Allowed

Shivagondappa v. Iragondappa

Karnataka HC14 Jun 2016RSA/224/2005

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed the regular second appeal. It set aside the lower appellate court’s judgment which had reversed the trial court’s dismissal. The High Court held that the lower appellate court erred in disregarding evidence regarding a 1937 partition and the identification of vacant sites as alternative numbers for the same property.

What did the court decide?

The regular second appeal is allowed. The judgment of the lower appellate court is set aside.

Shivagondappa Vs Iragondappa — Partition | Karnataka HC (2016)

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IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH

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DATED THIS THE 14^TH DAY OF JUNE, 2016

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BEFORE

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THE HON’BLE MR.JUSTICE ANAND BYRAREDDY

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REGULAR SECOND APPEAL NO.224/2005 (PAR)

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BETWEEN:

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Shivagondappa S/o Mallappa Awati, Age: 63 years, Occupation: Agriculturist, Resident of Hebbal, Taluk: Basavana Bagewadi – 586 203.

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… APPELLANT

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(Shri I.R. Biradar, Advocate)

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AND:

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Iragondappa S/o Chanabasappa Awati, Age: 68 years, Occupation: Agriculturist,

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Chanamallappa S/o Chanabasappa Awati, Age: 63 years, Occupation: Agriculturist,

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3. Rudrappa S/o Mallappa Awati

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Age: 68 years, Occupation: Agriculturist,

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4.	Shankarappa S/o Mallappa Awati Age: 56 years, Occupation: Agriculturist,
5.	Annappa S/o Mallappa Awati Age: 53 years, Occupation: Agriculturist,
6.	Basavaraj S/o Malakappa Awati Age: 53 years, Occupation: Agriculturist,
7.	Parappa S/o Malakappa Awati Age: 43 years, Occupation: Agriculturist,
8.	Gurappa S/o Malakappa Awati Age: 38 years, Occupation: Agriculturist,
9.	Sangappa S/o Malakappa Awati Age: 33 years, Occupation: Agriculturist,
	All are residents of Hebbal, Taluk Basavana Bagewadi – 586 203. … RESPONDENTS
(Shri	Shivashankar H. Manur, Advocate)

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This Regular Second Appeal is filed under Section 100 of Civil Procedure Code��1908, against the Judgment and Decree

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dated 20.11.2004 passed in R.A.No.137/2003 on the file of the Civil Judge (Senior Division), Basavana Bagewadi, allowing the appeal and setting aside the Judgment and Decree dated 03.10.2001 passed in Original Suit No.252/1997 on the file of the Principal Civil Judge (Junior Division) Basavana Bagewadi.

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This appeal coming on for hearing this day, the Court delivered the following:

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J U D G M E N T

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Heard the learned Counsel for the appellant and the learned Counsel for the respondents.

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The appellant is defendant No.3 before the Court below.

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The facts leading up to this appeal are that the plaintiffs had sought for a nebulous prayer that though there was a partition in the year 1937, in respect of other items of property, vacant sites numbering four namely, site bearing Nos.164, 159, 145 and 135 were subsequently partitioned. It was the plaintiffs’ claim that site bearing No.164 of Hebbal village, Basavana Bagewadi taluk, Vijayapur district, was allotted to the father of the plaintiffs, exclusively at an oral partition, after the partition in the year 1937. However, since the plaintiffs were kept out of

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the share by the defendants, it was claimed, in the alternative, that though site No.164 was exclusively given to the father of the plaintiffs and since the plaintiffs were deprived of the same, it would be appropriate if the four vacant sites, namely sites bearing No.164, 159, 145 and 135 were equally divided and a half share was given to the plaintiffs and the defendants, each. This was contested by the defendants on the footing that there was a complete partition in the year 1937. Since the defendants categorically asserted that there was only one partition in the year 1937, it was inclusive of the vacant plot and in fact there was only one vacant plot which was assigned different numbers, from time to time. It is mistakenly pleaded by the plaintiffs as being four different sites. It was in fact only site No.164 which is being assigned to the very site which was earlier had different numbers namely, site Nos.159, 145 and 135, which is one and the same site. It is on these pleadings that the Court below had framed the following issues:

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“(i) Whether the plaintiffs prove that they are the absolute owners and possessors of the suit property bearing VPC No.164 of Hebbal village?

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(ii) Whether the plaintiffs prove that they are in actual possession and enjoyment of the suit open site, as on the date of the suit?

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(iii) Whether the plaintiffs prove that they are entitled for an alternative relief of partition and separate possession to the extent of ½ share in the suit property along with other properties as averred in the plaint?

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(iv) Whether the defendant No.3 proves that the suit property has been allotted to the share of his father during the partition of the properties owned by their family?

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(v) Whether the defendant No.3, proves that he is in actual possession and enjoyment of the suit open site as a owner?

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(vi) Whether the plaintiffs are entitled for the reliefs claimed?

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(vii) What order or decree?”

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The Court below however held that it was not proved as to there being a subsequent partition after the year 1937 and dismissed the suit of the plaintiffs. The trial Court has found that the defendants had examined DW-3 the Secretary of the

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Village Panchayat who had asserted that it was indeed the reference to the same site to which different site numbers had been assigned at different points of time. This assertion of DW-3 was never challenged by way of cross-examination. Therefore, the Trial Court has accepted the contention that it was reference to the same and only site number which had been allotted to the father of defendant No.3. It is that, which was assailed in the appeal before the lower appellate Court.

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The lower appellate Court, in its reasoning as to whether

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the trial Court was justified in arriving at its finding, has referred to the trial Court’s observation at para-11 of its judgment that the name of defendant No.3 is alone appearing in the extract of the village panchayat number 164 right from the year 1961-1962 and if there was really no partition, then the name of Rudrappa, the propositus, would have continued in the extract of the site number and it was for defendant No.3 to explain the said fact since the burden was on defendant No.3.

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It is further held that the mere entry of the name of defendant No.3 in the property extract did not confer ownership on defendant No.3 and it was for him to establish the same. The lower appellate Court has taken upon itself to address the question whether defendant No.3 had proved that there was a partition of house and sites as well in the year 1937 or subsequently and has concluded that defendant No.3 has not proved the partition and therefore that the plaintiffs were entitled to claim one-half share in the suit properties, since another brother, one Chanamallappa and his wife, died issueless. The lower appellate Court has found fault with the trial Court’s finding that on the basis of the evidence of DW-3 and the document as per Ex.D-7 would reflect that they referred to one and the same property namely the property now referred to as site No.164 was not relevant.

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Further, the lower appellate Court has held that the evidence was not sufficient to prove that they are one and the

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same property and has reversed the finding that the plaintiff was not entitled to seek partition of the so called suit properties. Whereas, the plaintiff himself is uncertain as to whether there were four properties or only one property available for partition. This would indicate that defendant No.3 had in fact established that there was only one item of property and this was the property which had fallen to his father’s share and consistently reflected in the revenue records as noticed by no less than Secretary of the Village Panchayat. This could not have been over turned by the lower appellate Court. Hence, there was ample evidence on the part of defendant No.3 to have established that the item of property identified as site No.164 had fallen to the share of his father.

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Consequently, the substantial question of law is answered

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in the affirmative. The lower appellate Court was not justified in holding that there was no partition in the year 1937 when admittedly, according to the plaintiff there was indeed a

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partition in the year 1937. The only contention on the part of the plaintiff in so far as the open sites were concerned, that they were not subject matter of the partition in the year 1937 and that there were four separate sites. This was over turned by the evidence of defendant No.3 and the document Ex.D-7. Hence, the lower appellate Court was not justified in reversing the judgment of the trial Court.

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Consequently, the appeal is allowed. the judgment of the

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lower appellate Court is set aside.

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Shivagondappa v. Iragondappa

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Shivagondappa v. Iragondappa

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