Karnataka High Court
Karibasappa vs Jayamma on 13 June, 2013
Author: Jawad Rahim
Bench: Jawad Rahim
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 13th DAY OF JUNE 2013
BEFORE
THE HON'BLE Dr.JUSTICE JAWAD RAHIM
R.S.A. NO. 2498/2006
BETWEEN
1. KARIBASAPPA,
AGED ABOUT 48 YEARS,
2. GANESHAPPA,
AGED ABOUT 46 YEARS,
BOTH ARE SONS OF SIDDAPPA,
R/O ARALIKOPPA,
KALMANE POST,
SAGAR - 577
3. GOWRAMMA,
W/O KALLAPPA,
AGED ABOUT 44 YEARS,
C/O RAJU PHOTO FRAME WORK,
BOMMANAKATTE,
SHIMOGA - 577 201
4. ANNAPPA,
S/O SIDDAPPA,
AGED ABOUT 40 YEARS
5. GOPAL,
S/O SIDDAPPA,
AGED ABOUT 35 YEARS
APPELLANTS 4 & 5 ARE
R/O HOSA UPPARAKERI,
2
HANAMBI ROAD,
SAGAR TOWN - 577 401
6. SAVITHRAMMA,
W/O LATE PARAMESHWARAPPA,
AGED MAJOR
7. MANJUNATHA,
S/O LATE PARAMESHWARAPPA,
AGED MINOR,
8. NETHRA,
D/O PARAMESHWARAPPA,
AGED MINOR,
SINCE R7 & 8 ARE MINORS
REPRESENTED BY
NATURAL GUARDIAN MOTHER 6TH
APPELLANT-SAVITHRAMMA
APPELLANTS 6 TO 8 ARE R/O
JANNATH GALLI,
SAGAR TOWN - 577 401
... APPELLANTS
(BY SRI.R.GOPAL, ADV.,)
AND
1. JAYAMMA,
W/O LATE K.MANJUNATHA,
AGED ABOUT 61 YEARS
2. BASAVARAJ @ BABU,
S/O LATE K.MANJUNATHA,
AGED ABOUT 39 YEARS
3. SURESH,
S/O LATE K.MANJUNATHA,
AGED ABOUT 36 YEARS,
3
4. JAGANNATH,
S/O LATE K.MANJUNATHA,
AGED ABOUT 34 YEARS,
5. PREMA,
D/O LATE K.MANJUNATHA,
AGED AOBUT 31 YEARS
RESPONDENTS 1 TO 5 ARE
R/O HOSA UPPARAKERI,
HANAMBI ROAD, SAGAR TOWN - 577 401
6. NETHRAVATHI,
W/O JAYAPPA,
AGED ABOUT 35 YEARS,
R/O HALENAGAR ROAD,
HOSANAGAR TOWN - 577 418
SHIMOGA DISTRICT
... RESPONDENTS
(BY SRI RAJENDRA S.ANAKALKOTI, ADV.,)
RSA FILED UNDER SEC.100 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 28.6.2006 PASSED IN
R.A.NO.71/1997 ON THE FILE OF THE ADDL. CIVIL JUDGE,
(SR.DN), SAGAR, ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGMENT AND DECREE DATED 22.07.1997
PASSED IN O.S.NO.291/1994 ON THE FILE OF THE
PRL.MUNSIFF, SAGAR.
THIS APPEAL COMING ON FOR ORDERS THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Defendant's second appeal against the judgment in R.A.71/97 reversing the finding of the trial court and decreeing the suit as prayed for in favour of the 4 respondents granting them 50% share in the properties described in the schedule.
2. Heard learned counsel for the appellants and the respondent, and perused records in supplementation thereto.
3. It is evident that Jayamma claiming to be wife of one Manjunath and respondents 2 to 6 claiming to be his children, filed suit for partition of the properties described in the schedule against the appellants herein on the assertive contention that the schedule properties which comprise land in Survey No.28/2 of Aralikopopa village, Sagar Taluk, measuring 1 acre 10 guntas belonged to the joint family of which Manjunath and Siddappa along with their father- Kariyanna who were coparceners.
4. Plaintiffs claiming to be legal heirs of Manjunath averred parties had effected partial partition to divide one house vide deed dated 21.3.1977 in terms of which Manjunath and Siddappa acquired a definite share and enjoyed the same. It is their case that the schedule 5 property which is agrarian in nature was not brought into the partition and remains as such till now. They demanded Siddappa's legal heirs to give them their legitimate half share which was declined. This necessitated filing of the suit.
5. Defendants entered contest and resisted the suit basically on the ground the schedule property was the personal acquisition of Siddappa in which Manjunath or the plaintiffs had no manner of right, title and interest. To support this contention, they relied on the order passed by the Land Tribunal on 8.7.1976 conferring occupancy rights on Siddappa and subsequent action by Siddappa to pay the required fee and get the records mutated. They urged, such acquisition by Siddappa being self-acquired, upon his death, the property has devolved on his legal heirs and is not available for partition.
6. Based on the material propositions in the pleadings of the parties, the learned trial judge framed the following issues:
6
'1. 21.3.1977 gÀAzÀÄ 1£Éà ªÁ¢AiÀÄ UÀAqÀ ªÀÄAdÄ£ÁxÀ ªÀÄvÀÄÛ 1£Éà ¥ÀæwªÁ¢AiÀÄ UÀAqÀ ¹zÀÝ¥Àà EªÀgÀ ªÀÄzsÉå MlÄÖ PÀÄlÄA§zÀ D¹ÛAiÀÄÄ «¨sÁUÀªÁUÀĪÁUÀ zÁªÉÃzÀ d«ÄãÀ£ÀÄß «¨sÁUÀ ªÀiÁqÀzÉà ºÁUÉà ©nÖzÀÝgÀÄ CAvÀ ªÁ¢UÀ¼ÀÄ gÀÄdĪÁvÀÄ ¥Àr¸ÀÄvÁÛgÉAiÉÄÃ?
2.1£Éà ¥ÀæwªÁ¢AiÀÄ UÀAqÀ ¹zÀ¥ Ý Àà zÁªÉÃzÀ d«ÄãÀ£ÀÄß MlÄÖ PÀÄlÄA§zÀ ¥ÀgÀªÁV gÉÊvÀ£ÁV ¸ÁUÀĪÀ½ ªÀiÁqÀÄwÛzÀÝ CAvÀ ªÁ¢UÀ¼ÄÀ gÀÄdĪÁvÀÄ¥Àr¸ÀÄvÁÛgÉAiÉÄÃ?
3.1979 gÀ°è 1£Éà ¥ÀæwªÁ¢AiÀÄ UÀAqÀ 1£Éà ªÁ¢AiÀÄ UÀAqÀ¤UÉ zÁªÁ¹ÛAiÀÄ°è 1J 10 UÀÄAmÉ d«ÄãÀ£ÀÄß ¸Áé¢üãÀPÉÌ PÉÆnÖzÀÝg£É ÀÄߪÀÅzÀ£ÀÄß ªÁ¢UÀ¼ÀÄ gÀÄdĪÁvÀÄ¥Àr¸ÀÄvÁÛgÉAiÉÄÃ?
4.ªÁ¢UÀ¼ÀÄ zÁªÁ¹ÛAiÀÄ°è CzsÀ𠻸Éì ¥ÀqÉAiÀÄ®Ä CºÀðgÉÃ?
ºÉaÑ£À ¢ªÁzÁA±À :
¥ÀæwªÁ¢UÀ¼ÀÄ zÁªÁ D¹ÛUÀ¼ÀÄ ¨sÀÆ £ÁåAiÀÄ ªÀÄAqÀ½AiÀÄ PÉJ¯ïDgï:
(J):16:74-75 ¢: 8.7.1976 gÀ wæð£ÀAvÉ ¹zÀÝ¥À£à À ¸ÀéAvÀ £ÁvɬÄAzÀ C¢ü¨sÉÆÃUÀzÁjPÉ ºÀPÀÄÌ PÉÆnÖzÀjÝ AzÀ ªÁ¢UÀ½UÉ CzÀgÀ°è ºÀQÌ®è ªÀÄvÀÄÛ F zÁªÁ «ZÁgÀ ªÀiÁqÀ®Ä £ÁåAiÀiÁ®AiÀÄPÉÌ C¢üPÁgÀ ªÁå¦Û E®è J£ÀÄߪÀÅzÀ£ÀÄß gÀÄdĪÁvÀÄ ¥Àr¸ÀĪÀgÉÃ?
6.K£ÀÄ DeÉÕ CxÀªÁ rQæ?
In the trial that ensued, parties led evidence and considering it, learned judge opined plaintiffs' case was not substantiated fully by acceptable evidence. He disbelieved that Siddappa and Manjunath lived as members of joint family till filing of the suit, and dispelled the contention of the plaintiffs that subsequent to the partition deed of 21.3.1977 dividing the residential house, there was another partition effected assigning unto Manjunath land measuring 7 1 acre 10 guntas as shown in Ex.P1 out of the remaining land described in the schedule. In other words, learned trial judge disbelieved the authenticity of Ex.P1 or as establishing the schedule property was partitioned amongst the brothers and as per notion partition schedule property had to be divided by a decree. In the resultant position, the suit was dismissed assailing which they were in R.A.71/97.
7. The learned appellate judge, on re-appraisal of the material on record, reversed the finding basically on the ground conferment of occupancy right upon Siddappa was not conferment of any right individually but for and on behalf of the joint family. In this regard it believed that a partition deed at Ex.P1 was entered into between the parties and as 1 acre 10 guntas was assigned to Manjunath, it was an inequitable partition and therefore, allotment of legitimate share was necessary. In short, the opinion of the appellate court is, tenancy right in favour of Siddappa did not confer any right upon him but it was allotment in favour of the family in which each had a definite share. 8
8. Commenting on the answers elicited in cross- examination of PW2 and PW3, learned appellate judge opined as per the first partition deed, the age of Siddappa is mentioned as 50 years and in the latter deed also it is mentioned as 50 years in the year 1977. Since Form No.7 also contains the same age, it was not believable that Siddappa could have been a tenant of the land individually entitled to confirmation of occupancy right. Learned judge has, on his own, calculated is age to be 46 years when the application was filed and held if he alone was the tenant, his age must have been 4 to 5 years when the tenancy commenced. Therefore, he disbelieved he was tenant of the land in question.
9. This method of mathematical calculation adopted to appreciate the evidence is wholly improper. What was to be considered by the appellate court is, who was tenant as on 1.4.1974, and to consider it, necessarily records of the preceding year had to be examined. Defendants had produced revenue records showing Siddappa was cultivating the land much prior to the filing of the application and that 9 shows his factum of possession and no were it was mentioned members of the family were cultivating.
10. The calculation that tenancy must have commenced when Siddappa was 4-5 years is wholly improper. Besides it is seen the owner of the property who became the lessor of Siddappa was examined during enquiry before the Tribunal and he deposed that it is Siddappa who was tenant under him. There is no material to show tenancy was either between the father of Siddappa and Manjunath or any other member of the family. In fact the owner of the land admitted that Siddappa had taken tenancy of the land in question from him -(Rattehalli Seenappa).
11. Besides, the recitals of alleged partition deed dated 21.3.1977 is essential. The recitals of this deed which is an admitted document shows Siddappa and Manjunath had openly declared they are living separately for several years and they thought it fit to divide the residential house owned by the joint family. As declared in Exhibit P1 if as on 1977 they were not in the joint family, there is no question of 10 coparcenery status. Therefore, it shows prior to 1977 itself, they had parted and were living separately. Form No.7 has been filed in 1974 and occupancy right has been granted in the year 1976. If the property was joint family property, there would have been mention in Exhibit P1 deed dated 21.3.1977. In this view, the learned appellate judge could not have taken the view that the schedule property was joint family property to reversed the finding of the trial court. Considering the entire material on record I am satisfied plaintiffs had failed to establish Manjunath and the defendant Siddappa were members of undivided joint family and that the schedule property was Hindu undivided joint family property amenable for partition. On the other hand defendant Siddappa had established schedule property was his personal acquisition.
12. The grounds urged in the appeal are accepted. The substantial question of law is answered in favour of the appellant. The appeal succeeds in entirety. The judgment of the appellate court in R.A.71/97 is set aside. The 11 judgment of the trial court is affirmed. In the circumstances, there is no order as to costs.
SD/-
JUDGE vgh*