[Cites 2, Cited by 0]

Karnataka High Court

Sri Rajashekar vs Smt Susheelamma on 21 January, 2026

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 21ST DAY OF JANUARY, 2026

BEFORE

THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

RFA NO. 1510 OF 2023 (PAR)
C/W
RFA NO. 1439 OF 2023 (PAR)
RFA NO. 1503 OF 2023 (PAR)

IN RFA NO.1510/2023
BETWEEN:

1 . SRI. SOMESHEKARA
S/O LATE B. SHAMANNA
AGED ABOUT 71 YEARS

2 . SRI. BACHEGOWDA
S/O LATE B. SHAMANNA
AGED ABOUT 53 YEARS

ALL ARE R/AT
SOMESHWARA EXTENSION
LAKSHMIPURA MAIN ROAD
ABBIGERE VILLAGE
YESHWANTHPURA
BENGALURU-560090.
...APPELLANTS

(BY SRI. K. NARASIMHA MURTHY, ADVOCATE)

AND:

1. SMT. SUSHEELAMMA
W/O RAMACHANDRAPPA
AGED ABOUT 61 YEARS
R/AT NO. 124
ABBIGERE NEW EXTENSION
2

CHIKKABANAVARA POST
BENGALURU-560090.

SMT. SONNAMMA
SINCE DEAD BY HER LRS
APPELLANTS AND RESPONDENT NO. 2 HEREIN

2. SMT. SUMITHRAMMA
W/O ASHWATHAPPA
AGED ABOUT 47 YEARS
R/AT SOMESHWARA EXTENSION
LAKSHMIPURA MAIN ROAD
ABBIGERE VILLAGE, YESHWANTHPURA
BENGALURU-560090.

3. SRI. RAJSHEKAR
S/O CHIKKATHIPPAIAH
AGED ABOUT 91 YEARS

SRI KRISHNAPPA
SINCE DEAD BY HIS LRS

4. SMT. RAMAKKA
W/O LATE KRISHNAPPA
AGED ABOUT 76 YEARS

5. SRI. K. NAGABUSHAN
S/O LATE KRISHNAPPA
AGED ABOUT 54 YEARS

6. SRI. K. VISHWANTATH
S/O LATE KRISHNAPPA
AGED ABOUT 53 YEARS

7. SRI. K. VIJAYKUMAR
S/O LATE KRISHNAPPA
AGED ABOUT 51 YEARS

8. SRI. PRABHU
@ B.T. PURSHOTHAM
3

S/O LATE CHIKKTHIPPAIAH
AGED ABOUT 71 YEARS

NO.3 TO 8 ARE R/AT
NEW EXTENSION, ABBIGERE VILLAGE
YESHWANTHPURA
BENGALURU NORTH
PIN-560 090.

9. SRI. CHENGA REDDY
S/O HANUMAN REDDY
AGED ABOUT 69 YEARS
R/AT SOMESHWARA EXTENSION
LAKSHMIPURA MAIN ROAD
ABBIGERE VILLAGE
YESHWANTHPURA
BENGALURU-560 090.
...RESPONDENTS

(BY SRI. JANARDHANA .G, ADVOCATE FOR C/R1;
SRI. N. ANAND, ADVOCATE FOR R2;
SRI. S.J. KUMAR, ADVOCATE FOR R3 TO R8;
V/O DATED 22.09.2023 NOTICE TO R9 IS DISPENSED WITH)

THIS RFA IS FILED UNDER SECTION 96 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 21.04.2023 PASSED IN
O.S.5746/2014 ON THE FILE OF THE XX ADDITIONAL CITY CIVIL
JUDGE, AT BENGALURU, DECREEING THE SUIT FOR PARTITION
AND DECLARATION.

IN RFA NO.1439/2023
BETWEEN:

1 . SMT. SUSHEELAMMA
W/O RAMACHANDRAPPA
AGED ABOUT 65 YEARS
NO.124, ABBIGERE NEW EXTENSION
4

CHIKKABANAVARA POST
BANGALORE - 560090.
...APPELLANTS
(BY SRI. JANARDHANA .G, ADVOCATE)

AND:

SMT. SONNAMMA
SINCE DECEASED BY HER LRS
APPELLANTS 1 TO 3

1. SRI. SOMESHEKARA
S/O LATE B. SHAMANNA
AGED ABOUT 75 YEARS

2. SRI. BACHEGOWDA
S/O LATE B. SHAMANNA
AGED ABOUT 57 YEARS

3. SMT. SUMITHRAMMA
W/O ASHWAATHAPPA
AGED ABOUT 42 YEARS

NOS.1 TO 3 ARE R/AT
SOMESHWARA EXTENSION
LAKSHMIPURA MAIN ROAD
ABBIGERE VILLAGE
YESHWANTHPURA
BANGALORE - 560 090.

4. SRI. RAJSHEKAR
S/O CHIKKATHIPPAIAH
AGED ABOUT 95 YEARS

5. SRI. KRISHNAPPA
SINCE DEAD BY HIS LRs

5(A) SMT. RAMAKKA
W/O LATE KRISHNAPPA
AGED ABOUT 76 YEARS
5

5(B) SRI. K. NAGABUSHAN
S/O LATE KRISHNAPPA
AGED ABOUT 54 YEARS

5(C) SRI. K. VISHWANATH
S/O LATE KRISHNAPPA
AGED ABOUT 53 YEARS

5(D) SRI. K. VIJAYKUMAR
S/O LATE KRISHNAPPA
AGED ABOUT 51 YEARS

ALL ARE R/AT NEW EXTENSION
ABBIGERE VILLAGE
YESHWANTHPURA
BENGALURU NORTH-560 090.

6. SRI. PRABHU @ B.T. PURSHOTHAM
S/O LATE CHIKKATHIPAIAH
AGED ABOUT 71 YEARS

NOS. 4 TO 6 ARE R/AT
NEW EXTENSION, ABBIGERE VILLAGE
YESHWANTHPURA
BANGALORE NORTH.

7. SRI. CHENGA REDDY
S/O HANUMAN REDDY
AGED ABOUT 83 YEARS
SOMESHWARA EXTENSION
LAKSHMIPURA MAIN ROAD
ABBIGERE VILLAGE
YESHWANTHPURA
BANGALORE - 560090.
...RESPONDENTS

(BY SRI. NARASHIMHA MURTHY .K, ADVOCATE FOR R1 AND R2;
SRI. N. ANAND, ADVOCATE FOR R3;
SRI. S.J. KUMAR, ADVOCATE FOR R4 AND R6 AND ALSO
LRs OF R5;
V/O DATED 11.10.2023 NOTICE TO R7 IS DISPENSED WITH)
6

THIS RFA IS FILED UNDER SECTION 96 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 21.04.2023 PASSED IN O.S
NO. 5746/2014 ON THE FILE OF THE XX ADDL. CITY CIVIL JUDGE,
BANGALORE DECREEING THE SUIT FOR PARTITION.

IN RFA NO.1503/2023
BETWEEN:

1. SRI RAJASHEKAR
S/O CHIKKATHIPPAIAH
AGED ABOUT 91 YEARS

2. SRI. KRISHNAPPA
SINCE DEAD BY LRS

2(A) SMT. RAMAKKA
W/O LATE KRISHNAPPA
AGED ABOUT 76 YEARS

2(B) SRI. K. NAGABHUSHAN
S/O LATE KRISHNAPPA
AGED ABOUT 54 YEARS

2(C) SRI. K. VISHWANATH
S/O LATE KRISHNAPPA
AGED ABOUT 53 YEARS

2(D) SRI. K. VIJAYAKUMAR
S/O LATE KRISHNAPPA
AGED ABOUT 51 YEARS

3. SRI. PRABHU
@ B.T. PURSHOTHAM
S/O LATE CHIKKATHIPPAIAH
AGED ABOUT 71 YEARS

ALL ARE R/OF NEW EXTENSION
ABBIGERE VILLAGE
7

YESHWANTHPURA
BENGALURU NORTH-560090.
...APPELLANTS
(BY SRI. KUMAR S.J., ADVOCATE)

AND:

1. SMT SUSHEELAMMA
W/O RAMACHANDRAPPA
AGED ABOUT 61 YEARS
R/AT NO.124
ABBIGERE NEW EXTENSION
CHIKKABANAVARA POST
BENGALURU-560090.

2. SRI. SOMESHEKARA
S/O LATE B. SHAMANNA
AGED ABOUT 71 YEARS

3. SRI. BACHEGOWDA
S/O LATE B. SHAMANNA
AGED ABOUT 53 YEARS

4. SMT. SUMITHRAMMA
W/O ASHWATHAPPA
AGED ABOUT 47 YEARS

R2 TO R4 ARE R/OF
SOMESHWARA EXTENSION
LAKSHMIPURA MAIN ROAD
ABBIGERE VILLAGE
YESHWANTHPURA
BENGALURU-560090.

5. SRI. CHENGA REDDY
S/O HANUMAN REDDY
AGED ABOUT 69 YEARS
R/OF SOMESHWARA
EXTENSION
LAKSHMIPURA MAIN ROAD
8

ABBIGERE VILLAGE
YESHWANTHPURA
BENGALURU-560090.
...RESPONDENTS

(BY SRI. JANARDHANA .G, ADVOCATE FOR C/R1;
SRI. NARASIMHA MURTHY .K, ADVOCATE FOR R2 AND R3;
SRI. N. ANAND, ADVOCATE FOR R4;
V/O DATED 05.08.2025, NOTICE TO R-5 DISPENSED WITH)

THESE RFAs HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 19.01.2026, THIS DAY JUDGMENT WAS
PRONOUNCED THEREIN, AS UNDER:

CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

C.A.V. JUDGMENT

These three Regular First Appeals arise out of the

judgment and decree dated 21.04.2023 passed by the Trial

Court in O.S.No.5746/2014 on the file of the XX Additional

City Civil Judge (CCH No.32) at Bengaluru filed for partition

and separate possession.
9

2. Since all the appeals emanate from the same

judgment and involved common questions of fact and law,

they are taken together.

3. The parties are referred as they are ranked before the

Trial Court.

4. Brief facts leading to the case as under;

RFA No.1439/2023 is filed by the plaintiff questioning

restriction of share granted in item Nos.2 and 5 of the suit

schedule properties. RFA No.1503/2023 is filed by defendant

Nos.5 to 7 contending that an extent of 2 acres 12 guntas in

item No.1 is the self-acquired property of defendant No.7.

RFA No.1510/2023 is filed by defendant Nos.2 and 3, who are

the brothers of the plaintiff, assailing the decree as it grants

share to the plaintiff disputing the findings relating to joint

family character of the suit schedule properties.

5. This Court before delves into the matter deems it fit

to cull out genealogical tree and admitted relationship, which

reads as under;
10

Kempegouda

Bachappa Muniyappa @ Manegouda
Dodda Nanjamma (wife)

Chikathipayya B Shammanna
Muniyamma (wife) Sonnamma (wife) (D.1)

B T Rajashekhara
(Deft. No. 5)

B.T.Krishnappa Sushilamma Sumithramma B Bachegowda Someshekara
(Deft. No. 6) (Pltff) (Deft. No. 4) (Deft. No. 3) (Deft. No. 2)

Meenakshamma

B T Purushottam
(Deft. No. 7)

6. The plaintiff - Smt. Susheelamma, daughter of

defendant No.1 and late Shamanna, and sister of defendant

Nos.2 to 4, instituted the suit against her mother, siblings, and

cousin brothers representing the branch of Chikathippaiah.

The plaintiff specifically pleaded that suit schedule item Nos.1

to 3 and 5 are joint family ancestral properties, whereas item

No.4 is the self-acquired property of her father - late
11

Shamanna. It was asserted that even after the demise of her

father and uncle, the two branches, namely the branch of

Shamanna and the branch of Chikathippaiah, continued to live

jointly as an undivided Hindu joint family. On this premise,

defendant Nos.5 to 7, representing the branch of

Chikathippaiah, were arrayed as parties to the suit.

7. The plaintiff's principal grievance was that despite

repeated demands for partition of item Nos.1 to 3 and 5,

defendant Nos.1, 2, 4 to 6 disclosed that an extent of 20

guntas had been sold in favour of defendant No.8. This

disclosure constrained the plaintiff to approach the Civil Court

by instituting the suit in O.S. No.5746/2014.

8. The defendants filed a common written statement

admitting that item Nos.1 to 3 and 5 were acquired by the

family of Bachappa. However, it was contended that the suit

schedule properties had already been partitioned and

therefore, the plaintiff was not entitled to any share. While

disputing the plaintiff's claim, the defendants alleged that
12

defendant Nos.1 to 4 had performed the plaintiff's marriage

nearly five decades ago and that she had received her

legitimate share at the time of marriage in the form of cash

and gold as stridhana. It was further contended that the

plaintiff was born prior to codification and therefore, was

disentitled to claim any share.

9. The defendants also alleged that the plaintiff's father,

Shamanna, had incurred substantial debts, which were partly

discharged by defendant Nos.1 to 4 and that some liabilities

were still being cleared by them. Insofar as item No.1 was

concerned, defendant Nos.1 to 7 contended that defendant

Nos.3 and 4 and their family had no share therein and sought

for dismissal of the suit.

10. Based on the rival pleadings, the Trial Court framed

issues and permitted the parties to adduce evidence. Upon

appreciation of the oral and documentary evidence on record,

the Trial Court partly decreed the suit granting the plaintiff
13

1/8th share in item Nos.1, 3 and 5 and 1/4th share in item

Nos.2 and 4.

11. The learned counsel appearing for defendant Nos.5

to 7 reiterating the grounds urged in RFA No.1503/2023 and

placing reliance on paragraph No.10 of the written statement

vehemently contended that the plaintiff's claim insofar as

2 acres 12 guntas in item No.1 was seriously disputed. It was

submitted that defendant Nos.5 to 7 supported the findings of

the Trial Court in restricting the plaintiff's share to 1 acre 28

guntas. Referring to the mutation entries and RTCs pertaining

to item No.1, it was contended that defendant No.7 had

independently acquired 2 acres 12 guntas from his personal

earnings and that the said extent was separately carved out in

revenue records. It was further urged that defendant No.7

had developed the said portion by forming a layout and selling

sites and therefore, the suit for partition insofar as the said

extent was not maintainable. It was submitted that the Trial

Court had rightly appreciated the evidence while declining the

plaintiff's claim beyond 1 acre 28 guntas.
14

12. The learned counsel appearing for defendant Nos.2

and 3 in RFA No.1510/2023 reiterated the grounds urged in

the appeal and contended that there was a prior severance of

status in the family and therefore, the plaintiff was not entitled

to any share. It was argued that the Trial Court erred in not

examining whether the parties continued to constitute an

undivided Hindu joint family. On this premise, the learned

counsel sought interference with the judgment and decree of

the Trial Court and prayed for dismissal of the suit in its

entirety.

13. Per contra, the learned counsel appearing for the

plaintiff in RFA No.1439/2023, taking this Court through

Ex.P.16 relating to item No.1, contended that the Trial Court

had misread the evidence while denying the plaintiff's share

beyond 1 acre 28 guntas. Drawing attention to paragraph

Nos.7 to 10 of the written statement, it was submitted that

there were no specific pleadings asserting that 2 acres 12

guntas in item No.1 constituted the self-acquired property of

defendant No.7. It was further contended that although a
15

common written statement was filed, defendant No.7 failed to

enter the witness box to substantiate his claim of independent

acquisition.

14. Reliance was also placed on paragraph No.2 of the

written statement, wherein the defendants allegedly admitted

that there was no severance in the family. Further reliance

was placed on paragraph No.2 of the chief-examination of

defendant No.3, examined as D.W.1, as well as crucial

admissions elicited during cross-examination regarding the

nature of the property. On these grounds, it was contended

that the plaintiff was entitled to a share in the entire extent of

4 acres in item No.1 and not merely 1 acre 28 guntas.

15. The learned counsel for the plaintiff also produced

the judgment rendered by a Co-ordinate Bench in

W.P. No.24808/2009. Placing reliance on the said judgment,

it was contended that the Trial Court erred in granting only

1/8th share (5 guntas) in item No.5 bearing Sy. No.78/1

measuring 4 acres 28 guntas on the erroneous assumption
16

that the remaining extent was lost under Urban Land Ceiling

Proceedings. It was submitted that the writ petition filed by

defendant Nos.2 and 3 had been allowed and the remaining

extent had reverted to the family including the plaintiff.

16. With regard to item No.2, it was contended that the

Trial Court restricted the extent to 9 guntas without assigning

reasons, despite RTC extracts (Ex.P.4 and Ex.P.6) disclosing

the extent as 38 guntas. It was submitted that the restricted

extent was unsupported by any registered document and

therefore, the entire extent of 38 guntas ought to have been

taken into account while determining the plaintiff's share.

17. Having heard the learned counsel for the parties at

length and upon perusal of the record, the following points

arise for consideration:

i) Whether the Trial Court was justified in
restricting the plaintiff's share in item
No.2 to 9 guntas, despite documentary
evidence reflecting the extent as 38
guntas?
17

ii) Whether the finding of the Trial Court
treating item No.5 as measuring only 5
guntas, on the premise that the
remaining extent was lost under Urban
Land Ceiling proceedings, is sustainable?

iii) Whether defendant No.7 has established
that the extent of 2 acres 12 guntas
claimed by him in item No.1 is his self-
acquired property?

iv) Whether the sale of 12 guntas by
Shamanna in item No.5 requires
exclusion while determining the plaintiff's
share?

v) Whether the appeals filed by defendant
Nos.2 and 3 and defendant Nos.5 to 7
warrant interference?

vi) Whether the death of defendant No.6
during the pendency of the suit renders
the preliminary decree a nullity?

vii) What order or decree?
18

Findings on Point No.(i):-

18. Item No.2 of the suit schedule property admittedly

measures 38 guntas, as evidenced from the RTC extract

marked at Ex.P.6. A careful perusal of the impugned judgment

reveals that although the Trial Court has adverted to Ex.P.6, it

has curiously relied upon the column reflecting the extent

shown against individual holders in the RTC instead of the

total extent of the survey number. Proceeding on this

erroneous premise, the Trial Court has assumed that the

family of the plaintiff and defendant Nos.1 to 4 together held

only 9 guntas in item No.2.

19. Such an approach, in the considered view of this

Court, is legally unsustainable. The extent of 9 guntas

reflected against the names of the plaintiff and defendant

Nos.2 to 4 in the RTC is neither supported by any registered

document nor corroborated by any independent evidence.

Significantly, the defendants have not produced a single

document to demonstrate loss of land, alienation, acquisition

by third parties or any lawful reduction in extent from the
19

admitted total extent of 38 guntas. In the absence of proof of

divestment or severance, the Trial Court could not have

presumed diminution of the extent merely on the basis of

entries against individual names in the revenue records.

20. It is well settled that revenue entries are maintained

primarily for fiscal purposes and do not, by themselves, confer

title nor operate to extinguish substantive rights, unless

supported by cogent documentary evidence. In the present

case, the Trial Court has elevated a revenue entry into a

determinative factor, without there being any foundational

pleadings or proof to justify such reliance. The assumption

that the family held only 9 guntas in item No.2 is thus founded

on conjecture rather than evidence.

21. What further renders the impugned finding untenable

is that acceptance of the extent of 9 guntas would directly run

contrary to the defendants' own admissions. In paragraph

No.2 of the written statement, the defendants have

categorically admitted the nature and extent of the joint family
20

properties without pleading any prior alienation, loss or

reduction of item No.2. This admission is further fortified by

paragraph No.2 of the chief-examination of defendant No.3,

examined as D.W.1, wherein the nature and continuity of the

joint family properties are unequivocally affirmed. In the face

of such admissions, the Trial Court could not have presumed a

reduced extent in item No.2 in the absence of pleadings and

proof to that effect.

22. It is trite that a party cannot be permitted to

approbate and reprobate. Having admitted the joint family

character and extent of the properties in pleadings and

evidence, the defendants were estopped from contending

directly or indirectly that the extent stood reduced to 9 guntas

without placing material evidence on record. The Trial Court,

therefore, committed a manifest error in overlooking these

admissions and in drawing an inference adverse to the plaintiff

solely on the basis of revenue entries, which neither have

statutory finality nor evidentiary supremacy over admitted

pleadings.
21

23. In this backdrop, before adverting further to the

documentary and oral evidence on record, this Court deems it

appropriate to extract paragraph No.2 of the written

statement, which assumes decisive significance in adjudicating

the controversy relating to item No.2. The same is extracted

hereinbelow for ready reference:

"2. The averments made in para 3 of the plaint the
Propositous of the family Bachappa during his life time
acquired Property bearing Survey Nos. 10/3, 4 acres, 54/2,
38 guntas; Sy No.59, 25 guntas, 1 acres 6 guntas in Sy
No. 62 and 4 acres in Sy No.78/1; all situated at Abbigere
village, Yeshwanthpura, Bangalore North and he died leaving
behind Chikathippaiah the father of Defendant Nos.4 to 6
and B Shamanna the father of Plaintiff and Defendant Nos.1
to 3 to succeed to the said properties and these properties
are more fully described in the Schedule hereunder at Item
Nos.1 to 3. Similarly, the father of the Plaintiff and
Defendant Nos. 1 to 3 Shamanna had purchased Property
bearing No.62, measuring 1 acre 6 guntas situated at
Abbigere Village, Yeshwanthpur Bangalore under a registered
sale deed dated 30.10.1957 on his name is true and correct."

24. A careful reading of paragraph No.2 of the extracted

written statement leaves no manner of doubt that the

defendants have made a clear, categorical and unequivocal
22

admission that item Nos.1 to 3 of the suit schedule are joint

family ancestral properties and that no partition by metes and

bounds has taken place in respect of the said properties.

The admission is neither qualified nor conditional and strikes

at the very root of the defence set up by the defendants

disputing the plaintiff's entitlement.

25. What lends further credence to this admission is the

fact that the very same stand is reiterated by defendant No.3,

who stepped into the witness box as D.W.1. In paragraph

No.2 of his chief-examination, defendant No.3 has once again

affirmed that item Nos.1 to 3 are joint family properties and

that there has been no severance of status or division by

metes and bounds. The consistency between the pleadings

and the sworn testimony unmistakably establishes the joint

family character of the properties.

26. It is well settled that an admission, whether in

pleadings or in evidence, constitutes the best form of proof

and dispenses with the necessity of further proof, unless the
23

same is shown to be vitiated or withdrawn in accordance with

law. In the present case, the defendants have neither

explained away nor retracted the admissions made in

paragraph No.2 of the written statement and paragraph No.2

of the chief-examination of D.W.1. In the absence of any such

explanation, the Court is bound to give due weight to the

admissions, which conclusively negate the plea of prior

partition or severance. In this backdrop, this Court finds it

appropriate to extract paragraph No.2 of the chief -

examination of DW1, which assumes determinative

significance in adjudicating the nature of item Nos.1 to 3 and

the extent of the plaintiff's entitlement therein. The same

reads as under:

"I state that the Propitious of the family Bachappa
during his life time acquired Property bearing Survey
Nos.10/3 measuring 4 acres, 54/2 measuring 38 guntas,
Sy No.59 measuring 25 guntas and 4 acres in Sy No.78/1, all
situated at Abbigere village, Yeshwanthpura, Bangalore
North and he died leaving behind Chikathippaiah the father
of Defendant No.4 to 6 and B.Shamanna the father of
Plaintiff and Defendant No.1 to 3 to succeed to the said
properties. My father had purchased Property bearing No.
24

62, measuring 1 acre 6 guntas situated at Abbigere village,
Yeshwanthpur, Bangalore under a registered sale deed dated
30.10.1957 in his name out of his income. The relationship
between the parties is admitted."

27. It would be also crucial to extract the crucial

admissions elicited in cross-examination of D.W.1 and the

same is extracted, which reads as under;

"It is true to suggest that the revenue records of other
schedule properties are still depicting the names of my father
and father of defendant no.5 to 7. No layout has been
formed in any of the schedule properties. We constructed
four houses in our portions of schedule item no.5 property.
Defendant no.2 constructed the 2 houses in the said property
.................................. It is true to suggest that Ex.P-2
concerned to schedule item no.1 property and the name of
my father is appearing in Ex.P-2 as owner. It is true to
suggest that the name of my father i.e B. Shamanna is
continuing to the RTC of schedule item no.1 property even to
this day. It is true to suggest that the name of my father is
also continuing in the RTC schedule item no.2, 3 and 5
properties even to this day."

28. Upon a careful and cumulative examination of the

pleadings contained in the written statement extracted supra,

the unequivocal reiteration of the same stand in the chief-
25

examination of D.W.1 and the categorical admissions elicited

in the cross-examination of D.W.1, this Court finds no

ambiguity whatsoever in the factual position that the plaintiff

and defendants continue to constitute an undivided Joint

Hindu Family insofar as item Nos.1 to 3 of the suit schedule

properties are concerned. The consistent stand taken by the

defendants in pleadings as well as sworn testimony clearly

negatives the plea of severance or prior partition by metes

and bounds.

29. In that view of the matter, the Trial Court

committed a manifest error in restricting the extent of item

No.2 to 9 guntas contrary to the documentary evidence on

record. The RTC extract marked at Ex.P.6 unmistakably

reflects the total extent of item No.2 as 38 guntas and in the

absence of any proof of alienation, loss or lawful reduction of

extent, the Trial Court could not have curtailed the extent on

the basis of revenue entries indicating individual holdings. The

impugned finding is therefore perverse and contrary to both
26

the pleadings and evidence on record. Accordingly, Point

No.(i) is answered in the Negative.

Findings on Point Nos.(ii) and (iv) :-

30. Item No.5 of the suit schedule property admittedly

measures 4 acres 28 guntas. The Trial Court has proceeded on

the assumption that only 5 guntas remained with the family

holding that the remaining extent stood lost under Urban Land

Ceiling proceedings. Such a finding, in the considered opinion

of this Court, is wholly unsustainable in view of the

subsequent and undisputed development, namely, the order

passed by the Writ Court in W.P.No.24808/2009.

31. A perusal of the judgment rendered by the Writ

Court discloses that the proceedings under the Urban Land

Ceiling Act, insofar as the subject land is concerned, were set

aside and the land stood reverted to the family. The Trial

Court, however, has failed to take note of this binding

adjudication and has erroneously proceeded on the footing
27

that the major portion of item No.5 was irretrievably lost,

which is factually and legally incorrect.

32. In order to appreciate the legal consequence of the

said writ proceedings and its direct bearing on the

quantification of the plaintiff's share in item No.5, this Court

deems it appropriate to extract paragraph No.28 and the

operative portion of the order passed by the Writ Court in W.P.

No.24808/2009, which conclusively clarifies the status of the

land. The same reads as under:

"28. The State is under an obligation to follow due
process of law for taking possession of immovable properties
of its citizens. The State cannot deprive the right over
immovable property by taking unlawful possession and
continue to be in unlawful possession stating that the writ
petition is hit by delay and laches, when the State
Government is a welfare state and governed by rule of law.
The petitioner cannot be deprived of his valuable rights over
the immoveable property, which is not only a constitutional
right but also human right, when there is violation of his
substantial legal rights. Admittedly, the lawful possession
much less unlawful possession of the subject land having not
been taken, the petitioners cannot be deprived of their
legitimate right under Section 3(2) and 4 of the Repeal Act,
1999 only on the ground of delay. The State Government
28

cannot enrich itself by claiming to be in possession which is
unlawful and the said unlawful possession does not bestow
any right to the State Government. Hence, the submission of
the learned Additional Government Advocate that the writ
petition is hit by delay and laches is not acceptable, and the
delay if any in filing this writ petition deserves to be
condoned.

29. Accordingly, I pass the following:

ORDER

           i.     Writ petition is allowed.


           ii.    The impugned notification dated 05.03.1987

issued by the second respondent at Annexure-E is quashed and the petitioners are entitled for restoration of the excess land as stated under Section 3(2) of the Repeal Act, 1999.

iii. The petitioners are granted liberty to approach the Tahsildar concerned for deleting the name of the Government and substitute the name of the deceased father in the record of rights pertaining to the land which is declared as excess land bearing Sy. No.78/1.

iv. If such an application is submitted, the Tahsildar concerned to consider the same and pass appropriate order in accordance with law."

(emphasis supplied)

33. On a careful examination of the order extracted

supra, it is evident that defendant Nos.2 and 3 had assailed

the proceedings initiated under the Urban Land Ceiling Act and

the Writ Court, upon due consideration, held that the family of

the plaintiff and defendant Nos.2 and 3 was entitled to retain

the subject property. In view of the authoritative

pronouncement rendered by the Co-ordinate Bench, the

controversy relating to vesting or loss of possession under the

ULC proceedings stands conclusively resolved. The said lis has

thus attained finality and is given a quietus.

34. In the light of the binding order passed by the Writ

Court, the finding recorded by the Trial Court that the plaintiff

and defendants were entitled to a share only in 5 guntas out

of item No.5 is manifestly erroneous and warrants interference

at the hands of this Court.

35. However, the material on record discloses that the

plaintiff's father, late Shamanna, had alienated an extent of 12

guntas out of item No.5 during his lifetime. The said alienation

is clearly borne out from the RTC extracts as well as the

Encumbrance Certificates, which unequivocally reflect the sale

of 12 guntas and its subsequent conversion. To that extent,

the land is no longer available for partition and necessarily

requires exclusion while determining the shares of the parties.

36. Subject to exclusion of the aforesaid 12 guntas, the

remaining extent in item No.5 continues to retain its character

as joint family property, in which the plaintiff is entitled to her

legitimate share in accordance with law. The Trial Court,

therefore, committed a serious error in confining the plaintiff's

entitlement to only 5 guntas, ignoring both the binding writ

court judgment and the documentary evidence on record.

Accordingly, the finding of the Trial Court in respect of item

No.5 is set aside. Point No.(ii) is answered in the Negative

and Point No.(iv) is answered in the Affirmative.

Findings on Point No.(iii) :-

37. Defendant No.7 has, for the first time before this

Court and by urging elaborate grounds in the appeal, sought

to assert that an extent of 2 acres 12 guntas in item No.1

constitutes his self-acquired property, allegedly purchased

from Muniyappa, the brother of the propositus Bachappa,

under a registered sale deed of the year 1991. However, a

holistic reading of the entire written statement filed before the

Trial Court reveals that defendant No.7 has not pleaded at any

stage that the said extent is his independent or self-acquired

property.

38. There is a complete absence of foundational

pleadings setting out the source of acquisition, the manner of

purchase, or the exclusion of the said extent from the joint

family nucleus. The attempt made by defendant No.7 to

project the said extent as his self-acquisition is thus clearly an

afterthought and impermissible at the appellate stage.

39. A faint and misconceived attempt is sought to be

made by placing reliance on paragraph No.10 of the written

statement, contending that the plea of self-acquisition can be

culled out therefrom. This contention, in the opinion of this

Court, is wholly untenable. Paragraph No.10 does not contain

any categorical assertion that 2 acres 12 guntas in item No.1

was purchased by defendant No.7 out of his independent

income or that it stood excluded from the joint family

properties.

40. In order to examine the said contention in its proper

perspective, this Court deems it appropriate to extract

paragraph No.10 of the written statement, which reads as

under:

"The defendants 1 to 7 submits that, item No.1 schedule property is not concerned to the defendants 3 and 4 family. The item No.2 and 3 are still in the joint names of defendant No.5, 6 and 7. The item No.4 and 5 is the name of the defendants 3 and 4, fallen to their share in the partition."

41. A careful reading of paragraph No.10 of the written

statement reveals considerable vagueness and ambiguity in

the pleadings. Even assuming, arguendo, that the contention

of defendant No.7 is accepted to the limited extent that

paragraph No.10 contains a plea suggesting that 2 acres 12

guntas in item No.1 is his self-acquired property, such a plea

remains wholly unsubstantiated and uncorroborated by

evidence. Defendant No.7 has not chosen to step into the

witness box to establish that he possessed an independent

source of income or that the alleged acquisition was made

without the aid of joint family nucleus. The failure of

defendant No.7 to enter the witness box, despite asserting an

exclusive claim, invites an adverse inference.

42. More importantly, the stand sought to be projected

in paragraph No.10 stands in direct conflict with paragraph

No.2 of the written statement, which has been extracted and

discussed supra. In paragraph No.2, the defendants, including

defendant No.7, have unequivocally admitted that their

ancestors inherited item No.1 along with item Nos.2 and 3,

thereby acknowledging the joint family and ancestral character

of the properties.

43. It is well settled that admissions in pleadings occupy

a position of paramount importance and carry a higher

evidentiary value. Time and again, the Hon'ble Apex Court as

well as this Court have held that such admissions go to the

root of the matter and override inconsistent or subsequent

pleas. In the present case, the admission contained in

paragraph No.2 of the written statement is further reinforced

by the oral evidence of D.W.1 (defendant No.3), who, in

paragraph No.2 of his chief-examination, has reiterated that

item Nos.1 to 3 are joint family ancestral properties.

44. Since a common written statement was filed by all

the defendants and defendant No.7 is admittedly a signatory

thereto, he cannot, for the first time at the appellate stage, be

permitted to take a stand diametrically opposite to the

admissions made in the pleadings and evidence. Such a

contradictory stand, raised belatedly, is impermissible in law

and cannot be entertained by this Court.

45. A conjoint reading of paragraph Nos.2 and 10 of the

written statement makes it abundantly clear that no plea of

self-acquisition is asserted in paragraph No.2, while paragraph

No.10 merely suggests that item No.1 was not conveyed to

certain branches. There is no categorical assertion that the

extent of 2 acres 12 guntas was acquired by defendant No.7

from his independent income. Further, Ex.P.10 reflects

mutation entries jointly standing in the names of defendant

Nos.2, 3 and 5 to 7, which completely belies the claim of

exclusive ownership.

46. The settled principle that the burden squarely lies on

the person asserting self-acquisition to prove the same is fully

attracted to the facts of the present case. A mere assertion,

without pleadings, proof, or corroborative evidence and that

too raised for the first time at the appellate stage cannot

defeat the lawful claim of the plaintiff. Accordingly, Point

No.(iii) is answered in the Negative.

Findings on Point No.(v):-

47. In view of the findings recorded by this Court on

Point Nos.(i) and (iii), this Court is of the considered view that

the appeal filed by defendant Nos.2 and 3 does not merit

consideration. The stand consistently taken by the defendants

in paragraph No.2 of the written statement, reiterated during

trial, and further fortified by admissions in the chief-

examination and cross-examination of D.W.1, clearly

disentitles them from seeking interference with the judgment

of the Trial Court on grounds contrary to their own

admissions. Accordingly, Point No.(v) is answered in the

Negative.

Findings on Point No.(vi):-

48. The defendants have raised a contention that

defendant No.6 - Krishnappa died during the pendency of the

suit and therefore, the preliminary decree is rendered a

nullity. This contention is devoid of merit and cannot be

accepted. The suit is one for partition, and even assuming that

defendant No.6 died during pendency of Suit, defendant Nos.5

and 7, who are his siblings and represent the same branch,

have effectively contested the proceedings.

49. Further, defendant No.3, representing the branch of

Shamanna, stepped into the witness box and deposed on

behalf of all the defendants. The doctrine of effective

representation, as consistently recognised by the Hon'ble Apex

Court, squarely applies to the facts of the present case. When

parties having identical interests are on record and have

actively contested the proceedings, the death of one such

party does not vitiate the decree.

50. The contention raised at this belated stage is nothing

but a feeble attempt to unsettle a lawful adjudication, and the

same is liable to be rejected. Accordingly, Point No.(vi) is

answered in the Negative.

Findings on Point No.(vii):-

51. In the light of the findings recorded on Point Nos.(i)

to (vi), this Court proceeds to pass the following:

ORDER

i) The appeal filed by the plaintiff in RFA No.1439/2023 is allowed in part. Consequently, RFA Nos.1503/2023 and 1510/2023 filed by defendant Nos.2 and 3 and defendant Nos.5 to 7 respectively are dismissed.

ii) The preliminary decree passed by the Trial Court stands modified as under:

a) The plaintiff is entitled for 1/8th share in item No.2 measuring 38 guntas.

b) The plaintiff is entitled for 1/8th share in item No.1 measuring 4 acres.

c) In respect of item No.5 bearing Sy. No.78/1, after excluding an extent of 12 guntas alienated by the propositus - late B.Shamanna, the plaintiff is entitled for 1/8th share in the remaining extent.

d) The contention of defendant No.7 that item No.1 constitutes his self- acquired property is hereby rejected.

e) The preliminary decree shall stand modified accordingly.

iii) The Registry is directed to draw a modified preliminary decree strictly in terms of this judgment.

iv) I.A. Nos.1/2026 to 3/2026 filed in RFA No.1439/2023 are dismissed as not pressed,

inasmuch as the relief sought therein already stands granted in I.A. No.4/2023.

v) Pending applications, if any, are also dismissed.

Sd/-

(SACHIN SHANKAR MAGADUM) JUDGE

NBM