Karnataka High Court
Basappa S/O Marapa vs Marappa S/O Karibasapa on 23 October, 2024
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NC: 2024:KHC-D:15320
RSA No. 5065 of 2010
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 23RD DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
REGULAR SECOND APPEAL NO. 5065 OF 2010
BETWEEN:
1. BASAPPA S/O. MARAPA
SINCE DECEASED BY HIS LRS
1A. NAGENDRA S/O. MARAPPA
AGE: 60 YEARS, OCC. AGRICULTURE,
R/O. MARABANAHALLI,
TQ. KUDALGI, DIST. BELLARI-580023.
1B. MARAKKA D/O. BASAPPA,
W/O. HANUMANTAPPA,
AGE: 57 YEARS, OCC. HOUSEWIFE,
R/O. HOLAKERI ROAD, CHOWAGUDDA,
CHITRADURGA TOWN,
TQ AND DIST. CHITRAGURGA-577501.
Digitally signed by
VISHAL NINGAPPA
PATTIHAL 1C. BASAKKA D/O. BASAPPA,
Location: HIGH
COURT OF
W/O HANUMANTAPPA.
KARNATAKA
DHARWAD BENCH
AGE: 54 YEARS, OCC. HOUSEWIFE,
R/O. ANKAMANHALU VILLAGE,
D MALLAPUR POST, TQ. SANDUR,
DIST. BELLARI-583119.
1D. SUMITRA D/O. BASAPPA W/O. ERANNA,
AGE: 51 YEARS, OCC. HOUSEWIFE,
R/O. ANKAMANHALU VILLAGE,
D MALLAPUR POST, TQ. SANDUR,
DIST. BELLARI-583119.
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RSA No. 5065 of 2010
1E. RAHNAKKA D/P BASAPPA
W/O THIPPERUDRAPPA,
AGE: 49 YEARS, OCC. HOUSEWIFE,
R/O. MORABANAHALLI VILLAGE,
TQ. KUDALGI, DIST. BELLARI-580023.
1F. CHOWDAPPA S/O BASAPPA
AGE: 46 YEARS, OCC. AGRICULTURE,
R/O. MORABANAHALLI VILLAGE,
TQ. KUDALGI, DIST. BELLARI-580023.
1G. BASANTHAMMA D/O. BASAPPA
AGE: 44 YEARS, OCC. AGRICULTURE,
R/O. MORABANAHALI, TQ. KUDALGI,
DIST. BELLARI-580023.
2. CHOWDAPPA S/O. MARAPPA
AGE: 45 YEARS, OCC. AGRICULTURE,
R/O. MORABANAHALI, TQ. KUDALGI,
DIST. BELLARI-583101.
...APPELLANTS
(BY SRI. A S PATIL, ADVOCATE)
AND:
1. MARAPPA S/O. KARIBASAPA
AGE: 39 YEARS, OCC. AGRICULTURE,
R/O. MORABANAHALI, TQ. KUDALGI,
DIST. BELLARI-583101.
2. MARAPPA S/O. TUMALAPPA
SINCE DECEASED BY HIS LRS
2A. YALLAMMA W/O. MARAPPA
AGE: 66 YEARS, OCC. AGRICULTURE,
R/O. MORABANAHALI, TQ. KUDALGI,
DIST. BELLARI-580023.
SINCE DECEASED BY HER LRS
2B. C. VIRUPAKSHAPPA S/O. MARAPPA
AGE: 43 YEARS, OCC. AGRICULTURE,
R/O. MORABANAHALI, TQ. KUDALGI,
DIST. BELLARI-580023.
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RSA No. 5065 of 2010
2C. C. RATHNAMMA D/O. MARAPPA
AGE: 41 YEARS, OCC. AGRICULTURE,
R/O. MORABANAHALI, TQ. KUDALGI,
DIST. BELLARI-580023.
2D. C. BASAMMA D/O. MARAPPA
W/O. NAGARAJ
AGE: 39 YEARS, OCC. AGRICULTURE,
R/O. MORABANAHALI, TQ. KUDALGI,
DIST. BELLARI-580023.
2E. C. MAHALAKSHMI D/O. MARAPPA
AGE: 36 YEARS, OCC. AGRICULTURE,
R/O. MORABANAHALI, TQ. KUDALGI,
DIST. BELLARI-580023.
2F. C. NAGARAJ S/O. MARAPPA
AGE: 33 YEARS, OCC. AGRICULTURE,
R/O. MORABANAHALI, TQ. KUDALGI,
DIST. BELLARI-580023.
3. OBALAPPA S/O. TUMALAPPA
SINCE DECEASED BY HIS LRS
3A. SMT. LAKSHMAMMA W/O. LATE OBALAPA,
AGE: 45 YEARS, OCC. AGRICULTURE,
R/O. MORABANAHALI, TQ. KUDALGI,
DIST. BELLARI-583101.
3B. MARAPPA S/O. LATE OBALAPPA
AGE: 22 YEARS, OCC. AGRICULTURE,
R/O. MORABANAHALI, TQ. KUDALGI,
DIST. BELLARI-583101.
3C. SUSHEELAMMA D/O. LATE OBALAPPA
AGE: 20 YEARS, OCC. AGRICULTURE,
R/O. MORABANAHALI, TQ. KUDALGI,
DIST. BELLARI-583101.
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NC: 2024:KHC-D:15320
RSA No. 5065 of 2010
3D. NAGARAJ S/O. LATE OBALAPPA
AGE: 13 YEARS, OCC. AGRICULTURE,
R/O. MORABANAHALI, TQ. KUDALGI,
DIST. BELLARI-583101.
3E. ANJINAMMA D/O. LATE OBALAPPA
AGE: 10 YEARS, OCC. AGRICULTURE,
R/O. MORABANAHALI, TQ. KUDALGI,
DIST. BELLARI-583101.
RESPONDENTS 3D AND 3E ARE MINORS
REPRESENTED BY THEIR NATURAL MOTHER
LAKSHMAMMA.
4. BASAPPA S/O. TUMALAPPA
AGE: 40 YEARS, OCC. AGRICULTURE,
R/O. MORABANAHALI, TQ. KUDALGI,
DIST. BELLARI-583101.
...RESPONDENTS
(BY SRI. S S YADRAMI, SR COUNSEL APPEARED FOR SRI GIRISH
BHAT, ADVOCATE FOR R1;
R2(B), R2(C), R2(D), R2(F)-ARE NOTICE SERVED;
R2 AND R2(A)- ARE DECEASED;
R2(B TO F) ARE LRS OF DECEASED R2(A);
R3(A), R3(B) R3(C) AND R4-NOTICE SERVED;
R2(E) STANDS DISMISSED)
THIS RSA IS FILED U/S. 100 CPC., PRAYING TO SETTING
ASIDE THEE JUDGEMENT & DECREE DATED 13-10-2009 PASSED
BY CIVIL JUDGE(SR.DN) KUDLIGI, IN R.A.NO.18/2009,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND
DECREE DATED 13-03-2009 PASSED IN O.S.NO.172/2001 BY THE
LEARNED CIVIL JUDGE(JR.DN)& JMFC.,KUDLIGI AND DISMISS
THE PLAINTIFFS IN THE INTEREST OF JUSTICE.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
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NC: 2024:KHC-D:15320
RSA No. 5065 of 2010
ORAL JUDGMENT
Assailing the concurrent findings of facts recorded by the Courts below, wherein the suit of the plaintiffs for partition and separate possession came to be decreed holding that the plaintiffs are entitled for 2/3rd share in the suit schedule properties, the defendant Nos.1 and 2 are before this Court in the regular second appeal.
2. Parties herein are referred to as per their rankings before the trial Court for the sake of convenience.
3. Suit for partition and separate possession of their 1/3rd share in the suit schedule properties contending that the suit schedule properties are the joint family properties of the plaintiffs and defendants, due to misunderstanding the womenfolk, the plaintiffs and defendants are leaving separately, however there is no division by meets and bounds. It is the case of the plaintiffs that the plaintiffs are entitled for 1/3rd share in the suit schedule properties. On notice, the defendant Nos. 1 and 2 appeared and filed their written statement -6- NC: 2024:KHC-D:15320 RSA No. 5065 of 2010 interalia denying that the suit schedule properties are the joint family properties.
4. The case of the defendants is that there was a prior partition effected and the sons of the original propositus are living separately by taking possession of their respective shares in light of the partition effected. It is the case of the defendants that the land bearing Sy. No.249-D, 426/1 and 257/A/2 were granted in the name of Marappa and it is the exclusive property of Marappa who is the father of the defendants and the plaintiffs do not have any share in the said suit schedule property. It is further contended that suit properties Item No.2 and 3 were granted i.e., 250/1 and 250/2 were granted in the name of Sanna Marappa, Marappa and Thumlappa and the grant in the name of Marappa is in his individual capacity and the plaintiffs have no share in the suit schedule properties which are granted in favour of Marappa. It is further stated that the schedule properties are not the -7- NC: 2024:KHC-D:15320 RSA No. 5065 of 2010 ancestral property and Gundlu Basappa the original propositus of the plaintiffs and defendants.
5. On the basis of the pleading, the trial Court framed the following issues:
(1) Whether plaintiffs prove that the plaintiffs and the defendants belongs to un-divided Hindu Joint Family ?
(2) Whether the plaintiffs further prove that the suit schedule properties are un-divided Hindu Joint Family properties ?
(3) Whether the plaintiffs further prove that there is no division of suit schedule properties by metes and bounds ?
(4) Whether the plaintiffs are entitled for their 2/3rd share in respect of the suit schedule properties ?
(5) What order or decree ?
6. In order to substantiate their claim, the plaintiffs No.1 examined himself as PW1 and three witnesses as PW2 to PW4 and marked documents at Exs.P1 to P28. On the other hand, defendant No.1 -8- NC: 2024:KHC-D:15320 RSA No. 5065 of 2010 examined himself as DW1 and two witnesses as DW2 and DW3 and marked documents at Exs.D1 to D35.
7. The Tahasildar, Kudligi was summoned by the defendants and was examined as CW1 and on his behalf Ex.C1 to Ex.C28 have been marked. The trial Court based on the pleadings and oral and documentary evidence arrived at a conclusion that,
i) The plaintiffs and defendants belonging to Hindu Undivided joint family.
ii) The plaintiffs have proved that the suit schedule properties are the Hindu Undivided joint family properties.
iii) The plaintiffs prove that there is no division in respect of the suit schedule properties.
iv) That the defendants failed to prove that Item Nos.1, 4 and 5 are the self acquired properties of their father Marappa.
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NC: 2024:KHC-D:15320 RSA No. 5065 of 2010
v) That the defendants failed to prove that item No.2 of the suit schedule property was the self acquired property of Sanna Marappa.
8. By the judgment and decree, the trial Court held that the plaintiffs are entitled for 2/3rd share in the joint family property.
9. Aggrieved the defendants preferred an appeal before the first appellate Court, the first appellate Court while re-appreciating and re-considering the entire oral and documentary evidence conferred with the judgment and decree of the trial Court. Aggrieved the defendants are before this Court.
10. Heard Sri. A.S.Patil learned counsel appearing for the appellant and the learned Senior counsel Sri.S.S.Yadrami appearing for the respondent and perused the material on record including the judgment and decree of the trial Court.
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NC: 2024:KHC-D:15320 RSA No. 5065 of 2010
11. Learned counsel appearing for the appellants would contend that the Courts below have failed to consider that the grant in favour of Marappa was in his individual capacity and in light of the grant, the item No.1, 4 and 5 are the exclusive properties of Marappa the father of defendant Nos.1 and 2 and the plaintiffs have no right over the suit property, which aspect have been totally over looked by the Courts below. Learned counsel submits that the additional issue framed by the trial Court casting burden on the defendant is totally improper as the settled proposition is that the plaintiffs who contend that the suit properties are their joint family property has to prove and the burden is always on the one who asserts that the family possess joint family property and that there arises a substantial question of law to be framed by this Court in the second appeal.
12. Per contra, learned Senior counsel appearing for the respondent would vehemently contends that the Courts below concurrently held on facts that the suit
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NC: 2024:KHC-D:15320 RSA No. 5065 of 2010 schedule properties are the joint family properties of the plaintiffs and defendants, the grant in favour of Marappa is not in his individual capacity as there was no partition effected in the joint family and the grant in favour of the Marappa who is eldest member of the family ennures to the benefit of the other family members of the original propositus. Learned Senior counsel for the respondent brings to the notice of this Court that the final decree proceedings arising from the said suit has been concluded way back on 11.01.2019 and no appeal has been preferred against the final decree drawn in FDP No.01/2007. Learned Senior counsel submits that there arises no substantial question of law to be framed in the present appeal against the concurrent findings of facts recorded by the Courts below.
13. This Court has carefully considered the rival contentions urged by the learned counsel for the parties and perused the material on record.
14. The family pedigree is as under:
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NC: 2024:KHC-D:15320
RSA No. 5065 of 2010
Gudlu Basappa
(Original Propositus)
Marappa Karibasappa Kengabasappa Thumalappa Sanna
(Died Issueless) Marappa
(Died
Issueless)
Basappa Chowdappa
Marappa
(Plaintiff No.1) Marappa Obalappa Basappa
(Plaintiff No.2) (Plaintiff (Plaintiff
No.3) No.4)
15. It is the case of the plaintiffs that the suit schedule properties are the joint family properties of the plaintiffs and the defendants. The law is well settled that the burden is on the person who asserts that the family possessed the joint family property as held by the Privy council in the case of Appalaswami Vs. Suryanarayanamurti and Others1
16. The initial burden which was casted on the plaintiff has been discharged by producing the material and leading evidence to that effect. The material evidence 1 AIR 1947 PC 189
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NC: 2024:KHC-D:15320 RSA No. 5065 of 2010 produced by the plaintiffs is at Ex.P.1 to Ex.P.21. It is the contention of the plaintiffs that the plaintiffs and defendants are residing separately for the sake of convenience, however, there is no partition effected. On the other hand, it is the contention of defendants that the plaintiffs and defendants have effected partition and they are residing separately. In order to indicate that there was a partition effected among the family members other than the mere assertion of the defendants no materials are forthcoming. It is also relevant to state here that the defendants have taken a plea that the grant in favour of Marappa, the father of defendant Nos.1 and 2 was in his individual capacity. At this stage, it needs to be stated that at the time of grant, there was no severance of status between the family members of Gudlu Basappa the original propositus. In light of the same, the grant in favour of the eldest member of the family would ennure to the benefit of the family members of Gudlu Basappa. The contention of the appellants that the issues framed by the trial Court was not in a proper manner and the burden was
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NC: 2024:KHC-D:15320 RSA No. 5065 of 2010 casted upon the defendants is not sustainable, in light of the fact that the plaintiffs initial burden has been discharged and the onus shifts on the defendants to prove that the certain i.e., Item Nos.4 and 5 properties are the self acquired properties. The defendants having failed to establish that the grant in favour of Sanna Marappa and Marappa was in their individual capacity, the Courts below were justified in holding that the suit properties are the joint family properties of the plaintiffs and defendants.
17. The manner in which the Courts below have assessed the entire oral and documentary evidence, this Court is of the considered view that there arises no substantial question of law for consideration in the present appeal under Section 100 CPC. Accordingly, this Court pass the following:
ORDER
i) The Regular Second Appeals are hereby dismissed.
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NC: 2024:KHC-D:15320 RSA No. 5065 of 2010
ii) The judgment and decree of the Courts below stands confirmed.
Sd/-
(JUSTICE K.S.HEMALEKHA) PJ/ Ct-PA List No.: 2 Sl No.: 1