Karnataka High Court
Smt. Sattevva W/O Parasappa Sanadi vs Smt. Rukmavva W/O Sadashiv Galatagi on 28 March, 2023
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RSA No. 100408 of 2018
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 28TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
REGULAR SECOND APPEAL NO. 100408 OF 2018
BETWEEN:
1. SMT. SATTEVVA W/O PARASAPPA SANADI
AGE: 66 YEARS, OCC: HOUSEHOLD & AGRIL.,
R/O: BIRANAL VILLAGE, TQ: RAIBAG,
DIST: BELAGAVI-591317.
2. SMT.SHANTAVVA W/O MARUTI SANADI
AGE: 60 YEARS, OCC: HOUSEHOLD & AGRIL.,
R/O: BIRANAL VILLAGE, TQ: RAIBAG,
DIST: BELAGAVI-591317.
.....APPELLANTS
(BY SRI. SANJAY S KATAGERI , ADVOCATE)
AND:
1. SMT. RUKMAVVA W/O SADASHIV GALATAGI
BHARATHI AGE: 35 YEARS, OCC: HOUSEHOLD,
HM NOW R/O: BIRANAL VILLAGE,
Digitally signed by
TQ: RAIBAG, DIST: BELAGAVI-591317.
BHARATHI H M
Location: HIGH COURT
OF KARNATAKA
DHARWAD
SHRI.GANGARAM S/O LAXMAN MULAWADE
SINCE DECEASED BY HIS LRS,
2. STAYAPPA S/O GANGARAM MULAWADE,
AGE: 42 YEARS, OCC: AGRICULTURE,
R/O: KANAGAON, TQ: GOKAK,
DIST: BELAGAVI.
3. KUMARI.LAXMIBAI D/O SHIVAPPA MULAWADE
AGE: 36 YEARS, OCC: HOUSEHOLD,
R/O: BIRANAL, TQ: RAIBAG,
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RSA No. 100408 of 2018
DIST: BELAGAVI-591317.
4. NAGESH S/O SHIVAPPA MULAWADE
AGE: 22 YEARS, OCC: STUDENT,
R/O: BIRANAL VILLAGE, TQ: RAIBAG,
DIST: BELAGAVI-591317.
5. SMT.PARAWWA W/O SHIVAPPA PMULAWADE
AGE: 55 YEARS, OCC: AGRIUCLTURE,
R/O: BIRANAL, TQ: RAIBAG,
DIST: BELAGAVI-591317.
6. LAGAMANNA S/O LAXMAN MULAWADE
AGE: 65 YEARS, OCC: AGRIUCLTURE,
R/O: BIRANAL, TQ: RAIBAG,
DIST: BELAGAVI-591317.
7. BASAPPA S/O GOPAL MULAWADE
AGE: 32 YEARS, OCC: AGRIUCLTURE,
R/O: BIRANAL, TQ: RAIBAG,
DIST: BELAGAVI-591317.
8. SMT.RAYAWWA W/O SADASHIV SANADI
AGE: 29 YEARS, OCC: HOUSEHOLD,
R/O: BIRANAL, TQ: RAIBAG,
DIST: BELAGAVI-591317.
9. KUMAR VITHAL S/O GOPAL MULAWADE
AGE: 26 YEARS, OCC: STUDENT & AGRIL,
R/O: BIRANAL, TQ: RAIBAG,
DIST: BELAGAVI-591317.
10. KUMAR BHIMAPPA S/O GOPAL MULAWADE
AGE: 22 YEARS, OCC: STUDENT & AGRIL.,
R/O: BIRANAL, TQ: RAIBAG,
DIST: BELAGAVI-591317.
11. SMT.HONNAWWA W/O GOPAL MULAWADE
AGE: 55 YEARS, OCC: AGRICULTURE & AGRIL.,
R/O: BIRANAL, TQ: RAIBAG,
DIST: BELAGAVI-591317.
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RSA No. 100408 of 2018
12. MARUTI S/O LAXMAN MULAWADE
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O: BIRANAL, TQ: RAIBAG,
DIST: BELAGAVI-591317.
SMT.KASHAVVA W/O LAXMAN MULAWADE
SINCE DECEASED BY HER LRS
HER LRS ARE ALREADY ON RECORD
AS RESPONDENT NO.6 & 12.
.....RESPONDENTS
(BY SRI. SANGAMESH S GHULAPPANAVAR, ADV. R-1 TO R-12
R-6 HELD SUFFICIENT
R-7, R-8, R-9 & R-10, R-11 ARE SERVED)
THIS RSA IS FILED U/SEC.100 OF CPC, 1908, AGAINST
THE JUDGEMENT & DECREE DTD:30.1.2017 PASSED IN
R.A.NO.68/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND JMFC., RAIBAG, ALLOWING THE APPEAL AND MODIFYING
THE JUDGMENT AND DECREE DTD:05.10.2012, PASSED IN
O.S. NO.87/2008 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE
AND J.M.F.C., RAIBAG, DECREEING THE SUIT FILED FOR
PARTITION AND SEPARATE POSSESSION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 100408 of 2018
JUDGMENT
Plaintiff and defendant No.13 have preferred this appeal assailing the judgment and decree dated 30.01.2017 in R.A.No.68/2016 on the file of the Senior Civil Judge & JMFC, Raibag, modifying the judgment and decree dated 05.10.2012 in O.S.No.87/2008 on the file of the Prl. Civil Judge and JMFC, Raibag.
2. Plaintiff filed suit seeking relief of partition and separate possession of 1/8th share in the suit schedule properties contending that the suit schedule properties are the ancestral joint family properties of the plaintiff and defendants and that there was no partition between the plaintiff and defendants and due to differences of opinion between plaintiff and defendants in respect of income and expenditure, when the plaintiff requested for her legitimate share in the suit schedule properties, the defendants refused, hence, the present suit.
3. Pursuant to the summons issued by the Trial Court, the defendant No.8 remained absent and was -5- RSA No. 100408 of 2018 placed exparte. The defendant No.13 has not filed any statement. Defendant Nos.1 to 7 and 9 to 12 appeared through their counsel and filed their written statements.
4. The description of properties and cultivation of the plaintiff and defendants is disputed by the defendants. It is contended by the defendants that there was an earlier partition of the suit schedule properties in the year 1980 and accordingly mutation entry bearing M.E.No.488 was effected and the names of defendants were duly entered in the revenue records. It is contended that the marriage of the plaintiff and defendant No.13 was performed out of the joint family funds and their legitimate share has been given in the suit schedule property.
5. The defendant No.14 filed her written statement admitting the averments of the plaint.
6. The Trial Court on the basis of the pleadings, framed the following issue:
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1) Whether the plaintiff proves that, the plaintiff and defendants are the joint family members and the suit properties are the ancestral joint family properties?
2) Whether the defendants prove that, already partition has been effected in the family of plaintiff and defendants on 06-11-1980?
3) Is plaintiff entitled for the reliefs as prayed for?
4) What decree of order?
7. In order to substantiate her claim, plaintiff got examined herself as PW-1 and another witness as Pw-2 marked documents at Exs.P-1 to P-8. The defendants neither examined any witness nor produced any documents on their behalf.
8. The Trial Court on the basis of the pleadings, oral and documentary evidence, held that the plaintiff has proved that the suit schedule property are the joint family properties of the plaintiff and defendants; that plaintiff is entitled for share in the suit schedule properties; that the defendants have failed to prove the prior partition effected in the family of the plaintiff and defendants on 06.11.1980 -7- RSA No. 100408 of 2018 and accordingly, decreed the suit of the plaintiff awarding 1/8th share to the plaintiff and defendant No.14, the mother of the plaintiff and defendants in the suit schedule properties.
9. Aggrieved by which, the defendant No.2 filed an appeal before the first Appellate Court.
10. The first Appellate Court framed the following points for consideration:
1) Whether the Trial Court has not property appreciated the oral and documentary evidence produced by the appellant?
2) Whether the findings and reasonings given by the Trial Court in considering the documents produced on behalf of the appellant is not proper?
3) Whether allotment of share is correct?
4) What order or decree?
11. The first Appellate Court on re-appreciation of the material on record, modified the judgment and decree of the Trial Court holding that the plaintiff and defendant No.13 are entitled for 1/7th share each out of 1/7th share -8- RSA No. 100408 of 2018 of their father Laxman. Further held that the defendant Nos.2 to 5 are entitled for 1/7th share jointly and 1/7th share out of 1/7th share of Laxman Mulawade.
12. Aggrieved by which, the plaintiff and defendant No.13 have filed this appeal.
13. This Court while admitting the appeal, framed the following substantial question of law:
"1. Whether the 1st appellate court is justified in appreciating the subsequent judgment passed by the Hon'ble Apex Court of India in case of Danamma V/s. Amar and another and Ganduri Koteshwaramma Vs/ Chakiri Yanadi?"
14. Learned counsel for appellants and learned counsel for respondents have been heard on the substantial question of law and the judgment and decree passed by the Courts below and material on record are perused.
15. The relationship of the plaintiff with the defendants is not in dispute. It is also not in dispute that -9- RSA No. 100408 of 2018 the original propositus died on 01.02.2001 leaving behind 5 sons and two daughters. It is also not in dispute that the suit schedule properties are the joint family properties of the plaintiff and defendants. The only assertion of defendant No.1 is that there was partition of the suit schedule properties in the year 1980 and accordingly mutation entry bearing M.E.No.488 has been effected and the names of the defendants have been effected in the revenue records in respect of suit properties and since from 06.11.1980, the defendants are in possession and cultivating their respective properties and the plaintiffs and defendant No.13 being married long back, are not entitled for share in the suit schedule properties and the possession of the defendants becomes adverse to the plaintiff and defendant No.13 and there is an ouster of the of the daughters in view of the mutation in favour of defendants.
16. The Hon'ble Apex Court in the case of Darshan Singh and others Vs. Gujjar Singh (Dead) By Lrs.
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RSA No. 100408 of 2018And others reported in (2002) 2 SCC 62 has held at para 7,8 and 9 as under:
7. The next question which requires our decision is whether Rulia Singh are not and after his death the present appellants, who were in possession of the land since 1930 and also got their names mutated, have perfected their title by adverse possession over the land of Jagjit Singh.
It is well settled that if a co- sharer in possession of the entire property, his possession cannot be deemed to be adverse for other co-sharers unless there has been an ouster of co-sharers.
8. Learned counsel appearing for the appellants has placed reliance on the decision of the Lahore High Court in Sardar Amar Singh v. Sardarni Shiv Dan Kaur. The learned Judge held that removal of the name of the absentee co- sharer from revenue records at the instance of other co-sharers is an overt act amounting to ouster and commences adverse possession of the co-sharers in possession, the reason being that removal of the name was done openly and if the absentee co-sharers would have taken an interest in the land, he would not have failed to take notice of it in the ordinary course and hence his
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RSA No. 100408 of 2018knowledge of the adverse claim for other co- sharers may be reasonably presumed. In reply, learned counsel for the respondents has placed reliance on a decision in Bashir Ahmad v. Parshotam. The learned Single Judge held that if a property belongs to several co-sharers and one co-sharer is in possession of the entire property, his possession cannot be deemed to be adverse to other co-sharers and he must be deemed to be in possession on behalf of all other co-sharers and adverse possession cannot be founded on the basis of such exclusive possession, unless there has been ouster of other co-sharers. Regarding mutation in the revenue records learned Judge held that mutation in the name of one co-sharer cannot be any indication of adverse possession until it is shown that it was obtained after a clear declaration to the effect that the title of other co- sharers was denied.
9. In our view, the correct legal position is that possession of a property belonging to several co-sharers by one co-sharer shall be deemed that he possesses the property on behalf of the other co-sharers unless there has been a clear ouster by denying the title of other co-sharers and mutation
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RSA No. 100408 of 2018in the revenue records in the name of one co- sharer would not amount to ouster unless there is a clear declaration that title of the other co- sharers was denied.
17. The defendant No.1 placed reliance only on the mutation entry wherein the plaintiff and the other defendants have consented to enter the name of defendant No.1 in the revenue records. The settled preposition of law being mere entry in revenue records would not create any right in respect of immovable property in favour of defendant No.1. The legal position is that the possession of a property belonging several co- sharers by one sharer shall be deemed that the possession of the property on behalf of other co-sharers unless there has been a clear ouster denying title of the other co- sharers and mutation in the revenue records in the name of one co-sharers cannot be any indication of adverse possession unless there is a clear declaration to the effect that the title of other co-sharers was denied. The Hon'ble Apex Court in the case of B.R. Patil Vs. Tulsa Y. Sawkar
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RSA No. 100408 of 2018and others in Civil Appeal Nos.2652-2654/2013 has considered the judgment in the case of Darshan Singh stated supra and has held as under:
"21. The next contention raised is one of ouster. In P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR 1957 SC 314 it is held inter alia as follows: -
"4. Now, the ordinary classical requirement of adverse possession is that it should be nec vi nec clam nec precario. (See Secretary of State for India v. Debendra Lal Khan, 61 Ind App 78 at P 82 (AIR 1934 PC 23 at p.25) (A). The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. (See Radhamoni Debi v. Collector of Khulna, 27 Ind App 136 at p.140 (PC)(B). But it is well settled that in order to establish adverse possession of one co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits, of the properties. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in
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possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part derogation of the other co-heir's title. (See Corea V. Appuhamy, 1912 AC 230 (C). It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster. This does not necessarily mean that there must be an express demand by one and denial by the other. There are cases which have held that adverse possession and ouster can be inferred when one co-heir takes and maintains notorious exclusive possession in assertion of hostile title and continues in such possession for a very considerable time and the excluded heir takes no steps to vindicate his title. Whether that line of cases is right or wrong we need not pause to consider. It is sufficient to notice that the Privy Council in N. Varada Pillai v. Jeevarathnammal, AIR 1919 PC 44 at p. 47 (D) quotes, apparently with approval a passage from Culley v. Deod Taylerson, (1840) 3 P
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& D 539; 52 RR 566 (E) which indicates that such a situation may well lead to an inference of ouster "if other circumstances concur". (See also Govindrao v. Rajabai, AIR 1931 PC 48 (F) It may be further mentioned that it is well-settled that the burden of making out ouster is one the person claiming to displace the lawful title of a co-heir by his adverse possession."
22. In regard to ouster, we may also notice the following decision of this Court.
23. In Md. Mohammad Ali (dead) by lrs. v. Jagadish Kalita and Others, (2004) 1 SCC 271, the court inter alia held as follows:
"31. In Vidya Devi v. Prem Prakash [(1995) 4 SCC 496] this Court upon referring to a large number of decisions observed: (SCC p. 505, paras 27-28) "27. ... It will be seen that in order that the possession of co-owner may be adverse to others, it is necessary that there should be ouster or something equivalent to it. This was also the observation of the Supreme Court in P. Lakshmi Reddy case [P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR 1957 SC 314] which has since been followed in
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Mohd. Zainulabudeen v. Sayed Ahmed Mohideen [(1990) 1 SCC 345].
28. 'Ouster' does not mean actual driving out of the co-sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of co-owner. They are (i) declaration of hostile animus, (ii) long and uninterrupted possession of the person pleading ouster, and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner. Thus, a co-owner, can under law, claim title by adverse possession against another co-owner who can, of course, file appropriate suit including suit for joint possession within time prescribed by law."
32.Yet again in Darshan Singh v. Gujjar Singh [(2002) 2 SCC 62] it is stated: (SCC pp. 65-66, para
7) "It is well settled that if a co-sharer is in possession of the entire property, his possession cannot be deemed to be adverse for other co-sharers unless there has been an ouster of other co-sharers."
It has further been observed that: (SCC p. 66, para 9)
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RSA No. 100408 of 2018
"9. In our view, the correct legal position is that possession of a property belonging to several co-sharers by one co-sharer shall be deemed that he possesses the property on behalf of the other co-sharers unless there has been a clear ouster by denying the title of other co-sharers and mutation in the revenue records in the name of one co-sharer would not amount to ouster unless there is a clear declaration that title of the other co-sharers was denied."
24. The possession of a co-owner however long it maybe, hardly by itself, will constitute ouster. In the case of a co-owner, it is presumed that he possesses the property on behalf of the entire body of co-owners. Even non-participation of rent and profits by itself need not amount to ouster. The proof of the ingredients of adverse possession are undoubtedly indispensable even in a plea of ouster. However, there is the additional requirement in the case of ouster that the elements of adverse possession must be shown to have been made known to the co-owner. This is apparently for the reason that the possession of a co-owner is treated as possession of other co-owners. While it may be true that it may not be necessary to actually drive
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RSA No. 100408 of 2018out the co-owner from the property as noticed in Mohd. Zainulabudeen (since deceased) by lrs. v. Sayed Ahmed Mohideen and Others, (1990) 1 SCC 345mere continuance in the possession of a co- owner does not suffice to set up a plea of ouster. The possession of the co-owner will also be referable to lawful title. The possession of the appellant even of the ground floor of the building on the land in question, was entirely in accord with his right as a co-owner."
18. The Hon'ble Apex Court has held that the 'ouster' does not mean actual driving out of the co-sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of co-owner. They are (i) declaration of hostile animus, (ii) long and uninterrupted possession of the person pleading ouster, and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner.
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RSA No. 100408 of 2018
19. In the present case, the Trial Court and the first Appellate Court concurrently held that there is no oral partition as contended by the defendant No.1 and the defendants have failed to prove the burden by producing cogent evidence and there being no rebuttal evidence by defendants to establish that the fact that there was earlier partition. The Trial Court while decreeing the suit of the plaintiff has awarded equal share to the plaintiff and defendants. In an appeal filed by the defendant No.2, the first Appellate Court as per the law prevailing then, has granted notional partition to the plaintiff and defendant No.13 who are the daughters in the share of their father. It is also relevant to state that the mother of the plaintiff and defendants died during the pendency of the appeal and accordingly, the shares have to be modified to the extent of 1/7th share. The Hon'ble Apex Court in the case of Vineeta Sharma Vs. Rakesh Sharma and others reported in ILR 2020 KAR 4370 wherein it is held that daughters are considered as co-parceners and are entitled to equal share with that of sons under Section 6 of Hindu
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RSA No. 100408 of 2018Succession Act, 1956 (Amended Act 2005). Accordingly, substantial question of law framed by this Court needs to be answered in favour of appellants holding that the plaintiff and defendant No.13 who are daughters are entitled for equal share in the suit schedule property and the substantial question of law is answered accordingly and the judgment and decree of the Courts below needs to be modified and this Court pass the following:
ORDER
(i) The second appeal filed by the plaintiff and defendant No.13 is hereby allowed.
(ii) The judgment and decree dated 30.01.2017 in R.A.No.68/2016 on the file of the Senior Civil Judge & J.M.F.C., Raibag and the judgment and decree dated 05.10.2012 in O.S.No.87/2008 on the file of the Prl. Civil Judge & J.M.F.C., Raibag are hereby modified awarding 1/8th share to the plaintiff and defendant Nos.1 to 13.
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RSA No. 100408 of 2018
(iii) Office to draw the decree accordingly.
(iv) No order as to costs.
Sd/-
JUDGE
NAA
List No.: 1 Sl No.: 58