Karnataka High Court
Fakirappa S/O Ajjappa Kambali vs Shri. Yarkappa on 9 August, 2024
IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
DATED THIS THE 9TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL No.5585 OF 2009 (PAR)
BETWEEN
1. FAKIRAPPA
S/O AJJAPPA KAMBALI,
OCC: AGRICULTURE,
AGED ABOUT 47 YEARS
2. KARISIDDAPPA
S/O AJJAPPA KAMBALI
AGED ABOUT 45 YEARS
OCC: AGRICULTURE
3. PARAPA
S/O AJJAPPA KAMBALI
OCC:AGRICULTURE
AGED ABOUT 43 YEARS
4. UDCHAPPA
S/O AJJAPA KAMBALI
OCC:AGRICULTURE
AGED ABOUT 44 YEARS
5. SMT BHIMAVVA
W/O AJJAPPA KAMBALI
OCC:AGRICULTURE
AGED ABOUT 65 YEARS
6. SMT NAGAVVA
D/O AJJAPPA KAMBALI
OCC:HOUSEHOLD
AGED ABOUT 35 YEARS
ALL ARE R/O LAKHANAYAKANAKOPPA
2
TQ:RAMDURG, DIST BELGAUM 572831
...APPELLANTS
(BY SRI HARISH S MAIGUR, ADVOCATE)
AND
SHRI. YARKAPPA
S/O MALLAPPA KAMBALI
AGED ABOUT 57 YEARS
OCC:AGRICULTURE
R/O LAKHANAYAKANAKOPPA
TQ:RAMDURGA DIST BELGAUM 572831
...RESPONDENT
(BY SRI R K KULKARNI, ADVOCATE)
THIS RSA IS FILED U/S. 100 CPC., AGAINST THE JUDGEMENT &
DECREE DTD:28.07.2009 PASSED IN R.A.NO.11/2009 ON THE FILE OF
THE CIVIL JUDGE (SR.DN.) RAMDURG AT RAMDURG, ALLOWING THE
APPEAL, FILED AGAINST THE JUDGMENT DTD:29.11.2008 AND THE
DECREE PASSED IN O.S.NO.31/2007 ON THE FILE OF THE CIVIL JUDGE
(JR.DN.) RAMDURG AT RAMDURG, DISMISSING THE SUIT FILED FOR
DECLARATION, PARTITION AND SEPARATE POSSESSION.
THIS APPEAL HAVING BEEN RESERVED FOR JUDGMENT ON
26.07.2024 COMING ON FOR 'PRONOUNCEMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:-
CORAM: HON'BLE MR JUSTICE C.M. POONACHA
CAV JUDGMENT
1. The present second appeal is filed under Section 100 of the Code of Civil Procedure, 19081 by the defendants challenging the judgment and decree dated 28.7.2009 passed in R.A.No.11/2009 by the Civil Judge (Sr.Dn), Ramdurga2 and the 1 Hereinafter referred to as 'CPC' 2 Hereinafter referred to as 'first appellate Court' 3 judgment and decree dated 29.11.2008 passed in OS No.31/2007 by the Civil Judge (Jr.Dn), Ramdurga3, whereunder the suit for declaration for half share of the suit house and for half share of the suit property has been dismissed by the Trial Court and the appeal filed by the plaintiff, has been allowed by the First Appellate Court which set aside the judgment and decree passed by the Trial Court and decreed the suit.
2. The parties will be referred to as per their ranking before the Trial Court for the sake of convenience.
3. The suit properties consists of a house property bearing Gram Panchayat No.43 and two agricultural lands in Sy.Nos.24/4A and 30/J. That the plaintiff being the son of Mallappa and defendants being the children of Ajjappa, the properties were partitioned amongst Udachappa, Ajjappa and Mallappa who were the sons of Parappa Kambli and the said three persons were enjoying their respective shares separately. That upon death of Malappa, his properties devolved upon the plaintiff and upon the death of Ajjappa, his properties were devolved upon 3 Hereinafter referred to as 'trial Court' 4 the defendants. It is the case of the plaintiff that the agricultural lands were the properties of Udachappa. It is the further case of the plaintiff that Udachappa did not have issues and after his death and after the death of his wife Fakiravva, the properties that were allotted to the share of Udachappa have devolved equally amongst the plaintiff and the defendants. Hence the plaintiff is entitled half-share in the agricultural lands. With regard to the house property, it is the case of the plaintiff that the same belongs to his father and after his death, the plaintiff has become the owner of the same. That the father of the defendants, without the knowledge of the plaintiff got his name entered in the revenue records. Hence the plaintiff filed a suit for declaration claiming that he is the absolute owner of the house property and for ½ share in the landed properties.
4. The defendants entered appearance in the suit and contested the same. Defendant Nos.1 and 2 filed written statement denying the case of the plaintiff. It is contended by them that there were other properties belonging to the family, but the plaintiff has not included the same in the suit properties and hence the suit is not maintainable. It is further contended that 5 there was a partition of the properties between the plaintiff's father and his other brothers on 15.2.1994 and in the said partition, a house and another property bearing No.216/A was divided amongst the members of the family and hence suppressing the same, suit has been filed. It is further contended by the defendants that the property bearing RS No.13/J measuring 4 acres which was standing in the name of Udachappa, devolved upon his wife Fakiravva after his death who was the only legal heir. That the said Fakiravva was taken care of by defendant No.1 and hence she has given the property to defendant No.1 and accordingly his name was entered in the revenue records pertaining to the said property. Hence the defendants sought for dismissal of the suit.
5. Consequent to the pleadings of the parties, the Trial Court framed the following issues:
"1. Whether the plff proves that he is the member of joint family consisting of plff and defts as on the date of the suit?
2. Whether the plff proves that suit properties are the ancestral properties of the joint family?6
3. Whether the plff proves that House No.43 is the self-acquired property of the fther of plff?
4. Whether the defts prove the earlier partition between plff and defts in the elder persons and the suit properties have been allotted exclusively to the defts?
5. Whether the present suit is bad for non- inclusion of Lakanayakankoppa RS No.42 1A
- 1B and R.S. No.14?
6. Whether the plff is entitled for declaration, partition and separate possession of his half share in the self landed properties?
7. What decree or order?"
6. The plaintiff examined himself as PW1. Exhibits P1 to P5 have been marked in evidence. The defendants have confronted a document to PW.1 during cross-examination, which has been marked as Ex.D1. The defendants have not adduced either oral or documentary evidence.
7. The Trial Court recorded a finding that there was a prior partition which had been admitted by PW1 in the cross- examination as also held that all the joint family properties were not included in the suit and further recorded a finding that the plaintiff has not produced any material on record to demonstrate 7 that the house property is the self acquired property of the plaintiff's father. It is further noticed by the Trial Court that although the plaintiff admitted that defendant No.1 took care of Fakiravva, the wife of Udachappa, he denied that she has given any property to defendant No.1. Further, it has been noticed that defendant No.1 has not entered into the witness box and put forth his version. Further, it has noticed that Ex.D1 which is a photocopy of an 'Apsat Watni' effected between the plaintiff and defendants in respect of property bearing Sy.No.14 measuring 14 acres 13 gutas, property bearing No.149 measuring 33 guntas, which were not the suit properties. Accordingly, the Trial Court has answered issue No.4 regarding prior partition in the negative.
8. While considering issue No.5, the Trial Court has noticed that the plaintiff has admitted that there were other properties. Hence, the Trial Court dismissed the suit.
9. Being aggrieved, the plaintiff preferred RA No.11/2009. The defendants entered appearance before the first appellate Court and contested the same. The first appellate Court, framed the following points for consideration: 8
"1. Whether the trial court is justified in dismissing the suit?
2. Whether the judgment and decree under appeal warrant interference?
3. What order?"
10. The first appellate Court, by its judgment dated 28.7.2009 allowed the appeal and passed the following order:
" The Appeal filed by the appellant is allowed. Judgment and decree passed by the Civil Judge (Jr.Dn.) Ramdurga in O.S.No.31/2007 dated 29.11.2008 is set aside. Suit of the plaintiff is partly decreed without costs. Plaintiff is having half share in the suit properties bearing grampanchayat No.43, land Sy.No.24/4A measuring 0-30 guntas and Sy.No.30/G measuring 4 acres situated at Lakanayakanakoppa village, Ramdurg taluk."
11. Being aggrieved, the present second appeal is filed by the defendants.
12. This Court by order dated 21.11.2012 admitted the above appeal and framed the following substantial questions of law:
"i) Whether the lower appellate Court has committed an error in the manner of consideration of the document which was produced at Anenxure-
D1 and in that circumstances, whether there is 9 error in decreeing the suit by reversing the judgment of the trial Court?
ii) Whether in the facts and circumstances of the case, the Lower Appellate Court has committed an error while decreeing the suit for partition without inclusion of the other properties as contended and noticed by the trial Court and as to whether in the circumstances of the earlier partition, the suit could have been decreed?"
13. Learned counsel Sri Harish S. Maigur appearing for the appellants/defendants vehemently contended that plaintiff having admitted that there was a prior partition, a subsequent suit for partition is not maintainable. It is further contended that there were other properties and hence, the Trial Court has rightly dismissed the suit which has been erroneously decreed by the first appellate Court. In support of his contentions, he relied upon the following judgments:
1) D. Lingegowada Vs. Smt. Gowramma4; and
2) Sri K.R.Ravishankar and another Vs. Smt. Vijayamma and others5
14. Per contra, learned counsel Sri.R.K.Kulkarni, appearing for the respondent/plaintiff submits that the suit has been filed seeking ½ share in the share left behind by 4 RSA No.1971/2018 - DD 22.6.2024 - High Court of Karnataka, Bengaluru. 5 RFA No.345/2019 - DD 26.10.2023 - High Court of Karnataka, Bengaluru. 10 Udachappa and that the prior partition that was admitted by PW1 was with regard to the partition amongst the children of Parappa, namely Udachappa, Ajjappa and Mallappa. It is further contended that the suit properties were allotted to the share of Udachappa and there were no other properties that were allotted to him. He further contends that the first appellate Court has rightly decreed the suit, which ought not to be interfered with by this Court in the present second appeal. Hence, he seeks for dismissal of the above appeal.
15. The submissions made by both the counsels have been considered and the records have been perused including the records of the Trial Court and the first appellate Court.
16. The first appellate Court has recorded the following findings:
i. Land bearing Sy.No.30/J earlier belonged to the uncle of the plaintiff namely Udachappa. He was having a wife Fakiravva. This Udachappa and Fakiravva died issueless;
11
ii) The plaintiff and defendants are the only legal heirs of this Udachappa and Fakiravva. Therefore, the plaintiff is having half share in this property;
iii) Another suit land bearing Sy.No.34/4A measuring 30 guntas belonged to the plaintiff, his uncles Ajjappa and Fakiravva. Fakiravva died issueless. Therefore, the plaintiff is having half share in this land and hence, he is entitled for half share in the said property;
iv) That the suit house property is the joint family property of the plaintiff and defendants and it is an ancestral property and that he has taken half share in house property bearing No.216/A. That he constructed a house in the said property.
Hence, it is clear that the house property bearing gram Panchayat No.43 is not the absolute property of the father of the plaintiff and defendants are also having a share in this property;
v) The defendants have disputed that partition took place between the members 12 of the joint family in respect of house property No.43 and this has fallen to the share of defendants. In the Partition Deed
- Ex.D1 there is no reference to the in respect of house property No.43.
Therefore I hold that the plaintiff and defendants are having half share in the house property No.43. Hence, the plaintiff is not entitled to relief of declaration that he is the owner of the house property;
vi) Defendants are claiming that already partition has taken place between the plaintiff and defendants in respect of the joint family properties on 14.2.1994, a copy of which is produced and marked as Ex.D1. In this document, there is no reference about the suit landed property Sy.Nos.24/4A and Sy.No.30/J.
vii) The defendants are claiming that the suit land Sy.No.30/J was given to the father of the defendants as he looked after Fakiravva, the wife of Udachappa. There is no document to that effect and no witnesses have been examined on behalf of the defendants;
13
viii) Uncle of plaintiff Udachappa and his wife Fakiravva are no more. They died without issues. The plaintiff and defendants are the only legal heirs and are having half share in the suit landed properties;
ix) Looking at exhibit D1 - Apsat Watni patra, it is made out that the plaintiff and defendants have partitioned some of the joint family properties and keeping the remaining properties. Hence, the suit for partial partition is maintainable.
17. It is forthcoming from the aforementioned that it is the specific case of the plaintiff that the propositus Parappa Kambli had three sons namely Udachappa, Ajjappa and Mallappa. That the properties were divided amongst three sons and that plaintiff is the legal heir of Mallappa and defendants are the legal heirs of Ajjappa. It is the further specific case of the plaintiff that Udachappa and his wife Fakeeravva died issueless and that the plaintiff and defendants being the only legal heirs of Udachappa and hence the plaintiff is entitled to half share in the properties left behind by Udachappa. It is noticed that the plaintiff has 14 prayed for a declaration that the house property bearing No.43 is his absolute property and for a half share in respect of the two landed properties i.e., RS No.30/J measuring 4 acres and 24/4A measuring 30 guntas.
18. The defendants have taken a defence that there was a prior partition and that there were other properties which are not made the subject matter of the suit. The defendants have got marked an Apsat Watni patra - Ex.D1. However, the properties mentioned in Ex.D1 are not the suit properties.
19. The relationship between the parties has been admitted. There is no material on record to demonstrate that the properties that were owned by Udachappa and Fakiravva have been partitioned. The Trial Court has, on noticing the contention of the defendants that there was a prior partition which was admitted by PW1 and that there were other properties, dismissed the suit. However, the first appellate Court has rightly re-appreciated the oral and documentary evidence and noticed that there was no partition with respect to the properties allotted to the share of Udachappa. Further, the first appellate Court has recorded a 15 finding that the suit for partial partition is maintainable. The said finding is erroneous and contrary to the settled proposition of law.
20. Learned counsel for the appellant relied upon the judgments of the coordinate Bench of this Court in the case of D. Lingegowada4 and K.R.Ravishankar5 wherein it has been held that a suit for partial partition is not maintainable and a suit for partition is required to include all the properties. There is no dispute with the proposition of law rendered in the said judgments.
21. However, the case of the plaintiff is specific with regard to the partition in respect of the properties of Udachappa. The prior partition refers to the partition between Parappa and his sons. The defendants have failed in demonstrating that the properties allotted to the share of Udachappa have been further partitioned. Further, the defendants have failed in placing any material on record to demonstrate that there were other properties of Udachappa that were required to be partitioned.
22. It is also relevant to note here that apart from cross- examining PW1 and marking Ex.D1, the defendants have not 16 adduced any evidence. It is also relevant to note that a finding has already been recorded that the properties mentioned in Ex.D1 are not the suit properties. Hence, it is clear that the defendants have failed in demonstrating that the properties fallen to the share of Udachappa have already been partitioned as also there were other properties of Udachappa which are not made the subject matter of the suit.
23. The Trial Court has erroneously dismissed the suit. However, the first appellant Court has, on a re-appreciation of the oral and documentary evidence on record rightly rejected the relief of declaration sought for by the plaintiff with respect to house property No.43 and was justified in decreeing the suit of the plaintiff holding that plaintiff is entitled to one half share of the landed properties which are Sy.Nos.30/J and 24/4A. The plaintiff has not challenged the judgment of the First Appellate Court rejecting the relief of declaration in respect of the house property and granting only ½ share to the plaintiff in respect of the house property.
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24. The finding of the first appellate Court that the suit for partial partition is maintainable is erroneous as being contrary to the judgments of the coordinate Benches of this Court in the case of D. Lingegowada4 and K.R.Ravishankar5. However, the said finding will not aid the case of the appellants as there is no finding by the first appellate Court that there were other properties of Udachappa that have not been made part of the suit. In view of the discussion made above, the substantial question of law is answered in the negative.
25. Hence the following:
ORDER i. The appeal is dismissed.
ii. The judgment and decree dated 28.7.2009 passed in RA No.11/2009 by the Civil Judge (Sr.Dn), Ramdurga, is affirmed.
iii. Parties to bear their respective costs.
SD/-
(C.M.POONACHA) JUDGE BS