand,

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defendants examined three witnesses as DW1 to DW3

and produced 18 documents as Exs.D1 to D18.

8. The Trial Court, after considering the material on

record, by its judgment and decree dated 24.11.2006

dismissed the suit of the plaintiff and being aggrieved

by the same, the plaintiff has preferred Regular

Appeal in RA No.5 of 2007 on the file of First Appellate

Court and said appeal was resisted by the defendants.

The First Appellate Court after re-appreciating the

facts on record, by its judgment and decree dated

12.11.2007 allowed the appeal and modified the

judgment and decree passed by the Trial Court in OS

No.33 of 2004. Being aggrieved by the same, the

defendant No.1 has preferred this Regular Second

Appeal under Section 100 of CPC.

9. This Court, vide order dated 19.02.2009

formulated the following substantial question of law.

NC: 2025:KHC-D:4278

a. Whether the manner of consideration of the documents at Exs.P3, P4 and P5 by the Lower Appellate Court has led to its wrong conclusion that the properties in question are the joint family properties which are originally standing in the name of Shri. Hanumanthappa, w ho is the father of the parties ?

b. Whether the Lower Appellate Court was justified in that background in coming to the conclusion that the properties allotted by the Land Tribunal by way of occupancy rights annured to the benefits of the joint family and as to whether there was joint family constitutes the plaintiff and the defendants ?

9. I have heard Sri. S.G. Kadadakatti, learned

counsel for the appellant and Sri. Dinesh M. Kulkarni,

learned counsel appearing for the respondent Nos. 1

to 7.

10. Sri S.G. Kadadakatti, learned counsel for the

appellant submits that, the First Appellate Court has

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committed an error in interfering with the finding

recorded by the Trial Court despite the defendants

have produced Exs.D12 and 15 which clearly

establishes that, the appellant/defendant No.1 has

repaid the arrears of loan taken from PLD Bank,

Mudganod, and he further argued that the schedule 'A'

property is the self acquired property of defendant

No.1 and said aspect has not been considered by the

First Appellate Court. Accordingly, he sought for

interference of this Court.

11. Sri. Dinesh M. Kulkarni, learned counsel for the

respondents submits that the father of the plaintiff

and defendant No.1-Hanumanthappa was in

cultivation of the land in question and he died on

06.09.1971 and therefore, Form No.VII was filed by

defendant No.1 as the manager of the joint family and

therefore, sought to justify the impugned judgment

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and decree passed by the First Appellate Court.

Accordingly, he sought for dismissal of the appeal.

12. Heard the learned counsel appearing for both the

parties and perused the original records. On careful

examination of the records would indicate that, the

plaintiff and defendant Nos.1 to 8 are the children of

Hanumanthappa and Hanumavva (defendant No.9). It

is also forthcoming from the evidence on record that,

the father of the plaintiff and defendant Nos.1 to 8

was in cultivation of the schedule 'A' property and he

died on 06.09.1971. In that view of the matter, as the

father of the plaintiff and defendant No.1-

Hanumanthappa was in cultivation of the land in

question and being protective tenant under the

provisions of Karnataka Land Reforms Act and after

the death of Hanumanthappa, (father of plaintiff and

defendant Nos.1 to 8) on 06.09.1971, schedule 'A'

property has to be considered as joint family property

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of plaintiff and defendant Nos.1 to 9 and therefore,

contentions raised by the defendant No.1 that, said

property is the self acquired property of defendant

No.1 cannot be accepted. In this regard, the Trial

Court has committed an error in assessing the

evidence of PW1 so also misconstrued the order

passed by Land Tribunal. However, the same was

rectified by the First Appellate Court, after re-

appreciating the material on record as the father of

the plaintiff and defendant Nos. to 8-Hanumanthappa

was in cultivation of the land in question and in that

view of the matter, father of the plaintiff and

defendant Nos. 1 to 8 is to be considered as protected

tenant as he was in cultivation of the schedule 'A'

property since 1948. Therefore, argument advanced

by the learned counsel appearing for the appellant

cannot be accepted, in the light of judgment of this

Court in the case of Veruppegowda vs.

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Shankregowda reported in ILR 2009 KAR 1867. Be

that as it may be, the defendant No.1 has raised plea

of adverse possession in respect of the tenanted land

and the said arguments cannot accepted on the

ground that the said plea has not been sought against

any persons muchless the land lord or the tenant. In

that view of the matter, the substantial questions of

law framed above favours the respondents (plaintiff

and other contesting defendants) and accordingly, I

pass the following:

ORDER

i) Regular Second Appeal is dismissed.

ii) Judgment and decree dated 12.11.2007

passed in RA No.5 of 2007 on the file of the

Civil Judge (Sr.Dn.), Yellapura, Uttara

Kannada is hereby confirmed holding that the

plaintiff and defendant Nos.1 to 8 are entitled