Allowed

Amarawwa W/O Honnappa Talgeri v. Maremma W/O Khandappa Talgeri

Karnataka HC6 Dec 2022RSA/178/2008

Case brief

AI extract

What is this about?

In a second appeal regarding a partition suit, the High Court of Karnataka held that plaintiffs were not entitled to a share in tenanted land based on individual occupancy rights granted to one brother, and found that evidence proved a prior partition in the family, dismissing the suit.

What did the court decide?

Second appeal allowed; judgment and decree dated 02.11.2007 set aside; suit dismissed.

Amarawwa W/O Honnappa Talgeri Vs Maremma W/O Khandappa Talgeri — Partition | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH

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DATED THIS THE 6^TH DAY OF DECEMBER, 2022

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BEFORE

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THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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RSA NO.178/2008 (PAR)

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Between:

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Amarawwa W/o Honnappa Talgeri Aged about 40 Years, Occ: Household & Agri

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Mareppa S/o Honnappa Talgeri Aged about 33 Years, Occ: Agriculture

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Basappa S/o Honnappa Talgeri Aged about 25 Years, Occ: Agriculture

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Mallappa S/o Honnappa Talgeri Aged about 27 Years, Occ: Agriculture

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Tippamma W/o Basappa Natekar Aged about 32 Years, Occ: Agriculture

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Nagamma W/o Mallappa Aged about 28 Years, Occ: Agriculture

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All are R/o Tadibidi Village Tq. Shahapur, Dist. Gulbarga - 585102

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…Appellants

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(By Sri Chaitanyakymar C.M., Advocate)

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And:

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Maremma W/o Khandappa Talgeri Aged about 65 Years, Occ: Agri. & Household

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Mallamma W/o Hayyalappa Aged about 60 Years, Occ: Agri. & Household

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Both are R/o Tadibidi Village Tq. Shahapur, Dist, Gulbarga - 585102

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…Respondents

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(Sri J. Augustin, Advocate for R2; V/O/D 03.09.2020, appeal against R1 abated)

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This Regular Second Appeal is filed under Section 100 Of CPC praying to set aside the judgment and decree dated 02.11.2007 passed by the Civil Judge (Sr.Dvn) at Shorapur in R.A.No.27/2007 thereby setting aside the judgment and decree dated 22.12.2005 passed by the Civil Judge (Jr.Dvn) at Shahapur in O.S.No.205/1997.

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This Appeal is coming on for Hearing this day, the Court delivered the following:

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JUDGMENT

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The captioned second appeal is filed by the defendants questioning the divergent findings of the Courts below, wherein the plaintiffs' suit seeking relief of partition is decreed by the appellate Court. These divergent findings are challenged by the defendants.

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2. For the sake of convenience, the parties

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are referred to as per their rank before the trial Court.

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The family tree is as under:

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Boodeppa Honnappa Khandappa Mallappa (Died 14 yrs back) (Died 18 years back) (Died unmarried) Wife-Amarawwa D-1 Wife-Maremma(P-1) Daughter Mallamma (P-2) Mareppa Mallappa Basappa Tippamma Nagamma (D-2) (D-3) (D-4) (D-5) (D-6)

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One Boodeppa is shown to be the propositus, who had three sons namely Honnappa, Khandappa and Mallappa. The plaintiffs represent the branch of Khandappa, while the defendants represent the branch of Honnappa in the family tree culled out at

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paragraph No.2 of the judgment. It is also stated that Mallappa died unmarried. Therefore, the dispute is only between two branches. The plaintiffs in the present case have filed suit seeking relief of partition and separate possession. The plaintiffs have contended that the suit schedule properties are the joint family ancestral properties and therefore, claimed that they have got 1/2 share in the suit schedule properties. The plaintiffs have specifically pleaded that after death of common ancestor Boodeppa, his two sons namely Honnappa and Khandappa succeeded to the suit schedule properties and they were in joint possession and enjoyment over the suit schedule properties. Therefore, the plaintiffs contended that they are entitled for 1/2 share in the suit schedule properties.

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It is also alleged at paragraph No.5 of the

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plaint that the suit lands were nominally transferred in

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the name of Honnappa after death of Boodeppa, as he was the eldest son. Therefore, by claiming that the suit schedule properties are joint family ancestral properties, the plaintiffs have instituted the present suit seeking relief of partition.

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On receipt of summons, the defendants tendered appearance and filed written statement. Though the defendants did not dispute the relationship between the plaintiffs and defendants, however, the plaintiffs claim that the suit schedule properties are joint family ancestral properties was seriously disputed. Insofar as item No.1 i.e., land bearing Sy.No.480/1 and also residential house held by the joint family are concerned, the defendants contended that there is already partition in the family and item No.1 which is an agricultural land bearing Sy.No.480/1 was partitioned between both the brothers i.e., Honnappa and Khandappa after death of

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Boodeppa. The defendants contended that partition was effected in the year 1967 in the presence of relatives and well wishers and out of 5 acres 6 guntas, the defendants' ancestor Honnappa was allotted 2 acres 23 guntas and plaintiffs' ancestor Khandappa was allotted 2 acres 23 guntas.

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Insofar as item No.2 is concerned, the defendants specifically contended that the suit land bearing Sy.No.480/2 measuring 2 acres 23 guntas was admittedly tenanted land and Honnappa who was cultivating item No.2 in his individual capacity filed form No.7 and the Land Tribunal on enquiry, conferred occupancy rights and therefore, the defendants seriously disputed the claim of plaintiffs insofar as item No.2 is concerned.

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The plaintiffs and defendants to substantiate

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their respective claims have lead in oral and

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documentary evidence. The Trial Court dismissed the suit on the ground that one more house property bearing No.2-130, which is also an ancestral property, is not included. Therefore, the Trial Court proceeded to dismiss the suit.

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Feeling aggrieved by the judgment and decree of the Trial Court preferred an appeal. The Appellate Court having independently assessed the oral and documentary evidence, however, reversed the findings recorded by the Trial Court. The Appellate Court was of the view that even if one house property is left out, it can be included. The Appellate Court was of the view that on account of non-inclusion of house property bearing No.2-130, the suit cannot be dismissed. The Appellate Court was of the view that in fact, one compact house has two portions, which is numbered as house Nos.2/129 and also 2/130. Therefore, the Appellate Court was of the view

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that the Trial Court could have taken note of this aspect and a partition could have been granted in respect of both house properties.

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The Appellate Court, however, concurred with the findings recorded by the Trial Court in regard to the nature of the properties. In absence of documents indicating that there is a partition in the family, the Appellate Court has also concurred with the findings and conclusions recorded by the Trial Court. The Appellate Court was also of the view that item Nos.1 and 2, which are agricultural lands, are also joint family ancestral properties and therefore, proceeded to decree the suit by allowing the appeal.

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This Court vide order dated 28.09.2016 was

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pleased to admit the following substantial question of law.

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Whether the First Appellate Court was right in holding that respondents – plaintiffs are entitled to a share in item No.2 of the suit schedule properties by ignoring Ex.D.24, which is the order of the Land Tribunal dated 19.07.1979 under which, the said item of land was granted to Honnappa pursuant to Form No.7, filed by him and thereafter, Form No.10, issued in the name of Honnappa, vide Ex.D.25?

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Having heard the learned counsel on record exhaustively, this Court is of the view that additional substantial question of law would arise for consideration;

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Whether the concurrent findings of the Courts below that there is no partition in the family is perverse, palpably erroneous and contrary to the clinching rebuttal evidence on record vide Exs.D.1 to 21?

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I have heard the learned counsel appearing

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for the respective parties on the substantial question of law framed on 28.09.2016 as well as additional substantial question of law. I have also given my anxious consideration to the findings recorded by both Courts below.

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My findings in regard to substantial question of law framed on 28.09.2016.

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The plaintiffs are seeking share even in item No.2, which is admittedly a tenanted land. On perusal of Ex.D.24, this Court would find that the Land Tribunal has conferred occupancy rights. The contents of the Land Tribunal Order would throw some light over the controversy as to whether item No.2 was a joint family tenanted land and therefore, occupancy rights granted to the defendants ancestor – Honappa would also enure to the benefit of the

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plaintiffs and therefore, they are not entitled to seek share in item No.2 also, which is a tenanted land.

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The unnumbered paragraph No.1 of the Land Tribunal Order vide Ex.D.24 is culled out as under;

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"In this case, one Sri.Honappa s/o Boodappa r/o Tadibidi has applied in Form No.7 for grant of occupancy rights in respect of suit land Sy. No.480(Aa) measuring 2.25 Acres on 30.07.1975 As required by Section 48-A(2) Public Notice in Form No.8 and individual Notice on objections were received and in response to individual notice the applicant and the Land – Lady are present. On enquiry, the applicant has stated that he is cultivating the suit land since 15-16 years and he is in possession of the suit land till to this date. The opponent Land-Lady has also states on solemn of affirmative that the applicant is cultivating the same from 15-16 years and she has no objection to grant the

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occupancy rights of suit land to the applicant. On verification of the village records, the say of the applicant is confirmed and that he is cultivating the suit land since 1968-69 onwards till today."

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If un-numbered para No.1 is meticulously

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examined, two things emerges. One is that the land lord, who has contested the suit has appeared and has admitted that Honnappa is a tenant. She has also stated that Honnappa is cultivating the suit land for the last 15 to 16 years and she has no objection to grant occupancy rights. Therefore, this clinching evidence would clearly come to the aid of the defendants and the burden cast on the defendants stands discharged. Therefore, the onus shifts on the plaintiffs to establish that item No.2 was a joint family tenanted land.

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Now, let me examine the averments made

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in the plaint. It is quite strange to note that plaintiffs have not even whispered that item No.2 is a tenanted land. There are absolutely no pleadings indicating that propositus – Boodeppa was original tenant and after his death, Honnappa, who is the eldest son in the family, his name was mutated in the revenue records. The plaintiffs have not produced any iota of evidence to demonstrate that Boodeppa was original tenant of the land in question. There are absolutely no pleadings indicating that occupancy right granted to Honnappa was on behalf of the joint family and therefore, it would enure to the benefit of the joint family. Therefore, even in this case, this Court would find that both Courts have mechanically proceeded to grant share even in item No.2 without examining as to whether there are pleadings to that effect and the same is supported by documentary evidence

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indicating that item No.2 was tenanted land of the family and that propositus Boodeppa was cultivating the land in question as a tenant. After his death, his elder son - Honnappa filed Form No.7 on behalf of the entire family. The concept of enuring for the benefit of the family cannot be presumed. Wherever a party seeks share in a tenanted land, he has to plead and prove, it was a joint family tenanted land. There are absolutely no pleadings and even during trial, no documents are produced to establish that as to how they are entitled share even in item No.2. Therefore, Exs.D.24 and 25 clearly indicate that Honnappa was a tenant in his individual capacity and therefore, occupancy rights was granted in his individual capacity and the same would not enure to the benefit of the plaintiffs. Accordingly, the substantial question of law answered in the negative and against the plaintiffs. This Court is of the view that the Appellate Court

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erred in granting share to the plaintiffs even in respect of item No.2.

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Regarding additional substantial question of law;

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The defendants have specifically pleaded prior partition and to substantiate their pleadings have relied on voluminous documents. Though both the Courts found that mutation reporting oral partition is not placed on record, this Court is of the view that both Courts have virtually misread the clinching rebuttal evidence on record. The defendants have specifically pleaded that there was a partition in the family way back in the year 1957. The voluminous documents are produced. Exs.D.1 to D.6 are the property extracts pertaining to house property bearing No.129. This property admittedly is standing in the name of the plaintiffs husband – Khandappa. Similarly, Exs.D.7 to D.12 pertain to the house

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property bearing No.130 and the same is found to be standing in the name of the defendants ancestor Honnappa.

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Now, in so far as agricultural land is concerned i.e., item No.1 bearing Sy. No.480/1 measuring 5 acres 6 guntas, even in the said revenue record vide Exs.D.13 to 21, this Court would find that both the brothers are shown to be owners to an extent of 2 acres 23 guntas each. Coupled with these rebuttal evidences, this Court would find that the defendants have succeeded in eliciting in crossexamination of plaintiffs in regard to severance in the family. The relevant cross-examination is culled out, which reads as under;

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"ºÉÆ£Àß¥Àà wÃjPÉÆ¼ÀÄîªÁUÀ CªÀ£ÀÄ ¸ÀÄªÀiÁgÀÄ 50 ªÀµÀðzÀªÀ£ÀÄ EzÀÝ£ÀÄ. ºÉÆ£Àß¥Àà wÃjPÉÆ¼ÀÄîªÁUÀ DvÀ£À ºÉAqÀw CªÀÄgÀªÀé ¸ÀÄªÀiÁgÀÄ 40 ªÀµÀðzÀªÀ¼ÀÄ EzÀÝ¼ÀÄ. £À£ÀUÉ £ÀªÀÄä HgÀ°èAiÉÄ UÉÆ¥Á®¥Àà EvÀ£À ¥ÀjZÀAiÀÄ EzÉ. CªÀ£ÀÄ £À£Àß ºÉÆ®ªÀ£ÀÄß EzÉÃ ªÀµÀð ¸ÁUÀÄªÀ½ ªÀiÁrzÁÝ£É. £Á£ÀÄ DvÀ¤UÉ

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PÀlÖ UÀÄwÛUÉAiÀÄ ªÉÄÃ¯É PÉÆnÖzÉÝÃ£É. CªÀ£ÀÄ MAzÀÄ ªÀµÀðPÉÌ £À£ÀUÉ JAlÄ ¸Á«gÀ gÀÆ¥Á¬ÄAiÀÄ£ÀÄß PÉÆqÀÄvÁÛ£É. UÉÆÃ¥Á®¥Àà F ªÀµÀð ªÀiÁqÀÄªÀÅzÀQÌAvÀ ¥ÀÆªÀðzÀ°è £À£Àß d«ÄÃ£À£ÀÄß AiÀiÁgÀÄ ªÀiÁqÀÄwÛgÀ°¯Áè. £ÁªÀÇ PÉÆrAiÉÄÃ EzÉÝÃªÀÅ. £ÀªÀÄä §Æ«ÄUÀ½UÉ AiÀÄÄPÉ¦¬ÄAzÁ ¤ÃgÀÄ §A¢ªÉ. FUÀ 2 ªÀµÀðzÀ »AzÉ F ¥ÀæPÁgÀ ¤ÃgÀÄ §AzÀ ¨sÀÆ«ÄUÀ¼ÀÄ ¸ÀÄªÀiÁgÀÄ 50 ¸Á«gÀ gÀÆ¥Á¬Ä ¨Á¼ÀÄwÛzÀÝªÀÅ. £ÁªÀÅ ªÀÄvÀÄÛ ¥ÀæwªÁ¢AiÀÄgÀÄ EªÀwÛUÀÆ PÀÆqÁ PÉÆrAiÉÄÃ EzÉÝÃªÉAzÀÄ £Á£ÀÄ ¸ÀÄ¼ÀÄî ºÉÃ¼ÀÄwÛzÉÝÃªÉ J£ÀÄßªÀzÀÄ ¸ÀÄ¼ÀÄî. 2 JPÀgÉ 23 UÀÄAmÉ d«ÄÃ¤£À°è £À£ÀUÁUÀ°Ã, £À£Àß UÀAqÀ¤UÁUÀ°Ã, £À£Àß ªÀÄUÀ½UÉUÁUÀ°Ã AiÀiÁªÀÅzÉÃ jÃw¬ÄAzÁ ¸ÀA§AzsÀ E®è J£ÀÄßªÀzÀÄ ¸ÀÄ¼ÀÄî,"

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In the cross-examination, plaintiff No.1, who

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is the widow of Khandappa, she has admitted in unequivocal terms that they are cultivating their portions of lands through one tenant by name Gopalappa. She has admitted in unequivocal terms that she has leased her portion of land on crop basis. If there is no severance in the family, then plaintiff

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No.1 widow would not have leased a portion of the

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land in favour of a stranger. The fact that she is cultivating her portion of the land through a stranger by way of lease in itself constitutes severance in the family and also demonstrates that pursuant to severance, the respective parties are exclusively enjoying their respective portions.

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A strong inference that arises in the present case on hand based on the said categorical admission that the partition set up by the defendants in the year 1967 not only stands probabilized but stands proved on account of clinching rebuttal evidence coupled with admissions elicited in the cross-examination. Therefore, the concurrent findings of the Courts below that there is no partition that the defendants have failed to prove oral partition is perverse, patently erroneous and contrary to the clinching rebuttal evidence on record. Even if partition within the family

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is not proved by a documentary evidence, the

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subsequent act of parties, which can be gathered from the revenue records, has to be taken into consideration to ascertain as to whether there is severance in the family or not. These vital documents and significant details are ignored by both Courts. The entire approach adopted by both Courts appears to be erroneous. There is no proper appreciation of evidence on record. The pleadings are not properly examined to ascertain as to whether the plaintiff is entitled for relief. Pleadings are casually dealt and both Courts have superficially arrived at a conclusion that there is no partition in the family and all the properties are joint family ancestral properties. The conduct of the plaintiffs is also not meticulously examined by both the Courts. The plaintiffs conveniently do not include the property bearing No.129, which was allotted to their ancestor – Boodeppa and they are in exclusive possession and

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the partition suit is filed only in respect of house property bearing No.130, which was allotted to defendants ancestor - Honnappa. This fact is also missed out by both the Courts. Therefore, the concurrent findings recorded by Courts below on oral partition suffers from perversity and serious infirmities and therefore, the said findings are not sustainable. Accordingly, the additional substantial question of law is answered in the Negative and against plaintiffs.

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For the foregoing reasons, I pass the following;

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ORDER

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This regular second appeal is allowed.

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The judgment and decree dated 02.11.2007 passed by the Civil Judge (Sr. Dvn.) at Shorapur in RA No.27/2007 in reversing the judgment and decree

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dated 22.12.2005 passed by the Civil Judge (Jr. Dvn) at Shahapur in O.S.No.205/1997 and decreeing the suit is set-aside.

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Suit is dismissed.

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Sd/JUDGE

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RSP/NBM

Amarawwa W/O Honnappa Talgeri v. Maremma W/O Khandappa Talgeri

Case brief

What is this about?

What did the court decide?

Amarawwa W/O Honnappa Talgeri v. Maremma W/O Khandappa Talgeri

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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