Karnataka High Court
Smt. Devi W/O.Kuma Patrekar vs Smt. Sukri W/O.Rama Patrekar on 10 September, 2025
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RSA No. 5904 of 2010
RESERVED ON : 30.08.2025
PRONOUNCED ON : 10.09.2025
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 10TH DAY OF SEPTEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE G BASAVARAJA
REGULAR SECOND APPEAL NO.5904 OF 2010
BETWEEN:
SMT. DEVI W/O. KUMA PATREKAR
AGE: MAJOR,
R/O. HOUSE NO.698, KONKAN KHARVIWADA,
M.G.ROAD, KAJUBAG, KARWAR,U.K.-581427.
...APPELLANT
(BY SRI. J.S. SHETTY, ADVOCATE)
AND:
SMT. SUKRI W/O. RAMA PATREKAR
AGE: 57 YEARS, OCC: HOUSE WIFE,
R/O. HOUSE NO.698, KONKAN KHARVIWADA,
M.G.ROAD, KAJUBAG, KARWAR, U.K.-581427
...RESPONDENT
MALLIKARJUN
RUDRAYYA (SERVICE HELD SUFFICIENT V/O. DATED 31.10.2023)
KALMATH
Digitally signed by THIS RSA FILED U/SEC.100 OF CPC., AGAINST THE
MALLIKARJUN
RUDRAYYA
KALMATH
JUDGMENT AND DECREE DATED:30.06.2010 PASSED IN
Date: 2025.09.11
10:35:52 +0530
R.A.NO.22/2008 ON THE FILE OF THE PRL. CIVIL JUDGE
(SR.DN.) KARWAR, DISMISSING THE APPEAL FILED AGAINST
THE JUDGMENT DATED:14.07.2008 AND THE DECREE PASSED
IN OS. NO.89/2003 ON THE FILE OF THE CIVIL JUDGE (JR.DN.)
KARWAR, DECREEING THE SUIT FILED FOR DECLARATION.
IN THIS REGULAR SECOND APPEAL ARGUMENTS HAVING
BEEN HEARD AND RESERVED ON 30.08.2025 AND COMING ON
FOR "PRONOUNCEMENT OF ORDERS", THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
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RSA No. 5904 of 2010
CAV JUDGMENT
(PER: THE HON'BLE MR. JUSTICE G BASAVARAJA)
This defendants appeal is against the Judgment and decree
dated 14th passed in OS No.89 of 2003 on the file of Civil Judge
(Jr.Dn.), Karwar (for short "the trial Court") which is confirmed
by the Principal Civil Judge (Sr. Dn.), Karwar (for short "the
appellate Court"), in RA No.22 of 2008 dated 30th June 2010.
2. For the sake of convenience, the parties herein are
referred to as per their rank and status before the trial Court.
3. Brief facts leading to this appeal are that, plaintiff
filed suit for declaration, declaring that plaintiff has got half
share in the suit property. It is stated that husband of the
plaintiff-Rama Patrekar and husband of defendant-Kuma
Patrekar are brothers; and the husband of defendant is the
eldest brother, and as such, property is the joint family property
of the husbands of plaintiff and defendant. The father-in-law of
the plaintiff and defendant was tenant of the suit party and after
his death, the name of defendant's husband was mutated in the
record of rights as he was the eldest son. The husband of the
Defendant, being manager of the family was representing the
family, and had filed Form No.7 before the Land Tribunal, Karwar
for grant of occupancy right on behalf of the family. The land
Tribunal, granted occupancy right in favour of the husband of
defendant. It is stated that in the said land there was a
dilapidated house, and the husbands of the plaintiff and
defendant decided to construct a new house by joint labour and
bearing the expenses equally. The husbands of the Plaintiff and
defendant were fishermen and they had income from their
profession and had invested their hard-earned money and
constructed a House with two parts. Husband of the plaintiff
having great respect and faith on his brother, had consented to
take the permission in his name. Accordingly, application was
filed by the husband of the defendant in his name though the
suit property was the joint family property and they were in joint
possession. After construction of house, they were in possession
of their respective portions with mutual understanding. The
Northern portion was given to the husband of the plaintiff and
accordingly, plaintiff along with children, were residing in the
said portion; and the defendant, along with her children, are
residing in Southern portion. After the death of plaintiff's
husband, by taking undue advantage that the son of the plaintiff
is handicapped and also mentally unsound, the defendant started
to give trouble on one or the other reason in order to evict the
plaintiff from the said house. The defendant, in order to harass
the plaintiff, closed the front door of plaintiff's portion which was
used for ingress and egress. In view of this illegal act by the
defendant, plaintiff issued legal notice and the defendant got
issued reply notice stating that plaintiff is residing as a licensee,
and she has no right over the house. It is further contended by
the plaintiff that during October 2003, the defendant and her
children threatened the plaintiff to evict her from the schedule
house. The plaintiff has got half share in the suit land as well as
in the suit house. Hence, the plaintiff was constrained to
approach the Court seeking declaration of half share in the suit
schedule property and also consequence relief of partition by
metes and bounds.
4. Upon service of summons, defendant appeared
through Counsel and filed written statement denying regarding
acquiring property on behalf of joint family and further denied
that their father-in-law was in possession of property as a
tenant, but the relationship of the plaintiff and defendant
husband as brothers is admitted. Further, they have denied all
other governments made in the plaint as false. It is further
contented that the suit property is the self acquired property of
the husband. The defendant, after the death of her husband, is
continued in possession and enjoyment of the property by way of
inheritance, and the plaintiff has no right, title or interest
whatsoever in the suit schedule property. It is contended that
on humanitarian ground, defendant has given portion of house to
the plaintiff without taking any rent. It is further contented that
at the time of occupying the house, the plaintiff has promised the
defendant that she is ready to vacate the premises as and when
required. As the premises is required for her, defendant asked
the plaintiff to vacate the premises, but the plaintiff has not
vacated the premises. Hence, defendant prayed to dismiss the
suit with costs. Based on the pleadings, the trial Court has
framed as many as five issues:
"1) Whether the plaintiff proves that her husband and
husband of Defendant constituted an undivided family
as contended in the plaint?
2) Whether plaintiff further proves that suit property is
ancestral property as contended in the plaint?
3) Whether plaintiff further proves that she is entitled for
1/2 share in the suit property as contended in the
plaint?
4) Whether Court fee paid is proper?
5) What Order or Decree?"
5. To prove the case, Plaintiff examined two witnesses
as PW1 and PW2 and marked eight documents as Exhibits P1 to
P8. On the other hand, defendant examined three witnesses as
DWs1 to DW3 and marked eleven documents as Exhibits D1 to
D11.
6. Having heard on both sides, the trial Court has given
its finding to issues 1 to 4 in the affirmative and decreed the suit
of the plaintiff as sought for. Being agreed by the Judgment and
decree passed by the trial Court, defendant preferred appeal
before the first appellate Court in RA No.22 of 2008, which came
to be dismissed by Judgment and decree dated 30th June, 2010.
Being aggrieved by the Judgments and decree passed by the
Courts below, the defendant/appellant has preferred this second
appeal.
7. The learned Counsel appearing for the appellant
submits that the Judgment and decree passed by both the Courts
below are illegal, arbitrary, capricious and are not sustainable in
the eye of law. He would submit that the trial Court having
noticed, the fact that the occupancy rights of the suit property
has been granted by the Land Tribunal in favour of the husband
of the appellant alone in his individual capacity, has committed
an error in holding that the plaintiff has got half share in the suit
property and also committed an error in passing the decree for
partition and separate position of his alleged of share. He would
further submit that the occupancy right was granted in favour of
the husband of the appellant exclusively and in his individual
capacity and after his death, the same has been succeeded by
the appellant and, as such the plaintiff is not having any right,
title or interest over the property. The Courts below have
committed an error in holding that the suit property is the joint
family property. The Courts below have failed to take note of
the settled position of the law as declared by the Hon'ble
Supreme Court that the occupancy right of the property in
dispute is a joint family property or of the absolute property shall
be decided by the Tribunal and the Courts are not having
jurisdiction to decide the said question. When the land Tribunal
has already granted occupancy right exclusively in favour of the
husband of the appellant in his individual capacity, the Courts
below have committed a serious error in the suit filed by the
respondent and as such the order passed by the Courts below
are required to be set aside. It is further submitted that the both
the Courts have held that the husband of appellant herein filed
Form No.7, and the Land Tribunal was pleased to grant
occupancy right in favour of him and even the house is
constructed by him, and as such the house property is also
registered in the name of the appellant herein. If the respondent
and her husband were having right over the said properties, they
would have filed Form No.7 jointly and also the house property
would be registered in their name, but they have not done so
because they had no right at all, and they were residing in the
house only on humanitarian ground and not as holder of some
right over the same. On all these crowns, it is sought to
formulate substantial question of law by admitting the appeal. To
substantiate his submission, the learned Counsel for the
appellant placed reliance on the Judgment of Hon'ble Supreme
Court in the case of ISHWARAGOUDA v. MALLIKARJUN GOWDA
reported in 2008-LAWS(SC)-11-98.
8. I have examined the material placed before me. This
Court has also secured the trial Court records. The relationship
between the parties is not in dispute. It is a specific defence of
the defendant that the property in question is the exclusive
property of the husband of the defendant since the Land Tribunal
has granted the occupancy right in favour of the husband of the
defendant. The plaintiffs have no right to seek partition. Exhibit
P7-Form No.7 filed by the husband of the defendant clearly goes
to show that father Chooda Janu was in possession of the suit
land. He being the legal representative of his father, has filed
Form No.7. It is crystal clear that the father of husband of the
plaintiff and father of husband of the defendant, were tenants of
the land. After the death of the father-in-law of the plaintiff and
the defendant, the suit property was mutated in the name of the
husband of the defendant, as he was the manager of the family
and filed Form No.7 before the Land Tribunal, representing the
joint family. Further on perusal of Column No.8 in Exhibit P7,
wherein "the period for which the applicant has been cultivating
the land as tenant", it is stated as under:
"C£Á¢PÁ®¢AzÀ®Æ £Á£ÀÄ F d«ÄãÀÄ C£ÀĨsÀ«¸ÀÄwÛzÉÝãÉ".
9. The contents of Exhibit P7, has not been disputed by
the other side. The averment made in the written statement of
the defendant is contrary to the contents of Exhibit P7, which is
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not disputed by the defendants. Absolutely, there are no
materials to show that this property is the exclusive property of
the husband of the defendant.
10. Both the Courts are properly appreciated the oral and
documentary evidence in accordance with law and facts.
I have also gone through the Judgment of Hon'ble Supreme
Court in the case of Ishwargouda (supra) on which reliance is
placed by the learned Counsel for the appellant. The facts of this
case are not in consistence with the facts of the case relied upon
by the Counsel for the appellant. Hence, the aforestated
Judgment of the Supreme Court would not come to the aid of the
appellant to formulate any substantial question of law as sought
for. I do not find any ground to formulate substantial question of
law as sought for. Hence, I proceed to pass the following:
ORDER
Being devoid of merits, appeal stands dismissed
at the stage of admission itself.
Sd/-
(G BASAVARAJA)
JUDGE
lnn
CT-CMU
