Karnataka High Court
Sri.Ramappa S/O Kadappa Sindur vs Sri.Kadappa S/O Bhimappa Sindhur on 20 December, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
1 RFA No. 100264 OF 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 20th DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE H.P.SANDESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO. 100264 OF 2019
BETWEEN:
1. SRI.RAMAPPA S/O. KADAPPA SINDUR
SINCE DECEASED BY LRS,
SMT.DUNDAVVA W/O. RAMAPPA SINDUR,
AGED ABOUT: 70 YEARS, OCC: HOUSEHOLD,
R/AT: MAREGUDDI, TQ: JAMKHANDI,
DIST: BAGALKOTE-587314.
2. SRI. LAKSHAMAPPA S/O. RAMAPPA SINDUR,
Digitally signed
by
SHIVAKUMAR
AGED ABOUT: 51 YEARS, OCC: AGRICULTURE,
HIREMATH
Date:
R/AT: MAREGUDDI, TQ: JAMKHANDI,
2024.01.04
13:24:53 +0530 DIST: BAGALKOTE-587314.
3. SRI.SADASHIV S/O. RAMAPPA SINDUR,
AGED ABOUT: 42 YEARS, OCC: AGRICULTURE,
R/AT: MAREGUDDI, TQ: JAMKHANDI,
DIST: BAGALKOTE-587314.
4. SRI. MAHADEV S/O. RAMAPPA SINDUR,
AGED ABOUT: 38 YEARS, OCC: AGRICULTURE,
R/AT: MAREGUDDI, TQ: JAMKHANDI,
DIST: BAGALKOTE-587314.
5. SRI. SIDDAPPA S/O. RAMAPPA SINDUR,
AGED ABOUT: 34 YEARS, OCC: AGRICULTURE,
R/AT: MAREGUDDI, TQ: JAMKHANDI,
DIST: BAGALKOTE-587314.
2 RFA No. 100264 OF 2019
6. SMT.GEETA W/O. SURESH PUJARI
AGED ABOUT: 30 YEARS, OCC: HOUSEHOLD,
R/AT: CHIKKUR, TQ: MUDHOL,
DIST BAGALKOTE-587320.
...APPELLANTS
(BY SRI. MRUTYUNJAY TATA BANGI, ADVOCATE)
AND:
1. SRI. KADAPPA S/O. BHIMAPPA SINDHUR
AGED ABOUT: 56 YEARS, OCC: AGRICULTURE,
R/AT: MAREGUDDI, TQ: JAMKHANDI,
DIST: BAGALKOTE-587314.
2. SRI.SADAPPA S/O. BHIMAPPA SINDHUR,
AGED ABOUT: 46 YEARS, OCC: AGRICULTURE,
R/AT: MAREGUDDI, TQ: JAMKHANDI,
DIST: BAGALKOTE-587314.
3. SRI. ADIVEPPA S/O. BHIMAPPA SINDHUR,
AGED ABOUT: 56 YEARS,
OCC: AGRICULTURE, R/AT: MAREGUDDI,
TQ: JAMKHANDI, DIST: BAGALKOTE-587314.
4. SMT.TAYAWWA W/O. BHIMAPPA SINDHUR,
AGED ABOUT: 74 YEARS, OCC: HOUSEHOLD,
R/AT: MAREGUDDI, TQ: JAMKHANDI,
DIST: BAGALKOTE-587314.
...RESPONDENTS
(BY SRI. RAVI S. BALIKAI, ADVOCATE FOR R1-R4)
THIS REGULAR FIRST APPEAL FILED UNDER ORDER 96 OF
THE CODE OF CIVILPROCEDURE, PRAYING TO SET ASIDE THE
JUDGMENT AND DECREE PASSED BY THE PRINCIPAL SENIOR
CIVIL JUDGE, JAMKHANDI, AT JAMKHANDI PASSED IN O.S. NO.
154 OF 2011 DATED 14.03.2019 AND DECREE THE SUIT IN
ENTIRETY WITH COSTS THROUGHOUT BY ALLOWING THE
PRESENT APPEAL IN THE INTEREST OF JUSTICE AND EQUITY.
3 RFA No. 100264 OF 2019
THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND
RESERVED ON 11.12.2023 COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, RAMACHANDRA D. HUDDAR, J.,
DELIVERED THE FOLLOWING:
JUDGMENT
The legal heirs of original plaintiff described as plaintiffs 1(a) to 1(f) have preferred this appeal being aggrieved and dissatisfied by the judgment of dismissal of the suit in O.S.No.154/2011 dated 14.03.2019 passed by the Principal Senior Civil Judge, Jamakhandi (for short "Trial Court").
2. The records of this appeal reveal that, during the pendency of the suit itself, the original plaintiff died and his legal representatives were brought on record , who are appellants in this appeal.
3. For the purpose of convenience, the parties are referred to as per their rank before the Trial Court.
4. The case of the original plaintiff in brief is as under:
i) That, the original plaintiff by name Ramappa S/o.
Kadappa Sindur filed the suit against the defendants seeking relief of partition and separate possession of his alleged half 4 RFA No. 100264 OF 2019 share in the suit lands bearing Survey No.154/1 measuring 22 acres 39 guntas and Survey No.154/2 measuring 4 acres 8 guntas, both situated in Mareguddi village of Jamakhandi Taluk.
ii) It is the case of the plaintiff that, his father Kadappa was the propositus of the family. He had three sons by name Gulappa, Bhimappa and Ramappa. This original plaintiff was none else than the son of Kadappa. It is further stated that defendants are the sons and wife of said Bhimappa . Kadappa died long back. He was the owner of the suit schedule properties described in the plaint.
iii) It is the specific case of the plaintiff that, after demise of Kadappa, his brothers and son Gulappa expressed their desire to divide the properties but his two sons i.e. plaintiff and Ramappa were not ready to effect the division in the properties. At that time, original plaintiff was quite young and was under the care and custody of his brother-Bhimappa . Therefore, a partial partition has taken place. The fertile land in Survey No.155 was allotted to his brothers and Kadappa and his sons Gulappa, Ramappa and Bhimappa . The land in Survey No.154 was allotted to Bhimappa and Ramappa jointly. 5 RFA No. 100264 OF 2019
iv) It is further alleged by the plaintiff that, for convenience of agricultural operations and to seek benefit from the governments scheme to raise loans, the said property was divided into two unequal portions. Accordingly, the names of Bhimappa and Ramappa were mutated in respect of Survey No.154/1 and 154/2. It is specifically alleged by the plaintiff that, no such partition has taken place by metes and bounds in between Bhimappa and Ramappa at any point of time. Even it is alleged that, at any point of time there was no necessity for them to effect equal partition.
v) It is alleged that, after demise of Bhimappa his legal heirs got there names mutated in respect of Survey No.154/1. The dispute arose between the family of the plaintiff and defendants with regard to joint management and enjoyment of the properties. The plaintiff found difficulty with joint family and it was impossible for him to continue with joint possession of the schedule properties. Therefore, he requested the defendants to effect partition, but there was flat denial. Therefore, he has filed the present suit before the Trial Court seeking his alleged half 6 RFA No. 100264 OF 2019 share in the schedule properties by metes and bounds. It was prayed by the plaintiff to decree the suit.
5. The records of this appeal do reveal that, when the suit was filed, it was only against three defendants. Subsequently, defendant No.4 was impleaded. Pursuant to the suit summons, defendants 1 to 3 appeared. Defendant No.4 despite of service of summons did not appear before the Trial Court and therefore he was placed exparte.
6. Defendant No.1 filed written statement. Defendants 2 and 3 did not file any written statements on their behalf.
7. It is specifically contended by defendant No.1 in his written statement that, during the year 1969 itself, there was a partition in between Bhimappa , Gulappa and Ramappa. To that effect, mutation entry No.1889 came to be certified by the revenue authorities. The plaintiff, after twenty years of the said partition, now has filed this suit. According to defendant No.1, 02 acres 34 guntas of land in Survey No. 154/2 and Survey No.155/1 measuring 02-acres 06-guntas. In the said partition, Parasappa and Nagappa were also allotted land in Survey No.155/3 measuring 06 acres 20 guntas and in Survey No.155/2 7 RFA No. 100264 OF 2019 measuring 5 acres 10 guntas under M.E.Nos.1954 and 1889. There was already a partition by metes and bounds.
It is contended that by suppressing the material facts of earlier partition, just to have unlawful gain, the plaintiff has designed this suit and filed the same before the Trial Court. As per the partition of 1969 all the share holders are enjoying their respective properties. Even they have raised loan based upon the fertility of the lands. Now, the defendants names are appearing in the revenue records. They have also raised loan. From the last 40 years, the plaintiff and defendants are residing separately. The plaintiff has not challenged the mutation entry bearing Nos.1954 and 1889 at any point of time. Thus, the suit filed by the plaintiff is barred by limitation and also liable for dismissal on the ground of non-joinder of necessary parties. Thus, it is prayed by defendant No.1 to dismiss the suit.
8. Based upon the rival pleadings of both the parties, the learned Trial Court framed in all five issues.
i) Whether plaintiff proves that Sy.No.154 was allotted jointly to him and father of the defendants?
8 RFA No. 100264 OF 2019
ii) Whether plaintiff proves that at the time of partial partition, it was not equally divided properties and it was not acted upon?
iii) Whether suit is bad for non joinder of necessary parties?
iv) Whether plaintiff is entitled for the reliefs as claimed?
v) What order or decree?
9. To substantiate his claim and to prove his case, the original plaintiff, himself entered the witness box and examined as PW1 and he also got examined one more witness i.e. Dayanand Bhimappa Chalavadi, being of the ADLR as PW2 to prove that there was no survey of the lands. On behalf of the plaintiff three documents were marked as Ex.P1 to Ex.P3 and he closed his evidence.
10. To rebut the evidence of the plaintiff, defendant No.1 himself entered the witness box as DW1, so also wife of Gulappa by name Bhagavva, Hanamantha S/o. Parasappa Sindur and Kallwwa W/o. Nagappa Sindur as DW2 to DW4 and got marked documents as per Ex.D1 to Ex.D44 and closed the defence evidence.
9 RFA No. 100264 OF 2019
11. The Trial Court on hearing the arguments and after assessment of evidence adduced by both the sides, answered issue No.1 to 4 in the negative and ultimately dismissed the suit of the plaintiff. It is this judgment, which is under challenge by the legal heirs of original plaintiff by preferring this appeal.
12. The learned counsel for the appellants, Sri.Mrityunjaya Tata Bangi, submits that, because of unequal partition of the schedule properties in the year 1969, the original plaintiff was constrained to file the suit. According to his submission, when the said alleged partition has taken place, the plaintiff was very much young and was under the care and custody of Bhimappa. Therefore, jointly the plaintiff and defendants were allotted share in the schedule properties. Whatever the allotment so made in the said partition was for the purpose of convenience to raise loans from various banks for the purpose of improvement of agriculture. He further submits that as there was unequal partition, therefore, the plaintiff has demanded for effecting partition as he intended to separate from the joint family with Bhimappa. AS there was refusal, this suit was filed by the plaintiff.
10 RFA No. 100264 OF 2019
13. In support of his submission, the learned counsel for the plaintiff relied upon various documents, oral as well as documentary, spoken to by PW1 and PW2 as well as defendant No.1 and his witnesses. He submits that because of unequal partition, it can be construed that, it was not a partition by metes and bounds. It was just a family arrangement and that family arrangement cannot be termed as partition by metes and bounds as per submission. Therefore, he prays to allow the appeal and set aside the impugned judgment and decree passed by the Trial Court.
14. As against this submission, the learned counsel Sri.Ravi S Balikai, appearing for respondents 1 to 4 submits that, so far as the relationship between the parties is concerned, there is no dispute. His submission is that, the assertions made by the plaintiff that, there was unequal partition at the time when the plaintiff was very young at that time, is utterly false. As per his submission, because of fertility of lands, more property was allotted to Bhimappa and lesser fertile land was allotted to the plaintiff. The said partition cannot be reopened now by seeking partition by the plaintiff. According to other defendants, they 11 RFA No. 100264 OF 2019 were also allotted the lesser share based upon the fertility of land and that does mean that the plaintiff was allotted lesser share in the suit schedule properties. He submits that, the mutation entries have taken place and have remained unchallenged till date. The plaitnfif is a quarrelsome person and he is not a reputed person in the village. Always he is in the habit of quarrelling with his brother-Bhimappa, so also his legal representatives now. He submits that in view of the partition of the year 1969, the plaintiff has to be non-suited.
15. Learned counsel Sri.Mrityunjaya Tata Banki for the appellants and Sri.Ravi S Balikai for respondents took us through various oral and documentary evidence.
16. In view of rival submissions of both the sides and also on reading of the entire materials placed on record, the following points would arise for our consideration:
i) Whether the learned Trial Court has
committed illegality or perversity in
dismissing the suit by giving a finding that the defendants were able to prove the earlier partition?
12 RFA No. 100264 OF 2019
ii) If so, whether the judgment and decree of the Trial Court requires interference by this Court?
Point No.1 and 2 are discussed together.
17. So far as relationship between plaintiff and defendants is concerned, it is admitted by both sides as per the genealogy furnished by the appellants. The appellants in their appeal memo have stated that originally, one Mallappa was the propositus. He had three sons viz., Kadappa, Parasappa and Nagappa. Kadappa was the ancestor of plaintiff and defendants. Kadappa had three sons viz., Gulappa, Bhimappa and Ramappa. Ramappa was original plaintiff. Bhimappa had three sons by name Kadappa, Sadappa and Aiveppa and wife by name Tayawwa. Kadappa, Sadappa and Adiveppa are defendants 1 to 3, respectively and Tayawwa is defendant No.4.
18. So far as oral evidence of the original plaintiff is concerned, he has spoken to before the Trial Court in line with the contents of plaint averments. He has been thoroughly cross- examined by the counsel for defendants. It is his consistent evidence before the Trial Court that, Bhimappa was elder 13 RFA No. 100264 OF 2019 member of the family and he was managing the properties. Therefore, the original plaintiff is entitled for equal share as there was unequal partition in the year 1969. The original plaintiff admitted about the allotment of share as per mutation entries No.1954 and 1889 being certified by the revenue authorities. He denies the suggestion that the land so allotted to Bhimappa was not fertile land. He denied all the suggestions directed to him.
19. He examined one more witness as PW2-Dayanand Chalavadi being official of ADLR at the relevant time to show that there was no phod/hissa in Survey No.154. According to him, in Survey No.154 measuring 27 acres 7 guntas, the land measuring 13 guntas is phot Kharab land as per the revenue records and no Phod/hissa has taken place. But in the cross-examination directed to him, he deposed ignorance that in the said survey number partition has already taken place. No documents are available in the office about payment of charges with regard to conducting of survey of the said survey number. PW1 says that no partition has taken place, but admits about certification of mutation entries in the year 1969 by the revenue authorities and 14 RFA No. 100264 OF 2019 based upon that, name of Bhimappa so also the name of the plaintiff were entered in the mutation records to the extent allotted.
20. Kadappa Bhimappa Sindur-Defendant No.1 being son of Bhimappa has spoken in line with the contents of written statement. He has specifically stated that, in the year 1969 there was a partition in between brothers i.e. Gulappa, Bhimappa and Ramappa. To that effect, mutation entry No.1889 came to be certified by the revenue authorities according to the allotment of legitimate share in the suit schedule properties to the original plaintiff as well as his brother, Bhimappa and Gulappa. He states that in the said partition, 2 acre 34 guntas of land in Survey No.154/2 and 2 acre 6 guntas in Survey No.155/1 was allotted to the share of the plaintiff, being fertile land. Deceased- Bhimappa, the brother of the original plaintiff, was allotted 2 acre 7 guntas in Survey No.154/1 in lieu of his legitimate share and another brother-Gulappa was allotted 4 acres of land in Survey No. 155/2. He has specifically stated that already there was a partition and therefore, there is no question of again reopening the earlier partition.
15 RFA No. 100264 OF 2019
21. In the intensive cross-examination directed by the plaintiff to DW1, he is consistent through his cross-examination that already there was partition. He denied the suggestion that for the purpose of raising loan, the mutation entries were effected. He has specifically stated that because as there was already partition in the year 1969, now the plaintiff cannot again claim for fresh partition and seek allotment of share in the schedule properties as claimed in the plaint. It is his specific evidence that the other sharers were also allotted share and they have not questioned about the earlier partition of the year 1969.
22. DW2-Smt.Bhagavva W/o.Gulappa Sindur, DW3- Hanamanth S/o. Parasappa Sindur and DW4-Smt.Kallawwa W/o. Nagappa Sindur also have given their evidence before the Trial Court and that, as per the partition of the year 1969, all the sharers are enjoying their respective shares and they have not questioned the said partition till date. Though these three witnesses examined by defendant No.1 were directed with severe and intensive cross-examination, but they are consistent in their evidence and have concretely deposed their evidence 16 RFA No. 100264 OF 2019 that there was already partition and they admitted the partition of the year 1969. No effective cross-examination was directed to these witnesses so as to disbelieve their evidence given to by them in their examination-in-chief. Except Ex.P1 to Ex.P3, the plaintiff has not produced any other documents. Amongst the said documents so produced by the plaintiff, Ex.P3 is the mutation entry bearing Noi.1889, which shows that, there was allotment of properties in the name of Gulappa, Bhimappa, Ramappa, Parasappa and Nagappa. For better appreciation, it is just and proper to incorporate the said allotment of shares in the judgment, which reads as under:
PÀæ.¸ÀA ºÀQÌ£À ¥ÀæPÁgÀªÀÅ ¸ÀªÉð d«ÄãÀÄ DPÁgÀ £ÀA
1. WÀƼÀ¥Áà PÁ. ¹AzÀÆgÀ 155/1 6 JPÀgÉ 22 2=00 EªÀ£À ¥Á°UÉ §A¢zÀÄÝ UÀÄAmÉ
2. ©üªÀÄ¥Áà PÁ. ¹AzÀÆgÀ 154/1 25 JPÀgÉ 34 5=00 EªÀ£À ¥Á°UÉ §A¢zÀÄÝ UÀÄAmÉ
3. gÁªÀÄ¥Áà PÁ. ¹AzÀÆgÀ 154/2 4 JPÀgÉ 0 UÀÄAmÉ 1=00 EªÀ£À ¥Á°UÉ §A¢zÀÄÝ
4. ¥ÀgÀ¸À¥Áà ªÀÄ. ¹AzÀÆgÀ 155/3 6 JPÀgÉ 20 1=94 EªÀ£À ¥Á°UÉ §A¢zÀÄÝ UÀÄAmÉ 17 RFA No. 100264 OF 2019
5. £ÁUÀ¥Áà ªÀÄ. ¹AzÀÆgÀ 155/2 5 JPÀgÉ 10 UÀÄAmÉ 1=74 EªÀ£À ¥Á°UÉ §A¢zÀÄÝ
23. Ex.P.1 and P2 are the RTC Extracts pertaining to Survey No.154/1 and 154/2 produced by the plaintiff, whereas defendants have produced various documents marked as per Ex.D1 to Ex.D44. They consist Khata documents, RTC extracts, Mutation extracts etc.,
24. On scrupulous reading of all these documents, they do suggest that, in whose name the said landed properties are standing right from the year 1969 onwards. As per Ex.D18, the name of Bhimappa Kadappa Sindur is appearing in respect of Survey No.154/1 measuring 22 acres 36 guntas situated at Mareguddi village. That means, as per the allotment of shares in the partition, the aforesaid mutation No.1954 as per Ex.P3 was certified. Likewise, the said certification of mutation entry shows that there was raising of loan by the share holders to whom the landed properties were allotted from various societies and banks etc., The RTC extracts produced by defendant No.1 marked as per Ex.D18 to 26 do suggest about the names being effected in 18 RFA No. 100264 OF 2019 the revenue records in the names of the share holders as per the partition.
25. While marking the said documents, the plaintiff has not raised any objections.
26. It is submitted by the counsel for defendant No.1 that now because of irrigation facility being provided by the Government by drawing GLBC canal, the properties have become irrigated lands and now the plaintiff want to have unlawful gain. He further submits that, there was partition based upon the fertility of land in the year 1969 and the other defendants and DW2 to DW4 being allottees of shares never questioned the said partition. They were satisfied with the allotment of shares in the said partition. It is only the plaintiff, who is objecting now that he wants an equal partition.
27. On scrupulous reading of the entire pleadings and the evidence produced by the plaintiff and defendants, it do demonstrate that by virtue of Ex.P3, there was already partition. The said partition was based upon fertility of lands as per the counsel for the defendants. This fact is not denied by the plaintiff. He never says in the plaint that, the land so allotted to 19 RFA No. 100264 OF 2019 him is not at all fertile lands. There is no pleadings to that effect. Simply he pleads and deposes that there was unequal partition in the year 1969 so effected and based upon that mutation was certified and the name of original plaintiff and defendants came to be entered in the revenue records. Unless the earlier partition is set aside by the competent Court of law, the said old partition holds good. The plaintiff, at one breathe admits the partition of the year 1969 and at another breath, after lapse of so many years, now he approached the Trial Court claiming that the said partition is unequal. It is usual practice in villages, which the court can take judicial note that, the partition takes place based upon the fertility of lands. If the said land does not yield much income, more land would be allotted to him so as to equal the income with other allottees of land. Thus, partition of the lands always depends upon the nature of the lands and the facilities attached to such lands. It is stated by the learned counsel during the course of arguments that, now water canal has been drawn by the Government and some of the lands surrounding the said canal have become irrigated. This must have prompted the plaintiff to file the present suit seeking partition alleging that, there was unequal partition. That does not mean that, the earlier 20 RFA No. 100264 OF 2019 partition has to be discarded and the plaintiff be awarded share as claimed.
28. The learned Trial Court based on the evidence placed on record as well as based upon documentary and oral evidence, has rightly come to the conclusion that the plaintiff has to be non-suited. We do not find any factual or legal error being committed in dismissing the suit of the plaintiff. If really the plaintiff was aggrieved by the earlier partition, he could have challenged the said mutation entry immediately after effecting the same. It is the consistent evidence of DW1 that, right from the date of the partition, the original plaintiff and his brother- Bhimappa were residing separately. The original plaintiff was married at the relevant time and never disputed the same. Simply he submits that he continued his jointness with Bhimappa only to show that he continued his residence for the purpose of cultivation of the properties jointly with Bhimappa. To prove the same, except self-serving testimony of PW1, no evidence is placed on record.
29. Whereas DW2 to DW4, being close blood relatives of the plaintiff and defendant No.1 have deposed that there was a 21 RFA No. 100264 OF 2019 partition in the year 1969 and all are separated. There is no evidence brought on record that DW2 to DW4 are having ill-will or animosity against plaintiff to depose against him. The case made out by the defendant No.1 is more probable than the case of the plaintiff. There is ample oral as well as documentary evidence put forth by the defendant No.1 to show that the partition of the year 1969 is acted upon.
30. Whereas the evidence placed by the plaintiff suffers from material particulars. Just for the sake of having more benefit, the plaintiff might have filed the suit. This probability cannot be ruled out. Hence we are of the considered opinion that the Trial Court has not erred in dismissing the suit of the plaintiff. There is no illegality or perversity found in the judgment of the Trial Court in dismissing the suit of the plaintiff. Therefore, we answer the above points against the plaintiff and in favour of the defendants.
31. In view of the discussions made in the above paras, the appeal filed by the appellants fails and is liable to be dismissed. The judgment and decree passed by the Trial Court has to be affirmed. Resultantly, we pass the following: 22 RFA No. 100264 OF 2019
ORDER
i) The appeal stands dismissed.
ii) The judgment and decree dated 14.03.2019 in O.S.No.154/2011 passed by the Principal Senior Civil Judge, Jamakhandi is confirmed.
iii) Considering the relationship between the parties, there shall be no order as to costs.
Sd/-
JUDGE Sd/-
JUDGE YAN