Karnataka High Court
Irappa S/O Bhimappa Kapashi vs Basappa Irapanna Kapashi on 4 March, 2025
-1-
NC: 2025:KHC-D:4202-DB
RFA No. 100439 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 4TH DAY OF MARCH, 2025
PRESENT
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
AND
THE HON'BLE MR. JUSTICE G BASAVARAJA
REGULAR FIRST APPEAL NO. 100439 OF 2018 (PAR/POS)
BETWEEN:
1. IRAPPA S/O. BHIMAPPA KAPASHI
AGE: 70 YEARS, OCC: AGRICULTURE,
R/O: MELAVANKI VILLAGE-591218,
TQ: GOKAK, DIST: BELAGAVI.
2. SMT. LAGAMAVVA W/O. NAGAPPA KAPASHI
(SINCE THE APPELLANT NO.2 HAS EXPIRED,
APPELLANTS NO.3 TO 5 ARE THE LR's OF
APPELLANT NO.2)
3. SMT. SHIVALEELA W/O. PAWADI ANDANI
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O: GOVERNMENT HIGH SCHOOL,
BENDAWAD VILLAGE-591317,
TQ: RAIBAG, DIST: BELAGAVI.
Digitally signed by
ASHPAK
KASHIMSA
MALAGALADINNI 4. SMT. NIRVANI D/O. NAGAPPA KAPASHI
Location: HIGH
COURT OF
AGE: 40 YEARS, OCC: AGRICULTURE,
KARNATAKA
DHARWAD BENCH
R/O: MELAVANKI VILLAGE-591218,
Date: 2025.03.24
13:25:00 +0530 TQ: GOKAK, DIST: BELAGAVI.
5. RUDRAPPA S/O. NAGAPPA KAPASHI
AGE: 35 YEARS, OCC: AGRICULTURE,
R/O: MELAVANKI VILLAGE-591218,
TQ: GOKAK, DIST: BELAGAVI.
6. SHANKAR S/O. BASAPPA KAPASHI
AGE: 47 YEARS, OCC: AGRICULTURE,
R/O: MELAVANKI VILLAGE-591218,
TQ: GOKAK, DIST: BELAGAVI.
-2-
NC: 2025:KHC-D:4202-DB
RFA No. 100439 of 2018
7. SMT. KASHAVVA W/O. BASAPPA KAPASHI
AGE: 70 YEARS, OCC: AGRICULTURE,
R/O: MELAVANKI VILLAGE-591218,
TQ: GOKAK, DIST: BELAGAVI.
...APPELLANTS
(BY SRI. SHRIHARSH A.NEELOPANT, ADVOCATE)
AND:
1. BASAPPA IRAPANNA KAPASHI
AGE: 65 YEARS, OCC: AGRICULTURE,
R/O: MELAVANKI VILLAGE-591218,
TQ: GOKAK, DIST: BELAGAVI.
2. SMT. NINGAWWA DUNDAPPA KAPASHI
AGE: 80 YEARS, OCC: AGRICULTURE,
R/O: MELAVANKI VILLAGE-591218,
TQ: GOKAK, DIST: BELAGAVI.
3. IRAPANNA DUNDAPPA KAPASHI
AGE: 43 YEARS, OCC: AGRICULTURE,
R/O: MELAVANKI VILLAGE-591218,
TQ: GOKAK, DIST: BELAGAVI.
4. ADIVEPPA DUNDAPPA KAPASHI
AGE: 35 YEARS, OCC: AGRICULTURE,
R/O: MELAVANKI VILLAGE-591218,
TQ: GOKAK, DIST: BELAGAVI.
5. ADIVEPPA KALLAPPA KAPASHI
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O: MELAVANKI VILLAGE-591218,
TQ: GOKAK, DIST: BELAGAVI.
6. BASAPPA KALLAPPA KAPASHI
AGE: 35 YEARS, OCC: AGRICULTURE,
R/O: MELAVANKI VILLAGE-591218,
TQ: GOKAK, DIST: BELAGAVI.
7. BASAVANT GANGAPPA KAPASHI
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O: MELAVANKI VILLAGE-591218,
TQ: GOKAK, DIST: BELAGAVI.
8. SMT. ANNAVVA BASAVANNI KAPASHI
AGE: 67 YEARS, OCC: AGRICULTURE,
-3-
NC: 2025:KHC-D:4202-DB
RFA No. 100439 of 2018
R/O: BEERANAGADDI VILLAGE-591136,
TQ: GOKAK, DIST: BELAGAVI.
9. BASAPPA BASAVANNI KAPASHI
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O: BEERANAGADDI VILLAGE-591136,
TQ: GOKAK, DIST: BELAGAVI.
10. MALLIKARJUN BASAVANNI KAPASHI
AGE: 43 YEARS, OCC: AGRICULTURE,
R/O: BEERANAGADDI VILLAGE-591136,
TQ: GOKAK, DIST: BELAGAVI.
11. BHIMAPPA BASAVANNI KAPASHI
AGE: 40 YEARS, OCC: PVT. JOB,
R/O: BEERANAGADDI VILLAGE-591136,
TQ: GOKAK, DIST: BELAGAVI.
12. BASAVVA VEERABHADRA KAPASHI
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O: BEERANAGADDI VILLAGE-591136,
TQ: GOKAK, DIST: BELAGAVI.
13. SMT. SHRIDEVI SADANAND BEVINAVAR
AGE: 28 YEARS, OCC: HOUSEHOLD,
R/O: HALLUR VILLAGE-591136,
TQ: GOKAK, DIST: BELAGAVI.
14. KUMAR RUDRAPPA VEERABHADRA KAPASHI
AGE: 19 YEARS, OCC: STUDENT,
R/O: BEERANAGADDI VILLAGE-591136,
TQ: GOKAK, DIST: BELAGAVI.
15. KUMARI LAXMI VEERABHADRA KAPASHI
AGE: 15 YEARS, OCC: STUDENT,
R/O: BEERANAGADDI VILLAGE-591136,
TQ: GOKAK, DIST: BELAGAVI.
16. KUMARI BHARATI VEERABHADRA KAPASHI
AGE: 13 YEARS, OCC: STUDENT,
R/O: BEERANAGADDI VILLAGE-591136,
TQ: GOKAK, DIST: BELAGAVI.
(SINCE RESPONDENT NO.15 AND 16 ARE MINORS
REP. BY THEIR MINOR GUARDIAN NATURAL
MOTHER I.E. RESPONDENT NO.12)
-4-
NC: 2025:KHC-D:4202-DB
RFA No. 100439 of 2018
17. SMT. YALLAVVA LAXMAN KAPASHI
AGE: 80 YEARS, OCC: AGRICULTURE,
R/O: BEERANAGADDI VILLAGE-591136,
TQ: GOKAK, DIST: BELAGAVI.
18. MAHADEV LAXMAN KAPASHI
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O: BEERANAGADDI VILLAGE-591136,
TQ: GOKAK, DIST: BELAGAVI.
19. RAMAPPA LAXMAN KAPASHI
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O: BEERANAGADDI VILLAGE-591136,
TQ: GOKAK, DIST: BELAGAVI.
20. BASAPPA LAXMAN KAPASHI
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O: BEERANAGADDI VILLAGE-591136,
TQ: GOKAK, DIST: BELAGAVI.
21. IRAPPA LAXMAN KAPASHI
AGE: 43 YEARS, OCC: AGRICULTURE,
R/O: BEERANAGADDI VILLAGE-591136,
TQ: GOKAK, DIST: BELAGAVI.
...RESPONDENTS
(BY SRI. DINESH M.KULKARNI, ADV. FOR
SRI. CHETAN MUNNOLI AND SMT. SURABHI KULKARNI,
ADVS. FOR R1 TO R6; NOTICE TO R7 TO R11, R13,
R17 TO R21 ARE DISPENSED WITH; NOTICE TO R12 AND
R14 ARE HELD SUFFICIENT; R15 AND R16 ARE MINORS R/BY R12)
THIS REGULAR FIRST APPEAL IS FILED UNDER SEC. 96 OF
CPC., AGAINST THE JUDGMENT AND DECREE DATED 01.10.2018
PASSED IN O.S.NO.325/2013 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE, GOKAK, DISMISSING THE SUIT FILED FOR
PARTITION AND SEPARATE POSSESSION.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
AND
THE HON'BLE MR. JUSTICE G BASAVARAJA
-5-
NC: 2025:KHC-D:4202-DB
RFA No. 100439 of 2018
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM) The captioned appeal is by the unsuccessful plaintiffs who are assailing the judgment and decree rendered in O.S.No.325/2013, wherein plaintiffs suit seeking relief of partition and separate possession is declined by the trial Court on the ground that suit for partial partition is not maintainable.
2. For the sake of brevity, the parties are referred to as per their rank before the trial Court.
3. Before we delve into the case on hand, we deem it fit to cull out the family tree which is as under:
FgÀ¥Áà (ªÀÄÈvÀ) §¸ÀªÀAvÀ¥Áà(ªÀÄÈvÀ) FgÀ¥À£Áß(ªÀÄÈvÀ) ©üêÀÄ¥Áà(ªÀÄÈvÀ) §¸ÀªÁé(ªÀÄÈvÀ) -£ÁUÀªÁé(ªÀÄÈvÀ) (¨Á¼ÀªÁé(ªÀÄÈvÀ)) §¸ÀªÀuÉÚ¥Áà (ªÀÄÈvÀ) ¨Á®¥Áà(ªÀÄÈvÀ) ®PÀëöät(ªÀÄÈvÀ) UÀAUÀ¥Áà(ªÀÄÈvÀ) (zÀvÀÛPÀ PÉÆnÖgÀÄvÁÛgÉ) §¸ÀªÁé(ªÀÄÈvÀ) AiÀÄ®èªÁé(¥Àæ 17) ¤Ã®ªÁé(ªÀÄÈvÀ)-§¸ÀªÀAvÀ(¥Àæ17) zÀÄAqÀ¥Áà(ªÀÄÈvÀ) PÀ®è¥Áà(ªÀÄÈvÀ) §¸À¥Áà(¥Àæ1) zÀvÀÛPÀ ªÀÄUÀ ¤AUÀªÁé(¥À21) UÀAUÀªÁé(ªÀÄÈvÀ) §¸ÀªÀuÉÚ (ªÀÄÈvÀ) «ÃgÀ¨ÀszæÀ(ªÀÄÈvÀ) ªÀĺÀzÉêÀ gÁªÀÄ¥Àà §¸À¥Áà FgÀ¥Áà FgÀ¥À£Áß CrªÉ¥Áà CrªÉ¥Áà §¸À¥Áà C£ÀߪÁé (¥Àæ8) §¸ÀªÁé (¥Àæ 12) (¥Àæ18) (¥Àæ19) (¥Àæ20) (¥Àæ21) (¥Àæ3) (¥Àæ4) (¥Àæ5) (¥Àæ6) §¸À¥Áà ªÀÄ°èPÁdÄð£À ©üêÀÄ¥Áà ²æÃzÉë gÀÄzÀæ¥Áà ®Qëöäà ¨sÁgÀw §¸À¥Áà (ªÀÄÈvÀ) FgÀ¥Áà (ªÁ¢ 1) £ÁUÀ¥Áà (¥Àæ9) (¥Àæ10) (¥Àæ11) (¥Àæ13) (¥Àæ14) (¥Àæ15) (¥Àæ16) -PÁ±ÀªÁé (ªÁ¢5) (ªÁ¢2) ±ÀAPÀgÀ (ªÁ¢ 4) -6- NC: 2025:KHC-D:4202-DB RFA No. 100439 of 2018
4. The plaintiffs represent the branch of Bhimappa. One Irappa is the propositus who had three sons namely Basavanthappa, Irappanna and Bhimappa. Defendants represent the branch of Basavanthappa and Irappanna. The present plaintiffs contend that suit schedule property bearing Sy.No.762 is ancestral tenanted land and propositus Irappa was originally cultivating the land in question as a tenant. Plaintiffs therefore claim that the occupancy rights granted to the defendants ancestor namely Dundappa, Kalappa and Basappa would enure to the benefit of plaintiffs also and therefore, they are entitled for legitimate share in the suit schedule property. Out of the three items which are the subject matter, Sy.No.723 is also tenanted lands and plaintiffs and defendants are granted 1/3rd share equally. The core dispute revolves around Sy.No.762. Plaintiff has specifically claimed that it is ancestral tenanted land and therefore, defendants taking undue advantage of the -7- NC: 2025:KHC-D:4202-DB RFA No. 100439 of 2018 entries in the RTC are disputing their title and hence, the present suit.
5. On receipt of summons, defendant No.1 has filed written statement and stoutly denied the entire averments made in the plaint. Defendant No.1 on the contrary has claimed that his ancestors were cultivating the land in question in their individual capacity. Defendant No.1 claims that his ancestor namely Irappanna was the tenant of the agricultural land bearing Sy.No.762 and that he was cultivating the land in question in his individual capacity and therefore, the present suit is liable to be dismissed. Defendants also claimed that there is already partition insofar as family lands are concerned. Same is indicated in para 16 of the written statement.
6. In response to the stand taken by the defendants in the written statement, plaintiffs have filed a rejoinder and in the rejoinder, more particularly at para 6 and 7, plaintiffs acknowledge and admit the family partition. However, in rejoinder, plaintiffs disputed the -8- NC: 2025:KHC-D:4202-DB RFA No. 100439 of 2018 defendants claim that Sy.No.762 was cultivated by defendants ancestor in their individual capacity. On the contrary, plaintiffs by way of rejoinder have asserted that all the three branches were cultivating to an extent of 1/3rd share and therefore, occupancy rights granted in favour of defendants is not in their individual capacity.
7. Plaintiffs and defendants in support of their respective claims have let in oral and documentary evidence. Trial Court in all framed six issues and one additional issue. The trial Court while answering issue Nos.1 to 3 in the negative held that plaintiffs have failed to substantiate that suit schedule properties are joint family ancestral properties and that they have got legitimate share. While answering issue No.3 in the negative, trial Court out-rightly rejected the defendants claim that suit is bad for non-joinder of necessary parties. Trial Court, however while answering issue No.4 in the affirmative held that suit is bad for non-inclusion of other properties as contained in para 16 of the written statement and -9- NC: 2025:KHC-D:4202-DB RFA No. 100439 of 2018 therefore, proceeded to non-suit the plaintiffs on the ground that suit for partial partition is not maintainable. Assailing the judgment of the trial Court, the plaintiffs are before this Court.
8. Learned counsel appearing for the plaintiffs reiterating the grounds urged in the appeal memo has vehemently argued and contended that trial Court has virtually misread the pleadings and evidence let in by both the parties and the findings of the trial Court that suit is liable to be dismissed on the ground that partition is sought without including all ancestral properties is perverse and contrary to evidence on record. Learned counsel would further point out that plaintiffs by way of rejoinder have acknowledged the partition insofar as family lands are concerned. Therefore, he would point out that the present suit schedule property more particularly Sy.No.762 which was admittedly a tenanted land was not available for partition in 1951. Therefore, he would contend that the principle of partial partition was not at all
- 10 -
NC: 2025:KHC-D:4202-DB RFA No. 100439 of 2018 applicable to the present case on hand. Therefore, he would contend that the findings on issue No.4 in regard to maintainability of the suit without including ancestral properties is erroneous and therefore, would warrant interference at the hands of this Court.
9. Learned counsel appearing for the plaintiffs has also placed reliance on Exs.D-40, D-41 and D-42 to substantiate that these documents produced by the defendants clearly goes to show that Sy.No.762 was also an ancestral tenanted land and this was originally cultivated by Irappa. He would point out that defendants, having taken up a specific plea that Irappanna who is their ancestor was cultivating the land in question (Sy.No.762) in his individual capacity, have not adduced any rebuttal evidence and this assertion in the written statement is not substantiated by producing oral and documentary evidence. Learned counsel appearing for the plaintiffs has placed reliance on the judgment rendered by the Hon'ble
- 11 -
NC: 2025:KHC-D:4202-DB RFA No. 100439 of 2018 Apex Court in the case of B.R.Patil vs. Tulsa Y.Sawkar & Others1.
10. Per contra, learned counsel appearing for the defendants while countering the arguments advanced by the learned counsel appearing for the plaintiffs would point out that the present plaint seeking relief of partition is clearly defective and the requisite ingredients of Order VI Rule 4 CPC are not complied. He would further point out that the averments made in the plaint are found to be too ambiguous to be considered and therefore, trial Court has rightly proceeded to dismiss the suit for want of particulars under Order VI Rule 4. He would further point out that trial Court was also justified in dismissing the suit applying the principles of partial partition regarding maintainability of suit on account of non-inclusion of all the ancestral properties. Learned counsel referring to the admissions elicited in cross-examination would point out that plaintiffs have clearly admitted in cross-examination in unequivocal 1 AIR Online 2022 SC 2010
- 12 -
NC: 2025:KHC-D:4202-DB RFA No. 100439 of 2018 terms indicating that Sy.No.762 had fallen to the share of the defendants ancestor namely Irappana and therefore, occupancy rights granted in respect of Sy.No.762 will not enure to the benefit of the plaintiffs and therefore, he would contend that no indulgence is warranted and appeal is liable to be dismissed.
11. Heard learned counsel appearing for the plaintiffs and learned counsel appearing for the defendants. We have given our anxious consideration to the pleadings in the plaint and also the written statement. We have also given our anxious consideration to the oral and documentary evidence on which both parties have placed reliance.
12. On meticulous examination of the records, the following points would arise for our consideration:
1) Whether trial Court while answering issue No.4 in the affirmative was justified in holding that the present suit for partial partition is not maintainable? No
2) Whether trial Court while answering additional issue in the affirmative thereby
- 13 -
NC: 2025:KHC-D:4202-DB RFA No. 100439 of 2018 accepting the plea of prior partition set up by defendants erred in applying the principles of partial partition and therefore, warrants interference at the hands of this Court? Yes
3) Whether trial Court misread the pleadings and evidence let in by the defendants and failed to advert as to whether the occupancy rights granted to the defendants ancestor namely Irappanna was in his individual capacity and therefore, plaintiffs' suit is liable to be non- suited? Yes Findings on Point Nos.1 and 2:
13. Though we are of the view that the averments made in the plaint are not happily worded and there is lot of ambiguity in the plaint, however, on reading the plaint in entirety, we are of the view that the core dispute between the parties is in respect of Sy.No.762 which is admittedly a tenanted land. While plaintiffs are asserting that this was originally cultivated by propositus Irappa, defendants are asserting that the second son of Irappa
- 14 -
NC: 2025:KHC-D:4202-DB RFA No. 100439 of 2018 namely Irappanna was cultivating this land in question in his individual capacity.
14. Before we proceed further, we deem it fit to cull out para 16 of the written statement, which reads as under:
"16) It is most humbly submitted that, the suit in the present form and as filed is not maintainable at law. The plaintiffs have not included the lands bearing Block No.724 (old R.S.No.41/1) measuring 4 acres 33 guntas situated at Beeranagaddi village which is evident from M.E.No.1245 that, in the revenue records it is shown as Varsa and Vatni and the predecessor in title of defendants No.7 to 21 got 1/3rd hissa and predecessor in title of defendant No.1 to 6 got 1/3rd hissa and predecessor in title of plaintiff has got 1/3rd hissa and accordingly, their names were mutated to the extent of 1/3rd shares each respectively. The defendant No.1 to 6's father died in the year 1973, accordingly the names of defendant No.1 to 6 entered to the Block No.724 as legal heirs, which is evident from Μ.Ε.Νο.211. The defendant Nos. 1 to 6 and plaintiffs sold their 1/3rd shares which can be evident from the M.E.No.2472 and 2997 of Beeranagaddi village. Therefore, the 1/3rd share of defendant No.7 to 21 is till in existence. Further it is most humbly submitted that,
- 15 -
NC: 2025:KHC-D:4202-DB RFA No. 100439 of 2018 the land bearing R.S.No. 139, 140, and 141 situated within the village limit of Chigadolli measuring 1 acre 09 guntas, 1 acre 25 guntas, and 1 acre 19 guntas respectively, in which hissa Form No.12 was effected which is evident from M.E.No.822, accordingly, R.S.No.139 allotted to the plaintiffs' father, R.S.No.140 allotted to defendant No.1 to 6's father and R.S.No.141 allotted to defendant No.7 to 21's father and the plaintiffs and defendant No.1 to 6's fathers sold R.S.No.139 and 140 of their respective shares in the year 1971 and still the share of defendants 1/3rd is existing in the R.S.No.141 which is evident from the M.E.No.905 and 906 of the Chigadolli village. It is submitted that, R.S.No.289 measuring 1 acre 32 guntas situated within the village limits of Melavanki wherein the plaintiffs father and defendant No.1 to 6's father sold their respective shares in the year 1980 which is evident from the M.E.No.671 of Melavanki village and 1/3rd share of defendant No.7 to 21 is still existing in the above said survey number. The land bearing block No.589 (old R.S.No.217/1), 590 (old R.S.No.217/2), 591 (old R.S.No.217/3), situated within the village limits of Melavanki measuring 2 acres 06 guntas 2 acres 10 guntas and 2 acres 16 guntas respectively and wherein block No.589 fallen to the share of the plaintiffs father and block No.590 fallen to the share of defendant No.1 to 6 and whereas block No.591
- 16 -
NC: 2025:KHC-D:4202-DB RFA No. 100439 of 2018 fallen to the share of defendant No.7 to 21. And there was a hissa in the above said Block number which can be substantiated by M.E.No.2856. Till today, the plaintiffs and defendants enjoy ing these properties and also raising a loan to the extent of their shares and cultivating the same with respective their shares. The block No.576 measuring 11 acres 03 guntas situated at Melavanki village, wherein father of defendant No.7 to 21 has got the share of 0-37 guntas and whereas defendant No.1 to 6 father has got share 3 acres 27 guntas and plaintiffs father has got the share of 3 acres 28 guntas and block No.577 measuring 5 acres 18 guntas situated at Melavanki wherein father of defendant No.7 to 21 has got the share of 0-24 guntas and whereas defendant No.1 to 6 father has got share 1 acre 33 guntas and plaintiffs father has got the share of 1 acre 33 guntas and the plaintiff No.2 sold his share to the defendant No.3 and 4 in the year 2001 which is evident from the M.E.No. 7229 and in the year 2001 plaintiffs father given up his share in favour of his sons which is evident from M.E.No. 7211 of Melavanki village. When things stood thus, the plaintiffs though aware of all those transactions and particularly the sale of respective shares in those properties have conveniently and for the best reasons known to them, have not whispered anything in the insant suit and have intentionally not
- 17 -
NC: 2025:KHC-D:4202-DB RFA No. 100439 of 2018 impleaded (not brought) those properties. Therefore, the suit by excluding those properties is not maintainable at law, therefore plaintiffs are not entitled to claim any share in the suit property.
16A. (Amendment carried out as per order on I.A. No.V, dated: 24.09.2015, sd/- (A.C. Dongare, Adv. for defendants) On perusal of various documents, it is evident that, predecessor in title of plaintiffs and defendants effected oral partition, further it is evident that, as per oral partition, predecessors-in-title of plaintiffs and defendants held strips fallen to their shares separately. Thus they are in possession of their shares as absolute owners, Plaintiffs and their predecessors-in-title as well as defendants and their predecessors-in-title raised loans from Banks, Societies etc., separately. The plaintiffs and their predecessors-in-title as well as defendants and their predecessors-in-title have exchanged and sold their respective lands fallen to their shares. In the R/R separate shares of plaintiffs and defendants are shown. It is shown that, since the time predecessors- in-title of of plaintiffs and defendants are holding 1/3rd share each separately, this is a since even prior to 1953-1954. This shows that predecessors-in-title of plaintiffs and defendants intended and thought of holding their shares separately accordingly they
- 18 -
NC: 2025:KHC-D:4202-DB RFA No. 100439 of 2018 effected partition and held the shares fallen to them separately. Assuming for a while but not admitting that, there is no partition by metes and bounds, at least it is evident from recrods, that there is numerical partition since prior to 1953-1954. Thus, since then there is no status of co-parcenary is in existence, at the most it may be said that, they are joint owners. Thus any property acquired thereafter will be self acquired of acquirer.
16B) (Amendment carried out as per order on I.A. No.V, dated: 24.09.2015, sd/- (A.C. Dongare, Adv. for defendants) In para No.16 the defendant No.1 has stated there are transactions of sale and exchange of property etc., they are detailed herein. Between plaintiff No.2, defendant No.3 and defendant No.4 there was reshuffling of properties situated at Melvanki and Chigadolli under a document dated: 05.04.2001, the document styled as "C¥À¸ÁvÀ ¥ÀvÀæ ªÁnß ¥ÀvæÀ". As per this document the lands situated at Melavanki bearing Sy.No. 576, 577 and 589 were given to shares of defendants No.3 and 4. Lands situated at Chigadolli village were given to share of plaintiff No.2. It is evident from document dated: 28.02.2001 styled as Oppige Patra, father of plaintiffs got his name deleted from R/R of Block Nos.576, 577, 906, 901, 589, 640+647+636/11, 826+827+828/11 and entered the names of his
- 19 -
NC: 2025:KHC-D:4202-DB RFA No. 100439 of 2018 sons, Bhimappa and his sons plaintiffs executed a registered sale deed in favour of Irapanna Bhimappa Kapsi in respect of Block No.139, measuring 1 acre 39 guntas and Block No. 137, measuring 0 acre 25 guntas. The sale deed is dated 26.05.1971 plaintiffs and their father sold Block No.724, measuring 4 acres 31 guntas of Beeranagaddi land to Basavanni, Irapanna sons of Bhimappa Kapashi. Plaintiff and defendant No.1 to 6 sold property block No.289, measuring 1 acre 32 guntas in favour of Basavanni and Irapanna sons of Bhimappa Kapashi. Properties fallen to the share of Basavantappa are not sold. All the properties standing in the names of plaintiffs, defendants are not brought in Hotch-potch. This being a suit for partition it is incumbent upon the plaintiffs to bring all the properties in the suit including the properties which stood in the name of Basavantappa, now standing in the name of his sons."
15. On reading para 16 of the written statement, we would find that defendants on receipt of summons have set up a plea of family partition insofar as ancestral lands are concerned. To counter the pleadings at para 16, plaintiffs have filed a rejoinder. Para 6 and 7 of the
- 20 -
NC: 2025:KHC-D:4202-DB RFA No. 100439 of 2018 rejoinder would be relevant and the same is culled out which reads as under:
"6) ªÀÄÄAzÉ, ªÀÄÆ® ¥ÀÅgÀĵÀ£À J®è ªÀÄPÀ̼ÄÀ KPÀvæÀ PÀÄlÄA§zÀ d«ÄãÀÄUÀ¼À°è dAnAiÀÄ°è ¸ÁUÀĪÀ½ ªÀiÁqÀÄvÁÛ CzÀjAzÀ §gÀĪÀAvÀºÀ J®è DzÁAiÀÄzÀ°è PÉ®ªÉÇAzÀÄ d«ÄãÀÄ UÀ¼À£ÀÄß J®ègÀ ºÉ¸ÀgÄÀ UÀ¼À°è, ºÁUÀÆ PÉ®ªÉÇAzÀÄ C¹ÛUÀ¼À£ÄÀ ß ¥ÀævÉåÃPÀªÁzÀ ºÉ¸Àj£À°è Rjâ¸ÀÄvÁÛ §A¢zÀÝgÄÀ . »ÃUÉ Rjâ¹zÀ D¹ÛUÀ½UÉ CªÀgÀÄUÀ¼ÀÄ ¥ÀævÉåÃPÀªÁV ªÀiÁ°ÃPÀgÁVzÀÝgÄÀ . ¥ÀævåÉ ÃPÀªÁV ªÉÄüÀªÀAQ UÁæªÄÀ zÀ j.¸À.£ÀA: 589, 590, 591. 826:11, 827:12, 828:13 ªÀÄvÀÄÛ aUÀqÉƽî UÁæªÀÄzÀ°è d«ÄãÀÄ j.¸À.£ÀA.589, 590, 191, 140 ªÀÄvÀÄÛ 141 EªÀÅUÀ¼À£ÀÄß Rjâ¹zÀgÄÀ . ªÀÄÆ® ¥ÀÅgÀĵÀ£ÄÀ ªÀÄÈvÀ£ÁzÀ £ÀAvÀgÀ, DvÀ£À J®è 3 d£À ªÀÄPÀ̼ÀÄ dAn AiÀÄ°è ¸ÁUÀĪÀ½ ªÀiÁqÀÄwÛzÝÀ d«ÄãÀÄUÀ½AzÀ §AzÀ DzÁAiÀÄ ªÀ£ÀÄß CAzÀgÉ ªÉļÀªÀAQ UÁæªÄÀ zÀ d«ÄãÀÄ j,¸À, £ÀA.289, 801.
806, 576, 577, 762 aUÀqÆ É ½î UÁæªÄÀ zÀ j.¸À.£ÀA.137 ªÀÄvÀÄÛ ¨ÉgÀUÀrØ UÁæªÀÄzÀ d«ÄãÀÄUÀ¼ÀÄ j,¸À, £ÀA.723, 724 EªÀÅUÀ½AzÀ §AzÀ DzÁAiÀĪÀ£ÄÀ ß ¸ÀjAiÀiÁV 3 ¥Á®ÄUÀ¼À£ÄÀ ß ªÀiÁqÀÄvÁÛ §A¢zÀÝgÄÀ . §gÀ§gÀÄvÁÛ ªÀÄÆ® ¥ÀÅgÀĵÀ£À ªÀÄPÀ̼ÁzÀ ²æà FgÀ¥àÀ£Áß FgÀ¥Áà PÁ¥À² ( ¥ÀæwªÁ¢ £ÀA.1 jAzÀ 6 EªÀgÀ »jAiÀÄ) ºÁUÀÆ ²æà ©üêÀÄ¥Áà FgÀ¥Áà PÁ¥Àw (ªÁ¢AiÀÄgÀ »jAiÀÄ) EªÀgÀ PÀÄlÄA§zÀ d£ÀgÀÄ ºÉZÄÀ ÑvÁÛ ºÉÆÃzÀAvÉ CªÀjUÉ ºÀtPÁ¹£À CqÀZÀuÉAiÀÄÄ eÁ¹ÛAiÀiÁUÀÄvÁÛ ºÉÆÃV CªÀgÄÀ UÀ¼ÄÀ vÀªÄÀ ä vÀªÄÀ ä ºÉ¸ÀgÄÀ UÀ¼À°èzÝÀ C¹ÛAiÀÄ£ÀÄß ºÁUÀÆ dAnAiÀÄ°èzÝÀ C¹ÛUÀ¼À°è vÀªÄÀ ä ¥Á°£À C¹ÛAiÀÄ£ÀÄß ªÀiÁgÁl ªÀiÁrzÀÄÝ EgÀÄvÀÛzÉ. DzÀgÉ ªÀÄÆ® ¥ÀÅgÀĵÀ£À »jAiÀÄ ªÀÄUÀ£ÁzÀ ²æà §¸ÀªÀAvÀ¥Áà FvÀ¤UÉ DvÀ£À zÀvÀÛPÀ ªÀÄUÀ£À zÀvÛÀPÀ PÀÄlÄA§zÀ d«ÄãÀÄUÀ¼À DzÁAiÀÄ ªÀÄvÀÄÛ KPÀvæÀ PÀÄlÄA§zÀ DzÁAiÀĪÀÅ DvÀ¤UÉ ¸ÁPÀµÀÄÖ DUÀÄwÛvÀÄÛ »ÃUÁV DvÀ¤UÉ AiÀiÁªÀÅzÉà ºÀtPÁ¹£À CqÀZÀuÉAiÀÄÄ §A¢gÀ°®è.
- 21 -
NC: 2025:KHC-D:4202-DB RFA No. 100439 of 2018
7) ¥Àj¹Üw »ÃVgÀĪÁUÀ ªÀÄÆ® ¥ÀÅgÀĵÀ£À ªÀÄPÀ̼ÁzÀ ²æà FgÀ¥àÀ£Áß ºÁUÀÆ DvÀ£À ªÀÄPÀ̼ÀÄ ªÀÄvÀÄÛ ªÁ¢AiÀÄgÀ »jAiÀÄ ²æà ©üêÀÄ¥Áà FgÀ¥Áà PÁ¥À² ºÁUÀÆ ²æà §¸ÀªÀAvÀ¥Áà FvÀ£À ªÁgÀ¸ÄÀ zÁgÀgÄÀ vÀªÄÀ ä ªÀÄ£ÉvÀ£ÀzÀ CqÀZÀuÉAiÀÄ ¸À®ÄªÁV ªÉļÀªÀAQ UÁæªÀÄzÀ d«ÄãÀÄ j.¸À.£ÀA.2890 ªÀiÁgÁl ªÀiÁrgÀĪÀgÀÄ. CzÀgÀAvÉ aUÀqÉƽî UÁæªÀÄzÀ d«ÄãÀÄ j.¸À.£ÀA.137 EzÀÄ ªÀÄÆ® ¥ÀÅgÀĵÀ£À ºÉ¸Àj£À°è EzÀÄÝzÀÝjAzÀ CzÀPÉÌ ªÁgÀ¸Á£ÁvɬÄAzÀ vÀªÄÀ ä ºÉ¸ÀgÄÀ UÀ¼À£ÀÄß zÁR°¹PÉÆAqÀÄ £ÀAvÀgÀ EzÀgÀ°è ªÀÄÆ® ¥ÀÅgÀĵÀ£À ªÀÄPÀ̼ÁzÀ ²æà FgÀ¥àÀ£Áß ºÁUÀÆ ²æà ©üêÀÄ¥Áà EªÀj§âgÀÆ vÀªÀÄä ¥Á°£À 2:3 »¸Éì ºÁUÀÆ 139 ªÀÄvÀÄÛ 140 EªÀÅUÀ¼À£ÀÄß ¸ÀA¥ÀÇtð ªÁV ªÀiÁgÁl ªÀiÁrgÀĪÀgÄÀ . DzÀgÉ, ªÀÄÆ® ¥ÀÅgÀĵÀ£À »jAiÀÄ ªÀÄUÀ£ÁzÀ ²æà §¸ÀªÀAvÀ¥Áà ºÁUÀÆ DvÀ£À ªÀÄPÀ̼ÄÀ 137 gÀ°èAiÀÄ vÀªÄÀ ä ¥Á°£À 13 »¸Éì d«ÄãÀÄ ºÁUÀÆ j.¸À.£ÀA.141 EzÀ£ÄÀ ß ªÀiÁgÁl ªÀiÁqÀzÉà CªÀÅUÀ¼À£ÀÄß ElÄÖPÉÆArzÀÝgÄÀ . ªÀÄvÉÛ, ©ÃgÀ£À UÀrØ UÁæªÄÀ zÀ d«ÄãÀÄ j.¸À.£ÀA.724 EzÀgÀ°è ªÀÄÆ® ¥ÀÅgÀĵÀ£À QjAiÀÄ ªÀÄUÀ ²æà ©üêÀÄ¥Áà FgÀ¥Áà PÁ¥À² FvÀ£ÀÄ vÀ£Àß ¥Á°£À 13 »¸Éì d«ÄãÀ£ÄÀ ß ªÉÄÃ¯É w½¹zÀ ²æà ©üêÀÄ¥Áà gÀÄzÀæ¥Áà PÁ¥Àw, FvÀ£À ªÀÄPÀ̼ÁzÀ ²æà §¸ÀªÀuÚÉ¥Áà ºÁUÀÆ ²æà FgÀ¥àÀ£Áß EªÀjUÉ ªÀiÁgÁl ªÀiÁrgÀĪÀgÄÀ . CzÀgÀAvÉ ªÀÄÆ® ¥ÀÅgÀĵÀ£À 2£Éà ªÀÄUÀ£ÁzÀ ²æà FgÀ¥Àà£Áß FgÀ¥Áà PÁ¥À² FvÀ£À ªÀÄPÀ̼ÄÀ j,¸À.£ÀA.724 EzÀgÀ°èAiÀÄ vÀªÄÀ ä ¥Á°£À 1:3 »¥ÉàAiÀÄ d«ÄãÀ£ÄÀ ß ªÀÄÆ® ¥ÀÅgÀĵÀ£À »jAiÀÄ ªÀÄUÀ£ÁzÀ ²æà §¸ÀªÀAvÀ¥Áà FgÀ¥Áà PÁ¥À² FvÀ£À 3 £ÉÃAiÀÄ ªÀÄUÀ£ÁzÀ ²æà ®PÀëät §¸ÀªÀAvÀ¥Áà PÁ¥À² FvÀ¤UÉ ªÀiÁgÁl ªÀiÁrgÀĪÀgÄÀ ."
16. The examination of paragraph 16 of the written statement, when read conjointly with paragraphs 6 and 7 of the rejoinder, reveals that the plaintiffs have effectively acknowledged the factum of family partition as set up by
- 22 -
NC: 2025:KHC-D:4202-DB RFA No. 100439 of 2018 the defendants in their pleadings. Furthermore, the trial court has answered the additional issue in the affirmative, holding that the defendants have successfully substantiated their claim regarding the partition. It is a well-settled principle of law that facts admitted by a party do not require further proof through additional evidence. In the present case, since the plaintiffs have not specifically refuted the plea of partition raised by the defendants, the fact of partition must be considered as admitted.
17. Given that ancestral lands were already partitioned, the trial court appears to have misapplied the legal principles governing the maintainability of a suit for partition when all properties are not included. The present suit involves a claim for partition in tenanted properties, including Survey No. 806, which is classified as ancestral land and was not subject matter of earlier partition. Notably, there has been no substantial dispute or contest raised by the defendants concerning agricultural land bearing R.SNo.806. The primary area of contention in the
- 23 -
NC: 2025:KHC-D:4202-DB RFA No. 100439 of 2018 present litigation centers around Survey No. 762. Accordingly, the trial court was obligated to conduct a thorough examination of the nature of the tenancy rights associated with the said property by analyzing the rebuttal evidence presented by the defendants.
18. However, without adequately considering the admissions made in paragraph 16 of the written statement, in conjunction with the averments set forth in paragraphs 6 and 7 of the rejoinder, the trial court appears to have misinterpreted the evidentiary record. The court erroneously concluded that the suit for partial partition was not maintainable. If, as contended, the partition of family lands had already taken place as far back as 1951, the plaintiffs would have had the rightful claim to maintain the present suit seeking partition and separate possession of the remaining properties. In view of the foregoing discussion, point No.1 is accordingly answered in the negative, and point No.2 is answered in the affirmative.
- 24 -
NC: 2025:KHC-D:4202-DB RFA No. 100439 of 2018 Findings on Point No.3:
19. Before we deal with this point, the rebuttal evidence let in by the defendants would be relevant to adjudicate the actual controversy between the parties. While defendants are asserting that their ancestor Irappanna was cultivating the land in question in his individual capacity, plaintiffs are asserting that tenanted land was infact cultivated by Irappa, the propositus of plaintiffs and defendants. Since defendants have specifically pleaded at para 13 of the written statement indicating that this land was cultivated by Irappa in his individual capacity, we deem it fit to take cognizance of the averments made in para 13 of the written statement which reads as under:
"13) It is most humbly submitted that, the suit property bearing R.S.No.762 of Melavanki village was never joint family property and was never jointly cultivated, jointly possessed by the alleged joint family members. In fact, the said suit property bearing R.S.No.762 was independently held and possessed exclusively by late predecessor in title of defendant No.1 to 6 by name Shri. Irapanna Irappa
- 25 -
NC: 2025:KHC-D:4202-DB RFA No. 100439 of 2018 Kapashi and it was his self property and cultivating the same in his individual capacity and never as the members of the joint family and also never for and on behalf of either late Basavantappa i.e., predecessor in title of defendant No.7 to 21 nor late Bhimappa, predecessor in title of plaintiffs. The said Irappanna Irappa Kapashi continued the exclusive possession and cultivation of the said property as exclusive tenant thereof till he expired. The brothers of Irappanna i.e., Basavantappa and Bhimappa were very well aware about, Irapanna exclusively holding and cultivating the land bearing R.S.No.762 in his individual capacity therefore they never objected for the same. Thus, by their conduct the said brothers of Irapanna allowed Irappanna in exclusive enjoyment and possession on the said property by asserting it as said Irappanna's exclusive property. On coming into the force of Land Reforms Act, the husband of defendant No.1 and father of defendant No.3 and 4 on behalf of his two younger brother 1) Kallappa 2) Basappa filed Form No.7 in their individual capacity claiming exclusive tenancy/occupancy rights in R.S.No.762 and the Land Tribunal who had the exclusive jurisdiction to decide and consider nature of tenancy rights, considering above all aspects and by holding the father defendant No.3 and 4 and husband of defendant No.2 and his two younger brothers to be the exclusive tenants of R.S.No. 762,
- 26 -
NC: 2025:KHC-D:4202-DB RFA No. 100439 of 2018 granted occupancy / tenancy rights exclusively in their favour by its order dated: 24.10.1978, by considering the individual and exclusive rights of the said cultivators. These exclusive rights and titles in the R.S.No. 762 of these defendants cannot be questioned or challenged before the Civil Court in the guise of filing of instant case. Therefore, the civil court had no jurisdiction to decide whether joint family or one of the member was tenant, when that question was considered finally and authoritatively on merit by the competent Land Tribunal."
20. We also deem it fit to take cognizance of the Form No.7 filed by the ancestor of defendant Nos.1 to 6. Form No.7 is produced and marked at Ex.D-41. Defendants ancestors namely Dundappa, Kallappa and Basappa who are the children of Irappa while filing Form No.7 have clearly indicated that they have been cultivating this land for last 100 years. The land Tribunal order is produced and marked at Ex.D-42. We deem it fit to cull out the entire Land Tribunal order which reads as under:
"¨sÆ À £ÁåAiÀÄ ªÀÄAqÀ½, UÉÆÃPÁPÀ.
PÉøÀ £ÀA. J¯ï.Dgï.J.-f.PÉ-36-176-77-78. ¢£ÁAPÀ: 24.10.1978.
- 27 -
NC: 2025:KHC-D:4202-DB RFA No. 100439 of 2018
1. ²æà zÀÄAqÀ¥Àà ()
2. ²æà PÀ®è¥Àà () EgÀ¥ÀtÚ PÁ¥À²
3. ²æà §¸À¥Àà () ¸Á, ªÀļÀªÀAQ CfðzÁgÀgÄÀ .
«gÀÄzÀÞ
1. ²æêÀÄw. ¸ÀÄAzÁæ¨Á¬Ä ¨sÊÉ . PÀȵÁÚf PÀÄ®PÀtÂð
2. ²æà ªÀ¸ÀAvÀ UÉÆÃ¥Á¼À ªÀĺÁd£À ¨sÆ À ªÀiÁ°PÀgÄÀ .
ªÉÄïÁÌt¹zÀ CfðzÁgÀgÄÀ UÀ¼ÄÀ PÀ£ÁðlPÀ ¨sÆ À ¸ÀÄzsÁgÀuÁ PÁAiÀÄzÉAiÀÄ PÀ®A 45(1)gÀ ¥ÀæPÁgÀ ªÀļÀªÀAQ UÁæªÄÀ zÀ ¨Áè.£ÀA.762 PÉëÃvÀæ 5JPÀgÉ.14UÀÄAmÉ d«Ää£À C¢ü¨sÉÆÃUÀzÀ ºÀPÌÀ £ÄÀ ß PÉÆÃj ¸ÀzÀjà PÁAiÉÄÝAiÀÄ PÀ®A 48 C(1)gÀ ¥ÀæPÁgÀ vÁ. 6-11-1974 gÀAzÀÄ dAn CfðAiÀÄ£ÀÄß ¸À°è¹gÀÄvÁÛgÉ.
¸ÁªÀðd¤PÀ £ÉÆÃnøÀÄUÀ¼À£ÄÀ ß ªÀÄvÀÄÛ ªÉÊAiÀÄQÛPÀ £ÉÆÃnøÀÄUÀ¼À£ÄÀ ß 1974£Éà ¨sÀÆ ¸ÀÄzsÁgÀuÁ ¤AiÀĪÀÄUÀ¼À ¥ÀæPÁgÀ ¥Àæ¹zÀÞ¥Àr¸À¯Á¬ÄvÀÄ, ªÀÄvÀÄÛ ¸ÀA§AzsÀ¥ÀlÖªÀgÀ ªÉÄÃ¯É eÁåj ªÀiÁqÀ¯Á¬ÄvÀÄ.
CfðzÁgÀgÀ dAn CfðAiÀÄ£ÀÄß ¢£ÁAPÀ.26-6-77 gÀAzÀÄ «ZÁgÀtÂUÉ vÉUÉzÀÄPÉÆAqÀÄ, CAwªÀĪÁV vÁ. 24-10-1978 gÀAzÀÄ «ZÁgÀuÉ ªÀiÁqÀ¯Á¬ÄvÀÄ. CAwªÀÄ «ZÁgÀuÉAiÀÄ PÁ®zÀ°è 1£Éà CfðzÁgÀgÄÀ ºÁdjzÀÝgÄÀ G½zÀªÀgÀÄ ºÁdjgÀ°®è.
ºÁdjzÀÝ ²æà zÀÄAqÀ¥àÀ£À£ÄÀ ß «ZÁgÀuÉ ªÀiÁqÀ¯ÁV ªÉļÀªÀAQ UÁæªÄÀ zÀ ¨Áè.£ÀA. 762 d«ÄãÀ£ÄÀ ß CªÀgÄÀ ºÁUÀÆ CªÀgÀ ¸ÀºÆ É ÃzÀgÀgÁzÀ 1. ²æà PÀ®è¥àÀ ªÀÄvÀÄÛ 2. ²æà §¸À¥àÀ J®ègÀÆ ¸ÀªiÀ ÁAiÀÄPÀzÀ°è CªÀgÀ »jAiÀÄgÀ PÁ®¢AzÀ®Æ ¸ÁUÀĪÀ½ ªÀiÁqÀÄwÛgÀĪÀÅzÁVAiÀÄÆ, ²æêÀÄw. ¸ÀÄAzÀgÁ¨Á¬ÄAiÀĪÀgÄÀ ªÉÄÊvÀgÁVzÀÄÝ ²æà ªÀ¸ÀAvÀ UÉÆÃ¥Á¼À ªÀĺÁd£À EªÀgÄÀ CªÀgÀ zÀvÀÛPÀ ªÀÄUÀ£ÉAvÀ®Æ zÁªÁzÀ d«Ää£À°è ªÀiÁ°PÀjUÉ ¸ÉÃjzÀ ªÀÄgÀ PÀl×qÀ ªÀUÊÉ gÉ E®èªÉAvÀ®Æ ºÉüÀÄvÁÛgÉ.
UÁæªÀÄzÀ zÁR¯ÉUÀ¼À£ÄÀ ß £ÉÆÃqÀ¯ÁV CfðzÁgÀgÄÀ UÀ¼ÄÀ zÁªÁzÀ d«ÄäUÉ gÉÊvÀjgÀĪÀ §UÉÎ zÁR¯ÉUÀ½ªÉ.
ºÀÄPÀÄA:-
DzÀÝjAzÁ dAn CfðzÁgÀgÀÄUÀ¼ÁzÀ 1. ²æà zÀÄAqÀ¥àÀ, 2. ²æà PÀ®è¥àÀ,
3. ²æà §¸À¥Àà vÀAzÉ EgÀ¥ÀtÚ PÁ¥À² EªÀgÄÀ UÀ¼À£ÄÀ ß ¸ÀªiÀ ÁAiÀÄPÀzÀ°è ªÀļÀªÀAQ UÁæªÀÄzÀ ¨Áè.£ÀA. 762 PÉëÃvÀæ 5 JPÀgÉ.14UÀÄAmÉ d«ÄäUÉ vÁ.1-3-1974 jAzÀ C¢ü¨sÉÆÃUÀzÁgÀgÀÄUÀ¼ÉAzÀÄ ¤zsÀðj¸À¯Á¬ÄvÀÄ.
- 28 -
NC: 2025:KHC-D:4202-DB RFA No. 100439 of 2018 vÁ. 24-10-1978gÀAzÀÄ ¨sÆ À £ÁåAiÀÄ ªÀÄAqÀ½AiÀÄ°è WÉÆö¸À¯Á¬ÄvÀÄ."
21. On closer examination of the Land Tribunal order, we would find that the Land Tribunal also acknowledges that the applicants are found to be tenants since the time of their ancestors. Now we are also called upon to take cognizance of the admissions elicited in cross-examination of DW.1. Para 8 would be relevant and the same is culled out as under:
"8. £À£Àß CdÓ FgÀ¥àÀ ©ÃgÀ£ÀUÀrØ ªÀÄvÀÄÛ ªÉÄüÀªÀAQ UÁæªÄÀ UÀ¼À°è gÉÊvÀ £ÁvɬÄAzÀ d«ÄãÀÄ ªÀiÁqÀÄwÛzÝÀ JAzÀgÉ ¤d. ªÉÄüÀªÀAQ UÁæªÄÀ zÀ 5.24 JPÀgÉ ºÁUÀÆ ©ÃgÀ£ÀUÀrØ UÁæªÄÀ zÀ 4.14 JPÀgÉ d«ÄãÀÄUÀ¼À£ÄÀ ß £À£ßÀ CdÓ FgÀ¥Àà gÉÊvÀ £ÁvɬÄAzÀ ªÀiÁqÀÄwÛzÝÀ JAzÀgÉ ¤d. ¸ÀzÀj ©ÃgÀ£ÀUÀrØ UÁæªÀÄzÀ 4.14 JPÀgÉ d«Ää£À ¸ÀªÉð £ÀA§gÀ 723 JAzÀgÉ ¸ÀªÉð £ÀA§gÀ UÉÆwÛ®è.
CzÀgÀAvÉ ªÉÄüÀªÀAQ UÁæªÀÄzÀ 5.24 JPÀgÉAiÀÄ FV£À ¸ÀªÉð £ÀA§gÀ 762 JAzÀgÉ CzÀ£ÀÄß £À£Àß vÀAzÉUÉ ªÀÄAdÆgÀÄ DVvÀÄÛ. £À£ÀUÉ ªÉÄÃ¯É ºÉýzÀ ¸ÀªÉð £ÀA§gÀ 723 JAzÀÄ UÉÆwÛzÝÀ gÆ À ¸ÀļÀÄî ºÉüÀÄwÛzÝÉ Ã£É JAzÀgÉ ¸ÀļÀÄî. ¸ÀªÉð £ÀA§gÀ 723 £ÀÄß £À£Àß zÉÆqÀØ¥àÀ §¸ÀªÀAvÀ¥àÀ CdÓ wÃjPÉÆAqÀ £ÀAvÀgÀ ¸ÁUÀĪÀ½ ªÀiÁqÀÄwÛzÀÝ JAzÀgÉ 3 d£À ªÀiÁqÀÄwÛzÝÀ gÄÀ . ºÁUÉ ¸ÀªÉð £ÀA§gÀ 762 £ÀÄß £À£Àß zÉÆqÀØ¥Àà, £À£Àß C¥Àà ªÀÄvÀÄÛ aPÀÌ¥àÀ 3 d£À ¸ÁUÀĪÀ½ ªÀiÁqÀÄwÛzÝÀ gÄÀ JAzÀgÉ ¸ÀļÀÄî. £À£Àß vÀAzÉ FgÀ¥àÀ£Àß ¸ÀéAvÀPÌÉ M§â£Éà ªÀiÁqÀÄwÛzÝÀ . ¸ÀªÉð £ÀA 762 £ÀÄ £À£Àß vÀAzÉ gÉÊvÀ£ÁvɬÄAzÀ ªÀÄÆ® ªÀiÁ°ÃPÀ¤AzÀ ¸ÁUÀĪÀ½ ªÀiÁqÀÄwÛzÝÀ JAzÀÄ
- 29 -
NC: 2025:KHC-D:4202-DB RFA No. 100439 of 2018 vÉÆÃj¸À®Ä ¨sÀÆ£ÁåAiÀĪÀÄAqÀ½ DzÉñÀ ºÉÆgÀvÄÀ ¥Àqɹ ¨ÉÃgÉ zÁR¯É E®è. RAqÀ ¥ÀvÀæzÀAvÀºÀ AiÀiÁªÀÅzÉà zÁR¯É E®è."
22. A careful perusal of the Land Tribunal order clearly establishes that the applicants, being the ancestors of the defendants, were recognized as tenants of the land in question since the time of their forefathers which further strengthens plaintiffs' assertion that land bearing Sy No.762 was a originally cultivated by propositus Irappa as admitted during cross examination in DW-1 coupled with admission before the land tribunal at an undisputed point in time. This recognition is not merely incidental but forms the foundation of their claim to tenancy rights over the suit land. Further, the admissions elicited in the cross- examination of DW.1, particularly in paragraph 8, affirm that the defendants' ancestors had cultivated the land for over a century, thereby reinforcing the claim that the land was being tenanted as a family holding rather than as an individual tenancy. This further affirms that plaintiffs' and defendants' ancestor i.e. original propositus namely Irappa
- 30 -
NC: 2025:KHC-D:4202-DB RFA No. 100439 of 2018 was the original tenant of the above said land in question this admission is conclusive and clinches the controversy.
23. Significantly, the declaration made by the ancestor of defendant Nos.1 to 6 in Form No.7 while claiming occupancy rights before the Land Tribunal is of paramount importance. In unequivocal terms, the said declaration establishes that the land has been cultivated by their family for the past 100 years. A declaration made in Form No.7 constitutes an admission that binds the declarant and his successors-in-interest. The principles governing tenancy rights under the relevant land reforms legislation clarify that when a tenancy right is traced through ancestors and occupancy rights are granted, such rights enure to the benefit of the entire family and not to an individual member alone. Therefore, the contention raised by the defendants in paragraph 13 of the written statement asserting that their ancestor, Irappanna, cultivated the land in his individual capacity is directly contradicted by the very documents they have furnished as rebuttal evidence. The documents produced by the
- 31 -
NC: 2025:KHC-D:4202-DB RFA No. 100439 of 2018 defendants, instead of strengthening their case, actually lend support to the plaintiffs' claims. The well-established principle in tenancy jurisprudence is that occupancy rights, once granted to a tenant as a member of a joint family, are presumed to be held for the benefit of the entire family unless expressly partitioned or severed.
24. In light of these documentary admissions and the evidence on record, particularly the rebuttal evidence adduced by the defendants, as evidenced in Exs.D-40, D- 41, and D-42, it is evident that the trial court has mis- appreciated the factual and legal matrix of the case. Despite having answered the additional issue in the affirmative, the trial court erroneously held that the suit was not maintainable on the ground that the mandate under Order VI Rule 4 of the Civil Procedure Code was not complied with and that the suit was bad for partial partition. However, the tenancy rights in question were clearly traced through the defendants' ancestors, and the grant of occupancy rights to the defendants' ancestors was not in an individual capacity but rather as tenants holding
- 32 -
NC: 2025:KHC-D:4202-DB RFA No. 100439 of 2018 the land on behalf of the family. This position is further cemented by the filing of Form No.7 by the ancestors of defendants Nos.1 to 6, marked as Ex.D-41, wherein Dundappa, Kallappa, and Basappa sons of Irappa explicitly declared that they had been cultivating the land for over a century. Additionally, the Land Tribunal order, marked as Ex.D-42, further corroborates this fact. In view of these settled legal principles and the overwhelming documentary evidence, point No.3 is answered in the affirmative. Conclusion and Reasons for Reversal:
25. Upon a comprehensive analysis of the factual and legal aspects of the case, it is evident that the trial court committed fundamental errors in appreciating the evidence on record. The necessity for reversal is substantiated by the following factors:
I. Misinterpretation of Admission in Pleadings
i) The trial court failed to adequately consider the admissions made by the plaintiffs in their rejoinder,
- 33 -
NC: 2025:KHC-D:4202-DB RFA No. 100439 of 2018 particularly in conjunction with paragraph 16 of the written statement. In civil jurisprudence, it is well established that an admission, whether made in pleadings or evidence, constitutes the best form of proof and does not require further corroboration. An admission is substantive evidence (refer: Nagindas Ramdas v. Dalpatram Ichharam2). Given that the plaintiffs effectively acknowledged the factum of partition in so far ancestral lands in their rejoinder, the trial court's finding that the suit was not maintainable on the ground of partial partition is legally untenable.
II. Overlooking Crucial Documentary Evidence
i) The trial court disregarded key pieces of documentary evidence, specifically:
a) Ex.D-40, D-41, and D-42, which categorically establish that the tenancy rights in question were 2 AIR 1974 SC 471
- 34 -
NC: 2025:KHC-D:4202-DB RFA No. 100439 of 2018 inherited through generations of the plaintiffs' defendants' ancestors.
b) Form No.7 (Ex.D-41), filed by the ancestors of defendants Nos.1 to 6, where they explicitly stated that they had been cultivating the suit land for over 100 years. A declaration made in Form No.7 under the land reform laws is a solemn admission and carries significant probative value.
c) Land Tribunal Order (Ex.D-42), which granted occupancy rights not in favor of an individual but in recognition of long-standing family tenancy.
ii) The trial court's failure to properly appreciate this evidence constitutes a grave misreading of material records and renders its conclusion erroneous. III. Erroneous Application of Legal Principles Governing Occupancy Rights
- 35 -
NC: 2025:KHC-D:4202-DB RFA No. 100439 of 2018
i)The trial court failed to apply the correct principles of tenancy law and partition. It is a settled principle that when occupancy rights are granted to a member of a family, such rights enure to the benefit of the entire family, unless there is evidence of severance or partition. Courts have consistently held that:
a) Tenancy rights granted in favor of a family member are presumed to be held for the benefit of all coparceners unless expressly partitioned (refer: Mallappa v. Shivappa3).
b) Mere issuance of occupancy rights in the name of one individual does not destroy the character of the joint family property (refer: H.C. Suman v.
Rehabilitation Ministry Employees Co-operative House Building Society Ltd.4).
3 1990 Supp SCC 7 4 AIR 1991 SC 2160
- 36 -
NC: 2025:KHC-D:4202-DB RFA No. 100439 of 2018
ii) In the present case, the tenancy rights were traced through the defendants' ancestors, and the grant of occupancy rights by the Land Tribunal was based on family tenancy and not individual tenancy. The trial court's erroneous conclusion that tenancy rights belonged exclusively to an individual contradicts well-settled legal principles.
IV. Contradictions in the Defendants' Own Stand
i) The defendants' written statement attempted to assert that their ancestor, Irappanna, was cultivating the land in his individual capacity. However, this assertion is contradicted by:
a) The admissions made in Form No.7, which explicitly state that the land was cultivated by the family as a unit coupled with unequivocal admissions elicited in cross of DW 1 who has admitted in unequivocal terms that Irappa was the protected tenant.
- 37 -
NC: 2025:KHC-D:4202-DB RFA No. 100439 of 2018
b) The Land Tribunal Order, which does not recognize the land as an individual tenancy.
ii) The defendants' own rebuttal evidence (Ex.D-40, D-41, and D-42), which acknowledges that the land has been in the possession of multiple family members for over a century.
iii) Under Section 92 of the Indian Evidence Act, contradictory oral assertions that are inconsistent with written admissions or documentary evidence are inadmissible. A party cannot approbate and reprobate-- having produced documents proving family tenancy, the defendants cannot now claim individual tenancy (refer: K.K. Modi v. K.N. Modi5). The trial court failed to apply this fundamental principle, leading to an erroneous finding.
V. Incorrect Finding on Maintainability of the Suit 5 (1998) 3 SCC 573
- 38 -
NC: 2025:KHC-D:4202-DB RFA No. 100439 of 2018
i) The trial court's conclusion that the suit was not maintainable due to partial partition is inconsistent with well-established legal precedents. A suit for partition is maintainable even if some ancestral properties have already been divided, provided that there are remaining properties to be partitioned. Courts have ruled that:
a) Once partition is established, any remaining properties can be the subject matter of a fresh partition suit(refer: Muthangi Ayyanna v. Muthangi Jaggarao6).
b) The fact that some ancestral lands were partitioned in 1951 does not preclude the plaintiffs from seeking partition of other joint family properties, including tenanted properties.
ii) By failing to consider this principle, the trial court erred in holding that the suit was bad for partial partition.6
AIR 1977 SC 292
- 39 -
NC: 2025:KHC-D:4202-DB RFA No. 100439 of 2018
26. For the foregoing reasons, this Court proceeds to pass the following:
ORDER
(i) Appeal is allowed;
(ii) The judgment and decree dated
01.10.2018 passed in
O.S.No.325/2013 on the file of the
Principal Senior Civil Judge, Gokak is hereby set aside;
(iii) Consequently, suit of the plaintiffs is decreed;
(iv) Plaintiffs who represent the branch of Bhimappa are jointly entitled for 1/3rd share in suit schedule properties;
(v) Draw preliminary decree accordingly;
(vi) No order as to costs.
Sd/-
(SACHIN SHANKAR MAGADUM) JUDGE Sd/-
(G BASAVARAJA) JUDGE CA Ct:vh List No.: 1 Sl No.: 15