Karnataka High Court
Parutayya Sadashivappa Hiremath vs Mallayya Sadashivayya Hiremath on 26 March, 2012
Bench: K.L.Manjunath, Ravi Malimath
:1:
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 26TH DAY OF MARCH 2012
PRESENT
THE HON'BLE MR. JUSTICE K. L MANJUNATH
AND
THE HON'BLE MR. JUSTICE RAVI MALIMATH
p246LOZj?R
BETWEEN:
PARUTAYYA SADASHIVAPPA HIREMATH
AGE: 57 YEARS. 0CC: SERVICE
R/O TOLAMATFI. TQ: BILAGI
PIN: 587 224.
APPELLANT
(By Sri. SHR1HARSH.A.NEELOPANTH A DV.
AND:
MALLAA SADASHIVAYYA HIP EMATH
AGE: MAJOR. 0CC: AGR1L,
R/ 0 0/0 SURE:SH JIGAJINYT HYAGAD1 PLOT
MAHALINGA.PUR ,TQ: MUDHOL
PIN: 587 381.
SINCE DECEASED, REPTD. BY:
PPEA P N PNY- '-
-E 3 rE 3 Pr
R/O, IvIAHALINGPUR,
TO: MUDHO]... DISC: BAGALKOT.
1(b) SUMITRA W/G. RAJASHEKHAR NASH1MAT]FI,
41 E '8 BYPS 0CC B \E
RIO. MAHALINOPUR.
TQ: MUDHOL, D1ST: BAGALKOT.
2. SHEKHARAYYA MALLAYYA HIREMATH
GE MuOR 0CC GRL
RIO C/O SURESH JIGAJINNi HYAGAD1 PLOT
MAHALINGAPUR ,TQ: MUDHOL
PIN: 587 381
3. IRAYYA MALLAYYA HIREMATH
AGE: M..AJOR, 0 CC: AGRIL,
RiO C,'O SURESH JIGAJINNI HYAGADI PLOT
MAHALINGAPUR ,TQ: MUDHOL
PIN: 187 381
4. SIDDAYYA MALLAYYA HIREMATH
AGE: MAJOR, 0CC: AGR1L,
R/O C/O SURESH JICAJINNI H..Y:A.GADi PLOT
MAHALINGAPUR ,TQ: MUDHOL
PIN: 587 381
5, YAMANAPPA 5i10, SHIDLINGAPPA YRLAMMI,
AGE: 65 YEARS, 0CC: AGRICULTURE.
R/O. HALEPETH, BAGALKOT.
5 1NGAPPA S /0. DO I DABASAPP YELAMM I.
AGE: 68. YEARS, 0CC: AGRIC:UUTURE,
R/0. HALEPETH, BAGALKOT.
RESPONDENTS
01 SLAt' S D
T
ACA u4 01) 010? P2-km
RIA AND RIB--SERVED)
THIS RFA S FILED TI Q, O:(S 03 C PC AGAl N ST 18
LADUMENT ND DECREE Dl 3o ± 2uu6 FNSSED IT
014..NO.283/2001 ON THE FILE OF THE PR.L. CIVIL JUDGE
(52 DN), BAGALPO" )Tc"T55r5r' TJE SLAT CY",t)
PARTITION AND SEE ARATE POSSESSION.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
L' KLMANJUNATH J DES "REO "'mE i0Lu2 NT
C
:3:
JUDGMENT
The appellant is questioning the legality and correctness of the judgment and decree passed in 0.5. No.283/2001 on the ifie of the Prl.Civil Judge (Sr.Dn.), Bagalkot, dated 30.11.2006.
2. Heard the learned counsel for both parties.
3. The facts leading to this case are as hereunder:
The appellant/plaintiff filed a suit for partition and separate possession of his half share in the plaint 'B' Schedule properties. The plaint B' Schedule properties are:
(I) R.S. No.60/112 measuring 5 acres 38 guntas situated in Yankanchi Village;
(ii) R.S. No.601111 measuring 5 acres 38 guntas situated in Yankanchi Village of Bagalkot District.
4. According to the plaintiff, his father--
Sadashivayya was the Kartha of the joint family. He
had five sons and two daughters. Out of them, the
i tr t ° ° Z W c a
CD Ph CD rt
" C Z3 C r+ a
m rt
a Q.
C en I.
a a C a
-- E- PD en 2
r rt -- h
en rt em LID C
a p CD C 2
O nt a PD
&+ Ce'
C C C
aCD
PD
C PD i a C
c a aen a C
CD
ai C
aC PD C
co
< PD PD PD LCD 'Y C PD
PDcCEPDCDae r
r* e< CD
fr4
z ! Z aCD C r4i PD a PD
en rt en C en
PD
< C a Z Cl? j
C a o
aCD
C c C
PD -- PD a en P C C
C 0 C , C cS o --
PD C PD PD rt --
C C C ° 0 --
a 2?en ;.a en. PD a ciA C
-- CD a
CD C C C C a C C
-- en
Ph
rt
en -- C C
o . a rt
1CCrPDE
C CD" C a
'SC t O• PD CD e4
PD -- rt C 0 --a C C
-- PD
CCoaaC
PD PD a C a
.rt -- CD" CD PD PD B? i Cl'
' a rt CD PD -- 0
CC t:i a$2,
Côt• 0 CEll C E,tPD
C C C EEL C 'en a
C '"""
CO ci C -- a• PD en
R
PD
CD" CCPD:CDPD00
C 0' --
en C ci
--
B? C a PD 0 h" C r"
PD a CD C 'Si
a ceC 0' CD a C r+ CD Di C
PD a PD PD C
en" -- PD a
plaintiff is in possession.. of the land which was allotted to the plaintiff and defendant No. 1 ointiv under the oral part.ition of 1970. The present suit was filed on the ground tht.t plaint 'B' Schedule properties wei.e purchased in the :cear 1977 out of the income derived by defendant No.1 from out of the income of the land which was allotted to the plaintiff and defendant No.1 jointly.
6. Defendant No. i contested the suit on the ground that since the beginning, he has been residing at Yankanchi village which is the native place of his wife and he was doing milk vcnding business and he never cultivated the land bearing 3VO0/ lb 1 1 01 1 olarnatti Village and he did not derive any income from the said land, According lo h.im, the plaint 'B' Schedule. groper ties were puronased in the near i97 out of his earnings. He also denied the right of t.he plaintiff to file a. suit fbr partition, because the plaint 'B' Schedule p :6: properties were acquired by the Government under Upper-Krishna Project and an award is passed and that the suit is filed only to claim a share in the compensation awarded by the Government to defendant No.1. Therefore, he requested the Court to dismiss the suit. The remaining defendants are his three brothers.
7. Based on the above pleadings, the following issues were framed by the Court below:
(I) Whether the plaintiff proves that the suit schedule properties are the joint family properties of himself and defendant No.1 and they are purchased out of the joint family funds and he has got half share in the said properties?
(ii) Whether the defendant No.1 proves that there was already a partition between him and the plaintiff on 06.07.1970?
(iii) Whether the defendant No.1 further proves that the suit schedule lands are his self-acquired properties? (lv) Whether the Court fee paid is sufficient?
(vi Whether the plaintiff is entitled for the decree as sought for?
(vi To what decree o order?
8 In order to prove then respe two contention' the plaintiff got himself examined as PW 1, his another elder brother Irayya is examined as PW 2 He also relied upon the evidence of PWs 3 & 4 and xs p 1 t 14 On behalf of the defendants defendant No I got examined I imself as DW I and also robed upon the valence of DW? Purdappo Rangappa CrZ and FxsD t D6 :6.
lA Wt have htard th c
1arrnd ..ounac) or hot i
parties.
11 the rain tei.u i of a appt. 1 .rt are
here under.
The trial court has committed a serious error in not considering the evidence jet-in by both the parties properly According t him chen the Icier dant is no disputing the dilotment of land in Si.No n/lBs 1 of Tolamatti Village to the plaintiff and defendant No 1 o nfl woull shoi hat here as a partiti r etwcer he oth brothcrs of the pita if anc defendant No •he plaintiff and defendant No I c csntinued ix. be in jOiflt $e ioi a )int nr at at ola i mg mor pi njo, irid :ai b dcftrdant !\n. L Uut of LEt said 'nv 'me p'aun 13 prof ties CO t lefti r % ro th in 'Ct U P '!s''lLt .p.i;ci : £ • .
• • cm .'
4 ---- 1 • ..
, ,•_
4
p.t 0 ci t 3
02
-- 44
a r*
Lb r K
* Lb
C Lb
ci 0 ci ci I 4'
Lb Lb Lb Lb 0
4
Lb ci
* ci G0 :0
Lb t)
ci a-
ci - et
U b LI tLbE ci
< 'ci aLb
b 3 ci I at)
ci I
Lb ci 0 3
02 Lb 0 ci
4-- '2
ci 2
Lb
01 02 Lb 0' a
Lb Lb
I
EL
4
Lb C Lb
0 0
3 -t ci %
ci -t 0'
a tt C'
Lb ci 'V SO
Lb C' a I
3 Lbg' ci
Lb ci 4,
ci
- Lb -p
? --i. Lb C
Lb
I Lb
ci
Lb 0
-4
ci C
3 0 - Lb
- Lb ci ci I
U)
ci Lb Epq
)qw 4- 00 Lb Lb Lb
b ti a
Lb
- ELI -4
ci Lb 0
C Lb CO
Lb
02
4,4
0
ii Lb
Lb
3 ci -p
Lb
* I ci
I ci Lb Lb
10
and the annual income to show that the income from the said land has been utilised b) the defendant to p ir I ase the plaint B Schedule properties in the year 1977 In other words, he contends that when the oral partition has taken place in the year 1970 if the lands are purchased by defendant No 1 in the year 1977 under two different documents it is for the plaintiff to show that the parties were derii ing income from Tolamatti Village and the same has been mi ested in the name of Defendant No He further submits that when the plaintiff h mself contends ha Sy No6/ B f olarnatt Ilage I a5 oeen etamned oy h m o sy g nsiderato oaar s he a c of defe d n N I; 99 i rt n i a r :11:
memorandum of partition. In the circumstances, he requests the Court to dismiss the appeal.
13. Having heard the learned counsel for the parties, we have to consider the following points in this appeal:
(i) Whether the plaint 1 'B Schedule properties were acquired by defendant No.1 out of the joint family land bearing Sy.No.611 WI of Tolamatti Village?
(ii) Whether the suit filed by the plaintiff is maintainable in view of his admission that under Ex.P-1 I, there is already a partition?
(iii) Whether the judgment and decree of the court below requires to be set aside or affirmed?
14. Since all the.points are inter-linked with each other, we would like to deal with them together as hereunder: -
The relationship between the parties are not in dispute. The parties are also not disputing the aflotment of Sy.No.6/ 1/1 of Tolamatti Village to the '-V. plaintiff and defendant No, 1 jointly. The dispute is whether the said land was under cultivation of defendant No. I and whether the said land was fetch ing incom.e to defendant No. I and out of such inco me, the plaint 'B' Schedule properties were purchased and if really the plaint 'B' Schedule properties were acqu ired out of the joint family income, whether the plain tiff can plead contrary to ExP42 for having not inclu ded the suit land claiming partition.
15. On perusal of the evidence of the plaintiff, who has been examined as PW 1, it is clear to the court that the plaintiff has not stated anything abou t thc income from the Sy,No,6/ IB/ I cf Tolamatti Villa ge. He has also not a.ddu.ced any evidence to •show that.
the consi.deration raid Itz defendant No 1 to acqt.i.i.re the plaint 'B' Schedule properties. It is th..e specific case cf th.e defendant t.hat he was a permanent rvsid ent of Yenkanchi Vii.l.agc and never rc acted at Toianiatt .i Village Se • 0 S tE'ndjfl a ISn't a,
--I 'F: 4 cc 0. Dgae 3 $1 409 a os 0 .a, ill B' a-' .0 g 4 I (IT o 'I! a 1't i r I 14:
his share in SvNo6/ lB/i by receiving the value of his portion... if really the plaint 'B' Sche.duie properties were also acquired out of the joint family nucleus, th.e plaintiff certainly wouid have mentioned n ExP- ii. The 1st defendant has denied the reeei.pt of any money from the plaintiff and he has also denied the execution of ExP4 1.
18. Be that as it may. The conduct of the plaintiff shows that at no point of time, the plaint 'B' Schedule properties were acquired out of the joint family income or nucleus. ln addition to that, when there is already a partition in the year I 970, there is severance of status of the family and. therefore, t.he. rlaintiff was require d to lead evidence that inspite of allotting one property join ny, plaintiff and. defend:ant No. I. continued to be the members of the joint 1.. ily, because the 1st. defendant l.as contended that the fatally has. got. i;,ands in other villages nvh.icln wutv undivided, li the ctreuinsi.arces, we 15:
are of the opinion that the plaintiff has not made out any case to set aside the fmdings of the trial court and we are also of the view that the findings of the trial court is based on the proper appreciation of the evidence and we do not see any reason to reverse the well-reasoned judgment of the trial court.
Accordingly, the appeal is dismissed.
Sd! pJDGE Sd! JuDGE RKK/ -