Karnataka High Court
Ishwara Bhat vs Smt Devaki Amma on 25 October, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2023:KHC:37852
RSA No. 1935 of 2017
C/W RSA No. 1928 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 1935 OF 2017 (PAR)
C/W
REGULAR SECOND APPEAL NO. 1928 OF 2017
IN R.S.A. NO.1935/2017:
BETWEEN:
1. ISHWARA BHAT
S/O LATE P. KESHAVA BHAT
AGED ABOUT 47 YEARS
R/AT PANJIGUDDE
PANDOOR VILLAGE AND POST
PUTTUR TALUK, DISTRICT D.K-574201
2. SMT. KAMALA
W/O LATE P.KESHAVA BHAT
AGED ABOUT 77 YEARS
Digitally signed
R/AT PANJIGUDDE
by SHARANYA T PANDOOR VILLAGE AND POST
Location: HIGH PUTTUR TALUK, DISTRICT D.K-574201
COURT OF
KARNATAKA 3. CHANDRASHEKAR
S/O LATE P. KESHAVA BHAT
AGED ABOUT 45 YEARS
R/AT PANJIGUDDE
PANDOOR VILLAGE AND POST
PUTTUR TALUK
DISTRICT D.K-574201. ... APPELLANTS
(BY SRI G. BALAKRISHNA SHASTRY, ADVOCATE)
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RSA No. 1935 of 2017
C/W RSA No. 1928 of 2017
AND:
1. SMT. DEVAKI AMMA
W/O LATE ANANTHESHWARA BHAT
AGED ABOUT 78 YEARS
2. VASANTH LAKSHMI
S/O LATE ANANTHESHWARA BHAT
AGED ABOUT 56 YEARS
3. SRI RAVISH
S/O LATE ANANTHESHWARA BHAT
AGED ABOUT 56 YEARS
4. DEVI PRASAD
S/O LATE ANANTHESHWARA BHAT
AGED ABOUT 52 YEARS
5. SRI GANESH PRASAD
S/O LATE ANANTHESHWARA BHAT
AGED ABOUT 50 YEARS
RESPONDENT NO.1 TO 5 ARE
R/O "SHREE DEVI"
ANILAKODI BANNUR VILLAGE AND POST
PUTTUR TALUK, D.K.DISTRICT-574203
6. SMT. SARAWATHI
C/O SMT. BHARATHI
W/O SATHYANARAYANA BHAT
AGED ABOUT 55 YEARS
HEBBARABAILU HOUSE,
PUTTUR KASABA
D.K.DISTRICT-574201
7. SMT. VIAYALAKSHMI
W/O DR. P.S. BHAT
AGED ABOUT 51 YEARS
R/O. PAICHAR HOUSE
SONANGERI VILLAGE AND POST,
SULLIA TALUK,
D.K.DISTRICT-574239
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RSA No. 1935 of 2017
C/W RSA No. 1928 of 2017
8. SMT. BHARATHI
W/O JAYARAM BHAT
AGED ABOUT 47 YEARS
PANJIGUDDE HOUSE
KODAPADAVU POST,
VITAL MADNOOR VILLAGE
BANTWAL TALUK,
D.K.DISTRCT.
9. K. NARAYANA BHAT
S/O LATE SHAMBHATTA
SINCE DEAD BY LRS
9(a) SRI RAJASHEKARA P.
S/O LATE NARAYANA BHAT K
AGED ABOUT 48 YEARS
PANJIGUDDE HOUSE
PANDNUR POST & VILLAGE
PUTTUR TALUK
DAKSHINA KANNADA-574201.
9(b) SMT. VIDYA S. BHAT
D/O LATE NARAYANA BHAT
W/O D.R.S.BHAT
AGED ABOUT 45 YEARS
NO.212, VASISTA
DASAKOPPAL GATE
M.K.HALLI POST
MYSURU-560 026.
[R-9(a) & R-9(b) ARE AMENDED
VIDE COURT ORDER DATED 05.03.2018]
10 . SHAMBHU BHAT
S/O LATE P. KEHSAVA BHAT
AGED ABOUT 61 YEARS
R/O ATHIKARBAILYU HOKUSE
VITTAL MUDNOOR POST
BANTWAL TALUK,
D.K.DISTRICT-574211
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NC: 2023:KHC:37852
RSA No. 1935 of 2017
C/W RSA No. 1928 of 2017
11 . P. SADASHIVA BHAT
S/O LATE P. KESHAVA BHAT
AGED ABOUT 56 YEARS
R/O MURGAJE HOUSE,
PADNOOR VILLAGE
PUTTUR TALUK,
D.K.DISTRICT-574201
12 . RAMACHANDRA BHAT
S/O LATE P.K.ESHAVA BHAT
AGED ABOUT 53 YEARS
R/O MURGAJE HOUSE,
PADNOOR VILLAGE
PUTTUR TALUK
D.K.DISTRICT-574201
13 . RAGHURAMA BHAT
S/O ALTE P. KESHAVA BHAT
AGED ABOUT 50 YEARS
C/O NARAYANA BHAT
DIVANA HOUSE
VITTAL PADNOOR VILLAGE
KODAADAVU POST,
BANTWAL TALUK
D.K. PIN -574211
14 . RAVISHANKAR
S/O NARAYANA BHAT
AGED ABOUT 46 YEARS
R/O KSHETHRAPALIKE
KEDILA VILLAGE AND POST
BANTWAL TALUK,
D.K.DISTRICT-574211
[R-14 WAS TREATED AS LR OF RESPONDENT NO.9
VIDE COURT ORDER DATED 05.03.2018]
15 . SMT. SARASWATHI
D/O LATE GUNAVATHI
AGED ABOUT 69 YEARS
B.C.ROAD, BANTWAL TALUK,
D.K.DISTRICT-574211
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RSA No. 1935 of 2017
C/W RSA No. 1928 of 2017
16 . SMT. PARVATHI
D/O LATE GUNAVATHI
C/O SHIVARAMA JOSHI
AGED ABOUT 67 YEARS
R/O APPOLIGE POST
KASABA VILLAGE,
PUTTUR TALUK
D.K.DISTRICT-574201
17 . SMT. GEETHALAKSHMI
D/O LATE GUNAVATHI
C/O C.N.VASANTH
AGED ABOUT 65 YEARS
DODDALAKADU
BANTWAL TALUK,
D.K.DISTRICT-574211
18 . P.A. RAMAKRISHNA SHASTRI
S/O ATE GUNAVATHI
AGED ABOUT 63 YEARS
R/O. THENKAKARANDOOR VILLAGE
BELTHANGADY TALUK,
D.K.DISTRICT-574217
19 . BALAKRISHNA SHASTRI
S/O LATE GUNAVATHI
AGED ABOUT 60 YEARS
R/O. MODDU, MARNADU VILLAGE
MOODABIDRI,
MANGALORE TALUK, D.K.-57.
20 . ADITHI D/O LATE GUNAVATHI
C/O K. SUBBAYYA
AGED ABOUT 59 YEARS
KABBAN VIEW APARTMENT
FLAT NO.3, GRANT ROAD
BANGALORE.
21 . SMT. RUKMINI
D/O LATE GUNAVATH
W/O GOPALAKRISHNA
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RSA No. 1935 of 2017
C/W RSA No. 1928 of 2017
BHAT TEACHER
AGED ABOUT 57 YEARS
D.NO.1/69, PAPER TOWN,
BHADRAVATHI-577302
22 . SMT. SATHYABHAMA
D/O LATE GUNAVATHI
AGED ABOUT 55 YEARS
R/O SARITH MANCHI POST
BANTWAL TALUK,
D.K.DISTRICT-574211
23 . SMT. PARVATHI AMMA
W/O GOPALA BHAT
AGED ABOUT 75 YEARS
ADARSHA COMPOUND KOMBETTU
PUTTUR KASABA VILLAGE
D.K.DISTRICT-574201
24 . SMT. PARVATHI AMMA
W/O SAMETHADKA GOPALA
KRISHNA BHAT,
AGED ABOUT 66 YEARS
R/O SAMETHADKA
PUTTUR KASABA VILLAGE,
PUTTUR TALUK
D.K.DISTRICT-574201. ... RESPONDENTS
(BY SRI K.RAVISHANKAR, ADVOCATE FOR C/R1 & R5;
SRI P.N.MANMOHAN, ADVOCATE FOR C/R14 & FOR LRS OF R9;
SRI SACHIN B.S., ADVOCATE FOR R2 TO R4;
NOTICE TO R23 & R24 IS DISPENSED WITH
VIDE ORDER DATED 24.08.2023)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGEMENT AND DECREE DATED 03.06.2017
PASSED IN R.A.NO.5001/2016 ON THE FILE OF THE V
ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K.,
MANGALURU, SITTING AT PUTTUR, D.K, DISMISSINGE THE
APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE
DATED 24.11.2015 PASSED IN O.S.NO.17/1975 ON THE FILE
OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, PUTTUR.
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RSA No. 1935 of 2017
C/W RSA No. 1928 of 2017
IN R.S.A.NO.1928/2017:
BETWEEN:
1. SRI K. NARAYANA BHAT
AGED ABOUT 81 YEARS
S/O LATE SHAMBHATTA,
'PANJIGUDDE HOUSE',
PADNUR VILLAGE AND POST,
PUTTUR TALUK,
DAKSHINA KANNADA
SINCE DEAD BY LRS
1(a) SRI RAJASHEKARA P.
S/O LATE NARAYANA BHAT K
AGED ABOUT 48 YEARS
PANJIGUDDE HOUSE
PANDNUR POST & VILLAGE
PUTTUR TALUK
DAKSHINA KANNADA-574201.
1(b) SMT. VIDYA S. BHAT
D/O LATE NARAYANA BHAT
W/O D.R.S.BHAT
AGED ABOUT 45 YEARS
NO.212, VASISTA
DASAKOPPAL GATE
M.K.HALLI POST
MYSURU-560 026.
2. SRI RAVISHANKARA
AGED ABOUT 47 YEARS
S/O SRI NARAYANA BHAT
PANJIGUDDE HOUSE,
PADNUR VILLAGE AND POST,
PUTTUR TALUK,
DAKSHINA KANNADA. ... APPELLANTS
(BY SRI P.N.MANMOHAN, ADVOCATE)
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RSA No. 1935 of 2017
C/W RSA No. 1928 of 2017
AND:
1. SRI ISWARA BHAT
S/O LATE P. KESHAVA BHAT,
AGED ABOUT 47 YEARS
2. SMT. KAMALA
AGED ABOUT 76 YEARS
W/O LATE P.KESHAVA BHATT
3. SRI. CHANDRASHEKHARA
AGED ABOUT 45 YEARS
S/O LATE P.KESHAVA BHATT
RESPONDENT NOS.1 TO 3 ARE
RESIDING AT 'PANJIGUDDE HOUSE',
PADNUR VILLAGE AND POST,
PUTTUR TALUK, DAKSHINA KANNADA.
4. SMT. SARASWATHI
AGED ABOUT 56 YEARS
W/O SRI SATHYANARAYANA BHAT,
C/O SMT. BHARATHI,
HEBBARABAILU HOUSE,
PUTTUR KASABA, PUTTUR,
DAKSHINA KANNADA
5. SMT. VIJAYALAKSHMI
AGED ABOUT 51 YEARS
W/O DR.P.S.BHAT,
R/AT PAICHAR HOUSE,
SONANGERI VILLAGE AND POST,
SULLIA TALUK, DAKSHINA KANNADA.
6. SMT. BHARATHI
AGED ABOUT 48 YEARS
W/O SRI. JAYARAMA BHAT
R/AT PANJIGUDDE HOUSE,
KODAPADAVU POST,
VITTAL MUDNOOR VILLAGE,
BANTWAL TALUK
DAKSHINA KANNADA
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NC: 2023:KHC:37852
RSA No. 1935 of 2017
C/W RSA No. 1928 of 2017
7. SRI SHAMBHU BHAT
AGED ABOUT 61 YEARS
S/O LATE P.KESHAVA BHAT,
R/AT ATHIKRABAILU HOUSE,
BANTWAL TALUK, POST
VITTAL MUDNOOR,
DAKSHINA KANNADA
8. SRI P.SADASHIVA BHAT
AGED ABOUT 57 YEARS
S/O LATE P. KESHAVA BHAT,
R/AT MALMAJALU HOUSE,
BANNUR VILLAGE AND POST,
PUTTUR TALUK
DAKSHINA KANNADA
9. SRI. RAMACHANDRA BHAT
AGED ABOUT 53 YEARS
S/O LATE P. KESHAVA BHAT
R/O MURGAJE HOUSE,
PADNOOR VILLAGE,
PUTTUR TALUK
DAKSHINA KANNADA
10 . SRI. RAGHURAMA BHAT
AGED ABOUT 50 YEARS
S/O LATE P. KESHAVA BHAT,
C/O SRI. NARAYANA BHAT,
DIVANA HOUSE,
VITTALAPADNOOR VILLAGE,
KODAPADAVU POST,
BANTWAL TALUK
DAKSHINA KANNADA
11 . SMT. DEVAKI AMMA
AGED ABOUT 78 YEARS
W/O LATE ANANTHESHWARA BHAT
12 . MS. VASANATH LAKSHMI
AGED ABOUT 56 YEARS
D/O LATE ANANTHESHWARA BHAT
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RSA No. 1935 of 2017
C/W RSA No. 1928 of 2017
13 . SRI. RAVISHSA
AGED ABOUT 56 YEARS
S/O LATE ANANTHESHWARA BHAT
14 . SRI.DEVIPRASAD
AGED ABOUT 52 YEARS
S/O LATE ANANTHESHWARA BHAT
15 . SRI. GANESHPRASAD
AGED ABOUT 50 YEARS
S/O LATE ANANTHESHWARA BHAT
RESPONDENT NOS.11 TO 15 ARE
RESIDING AT "SHREE DEVI",
ANILAKODI IN BANNUR VILLAGE
AND POST, PUTTUR TALUK
DAKSHINA KANNADA-574201.
16 . SMT. SARASWATHI
AGED ABOUT 67 YEARS
D/O LATE GUNAVATHI,
C/O LATE V.SU BHAT,
LECTURER (LITERATURE)
B.C.ROAD, BANTWAL TALUK
DAKSHINA KANNADA
17 . SMT. PARVATHI
AGED ABOUT 67 YEARS
D/O LATE GUNAVATHI,
C/O SRI. SHIVARAMA JOSHI,
RESIDING AT BAPPALIGE,
PUTTUR KASABA VILLAGE,
PUTTUR TALUK
DAKSHINA KANNADA
18 . SMT. GEETHALAKSHMI
AGED ABOUT 65 YEARS
D/O LATE GUNAVATHI,
C/O SRI. C.N.VASANTH,
RESIDING AT DODDALAKADU,
PUTTUR TALUK, DAKSHINA KANNADA.
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RSA No. 1935 of 2017
C/W RSA No. 1928 of 2017
19 . SRI. PA. RAMAKRISHNA SHASTHRI
AGED ABOUT 63 YEARS
S/O LATE GUNAVATHI,
RESIDING AT THENKAKARANDOOR
VILLAGE AND POST-574217,
BELTHANGADY TALUK
DAKSHINA KANNADA-574217
20 . SRI. BALAKRISHNA SHASTRI
AGED ABOUT 61 YEARS
S/O LATE GUNAVATHI,
RESIDING AT MOODU MARNADU VILLAGE,
MOODABIDRI,
MANGALORE TALUK
DAKSHINA KANNADA
21 . SMT. ADITHI
AGED ABOUT 59 YEARS
D/O LATE GUNAVATHI,
C/O SRI K. SUBBAYYA,
RESIDING AT KABBAN
VIEW APARTMENT,
FLAT NO.3(III) GRANT ROAD,
BENGALURU-560 001
22 . SMT. RUKMINI
AGED ABOUT 57 YEARS
D/O LATE GUNAVATHI,
W/O SRI. GOPALAKRISHNA BHAT,
TEACHER,
RESIDING AT D.NO.1/69,
PAPER TOWN,
BHADRAVATHI
23 . SMT. SATHYA BHAMA
AGED ABOUT 55 YEARS
D/O LATE GUNAVATHI,
RESIDING AT SARITH MANCHI POST,
BANTWAL TALUK
DAKSHINA KANNADA
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RSA No. 1935 of 2017
C/W RSA No. 1928 of 2017
24 . SMT. PARVATHI AMMA
AGED ABOUT 75 YEARS
W/O GOPALA BHAT,
ADARSHA COMPOUND, KOMBETTU,
PUTTUR KASBA VILLAGE,
PUTTUR TALUK
DAKSHINA KANNADA
25 . SMT. PARVATHI AMMA
AGED ABOUT 66 YEARS
W/O SRI SAMETHADKA GOPALAKRISHNA BHAT
RESIDING AT SAMETHADKA
PUTTUR KASBA VILLAGE,
PUTTUR TALUK
DAKSHINA KANNADA. ...
RESPONDENTS
(BY SRI G.BALAKRISHNA SHASTRY, ADVOCATE FOR R1 TO R3;
SRI A. KESHAVA BHAT, ADVOCATE FOR R4, R5 & R8;
R12 TO R14 ARE LRS OF DECEASED R11,
VIDE ORDER DATED 07.03.2023;
VIDE ORDER DATED 24.08.2023,
THERE IS NO NEED TO BRING LRS OF
DECEASED R18 ON RECORD &
NOTICE TO R10, R16 & R22 IS DISPENSED WITH;
R6, R7, R9, R12, R13, R14, R17, R19, R20, R21, R23, R24 &
R25 ARE SERVED & UNREPRESENTED.)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 03.06.2017
PASSED IN R.A.NO.5002/2016 ON THE FILE OF THE V
ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K.,
MANGALORE, SITTING AT PUTTUR, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED
24.11.2015 PASSED IN O.S.NO.17/1975 (OLD NO.26/1971),
ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND
JMFC, PUTTUR, D.K.
THESE APPEALS HAVING BEEN HEARD FOR ORDERS ON
ADMISSION ON 29.09.2023 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
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RSA No. 1935 of 2017
C/W RSA No. 1928 of 2017
JUDGMENT
Heard the learned counsel for appellants on admission and reserved for orders.
2. These two second appeals are filed questioning the judgment and decree passed in O.S.No.17/1975 allowing the suit and granting the relief of partition in respect of item No.3 of 'A' schedule property and rejecting the claim in respect of item Nos.4(b) to 4(d). The defendant Nos.1(a), 1(e) and defendant No.8, defendant Nos.2 and 9. The defendant Nos.1(a), 1(e) and defendant No.8 have filed RA No.5001/2016 challenging the judgment of Trial Court in respect of the decree passed in respect of item No.3 of 'A' schedule property. The defendant Nos.2 and 9 have filed RA No.5002/2016 as regards the rejection of their prayer for partition and separate possession of suit schedule property in respect of item Nos.4(b) to 4(d). Both the appeals are dismissed. Hence, these two second appeals are filed before this Court.
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NC: 2023:KHC:37852 RSA No. 1935 of 2017 C/W RSA No. 1928 of 2017
3. The factual matrix of the case of the plaintiffs before the Trial Court in O.S.No.17/1975 and earlier it was filed in year 1971 which is transferred and renumbered as O.S.No.17/1975 for the relief of partition and separate possession in respect of suit schedule properties item Nos.1 to 3 at the first instance and subsequent to the suit, also some of the properties are acquired and hence included as item No.4 also claiming that the same are joint family properties.
4. The Trial Court earlier decreed the suit in granting the relief of partition and claim of plaintiffs in respect of suit item Nos.1 as not available for partition as tenants are in occupation and in respect of item Nos.3 and item Nos.4(b) to 4(d) of the plaint 'A' schedule, the suit was dismissed. The suit was decreed in respect of plaint schedule item No.2 and Sy.No.96/2-A of Kabaka village measuring 6.24 acres i.e., suit item No.4(a) in coming to the conclusion that the plaintiffs are together entitle for 31/108 share, the defendant No.1 is entitled for 37/108
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NC: 2023:KHC:37852 RSA No. 1935 of 2017 C/W RSA No. 1928 of 2017 share and defendant No.2 is entitled to 37/108 share and defendant Nos.11, 12 and 13 each are entitled to 1 share i.e., 1/108 each in terms of the judgment dated 31.03.2005.
5. Being aggrieved by the said judgment and decree of dismissal of suit in respect of item No.3 an appeal was filed by the plaintiffs in R.F.A.No.790/2005 on the file of this Court and 1/3rd share was allotted to the appellants/plaintiffs and defendant Nos.1 and 2 in the chalageni lands i.e., item No.3 of the 'A' schedule property. The Trial Court judgment in respect of other items of plaint schedule was confirmed. No appeal was filed against rejection of item Nos.4(b) to 4(d) by the plaintiff and defendant vide judgment dated 31.03.2005.
6. Being aggrieved by the R.F.A.No.790/2005 judgment of allowing the plaintiff's appeal, the defendant No.1 has filed Civil Appeal No. 5734/2008 before the Apex Court and the Apex Court remanded the same to the High Court for re-hearing the appeal on the ground that the
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NC: 2023:KHC:37852 RSA No. 1935 of 2017 C/W RSA No. 1928 of 2017 High Court fails to consider the document at Ex.D1 to Ex.D80 and the evidence of DW1 to DW2.
7. An application is filed under Order 41 Rule 27 of CPC by the plaintiffs and I.A for permission to file additional written statement by defendant No.2 to be considered by the High Court. In view of the remand this Court re-considered the R.F.A.No.790/2005 and allowed the same in part vide judgment 29.07.2009.
8. The Trial Court judgment was modified only in respect of plaint item No.3 of 'A' schedule property and the matter is remanded to the Civil Judge Jr. Division, Putturu to re-consider the case by affording the opportunity to the parties to lead evidence. The matter was remanded to consider whether the lands claimed by the defendant No.1 are chalageni rights of the joint family or individual tenanted lands of defendant No.1 as a self acquired property. The suit item Nos.4(b) to 4(d) are acquired by the defendant No.1 after severance of status and held that it is not Hindu undivided family property.
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NC: 2023:KHC:37852 RSA No. 1935 of 2017 C/W RSA No. 1928 of 2017
9. The application filed by the defendant No.2 in R.F.A.No.790/2005 for filing additional written statement is directed to re-consider by the Trial Court. Apart from that this Court directed the Tahasildar to take possession of the lands in respect of which occupancy rights was not granted. The remand was only in respect of land bearing Sy.No.95/1, 100/1, 100/2, 113/3 and 113/4.
10. Being aggrieved by the judgment and decree of this Court dated 29.07.2009 questioned the same by the defendant No.1 in Civil Appeal No.8679-8680/2009 and the same was allowed and no SLP was filed by the plaintiff or by other defendants before the Apex Court. The Apex Court confirmed the remand order made by this Court and held that all the properties which have been claimed as item No.3 of 'A' schedule properties shall be the subject matter of remand and set-aside the order of this Court only for certain properties and also set-aside the direction given by this Court in the final judgment dated 29.07.2009 to the Tahasildar, Puttur to take over the non granted
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NC: 2023:KHC:37852 RSA No. 1935 of 2017 C/W RSA No. 1928 of 2017 lands. Hence, the original suit is re-considered by the Trial Court permitting the parties to lead additional evidence in view of the remand order passed by this Court as well as the order of the Supreme Court.
11. The Trial Court vide judgment dated 24.11.2015 by giving permission to lead evidence to parties, re-considered the matter in respect of item No.3 of 'A' schedule and decreed the suit in respect of the same and granted the share as granted earlier and also observed that the suit was already decreed in respect of suit item No.2. The Trial Court comes to the conclusion that the claim of plaintiffs and that of defendant Nos.2 to 13 with respect to item Nos.4(b) to 4(d) is rejected. The counter claim of defendant No.2 is rejected.
12. Being aggrieved by the same, an appeal is filed by the defendant No.1(a) and 1(e) and 8 filed in RA No.5001/2016 challenging the judgment granting the relief in respect of item No.3 of 'A' schedule property. The defendant Nos.2 and 9 had filed RA No.5002/2016 as
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NC: 2023:KHC:37852 RSA No. 1935 of 2017 C/W RSA No. 1928 of 2017 regards rejection of their prayer for partition and separate possession in respect of suit schedule item Nos.4(b) to 4(d).
13. The First Appellate Court vide judgment dated 03.062017 dismissed both the appeals and confirmed the judgment of the Trial Court. Hence, the defendant Nos.8, 1(a) and 1(e)/appellants have filed R.S.A.No.1935/2017 questioning the judgment and decree passed in RA No.5001/2016 and O.S.No.17/1975 regarding granting share in item No.3 of 'A' schedule. The defendant Nos.2 and 9 have filed R.S.A.No.1928/2017 challenging the judgment and decree passed in RA No.5002/2016 and O.S.No.17/1975 regarding rejection of claim in respect of item No.4(b), 4(c) and 4(d).
14. The appellants' counsel in R.S.A.No.1935/2017 in his argument, he vehemently contend that in the plaint there is no specific pleadings of nature of properties whether it is a joint family properties or chalageni properties and the entire reading of plaint averments,
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NC: 2023:KHC:37852 RSA No. 1935 of 2017 C/W RSA No. 1928 of 2017 there is no specific pleading in the plaint. The appellants in paragraph No.7 took the defense that the properties are tenanted properties and the defendant No.1 took the specific defense in the written statement that the item No.1 of suit schedule property are Mulageni properties and the tenants are in occupation and the same is not available for partition and took the specific defense that the item Nos.3 and 4 are his self acquired properties.
15. The counsel also would vehemently contend that the defendant No.2 in his written statement at the first instance adopts the written statement of defendant Nos.1 and 3 to 8. The counsel would vehemently contend that the Ex.D41 specifically admitted that as chalageni properties. The 2nd defendant cannot take away the admission given by him that the properties are self acquired properties of defendant No.1 and he cannot file additional written statement contrary to earlier pleading which he has already admitted in his pleading.
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NC: 2023:KHC:37852 RSA No. 1935 of 2017 C/W RSA No. 1928 of 2017
16. The counsel relied upon the judgment of the Apex Court reported in 1998-AIR (SC)-618 in case of Heeralal V/s Kalyan Mal and others and brought to notice of this Court at paragraph No.9 contending that he cannot amend his written statement by taking an inconsistently as compared to the earlier plea which contend an admission in favour of the plaintiffs and the Apex Court in paragraph No.9 held that such an inconsistence plea which would displace the plaintiff completely from the admissions made by the defendants in the written statement cannot be allowed and he cannot distract his admission.
17. The counsel also relied upon judgment of the Apex Court reported in (2008) 7 Supreme Court cases 85 in case of Gautam Sarup V/s Leela Jetly and others and brought to notice of this Court at paragraph No.16 and 28 wherein the Apex Court had discussed that a thing admitted in view of Section 58 of Indian Evidence Act need not be proved. The Order 8 Rule 5 of Code of
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NC: 2023:KHC:37852 RSA No. 1935 of 2017 C/W RSA No. 1928 of 2017 Civil Procedure provides that even a vague or evasive denial may be treated to be an admission in which event the Court may pass a decree in favour of the plaintiff. Relying on or on the basis thereof a suit, having regard to the provisions under Order 12 Rule 6 of Code of Civil Procedure may also be decreed on admission. It is one thing to say that without resiling from an admission, it would be permissible to explain under what circumstances the same had been made or it was made under a mistaken belief or to clarify one's stand inter-alia in regard to the extent or effect of such admission, but it is another thing to say that a person can be permitted to totally resile therefrom and in detail discussed the principles laid down in the judgments of the Apex Court in paragraphs Nos.20 to 25.
18. The counsel brought to notice of this Court paragraph No.26 wherein held that the object of rule is that the Courts should try the merits of the case that come before them and suit, consequently, allow all amendments
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NC: 2023:KHC:37852 RSA No. 1935 of 2017 C/W RSA No. 1928 of 2017 that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side.
19. The counsel referring the said principles brought to notice of paragraph No.28 wherein Apex Court held that what, therefore, emerges from the discussions made hereinbefore is that a categorical admission cannot be resiled from but, in a given case, it may be explained or clarified. Offering explanation in regard to an admission or explaining away the same, however, would depend upon the nature and character thereof. It may be that a defendant is entitled to take an alternative plea. Such an alternative pleas, however, cannot be mutually destructive of each other. The amendment which has been sought changes the stands taken earlier.
20. The counsel would vehemently contend that DW3 has been examined i.e., defendant No.2 and he was appointed as Village Accountant in the year 1962 and he had filed written statement in the year 1971, but his claim
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NC: 2023:KHC:37852 RSA No. 1935 of 2017 C/W RSA No. 1928 of 2017 is that by coercion he has filed written statement and his admissions are important. The Trial Court has not assessed the intrinsic evidence available before the Court while comes to the conclusion that whether the property is a separate property or an ancestral property.
21. The counsel in his argument would vehemently contend that both the Courts have not given anxious consideration to the evidence available on record even after the remand and committed an error in coming to the conclusion that item No.3 of the suit 'A' schedule property is a joint family property and even after the remand also the plaintiffs have not placed any material before the Court to substantiate their claim. The suit item No.3 schedule properties are not joint family properties and only they relies upon the document marked at Ex.P3 and Ex.P4. Both the Courts fails to take note of the written statement of defendant No.1 filed on 29.07.1971 and the defendant No.2 had adopted the written statement of
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NC: 2023:KHC:37852 RSA No. 1935 of 2017 C/W RSA No. 1928 of 2017 defendant No.1 and subsequently he retracted from the earlier admission made by him.
22. The Courts below have erred in holding that Ex.D3-Lawyers' notice and original notice Ex.D4 and also Ex.D13 the judgment dated 29.08.1968 in O.S.No.673/1965 has less evidentiary value, when the Ex.P10 dated 04.12.1962 a letter addressed by Shyam Bhat to the Executive Engineer and more credence was given to the Ex.P10 and Ex.P11 and not properly assessed the Ex.P3.
23. The counsel would also vehemently contend that the Courts below have fails to understand the relevancy and importance of judgment at Ex.D13 and so also land lord Narayan Bhat took a specific stand that at an undisputed point of time, even when father of the defendant was alive, the defendant was tenant and issued notice to the defendant-Gopalakrishna Bhat describing the defendant as his tenant and deposing in the suit that the defendant No.1 is in possession as a tenant in respect of
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NC: 2023:KHC:37852 RSA No. 1935 of 2017 C/W RSA No. 1928 of 2017 suit item No.3. This aspect has not been considered but, relied upon Ex.P23 inspite of there was a direction in the Writ Petition not to consider the same. Even though the Ex.D24 was not subject to objection, the Trial Court and First Appellate Court fails to consider the admissibility of Ex.P23 and Ex.P24. The Ex.P24 is not even a deposition recorded by the land Tribunal.
24. The counsel also would vehemently contend that the Court has to frame substantial questions of law since both the Courts fails to consider the material on record. Whether the Courts below have erred in law in holding that item No.3 of the plaint 'A' schedule property is a joint family tenanted land at the hands of plaintiffs and the defendants and that it is not the individual tenancy of a defendant No.1 and the said findings of the Courts below are arbitrary, perverse and illegal and oppose to the both oral and documentary evidence.
25. The counsel also would vehemently contend that when the document at Ex.D82 was marked and also
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NC: 2023:KHC:37852 RSA No. 1935 of 2017 C/W RSA No. 1928 of 2017 paragraph No.7 of written statement is very clear and the evidence of DW1 is also specific in paragraph No.5 that item No.3 not belongs to the family. The First Appellate Court committed an error in paragraph Nos.91 to 94 that in coming to the conclusion that it is a joint family property.
26. The counsel appearing for the appellants also would vehemently contend that this Court has to frame a substantial questions of law whether the Courts below erred in admitting the document at Ex.P23 i.e., statement of Smt.Gowramma and Ex.P24 and that of Krishna Bhat without deciding its admissibility at the time of final hearing. These documents being marked subject to objections. The counsel referring this second substantial question of law, in his argument contend that the defendant No.2 has filed written statement and earlier he has admitted that the item No.3 property is chalageni property of the defendant No.1 and the deposition marked at Ex.D41 dated 12.10.1981 and the said statement was
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NC: 2023:KHC:37852 RSA No. 1935 of 2017 C/W RSA No. 1928 of 2017 given before the Land Tribunal. The defendant No.2 retracted and the pleading is in higher pedestral than the evidence. Both the Courts ought not to have considered the same. The defendants have examined DW4 after the remand in order to prove the document marked at Ex.D3 and Ex.D4. Both the Courts have given more anxious consideration to Ex.P23 and Ex.P24 which are not admissible. Since not examined them and they are alive.
27. The counsel in support of his argument he relied upon the judgment 1972 (1) MYS LJ 473 and brought to notice of paragraph No.16. The counsel also in his argument would vehemently contend that the Ex.D61 is sale deed and the same is not considered by both the Courts and Smt.Gowramma executed the same. The very finding of the appellate Court in paragraph No.70 of the judgment, one is opposed to material on record. The counsel also in his argument would vehemently contend that both the Courts have erred in law relying upon the Ex.P23 and Ex.P24 and ignoring the circumstances placed
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NC: 2023:KHC:37852 RSA No. 1935 of 2017 C/W RSA No. 1928 of 2017 by the 1st defendant in the evidence such as Ex.D21- mutation dated 20.01.1972, Ex.D61 dated 03.05.1971 showing the ill-will between the authors of Ex.P23 and Ex.P24 and that of the defendant No.1.
28. The counsel also would vehemently contend that Courts below have erred in law in relying upon Ex.P3 dated 07.09.1951 and Ex.P4 dated 21.07.1955 in the absence of proof of these documents in the manner known to law and in the absence of production of certified copy of Ex.P3 and Ex.P4. These documents being required to be maintained in triplicate and one document ought to be registered before the Tahasildar as per the provisions of Madras Cultivating Tenant's Protection Act.
29. The counsel would vehemently contend that the PW2 evidence is not disputed by Trial Court and also by the First Appellate Court and Ex.P3 and Ex.P4 are prior to 1955 and the PW1 married in the year 1955 and there is an admission but, an observation is made that it is an
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NC: 2023:KHC:37852 RSA No. 1935 of 2017 C/W RSA No. 1928 of 2017 undisputed, it is not correct. Both the Courts erred in relying upon the Ex.P3 and Ex.P4.
30. The counsel also would vehemently contend that both the Courts erred in relying upon the Ex.P23 and Ex.P24 which are the evidences before the land Tribunal when the authors of these documents are alive and they are not examined and they have not tendered for cross- examination of defendant No.1 before the civil Court in the suit and hence, both the Courts ought not to have relied upon the same.
31. The Trial Court has not considered the Ex.D55 to Ex.D58 and the Ex.D2 is the deposition before the Tahasildar and the same is prior to 1964 and the same is not relied upon. The Trial Court committed an error in paragraph No.61 of the judgment. The DW4 is also examined before the Trial Court and he categorically says that it is a tenancy land and no presumption can be drawn and the drawing of presumption is wrong. The material is clear that separately residing and not with the father. The
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NC: 2023:KHC:37852 RSA No. 1935 of 2017 C/W RSA No. 1928 of 2017 Ex.D5 and Ex.D6-voter list which is clear that he is residing separately. The Ex.D7 is extract of house tax demand register list of the year 1953-1961 and Ex.D14 to Ex.D25 are assessment register of chalageni property of the year 1957-1968, certified copy of the sale deed, certified copy of the Tahashildar and judgment of the Land Tribunal for the year 1981, 1989 and 1992 and the same has not been considered by any Court. The fact that the father died in year 1964 is not in dispute and Ex.D26 to Ex.D40 are RTCs extracts and there is an entry in Ex.D42 and finding of the Trial Court amounts to perversity without considering about documents. Hence, this Court has to admit and frame substantial question of law.
32. The counsel for appellants relied upon the judgment reported in ILR 2001 KAR 1215 in case of Ramesh Srinivasa Jannu V/s Sriniva Vittoba Jannu since deceased by LRs and brought to notice of this Court at paragraph No.s.5 to 8 and by referring the said paragraphs contended that acquisition of lease hold rights,
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NC: 2023:KHC:37852 RSA No. 1935 of 2017 C/W RSA No. 1928 of 2017 there is no presumption that it is acquired as Hindu undivided family property.
33. The counsel also relied upon the judgment reported in SC-2019-11-62 in case of Ashok Kumar Kalra V/s Wing Cdr Surendra Agnihotri and brought to notice of this Court that at paragraph No.20 that no counter claim after framing of issues and the findings that the Order VIII Rule 6A of the CPC does not put an embargo on filing the counter-claim after filing the written statement, rather the restriction is only with respect to the accrual of the cause of action. Having said so, this does not give absolute right to the defendant to file the counter-claim with substantive delay, even if the limitation period prescribed has not elapsed. The Court has to taken into consideration the outer limit for filing the counter claim, which is pegged till the issues are framed. The Court in such cases have the discretion to entertain filing of the counter-claim, after taking into consideration and evaluating inclusive factors provided which are though not
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NC: 2023:KHC:37852 RSA No. 1935 of 2017 C/W RSA No. 1928 of 2017 exhaustive i.e., period of delay, prescribed limitation period for the cause of action pleaded, reasons for the delay, defendant's assertion of his right, similarity of cause of action between the main suit and the counter-claim, cost of fresh litigation, injustice and abuse of process, prejudice to the opposite party and facts and circumstances of each case and in any case, not framing of the issues.
34. The counsel for respondents i.e., plaintiffs would vehemently contend that no dispute with regard to the item Nos.1 and 2 and the dispute is only with regard to the item No.3 of 'A' schedule property, chalageni lands are the properties of joint family as admitted and in the written statement not stated about the 4 deeds but only in the evidence at paragraph No.6 states that the father had executed the Will i.e., Ex.P1 and in the chief examination of DW1, he has admitted about the execution of Ex.P1. In the Will there is a reference about the joint family property and the same is executed in the year 1964 and the said
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NC: 2023:KHC:37852 RSA No. 1935 of 2017 C/W RSA No. 1928 of 2017 document has admitted. The documents at Ex.P3 and Ex.P4 are important documents. After remand, the PW1 in his cross-examination stated that the Ex.P3 and Ex.P4 are marked through the witnesses by summoning them from their custody and defendant has not produced any lease deeds and Ex.P5 to Ex.P11 are summoned from Mysuru Electricity Board. It is admitted that after the death of the father, defendant No.1 has filed the application for the transfer of records and the same is clinching evidence. The PW2 deposed that the documents marked at Ex.P3 and Ex.P4 are about 35 years old documents.
35. The counsel relied upon on the document at Ex.P82 and the counsel would vehemently contend that the father executed the Will and no reference with the fact that the son acquired the property. After remand, not produced any documents. The documents at Ex.P10 and Ex.P11 are important documents and relied only upon Ex.D3, Ex.D4, Ex.D5 to Ex.D10 and Ex.D22 and not denied the document at Ex.P23. After the remand, only relied
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NC: 2023:KHC:37852 RSA No. 1935 of 2017 C/W RSA No. 1928 of 2017 upon the Ex.D3 which is discussed in paragraph No.97 of the First Appellate Court judgment and the appellate Court dismissed the appeal in giving detailed reasoning.
36. The Trial Court also given reasoning and no substantial question of law can be raised about the question of fact. It is also contended that the loan obtained on the property of Mulageni inspite of undertaking, no material placed for having paid the loan amount. The Trial Court has also taken note of the application filed under Order 41 Rule 27 of CPC. Both the Courts have given concurrent finding.
37. The counsel for respondent Nos.14 and respondent Nos.9(a) and 9(b) would vehemently contend that even though the written statement was adopted earlier, filing of separate written statement later is not prohibited under CPC and the same not amounts to tantamount. It is very clear that he was under pressure of the defendant No.1 and the adoption of written statement not come in the way to file additional written statement.
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NC: 2023:KHC:37852 RSA No. 1935 of 2017 C/W RSA No. 1928 of 2017 After the remand, additional written statement is allowed and also the issues are framed and the same is challenged in the writ petition and directed to consider at the time of merits while purchasing the item No.4, the plaintiffs already separated, but not defendant No.2. The defendant No.2 has not filed separate written statement as provided under Order VIII of CPC, even if adopted, additional written statement filed and the same is not prohibited. The Ex.P3 and Ex.P4, Ex.P5 to Ex.P12, Ex.P23 and Ex.P24 documentary evidence prior to the dispute and the dismissal order of the Land Tribunal attained its finality. The statement of Gowramma was unchallenged and the right not availed to cross examine Gowramma. The written statement of defendant Nos.1(b) and 1(c) supported the defense of defendant No.8 who is the appellant.
38. The counsel has relied upon the judgment reported in AIR 2019 SC 3056 in case of S.Subramanian V/s S.Ramasamy and brought to notice of this Court that the second appeal permissible
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NC: 2023:KHC:37852 RSA No. 1935 of 2017 C/W RSA No. 1928 of 2017 only on substantial questions of law and not on question of facts or of law.
39. The counsel for respondent by relying upon the citation contended that estoppel not applicable as contended and not open remand and the same is limited remand as to whether family property or individual property. The DW1 has admitted altogether. The Will which is in custody of him is destroyed and says that the same is eaten away by the termite and no perversity in the finding.
40. The counsel in R.S.A.No.1928/2017 would vehemently contend that in paragraph No.24 of the remand in respect of item No.4 is specific to consider and in paragraph No.71 given finding oppose to High Court order and in paragraph No.55, the appellate Court committed an error in coming to the conclusion that there is severance but, no severance of status of appellant as admitted by the parties. The appellant was not separated from defendant No.1.
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NC: 2023:KHC:37852 RSA No. 1935 of 2017 C/W RSA No. 1928 of 2017
41. The counsel in support of his argument he relied upon the judgment reported in (1973) 2 SCC 334 in case of Baikuntha Nath Paramanik (Dead) by his LRs' and heirs V/s Sashi Bhusan Pramanik (Dead) by his LRs' and others and brought to notice of this Court at paragraph No.10 wherein discussed there is not dispute that family owned as much as properties and family of plaintiffs and defendants owned extensive properties and when the family is having the extensive properties, accounts book have not been produced and the defendant who says that he had his own income has also not cared to produce his own account-books cannot contend that it is a self acquired property.
42. The counsel also relied upon the judgment reported in (1996) 2 SCC 491 in case of Surendra Kumar V/s Phoolchand (Dead) through LRs' and another and brought to notice of paragraph No.6 wherein also discussed with regard to when the defendant was the eldest member of the family and was the manager of the
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NC: 2023:KHC:37852 RSA No. 1935 of 2017 C/W RSA No. 1928 of 2017 joint family and that point of time the appellant was a minor and the property was therefore purchased in the name of the minor as a guardian under the circumstances, the Court has to take note of, if any property is purchased by the 1st defendant and when he was enjoying the family property there is a presumption of property being joint property. Burden of proof that the property purchased by manager of the Hindu joint family in the name of appellant lies on him.
43. The counsel also relied upon the judgment reported in ILR 1999 KAR 831 in case of Balagouda Alagouda Patil and others V/s Babasaheb Ramagouda Patil with regard to the presumption and brought to notice of this Court at paragraph No.9 that the Courts has always held that the tenancy rights if acquired by a member of the family shall be held to be for the benefit of the entire family. The entries in revenue records are not the evidence of title.
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NC: 2023:KHC:37852 RSA No. 1935 of 2017 C/W RSA No. 1928 of 2017
44. The counsel in support of his contention that no severance of status, has relied upon ILR 2014 KAR 2759 in case of Rathnamma and another Vs Hiriyamma and others and brought to notice of this Court at paragraph No.14 that the presumption of union is the greatest, in the case of father and sons. The strength of presumption necessarily varies in every case. But the presumption is strong in the case of brothers and also brought to notice of this Court that in a case where it is property which from its nature and relative value may have formed the nucleus from which the property from which the property claimed to be joint family property may have been acquired, the presumption arises that it was joint family property and the burden shifts to the party alleging self acquisition to establish affirmatively that the property was acquired without the aid of the joint family. The rights of the coparceners are defined at a partition. Actual division of the properties by metes and bounds is not necessary to constitute partition.
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NC: 2023:KHC:37852 RSA No. 1935 of 2017 C/W RSA No. 1928 of 2017
45. The counsel also relied upon the judgment reported in (2013) 9 SCC 319 in case of State of Andhra Pradesh and others V/s Star Bone Mill and Fertiliser company and brought to notice of this Court at paragraph No.22 wherein discussed that the Courts below have failed to appreciate that mere acceptance of municipal tax or agricultural tax by a person, cannot stop the State from challenging ownership of the land, as there may not be estoppel against the statute nor can such a presumption arise in case of grant of loan by a bank upon it hypothecating the property.
46. The counsel also relied upon the judgment reported in (2023) 6 SCC 708 in case of Baini Prasad (Dead) through LRS' V/s Durga Devi and brought to notice of this Court at paragraph Nos.17 to 24 wherein discussion was made with regard to whether the appellant has pleaded and proved his plea of estoppel and question of estoppel as an issue is not fatal in the facts and circumstances as also in view of the evidence available on
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NC: 2023:KHC:37852 RSA No. 1935 of 2017 C/W RSA No. 1928 of 2017 record and also counsel brought to notice of different judgments which have been discussed in paragraph Nos.18 to 22 and held that position expounded as above certainly request consideration with reference to the facts of this case. What is crystal clear from the enunciation of law in a catena of cases is that the equity will follow the law and it would tilt in favour of law and further that to claim equity the party must explain previous conduct.
47. The counsel referring the other judgment reported in (2016) 3 SCC 78 in case of Damodar Lal V/s Sohan Devi and others with regard to the Section 100 would vehemently contend that if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with by exercising the power under Section 100.
48. The counsel referring the judgment would vehemently contend that the respondent has explained under what circumstances written statement was adopted
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NC: 2023:KHC:37852 RSA No. 1935 of 2017 C/W RSA No. 1928 of 2017 and the same has been explained subsequently while filing the separate additional written statement that he was sailing along with defendant No.1 since he had promised that he would take care of him.
49. Having considered the conduct of defendant No.1, he was forced to file separate written statement and the fact that the 1st defendant was the elder member of the family. He was taking care of entire family property is not in dispute and the respondent/appellant was working as village accountant and residing separately. Though he was residing separately but, his status was not severed and hence he is entitled for a share not only in item No.3 of the property and he is also entitled for a share in the property which have been purchased subsequent to the suit i.e., item No.4(b) to 4(d).
50. In reply to the arguments, the counsel appearing for the appellants in other matter would contend that this Court cannot admit one matter and dismiss other matter by framing substantial questions of law in the
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NC: 2023:KHC:37852 RSA No. 1935 of 2017 C/W RSA No. 1928 of 2017 appeal filed by other appellant. The counsel also would vehemently contend that entire loan of both society and the bank is cleared of, even though has been availed by the appellant.
51. The counsel also would vehemently contend that Will does not refers any property whether Chalageni or Mulageni. The counsel mainly contend that Ex.D3 and Ex.D4-legal notices after the remand also the advocate has been examined as DW4. The Ex.D4 original legal notice is an important document. The Ex.P23 and Ex.P24 cannot be relied upon as ordered in the writ petition. The Ex.D8-rent receipt is also produced before Court and the DW2 evidence has not been considered. The document at Ex.D41- the declaration application of Narayan Bhat is confronted to DW3 and he had admitted the same. All the tax are paid by defendant No.1 and Ex.D26 and Ex.D40 are the RTC. Both the Courts have not relied upon the exhibit D-series of the defendant and hence this Court has
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NC: 2023:KHC:37852 RSA No. 1935 of 2017 C/W RSA No. 1928 of 2017 to admit and frame substantial questions of law as contended.
52. Having heard the respective counsel and also on perusal of material, this Court has to mention the facts of the case of the parties. It is the case of the plaintiff that all the suit schedule properties are joint family properties and it is the case of the defendant No.1 particularly that item No.3 of 'A' suit schedule properties are not the family properties and the same are individual properties which he had acquired.
53. It is also not in dispute that earlier this Court in respect of item No.1 of the suit schedule property has comes to the conclusion that the said property is not available for partition and no dispute to that effect. It is also not in dispute that decree has been granted in respect of item No.2 and no dispute in respect of the same. When the Trial Court declined to grant the relief in respect of item No.3 an appeal is filed before this Court in R.F.A.No.790/2005. This Court particularly considering the
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NC: 2023:KHC:37852 RSA No. 1935 of 2017 C/W RSA No. 1928 of 2017 documents of exhibits P-series comes to the conclusion that the parties are also entitled for a share in item No.3 of suit schedule property. The same has been challenged before the Apex Court and the Apex court set-aside the same on the ground that the exhibit D-series have not been considered while disposing of the regular first appeal. Hence, this Court re-considered the same in R.F.A.No.790/2005. This Court while disposing the first appeal formulated the point as whether the Sy.No.95/1, Sy.No.104/1 and 2, Sy.No.113/3 and 4 are the chalgeni lands belonging to the joint family or individual rights of Keshava Bhatta.
54. This Courts has also considered whether the plaintiffs and other defendants can claim a share in item Nos.4(b), (c) and (d) of plaint item No.4 of 'A' schedule and also considered the point for consideration whether an application filed under Order 41 Rule 27 of CPC is required to be allowed and whether the application filed by the 2nd defendant seeking the permission of the Court to file an
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NC: 2023:KHC:37852 RSA No. 1935 of 2017 C/W RSA No. 1928 of 2017 additional written statement is required to be considered by this Court.
55. This Court in detail discussed the material available on record and allowed the appeal in part and remanded the matter to the Trial Court to consider item No.3 of the plaint 'A' schedule property requires to be reconsidered by affording reasonable opportunity to the parties and restricted only particular properties which have been formulated in point No.1 whether the grant in favour of defendant No.1 or in favour of family and directed Tahasildar to take possession in respect of remaining properties and also made it clear while considering the application filed under Order 41 Rule 27 of CPC that the said application and written statement filed by the defendant shall be sent along with the Trial Court records to consider the same.
56. The said order has been challenged before the Apex Court in S.L.P No.20995/2009 and modified the judgment setting aside taking of possession by the
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NC: 2023:KHC:37852 RSA No. 1935 of 2017 C/W RSA No. 1928 of 2017 Tahasildar in respect of remaining properties and comes to the conclusion that entire properties which have been mentioned in the item No.3 be the family properties and made it clear that the only dispute was whether the occupancy rights were for the benefit of the joint family or the benefit of the 1st defendant as an individual grant and set-aside the order dated 27.01.2003 and comes to the conclusion no question of issuing any direction for distribution of any land to outsiders, in an inter-alia relating to partition among the family members and upheld the judgment of remanding the matter and operative portion is very clear that order dated 24.07.2009 is set aside and in respect of the direction to the Tahasildar also set-aside and directed to Trial Court to consider the application filed by the 2nd defendant to file written statement and dispose it in accordance with law and also Trial Court permit the parties to adduce additional evidence and decide whether the lands described in item No.3 of 'A' schedule to the plaint belonged to the joint family or individual grant as claimed by defendant No.1.
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NC: 2023:KHC:37852 RSA No. 1935 of 2017 C/W RSA No. 1928 of 2017
57. Having read the judgment of this Court and also the judgment of the First Appellate Court, it is very clear that matter requires to be consider afresh only in respect of item No.3 of the suit 'A' schedule property. In respect of item No.4 is concerned, this Court in paragraph No.23 made it clear that there was no partition between the plaintiff and the defendant and also taken note of whether the status is severed and if any property is acquired subsequently in such an event the judgment relied upon by the A.G.Holla is applicable. If there is no severance of status in such an event the contents urged by Sri.S.P.Shankar has to be accepted by this Court. Therefore the crucial point may be considered as whether filing of a suit amounts severance of status in the family and taken note of judgment of AIR 1964 SC 136 and other judgments are also discussed.
58. Having taken note of the same, held that suit is instituted by the plaintiffs in the year 1971 claiming partition and separate possession of their share and taken
- 50 -
NC: 2023:KHC:37852 RSA No. 1935 of 2017 C/W RSA No. 1928 of 2017 note of written statement filed by defendant No.1 on 23.07.1971 and also taken note of defendant No.1 had no objections for grant of decree in respect of the admitted joint family properties mainly item Nos.1 and 2 of 'A' schedule property. The dispute was only with regard to item No.3 and plaint item No.4(a), (b) to (d). Since defendant No.1 has also admitted the share of the plaintiff in item No.4(a), but disputed item Nos.4(b) to 4(d), so far as item No.3 is concerned that there was a serious dispute with regard to the properties which was the subject matter before the Land Tribunal.
59. This Court having considered the same, held that in the circumstances we have to hold that item No.4(b) to (d) are acquired by the defendants after severance of status and that they have no hesitation to hold that plaintiffs have no right to claim even if they are acquired out of the income of the joint family or individual income. Hence, answered the point No.3 and given categorical finding in paragraph No.24 that as the dispute
- 51 -
NC: 2023:KHC:37852 RSA No. 1935 of 2017 C/W RSA No. 1928 of 2017 is only with regard to item No.3 and additional written statement is filed by the 2nd defendant held that need not be considered by this Court, at this stage and same may be considered by the Trial Court as the matter has to be remanded for re-consideration of the case in view of finding on point Nos.1 and 3.
60. It is also important note that the Apex Court also not set-aside the order of this Court with regard to this observation and in paragraph No.24, an observation with regard to the point No.4 and categorical finding with regard to the item No.4 and the Apex Court judgment is also very clear that dispute is with regard to the item No.3 of 'A' schedule to the plaint, whether it belongs to the joint family or not.
61. Now having considered the judgment of this Court as well as the judgment of the Apex Court and having considered the reasons assigned by the Trial Court it is very clear that after the remand, the PW1 who has not been subjected to the cross-examination has been
- 52 -
NC: 2023:KHC:37852 RSA No. 1935 of 2017 C/W RSA No. 1928 of 2017 subjected to cross-examination and also defendant No.2 has been examined as DW3 before the Trial Court and so also defendant No.1 examined the author of the document of Ex.D3 and Ex.D4 and also taken note of documents which have been filed under Order 41 Rule 27 of CPC and the same is sent to the Trial Court by this Court and also taken note of Ex.P23 to Ex.P82, the very contention of the plaintiff in order to prove the item No.3 of 'A' schedule property.
62. Considering the evidence which have been adduced and also earlier evidence i.e., MSEB documents which are public documents produced from proper custody and which have been proved by examining PW3 comes to the conclusion that item No.3 of 'A' schedule are tenanted lands of Sham Bhatta and they are the joint family properties.
63. The Trial Court also taken note of Ex.P10 and the counsel appearing for defendant No.1 also examined N.Subramanya who issued Ex.D3-lawyers' notice and
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NC: 2023:KHC:37852 RSA No. 1935 of 2017 C/W RSA No. 1928 of 2017 original legal notice is marked as Ex.D4 and the same is given to one Gopalakrishna wherein the notice it is mentioned that land lord Narayan Bhat clearly stated that 1st defendant Keshava Bhat was his tenant. The Trial Court taken note of other documents of Ex.P3 to Ex.P12 and also taken note of admission given by defendant No.1 who has been examined as DW1 that he had accompanied along with landlord and land lord himself has included his name while issuing the notice in terms of Ex.D3. Hence, taken note that the same is more probable and natural that the land lord might have stated that the defendant No.1 was his tenant when he had accompanied with land lord to the office of DW4.
64. It is also important to note that the said Sham Bhatta died on 18.03.1964 and subsequent to his death the suit was filed and witnesses were examined and the defendant No.1 also categorically admitted that he being eldest son started to manage the joint family and continued to cultivate chalageni properties. Hence taken
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NC: 2023:KHC:37852 RSA No. 1935 of 2017 C/W RSA No. 1928 of 2017 note of the suit schedule item No.3 was continued and cultivated by defendant No.1.
65. It is also important to note that the Ex.D3 is subsequent to the document at Ex.P5 to Ex.P12 and those documents are summoned from the public authority and defendant No.1 also admitted that he had given letter to the concerned department to change the name of his father to his name and admitted fact that bore well and electric connections are taken in respect of item No.3 of the property by his father and except relying upon document at Ex.D3, no other documents are produced to substantiate his contention. The defendant No.1 has not placed any other material before the Court to show that the item No.3 of the property are his individual properties except the tax paid receipts and earlier documents from 1950 onwards discloses that the Sham Bhatta was a tenant in respect of the item No.3 of the suit 'A' schedule property. All these materials were taken note of by the Trial Court and also taken note of Ex.P23 and Ex.P24 in
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NC: 2023:KHC:37852 RSA No. 1935 of 2017 C/W RSA No. 1928 of 2017 paragraph Nos.45 and 46 taken note of Ex.P1 -undisputed registered Will. No doubt in the said Will there was no reference regarding any of the specific item of the properties, but it is very clear that his legal heirs have to enjoy the family properties and also Trial Court taken note of all of them are living together and Ex.P13 -voter list also taken note of and Ex.P15-statement of Sham Bhat given to Shanbhog in revenue proceedings and comes to the conclusion that Sham Bhat put the chalageni properties on lease and he was living in very said properties along with his family members including 1st defendant during his life time.
66. The Trial Court has also taken note of document at Ex.D8 to Ex.D12 -geni receipts and taken note of the Will wherein specifically mentioned that he himself and his sons were jointly living in house situated in Panjigudde where chalageni properties were situated. The defendant also admits the Ex.P2 which is death certificate of Sham Bhatta also reveal that he died in the house situated at
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NC: 2023:KHC:37852 RSA No. 1935 of 2017 C/W RSA No. 1928 of 2017 Panjigudde and also taken note of Ex.P3 and Ex.P4 which are geni chits reveal that Sham Bhatta was living at Panjigudde and in detail discussed in paragraph No.19 and comes to the conclusion that the property is taken by Sham Bhatta and not the defendant No.1 and the defendant No.1 continued and cultivated the property as a elder member of the family and the fact that he was the elder member of the family also not in dispute and others are living separately and gainfully employed.
67. The First Appellate Court having re-assessed the material available on record, particularly taking note of the remand was made by the this Court and also taking into note of the direction given by the Apex Court, re- assessed the evidence and no doubt the appellants' counsel contend that in paragraph No.69, the First Appellate Court made an erroneous observation that defendant No.1 and his branch are blowing hot and cold simultaneously. But, the First Appellate Court in paragraph No.70 taken note of facts that the defendant No.1 or his
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NC: 2023:KHC:37852 RSA No. 1935 of 2017 C/W RSA No. 1928 of 2017 branch have not produced single chalageni agreement chit. But, his claim also taken note of that from 1951 onwards he took the property and the same is chalageni of defendant No.1 and also he claims that from 1953 he took the certain properties. But, not produced any geni chits of the year 1951, 1953, 1956 and 1958 and the same is also discussed by the First Appellate Court in paragraph No.71. On the other hand the plaintiff summoned the documents and got marked particularly Ex.P5 to Ex.P12 from the public authority and apart from that Ex.P3 and Ex.P4 and though it is contended that the author have not been examined but documents are got it marked through the concerned and also in paragraph Nos.69 to 75 in detail discussed the same and also admission given by DW1 with regard to the original chalageni, he categorically admits that the same was eaten away by the termite and remaining chalageni chits and Will also he had destroyed as the same was damaged and taken note of defendant No.1 or his branch have not taken any steps to summon the alleged chalageni chits made in favour of defendant
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NC: 2023:KHC:37852 RSA No. 1935 of 2017 C/W RSA No. 1928 of 2017 No.1 and no such chalageni chits are produced before the Court to substantiate the claim.
68. The First Appellate Court taken note of Ex.D3, Ex.D4 and also the evidence of DW4 in paragraph No.81 and discussed that the very same advocate earlier engaged in favour of defendant No.1 and that he would support the defendant No.1 and the same is discussed in paragraph Nos.82 and 83 and both the Courts have considered the material available on record in minute and also given anxious consideration and so also in respect of additional documents at Ex.P23 and Ex.P24 also discussed in paragraph No.86 and genuineness of Ex.P24 is disputed as tampered and the same is discussed in paragraph No.84.
69. Having perused the material available on record in detail and the very contention that only on the basis of one stray sentence in the cross-examination that his son has taken 2½ acres of Areca garden, on the basis of which the 1st defendant claim that his father admitted that 1st
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NC: 2023:KHC:37852 RSA No. 1935 of 2017 C/W RSA No. 1928 of 2017 defendant has taken chalageni properties since the defendant relies upon the document of Ex.D1 and Ex.D2 is a statement given by Shama Bhat before Tahasildar, Puttur is RCA No.33/61.
70. The First Appellate Court not accepted the contention of the defendant No.1 and in paragraph No.97 comes to the conclusion that the Trial Court has not committed any error in partly decreeing the suit in respect of the item No.3 and rejecting the claim of the plaintiff and defendant Nos.2 to 13 with respect to item No.4(b) to (d) of plaint 'A' schedule properties and the judgment and decree of the Trial Court is perfect and this Court already took the decision that the defendant No.2 and plaintiffs have not entitled to item No.4(b) to (d) of suit schedule property and same has been confirmed and the First Appellate Court also not reversed the said finding and taken note of the finding given by this Court as well as the First Appellate Court and issue between the parties only with regard to item No.3 of 'A' schedule property.
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NC: 2023:KHC:37852 RSA No. 1935 of 2017 C/W RSA No. 1928 of 2017
71. No doubt the counsel appearing for the defendant Nos.2 and 9 would vehemently contend that the Trial Court committed an error in not considering his claim in respect of item No.4(b) to (d) and the said contention cannot be accepted in view of the finding given by this Court while remanding the matter and the same was taken note of by the Trial Court as well as the First Appellate Court. The other contention of the appellant's counsel that once the defendant No.2 distracted his admission given earlier and the same cannot be considered and the fact that additional written statement was filed and the same sent to the Trial Court and the Trial Court considered the same and allowed the same and the same order has not been challenged by the appellant and the same has attained its finality.
72. No doubt when the issues were re-casted and the writ petition was filed and in the said writ petition also the parties have compromised and the Court directed the parties have to produce the evidence before the Trial
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NC: 2023:KHC:37852 RSA No. 1935 of 2017 C/W RSA No. 1928 of 2017 Court with regard to whether it is a family property or individual property and the Trial Court considering the additional issue which has been framed subsequent to the remand considered the material on record and rightly comes to the conclusion that the defendant No.1 fails to prove that the same is a property of his individual and considered the material available on record i.e., voluminous record i.e., Ex.P3 and Ex.P4, Ex.P5 to Ex.P12 and Ex.P23 and also taken note of particularly Ex.P3 into consideration and Ex.P5 to Ex.P12 are the documents earlier to the document of Ex.D3 and the fact that defendant No.1 accompanied land lord while issuing the notice at Ex.D3 which has been admitted in the evidence of DW1 also taken note of. Hence, not given much credence to the document of Ex.D3-legal notice issued by the counsel and taken note of material available on record and given anxious consideration in coming to the conclusion and earlier also this Court vide order dated 27.08.2007 comes to the conclusion that item No.3 of the suit schedule properties are the family properties and no
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NC: 2023:KHC:37852 RSA No. 1935 of 2017 C/W RSA No. 1928 of 2017 doubt, the same has been set aside only on the ground that exhibits D-series were not considered and this Court in R.F.A subsequent to the remand considered the material on record in detail and remanded the same only in respect of item No.3 of the suit schedule property and the same has been upheld by the Apex Court.
73. There after the Trial Court and First Appellate Court in length discussed the evidence adduced by the respective parties after the remand and rightly comes to the conclusion that the item No.3 of the suit 'A' schedule properties are the properties of the family and not individual property as contended by appellants' counsel in R.S.A.No.1935/2017 and the counsel for the appellants' in R.S.A.No.1928/2017 also not made out any ground to admit and frame any substantial questions of law and finding of the Trial Court based on material available on record and I do not find any perversity in the finding of the Trial Court as well as First Appellate Court in considering the material available on record in detail discussed the
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NC: 2023:KHC:37852 RSA No. 1935 of 2017 C/W RSA No. 1928 of 2017 same in the entirety including 'P' series and 'D' series of documents and also oral evidence. Hence, I do not find any grounds to admit and frame any substantial questions of law in neither of the appeal. Hence, question of invoking Section 100 of CPC does not arise in view of the principles laid down in the judgments which have been relied upon by both the counsel and anxious consideration is given by both the Courts.
74. In view of the discussions made above, I pass the following:
ORDER Both the appeals are dismissed.
Sd/-
JUDGE RHS List No.: 1 Sl No.: 31