Karnataka High Court
Mahadev Amasidda Wadiyer vs Inawandi Waggeppa Wadiyer on 5 July, 2024
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NC: 2024:KHC-D:9418
RSA No. 100590 of 2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 5TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 100590 OF 2020 (PAR/POS-)
BETWEEN:
1. MAHADEV AMASIDDA WADIYER
AGE: 62 YEARS,
OCC: AGRICULTURE,
R/O: AINAPUR, TQ: ATHANI,
DIST: BELAGAVI-591304.
2. OUDAPPA AMASIDDA WADIYER
AGE: 57 YEARS,
OCC: AGRICULTURE,
R/O: AINAPUR, TQ: ATHANI,
DIST: BELAGAVI-591304.
3. BILYANI AMASIDDA WADIYER
AGE: 52 YEARS,
OCC: AGRICULTURE,
Digitally signed R/O: AINAPUR, TQ: ATHANI,
by SAROJA DIST: BELAGAVI-591304.
HANGARAKI ...APPELLANTS
Location: HIGH (BY SRI VITTHAL S. TELI, ADVOCATE)
COURT OF
KARNATAKA
DHARWAD AND:
BENCH
DHARWAD
1. INAWANDI WAGGEPPA WADIYER
AGE: 44 YEARS,
OCC: AGRICULTURE,
R/O: AINAPUR, TQ: ATHANI,
DIST: BELAGAVI-591304.
2. BASU LAXMAN WADIYER
AGE: 47 YEARS,
OCC: AGRICULTURE,
R/O: AINAPUR, TQ: ATHANI,
DIST: BELAGAVI-591304.
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NC: 2024:KHC-D:9418
RSA No. 100590 of 2020
3. MADU SIDDAPPA WADIYER
AGE: 62 YEARS,
OCC: AGRICULTURE,
R/O: AINAPUR, TQ: ATHANI,
DIST: BELAGAVI-591304.
4. MUTTEPPA SIDDAPPA WADIYER
AGE: 60 YEARS,
OCC: AGRICULTURE,
R/O: AINAPUR, TQ: ATHANI,
DIST: BELAGAVI-591304.
5. KAMALA W/O MAHADEV WADIYER
AGE: 52 YEARS,
OCC: AGRICULTURE,
R/O: AINAPUR, TQ: ATHANI,
DIST: BELAGAVI-591304.
6. GOURAWWA W/O SHAMA WADIYER
AGE: 37 YEARS,
OCC: HOUSEHOLD WORK,
R/O: AINAPUR, TQ: ATHANI,
DIST: BELAGAVI-591304.
7. MAYAPPA MURARI KURABAR
AGE: 77 YEARS,
OCC: AGRICULTURE,
R/O: AINAPUR, TQ: ATHANI,
DIST: BELAGAVI-591304.
BABU MALLAPPA KORABU
(SINCE DECEASED BY HIS LRS)
8. KALLAPPA BABU KORABU,
AGE: 55 YEARS,
OCC: AGRICULTURE,
R/O: AINAPUR, TQ: ATHANI,
DIST: BELAGAVI-591304.
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RSA No. 100590 of 2020
9. SANJU BABU KORABU
AGE: 50 YEARS,
OCC: AGRICULTURE,
R/O: AINAPUR, TQ: ATHANI,
DIST: BELAGAVI-591304.
10. RAJU BABU KORABU
AGE: 45 YEARS,
OCC: AGRICULTURE,
R/O: AINAPUR, TQ: ATHANI,
DIST: BELAGAVI-591304.
11. BILYANI BHUTALI WADIYER
AGE: 52 YEARS,
OCC: AGRICULTURE,
R/O: AINAPUR, TQ: ATHANI,
DIST: BELAGAVI-591304.
12. ANUSIDDA BHUTALI WADIYER
AGE: 67 YEARS,
OCC: AGRICULTURE,
R/O: AINAPUR, TQ: ATHANI,
DIST: BELAGAVI-591304.
13. SOMALING BHUTALI WADIYER
AGE: 42 YEARS,
OCC: AGRICULTURE,
R/O: AINAPUR, TQ: ATHANI,
DIST: BELAGAVI-591304.
YAMANAPPA KAREPPA WADIYER
SINCE DECEASED BY HIS LRS
14. KAREPPA YAMANAPPA WADIYER
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O: AINAPUR, TQ: ATHANI,
DIST: BELAGAVI-591304.
15. MUTTAPPA YAMANAPPA WADIYER
AGE: 50 YEARS, OCC: AGRICULTURE,
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NC: 2024:KHC-D:9418
RSA No. 100590 of 2020
R/O: AINAPUR, TQ: ATHANI,
DIST: BELAGAVI-591304.
16. MAHADEV YAMANAPPA WADIYER
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O: AINAPUR, TQ: ATHANI,
DIST: BELAGAVI-591304.
17. KALLAPPA KAREPPA WADIYER
AGE: 67 YEARS, OCC: AGRICULTURE,
R/O: AINAPUR, TQ: ATHANI,
DIST: BELAGAVI-591304.
18. SIDDAPPA KAREPPA WADIYER
AGE: 62 YEARS, OCC: AGRICULTURE,
R/O: AINAPUR, TQ: ATHANI,
DIST: BELAGAVI-591304.
19. WAGGEPPA KAREPPA WADIYER
AGE: 57 YEARS, OCC: AGRICULTURE,
R/O: AINAPUR, TQ: ATHANI,
DIST: BELAGAVI-591304.
20. LAKKAPPA AMASIDDA WADIYER
AGE: 67 YEARS, OCC: AGRICULTURE,
R/O: AINAPUR, TQ: ATHANI,
DIST: BELAGAVI-591304.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC, 1908,
PRAYING TO SET ASIDE OR MODIFY THE JUDGMENT AND DECREE
DATED 07.02.2020 PASSED BY THE PRINCIPAL SENIOR CIVIL
JUDGE, ATHANI IN R.A.NO.17/2015 IN CONFIRMING THE JUDGMENT
AND DECREE DATED 13.02.2015 PASSED BY THE I ADDITIONAL
CIVIL JUDGE AND JMFC, ATHANI IN O.S.NO.573/2003.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:9418
RSA No. 100590 of 2020
JUDGMENT
The present second appeal is filed under Section 100 of the Code of Civil Procedure, 19081 by the plaintiff Nos.2 to 4, challenging the judgment and decree dated 07.02.2020 passed in R.A.No.17/2015 by the Principal Senior Civil Judge, Athani2 and the judgment and decree dated 13.02.2015 passed in O.S.No.573/2003 by the I Additional Civil Judge and JMFC, Athani3, whereunder the suit for partition filed by the plaintiffs has been dismissed by the Trial Court which has been affirmed by the First Appellate Court.
2. The parties herein are referred to as per their ranking before the Trial Court for the sake of convenience.
3. The relevant facts necessary for consideration of the present appeal are that the plaintiff filed a suit for partition seeking for a share in property bearing 1 Hereinafter referred to as the 'CPC' 2 Hereinafter referred to as the 'First Appellate Court' 3 Hereinafter referred to as the 'Trial Court' -6- NC: 2024:KHC-D:9418 RSA No. 100590 of 2020 R.S.No.406 measuring 1 acre 36 guntas, R.S.No.802/1A measuring 8 acre 25 guntas, R.S.No.58/12 measuring 2 acre 9 guntas and R.S.No. 115 measuring 6 acre 12 guntas situated at Ainapur Village4. That the plaintiffs and defendants are Hindu joint family members. That the suit properties originally belonged to the propositus Waggeppa, who had 2 sons by name Siddappa and Amasidda. That Amasidda is the father of the plaintiffs. That the suit properties were the ancestral joint family properties of Amasidda and Siddappa.
4. It is further contended that Waggeppa purchased some properties and some properties were his ancestral properties. That Siddappa, the elder son was who was incharge of the family affairs, did not allow the father of the plaintiffs to enter the name of Amasidda to the extent of half share in the suit properties and transferred the entire properties in his name, but the father of the plaintiffs, Amasidda was in possession and 4 Hereinafter referred to as the 'suit properties' -7- NC: 2024:KHC-D:9418 RSA No. 100590 of 2020 enjoyment along with Siddappa. That Amasidda also did not give Vardi to get his name entered to the extent of his share along with Siddappa. That taking benefit of the same, Siddappa, during his lifetime, changed the katha into the name of his children. That after the demise of Amasidda, the present plaintiffs are in possession of their legitimate share of the suit properties. That the defendants objected to enter the name of the plaintiffs in the records of rights. Hence, the plaintiffs have filed the suit.
5. The first defendant filed his written statement denying the case of the plaintiffs. The defendants admitted that the original propositus by name Waggeppa had 2 sons by name Siddappa and Amasidda. However, the defendants denied that the suit properties are the ancestral joint family properties of Waggeppa and after his demise the said properties were transferred to his sons i.e. Siddappa and Amasidda. The defendants further denied that the father of the plaintiffs was in possession -8- NC: 2024:KHC-D:9418 RSA No. 100590 of 2020 and enjoyment of the suit properties and after his demise the plaintiffs are in possession of their half share.
6. It is the further case of the defendants that the original propositus Waggeppa was not having any property in his name. That Siddappa has 5 children who are in possession and enjoyment of the suit properties. That said Siddappa Waggeppa Wadiyar and one Murari Siddappa Kurabar purchased 12 acres of land in R.S.No.802/1 from its owner for a consideration of ₹400/- on 15.04.1935 and accordingly the joint names of Siddappa and Murari were appearing in the records of rights. That Siddappa Wadiyer from his own earnings purchased the land in R.S.No.115 to the extent of 6 acre 12 guntas of land from its owner for a consideration amount of ₹5,500/- vide registered Sale Deed dated 11.04.1969. That both the lands are self acquired properties of Siddappa and the plaintiffs have no right, title or interest in the said properties. That neither the plaintiffs nor their father were in possession and -9- NC: 2024:KHC-D:9418 RSA No. 100590 of 2020 enjoyment of the said properties. That the said Siddappa Wadiyer died on 28.09.1985 leaving behind his wife and his children and after his demise, the said properties were transferred in the name of his children, which entry has not been challenged by the plaintiffs till date.
7. It is the further case of the defendants that the father of the plaintiffs by name Amasidda purchased the land in RS No.737/4 of Ainapura village on 15.04.1964 for a total sale consideration of ₹2000/-. That the said property was mutated in the name of the father of the plaintiffs vide ME No.6391 dated 04.08.1964 and that in the said property, the plaintiffs have effected partition by metes and bounds by forming 4 equal strips by leaving a road in the middle. Hence, it is contended that the plaintiffs have no right over the suit properties. That RS No.406 and R.S.No.58/12 belong to Sri Siddeshwara Devasthan Inam Lands and the same has been granted by Govt. of Karnataka to Siddappa as he was in the service of the deity. Hence, it is contended that the
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NC: 2024:KHC-D:9418 RSA No. 100590 of 2020 plaintiffs have no right, title or interest in the suit properties.
8. Consequent to the pleadings of the parties, the Trial Court framed the following issues:
"1. Whether the plaintiffs prove that, the suit properties are joint family ancestral properties.?
2. Whether the plaintiffs prove that, the defendants have denied the share in the suit properties.?
3. Whether the defendants prove that, the plaintiffs are not the members of the joint family.?
4. Whether the defendants prove that, the plaintiffs have no right over the suit properties.?
5. Whether the defendants prove that the property bearing R.S.No.802/1 and 115 are their self acquired properties.?
6. What order or decree the parties entitled?"
9. Plaintiff No.3 examined himself as PW.1 and two witnesses have been examined as PWs.2 and 3. Exs.P1 to P7 have been marked in evidence. The defendants have not adduced any evidence before the Trial Court. The Trial Court by its judgment and decree dated 13.02.2015 dismissed the suit with costs.
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NC: 2024:KHC-D:9418 RSA No. 100590 of 2020
10. Being aggrieved, the plaintiffs preferred RA No.17/2015. The defendants entered appearance before the First Appellate Court and contested the same. The First Appellate Court framed the following points for consideration:
"1. Whether the trial court has mis-understood the facts of the case?
2. Whether the findings given by the trial court are contrary to the facts and evidence on record?
3. Whether the judgment of the trial court is against law and requires interference?
4. What order?"
11. The First Appellate Court by judgment and decree dated 07.02.2020 dismissed the appeal with costs and confirmed the judgment and decree passed by the Trial Court. Being aggrieved, the present second appeal is filed.
12. Learned counsel appearing for the appellants/plaintiff Nos.2 to 4, Sri.Vitthal S Teli vehemently contends that the respondents/ defendants having taken a plea that the suit properties are the self
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NC: 2024:KHC-D:9418 RSA No. 100590 of 2020 acquired properties of their ancestors and the defendants not having adduced any evidence in that regard, both the Courts concurrently erred in dismissing the suit. That the findings recorded by both the Courts that the plaintiffs are not the members of joint Hindu family are erroneous. Hence, he seeks for allowing of the above appeal and granting of the reliefs sought for.
13. The submissions of the learned counsel for the appellants have been considered and the material on record has been perused.
14. The Trial Court, while considering the issues framed by it, has recorded the following findings:
i. PW.2 in the cross-examination categorically admits that he is not aware of the family of the plaintiffs and defendants and he is not aware of the facts of the case. PW.2 has also stated that he is not aware of the survey numbers of the suit properties. PW.2 has admitted that the
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NC: 2024:KHC-D:9418 RSA No. 100590 of 2020 defendants are in possession and enjoyment of the suit properties;
ii. PW.2 has also deposed that as per the instructions of the plaintiffs he has deposed that the properties are ancestral and joint family properties of the plaintiffs and defendants. PW.2 is not aware about anything pertaining to the suit properties; iii. The plaintiffs have not produced any document to show that the suit properties are the ancestral and joint family properties of the propositus Waggeppa;
iv. The documents produced at Exs.P1 to P4 are the record of rights pertaining to the suit properties standing in the name of the defendants;
v. Though the defendants have not adduced any evidence before the Court, it cannot be said
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NC: 2024:KHC-D:9418 RSA No. 100590 of 2020 that the plaintiffs are not required to discharge their burden of proving that the suit properties are the ancestral and joint family properties of the plaintiffs and defendants; vi. The record of rights pertaining to the suit properties stand in the name of the defendants; vii. If at all some properties are the absolute properties of Waggeppa and he purchased those properties, there must be some record to show the ownership of Waggeppa; viii. Absolutely there is no material available before the Court to show that the suit properties are the ancestral and joint family properties of the plaintiffs and defendants;
ix. It is an admitted fact that the sole propositus by name Waggeppa had two sons by name Siddappa and Aamaida. However, on perusal of the records, it indicates that the entire
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NC: 2024:KHC-D:9418 RSA No. 100590 of 2020 properties stand in the name of the defendants and there is no joint family property in the name of the plaintiffs and defendants.
15. The First Appellate Court while considering the appeal of the plaintiffs has recorded the following findings:
i. On perusal of the cross-examination of PW.2, it destroys the evidentiary value of what is stated in the examination-in-chief. Hence, the evidence of PW.2 will not help the plaintiffs at all;
ii. There is absolutely no documentary evidence to show that any of the suit properties were the ancestral joint family properties; iii. Neither PW.1 nor PW.3 have stated that at the time of purchase of the suit properties by the defendant No.1, any of them were present and they know the facts of the case;
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NC: 2024:KHC-D:9418 RSA No. 100590 of 2020 iv. The Sale Deeds in the name of Siddappa are dated 15.04.1935 and 11.04.1969. It is important to note that there is no effort by the plaintiffs to assert their right from those days till his death on 05..03.1986.
v. There is no specific pleading or evidence to believe that Amasidda, the father of plaintiffs was in such a control by Siddappa so he was prevented from claiming his right during his lifetime.
vi. Siddappa died on 28.09.1985. There is no evidence to show that even after the death of Siddappa, Amasidda asserted his right. Even after the death of these two persons, the plaintiffs have not asserted their rights till 2003;
vii. There is absolutely no documentary evidence to show that there were any properties standing in
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NC: 2024:KHC-D:9418 RSA No. 100590 of 2020 the name of the joint family or there was any joint family nucleus so that Siddappa could purchase the suit properties using the joint family nucleus;
viii. There is absolutely no documentary evidence to show that the plaintiffs and defendants and their fathers lived together as a joint family.
16. It is forthcoming from the aforementioned that the properties stood in the name of the grandfather of the defendants namely Siddappa. It is the say of the plaintiffs that the properties belonged to Siddappa as well as their grandfather, Amasidda and that since Siddappa was exercising control over Amasidda, he prevented Amasidda from claiming his right during his lifetime. As has been rightly noticed by both the Courts, there is no evidence on record to demonstrate that the suit properties were standing in the joint names of the ancestors of the plaintiffs and ancestors of the defendants.
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NC: 2024:KHC-D:9418 RSA No. 100590 of 2020
17. Both the courts have concurrently recorded a finding that no material has been produced by the plaintiffs to demonstrate that there was a joint family in existence which had sufficient nucleus to purchase the properties which stood in the name of Siddappa. Both the Courts have concurrently held that the documents produced by the plaintiffs do not disclose that the suit properties are joint family properties and that the plaintiffs also have a share in the same.
18. Hence, it is clear that both the Courts have recorded concurrent findings of fact that the plaintiffs have not produced any material to demonstrate that the plaint properties are the joint family properties.
19. The vehement contention of the learned counsel for the appellants that the defendants were required to prove that the suit properties were the self acquired properties and that the defendants not having adduced any evidence, either oral or documentary, the suit ought not to have been dismissed, is ex facie untenable and
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NC: 2024:KHC-D:9418 RSA No. 100590 of 2020 liable to be rejected having regard to the fact that the assertion of the plaintiffs that the suit properties are the joint family properties has been denied by the defendants. Hence, the plaintiffs were required to prove that the suit properties were the joint family properties, which they have failed to demonstrate. Since the plaintiffs having failed to produce any document to show that the suit properties stood in the joint names of the ancestors of the plaintiffs and the ancestors of the defendants, it cannot be held that the onus has shifted to the defendants to prove that the suit properties are the self acquired properties of their ancestors. Hence, the contention put forth by the learned counsel for the appellants is rejected.
20. The appellants have failed in demonstrating that the concurrent findings recorded by both the Courts are in any manner erroneous, as having been recorded without reference to any specific oral or documentary evidence on record. The appellants have failed in
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NC: 2024:KHC-D:9418 RSA No. 100590 of 2020 demonstrating that any substantial question of law arises for consideration in the present appeal.
21. In view of the aforementioned, the above appeal is dismissed as being devoid of merit at the stage of admission itself.
Sd/-
JUDGE Nd/SH CT:GSM List No.: 1 Sl No.: 42