Sri Sreeramaiah vs Sri Vijaya Bhaskar
2025 Latest Caselaw 161 Kant

Karnataka High Court

Sri Sreeramaiah vs Sri Vijaya Bhaskar on 2 May, 2025

                          -1-




     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 2ND DAY OF MAY, 2025

                        BEFORE

         THE HON'BLE MR. JUSTICE K. V. ARAVIND

         REGULAR SECOND APPEAL No.2912/2006

BETWEEN:

1.     SRI SREERAMAIAH,
       S/O KUNTI NARAYANAPPA,
       AGED ABOUT 60 YEARS,
       R/O NARASPUR,
       KOLAR TALUK-563133.
                                            ...APPELLANT

(BY SRI SUBRAMANYA R., ADVOCATE)

AND:

1.    SRI VIJAY BHASKAR,
      S/O A.D. BASAPPA,
      AGED ABOUT 39 YEARS,
      JAYANAGAR,
      KOLAR-563101.
      SINCE DEAD BY LEGAL REPRESENTATIVES

1(A) SUJATHA
     W/O LATE VIJAY BHASKAR,
     AGED ABOUT 54 YEARS,

1(B) SARUN SATAN,
     D/O LATE VIJAY BHASKAR,
     AGED ABOUT 32 YEARS,

1(C) JAI JOSHMER,
     D/O LATE VIJAY BHASKAR,
     AGED ABOUT 27 YEARS,
                               -2-




     ALL ARE RESIDING AT:
     WARD No.14, JAYANAGAR,
     KOLAR TOWN,
     KOLAR-563102.

2.   SRI A. D. BASAPPA,
     S/O A.D. GANGAPPA,
     SINCE DEAD BY LEGAL REPRESENTATIVES

2(A) ALREADY ON RECORD
     AS RESPONDENT No.1

2(B) SRI JAGADEESH, S/O LATE A.D. BASAPPA, AGED MAJOR, R/O 4TH CROSS, JAYANAGAR, KOLAR-563101.

3. SRI DODDA BASAPPA, S/O BUTHAPPA, AGED ABOUT 60 YEARS, JAYANAGAR, KOLAR-563101.

4. SRI MUNIGANGAPPA, S/O LATE GIDDAPPA, SINCE DEAD BY LEGAL REPRESENTATIVES,

4(A) SMT. MUNEMMA, W/O LATE MUNIGANGAPPA, AGED ABOUT 58 YEARS,

4(B) SRI CHINNAGADU, AGED ABOUT 38 YEARS,

4(C) SRI BASAVARAJU, AGED ABOUT 33 YEARS,

4(D) SRI NARAYANASWAMY, AGED ABOUT 29 YEARS,

LEGAL REPRESENTATIVES 4(B) TO 4(D) ARE S/O LATE MUNININGAPPA, AND ALL ARE RESIDENT OF NARASAPUR HOBLI, KOLAR TALUK -563101.

5. SRI CHIKKABASAPPA, S/O A. D. GANGAPPA, SINCE DEAD BY LEGAL REPRESENTATIVES,

5(A) SMT. SIDDAMMA, W/O LATE CHIKKABASAPPA, AGED ABOUT 45 YEARS,

5(B) SMT. RADHAMMA, AGED ABOUT 28 YEARS,

5(C) SMT. GOWRI, AGED ABOUT 25 YEARS,

5(D) SMT. GEETHA, AGED ABOUT 22 YEARS,

5(E) SMT. VASANTHA, AGED ABOUT 18 YEARS,

LEGAL REPRESENTATIVES 5(A) TO 5(E) ARE D/O LATE CHIKKABASAPPA, AND ALL ARE RESIDENT OF KALAVAMANJALI VILLAGE, NARASAPUR HOBLI, KOLAR TALUK-563101.

6. SRI MUNIYAPPA, S/O BUTHAPPA, AGED ABOUT 71 YEARS, SUGUTUR VILLAGE, KOLAR TALUK-563101.

7. SRI ANJANAPPA, S/O BIDDAPPA, SINCE DEAD BY LEGAL REPRESENTATIVES

7(A) SMT. CHINNAMUNEMMA, W/O LATE ANJANAPPA, AGED ABOUT 45 YEARS,

7(B) SMT. KRISHNAMMA,

7(C) SMT. RATHNAMMA, AGED ABOUT 36 YEARS,

7(D) SMT. GOWRAMMA, AGED ABOUT 34 YEARS,

7(E) SMT. SHANTHA, AGED ABOUT 30 YEARS,

7(F) SRI BISAPPA, AGED ABOUT 28 YEARS,

7(G) SRI VENKATESH, AGED ABOUT 25 YEARS,

L.RS 7(B) TO 7(E) DAUGHTER AND 7(F) AND 7(G) ARE SONS OF LATE ANJANAPPA, AND ALL ARE R/O NARASAPUR HOBLI, KOLAR TALUK-563101.

8. SRI RAMAPPA, S/O BIDDAPPA, AGED ABOUT 56 YEARS, R/AT A. D. COLONY, NARASAPURA HOBLI, KOLAR TALUK-563101.

9. SRI B. KRISHNAPPA, S/O BIDDAPPA,

AGED ABOUT 46 YEARS, SECOND DIVISION CLERK, TALUK OFFICE, CHIKKABALLAPUR-562101.

...RESPONDENTS

(BY SRI A. KRISHNA BHAT, ADVOCATE FOR R1; SRI V. SUBHASH REDDY, ADVOCATE FOR R3; R1(C), R2(A), R2(B), R4(A), R4(B), R4(C), R4(D), R5(A), R5(B), R5(C), R5(D), R5(E), R7(A), R7(B), R7(C), R7(D), R7(E), R7(F), R7(G), R8 & R9 ARE SERVED, VIDE ORDER DATED 02.06.2014, NOTICE TO R6 IS HELD SUFFICIENT;

SRI VENUGOPAL M.S., ADVOCATE FOR R1(A); VIDE ORDER DATED 19.06.2024 SERVICE HELD SUFFICIENT IN R/O R1(B))

THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 19.4.2006 PASSED IN RA.No.59/2001 ON THE FILE OF THE PRESIDING OFFICER & ADDL.DISTRICT JUDGE, FAST TRACK COURT-IV, KOLAR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 24.7.1999 PASSED IN OS. No.468/1995 ON THE FILE OF THE ADDL.CIVIL JUDGE (JR.DN.), KOLAR. TRIAL COURT DECREED THE SUIT APPELLATE COURT DISMISSED THE APPEAL SUIT FOR PARTITION AND PERMANENT INJUNCTION.

THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

CORAM: HON'BLE MR. JUSTICE K. V. ARAVIND

C.A.V. JUDGMENT

Heard Sri. R. Subramanya, learned counsel for the

appellant, Sri A. Krishna Bhat, learned counsel for

respondent No.1, Sri V. Subhash Reddy, learned counsel

for respondent No.3 and Sri. M.S. Venugopal, learned

counsel for proposed R1(a).

2. This appeal is against the judgment and decree dated

19.04.2006 in R.A. No. 59/2001, passed by the Presiding

Officer and Additional District Judge, Fast Track Court-IV,

Kolar, dismissing the appeal and confirming the judgment

and decree dated 24.07.1999 in O.S. No.468/1995,

passed by the Additional Civil Judge (Jr. Dn.), Kolar.

3. This Court admitted the appeal to consider the

following questions of law,

"(a) Whether the Courts below have committed an error in decreeing the suit when the land of A.D. Gangappa is sold on 27.03.1995 in favour of the appellant based on an order of regrant?

(b) Whether the Courts below have committed an error in decreeing the suit for partition in respect of inam land in the absnece of there being any re-grant order in favour of the inamdar - A.D. Basappa?"

4. By order dated 11.02.2025, additional question of

law was framed as under,

" Whether in the facts and circumstances of the case and in light of the additional evidence and sale deed dated 27.03.1995, the matter requires re-consideration by the trial Court?"

5. The parties are referred to by their respective ranks

as they appeared before the trial court. The plaintiffs

instituted a partition suit, seeking a 1/3rd share in the

property bearing Survey No. 63, which measures 1 acre 7

guntas and 8 guntas of Phut Kharab, out of a total extent

of 2 acres 23 guntas, situated at Narasapur, Kolar Taluk

and District.

6. The case of the plaintiffs is that the schedule

property is Gasti Inam land. Basappa @ Basava was a

Barawardar, who had four sons, namely, Obalappa, A.D.

Ganga, Boothappa, and Biddappa. Obalappa died without

legal representatives, and A.D. Ganga died leaving behind

his son Basappa, the second plaintiff. B. Vijaya Baskar, the

first plaintiff, is the son of Plaintiff No. 2. Boothappa died

leaving behind his son Doddabasappa and others.

Biddappa died leaving behind his son Munigangappa, the

second defendant. According to the averments, after the

deaths of Basappa and Obalappa, their sons, namely, A.D.

Ganga, Boothappa, and Biddappa, succeeded to the

property. The second plaintiff succeeded to the share of

A.D. Ganga through his father. The first plaintiff also

succeeded to the share of A.D. Ganga through his father.

The second defendant succeeded to his father Biddappa's

share, while the third defendant succeeded through his

father Boothappa's share. The plaintiffs, along with

defendants Nos. 2 and 3, have claimed three equal shares

in the suit schedule property.

7. It is evident from the pleadings that 1 acre 8 guntas

of land was granted in favour of one Moogappa, and the

remaining 1 acre 7 guntas, along with 8 guntas of Phut

Kharab, belongs to the plaintiffs and defendants Nos. 2

and 3. The plaint averments state that the name of the

grandfather of the first plaintiff and the father of the

second plaintiff, A.D. Ganga, appears in the cultivator's

column of the RTC. The first plaintiff, second defendant,

and third defendant are jointly cultivating the land.

8. It is further the case of the plaintiffs that defendant

Nos. 1 and 2 are colluding inter se and fabricating false

records, attempting to alienate the suit schedule property.

Defendant Nos. 1 and 2 are stated to be represented by

counsel, whereas defendant Nos. 3 to 5 have been placed

ex-parte. The trial court recorded the evidence of PW.1 on

behalf of the plaintiffs and marked Exhibits P1 to P6. The

evidence of the defendants was recorded as nil.

9. The trial court, by judgment and decree dated

24.07.1999, held that plaintiff No. 2, along with defendant

No. 3, is entitled to a 1/3rd share in the suit schedule

property, and plaintiff No. 3, along with defendant No. 4,

is entitled to a 1/3rd share. Further, the trial court issued

- 10 -

an injunction against the further alienation of the suit

schedule property.

10. Defendant No. 1 preferred an appeal in R.A.

No.59/2001 dated 19.04.2006, inter alia contending that

he is a bona fide purchaser of the suit schedule property

from Sri A.D. Ganga, Chinnappa, and Basavaraju under a

sale deed dated 27.03.1995. Respondent No. 1 further

contended before the First Appellate Court that there was

no service of notice and he was not represented by

counsel. He also claimed that the signature on blank

papers obtained by his brother had been misused in the

proceedings. The First Appellate Court rejected the appeal

by order dated 19.04.2006. The present appeal is filed

challenging the judgment and decree in O.S. No.

468/1995 and R.A. No. 59/2001.

11. I.A. No. 2/2024 has been filed for the introduction of

additional evidence. I.A. No. 2/2007, also filed for

additional evidence, was ordered to be considered along

with the main appeal.

- 11 -

12. Sri. Subramanya R., learned counsel appearing for

the appellant, submits that the schedule property was

purchased by the appellant (defendant No. 1) under a

registered sale deed dated 27.03.1995 from Sri. A.D.

Ganga, S/o. Late A.D. Gangamma, W/o. Biddappa, and

Sri. Chinnappa and Basavaraju, sons of Sri. A.D. Ganga,

measuring 1 acre 7 guntas and 8 guntas of Kharab land.

13. Learned counsel further submits that the plaintiffs

have claimed their right through Sri A.D. Ganga, S/o.

Basappa @ Basava. The vendors of the appellant

(defendant No. 1) are not connected with the family of

A.D. Ganga, S/o. Basappa @ Basava. The notice issued to

defendant No. 1 was not served, and defendant No. 1 had

no opportunity to contest the suit. In the absence of such

an opportunity and the defence of defendant No. 1, the

suit has been decreed.

14. It is submitted that at a later point, the passing of

the decree came to the knowledge of defendant No.

1/appellant. Hence, the appeal was filed before the First

- 12 -

Appellate Authority in R.A. No. 59/2001. The First

Appellate Court, on mere technicalities, rejected the

appeal while examining the service of notice. Learned

counsel, inviting the attention of the Court to the

documents filed along with the I.A. for the production of

additional evidence, submits that the endorsement dated

05.02.1983, issued by the Land Tribunal, indicates the

grant of land in Survey No. 63 in favour of A.D.

Gangamma. Learned counsel further draws attention to

the sale deed dated 27.03.1995 and submits that the sale

deed was executed by Sri A.D. Gangappa, who is the son

of A.D. Gangamma and Biddappa, along with their

children, Chinnappa and Basavaraju. It is further the case

of the learned counsel for the appellant that, taking

advantage of the similarity in names, i.e., A.D. Ganga and

Biddappa, the partition suit has been filed solely based on

the RTC, without substantiating their right in the suit

schedule property.

15. Learned counsel would further invite the attention of

the Court to the Grant Certificate issued in 1982 in favour

- 13 -

of A.D. Ganga, S/o. Late Biddappa and A.D. Gangamma.

With the above contentions, learned counsel prays that the

judgment and decree in O.S. No. 469/1995 and R.A. No.

59/2001 be set aside.

16. Sri A. Krishna Bhat, learned counsel appearing for

respondent No. 1, submits that the appellant was

represented before the trial court upon service of notice.

Defendant No. 1, having appeared before the trial court,

engaged the services of counsel, and having failed to

utilise the opportunity to defend, cannot now raise the

plea of non-service of notice after the decree. Learned

counsel further submits that the grounds in the first

appeal were solely based on the service of notice and did

not address the merits of the judgment and decree.

17. Learned counsel further submits that the land in

question was granted in favour of Basappa @ Basava and

thereafter succeeded by A.D. Ganga, Boothappa, and

Biddappa. The plaintiffs and defendant Nos. 2 to 7 are

claiming their right through A.D. Ganga, Biddappa, and

- 14 -

Boothappa, and are entitled to a share in the suit schedule

property. The trial court, rightly recognising the rights and

interests in the suit schedule property, has decreed a

1/3rd share.

18. Sri. V. Subhash Reddy appears on behalf of

respondent No.3.

19. Having considered the submissions of learned

counsel for the parties and the record, it is evident that

the plaintiffs filed a suit for partition against the

defendants. The plaint discloses the relationship between

the plaintiffs and defendant Nos. 2 and 3. The claim for

partition is made based on the alleged grant by the Land

Tribunal, Kolar, and the entries in the RTC standing in the

name of A.D. Ganga. The foremost requirement in the

plaint is to plead how the suit schedule property

constitutes joint family property. Another aspect that

requires consideration is the inclusion of defendant No. 1,

the present appellant, as a party to the suit. Undisputedly,

- 15 -

defendant No. 1 is not a member of the plaintiffs' family,

much less the joint family.

20. It is the case of the appellant that he purchased the

suit property under a registered sale deed dated

27.03.1995 from A.D. Ganga and his children, Chinnappa

and Basavaraju. It appears that for this reason, defendant

No. 1/appellant was made a party to the suit. If this fact is

indeed true, it can safely be inferred that the plaintiffs had

knowledge of the sale deed dated 27.03.1995 in favour of

defendant No. 1 and suppressed this information in the

pleadings.

21. The appellant has alleged that the RTC of the suit

land was in the name of A.D. Ganga. The name of the

grandfather of plaintiff No. 1 and the father of plaintiff No.

2 was also A.D. Ganga. Taking advantage of the common

name and suppressing the sale deed dated 27.03.1995, an

illegal claim in collusion with other parties has been made

through the suit for partition. This submission cannot be

accepted at the threshold; however, it equally cannot be

- 16 -

denied if considered in light of the sale deed dated

27.03.1995. The issue that must be considered is whether

the suit property belongs to the family of A.D. Ganga, son

of A.D. Basappa, or to the family of A.D. Ganga, son of the

late A.D. Gangamma, wife of Biddappa.

22. Insofar as the submissions regarding the service of

notice to defendant No. 1/appellant are concerned, the

trial court has recorded that defendant Nos. 1 and 2 were

represented by counsel and no evidence was led by them.

When the appeal was filed by the appellant on the ground

that he was not served in the original suit, the appellant

pleaded before the First Appellate Court that summons

were not served and that his brother's signature was

obtained on the summons, which was allegedly in collusion

with the other parties. The First Appellate Court, after

recording that the appellant was represented by counsel

and had not availed himself of the opportunity to defend,

concluded that the notice and summons were served on

the appellant. The signatures found on the summons and

- 17 -

the vakalat were the same. Accordingly, the First Appellate

Court dismissed the appeal.

23. Be that as it may, both the trial court and the First

Appellate Court failed to examine and record findings on

the relationship between the plaintiffs and defendant No. 1

to justify the claim for partition, as well as the necessity of

including defendant No. 1 as a party to the suit when he

was not a member of the family.

24. The trial court, despite the defendants not having

filed any written statement, failed to examine the

relationship between the parties and the rights of the

parties over the properties in question, on which partition

was claimed. Upon perusal of the judgment and order of

the trial court and the First Appellate Court, it is clear that

the trial court proceeded on the presumption that the

claim in the suit was not objected to, and thus, the suit

property was considered joint family property. Similarly,

the First Appellate Court, without considering the factual

aspects, rejected the appeal on the hyper-technical issue

- 18 -

of service of notice. In light of these considerations, it

must be held that both courts below failed to apply their

minds appropriately, and both orders are unsustainable.

25. The appellant has produced genealogical tree of the

plaintiffs' family and the vendors of the appellant. The

same is extracted for convenience.

Basappa @ Basava (Alleged Barawardar)

Obalappa AD Ganga Bhoothappa Biddappa | No Issues Basappa (P2) Dodda Muniyappa (D4) Basappa Munigan Anjan Ramappa Krishna Chikka B. Vijaya gappa (D2) appa (D5) (D6) ppa(D7) Basappa (D3) Kumar (P1) Jagadeesh

Genealogical Tree of vendors of appellant A.D. Ganga S/o AD Gangamma & Biddappa:

Biddappa & A.D. Gangamma (Original Applicant)

A.D. Ganga (Grantee)

Chinnappa Basavaraju

26. From the genealogical tree, two common names can

be identified. Firstly, A.D. Ganga and Biddappa are the

children of Basappa @ Basava. Secondly, A.D. Ganga, son

of Biddappa and A.D. Gangamma, are the vendors of the

- 19 -

appellant. The case of the plaintiffs is based on the

reflection of the name of A.D. Ganga in the RTC, whereas

the appellant claims that A.D. Ganga was his vendor. In

light of the two individuals with the same name, A.D.

Ganga, found in both the plaintiffs' family and the vendors'

family, the parties should be allowed to lead further

evidence, and the findings of the trial court are necessary.

Both the courts below have failed to undertake this

exercise due to the suppression of the sale deed dated

27.03.1995. The controversy, therefore, requires the

recording of further evidence and a finding by the trial

court.

27. The Hon'ble Supreme Court in D.S. Lakshmaiah and

another vs. L. Balasubramanyam and another (2003 10

SCC 310) at paragraph 18 held as,

"18. The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. .."

- 20 -

28. The Hon'ble Supreme Court in Appasaheb Peerappa

Chandgade vs. Devendra Peerappa Chandgade and

others ((2007) 1 SCC 521) at paragraph 17 held as,

"17. Therefore, on survey of the aforesaid decisions what emerges is that there is no presumption of a joint Hindu family but on the evidence if it is established that the property was joint Hindu family property and the other properties were acquired out of that nucleus, if the initial burden is discharged by the person who claims joint Hindu family, then the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property by cogent and necessary evidence."

29. In light of the above decisions, there is no

presumption of a joint Hindu family or joint family

property unless it is established with evidence. The

findings of the trial court are based on the presumption

that no written statement was filed by the defendants,

without applying the aforementioned principle.

30. In view of the above, the following order.

      (i)     The appeal is allowed.

      (ii)    The judgment and decree in O.S.No.468/1995,

dated 24.07.1999 on the file of the Additional

City Civil Judge, Jr. Dn., at Kolar and order in

- 21 -

R.A.No.59/2001, dated 19.04.2006 on the file

of the Presiding Officer and Additional District

Judge at Kolar, are hereby set aside.

(iii) The additional question of law is answered in

the affirmative.

(iv) O.S. No. 468/1995 is restored to the file of the

Additional City Civil Judge, J.M.F.C., at Kolar,

with liberty to the appellant/defendant No. 1 to

file a written statement and lead further

evidence. The other parties are also at liberty to

lead further evidence.

(v) In view of the remand, the parties are directed

to maintain the status quo of the property in all

aspects as it stands today.

(vi) Considering that the suit is of the year 1995,

remand proceedings shall be completed

expeditiously.

Sd/-

(K. V. ARAVIND) JUDGE

VBS/MV