Appeal against a civil judgment dismissing a partition suit regarding specific properties. The High Court affirmed the lower court's finding that disputed properties were self-acquired based on a registered sale deed and lack of contrary evidence, dismissing the appeal.
The appeal was dismissed and all pending interim applications were disposed of.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
NC: 2023:KHC:43304 RFA No. 130 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR REGULAR FIRST APPEAL NO. 130 OF 2022 (PAR)
BETWEEN:
W/O. SHIVANNA, AGED ABOUT 47 YEARS R/AT NO. 3RD CROSS, NEAR NSC OFFICE, DODDAMANDIGANAHALLI VILLAGE, KASABA HOBLI, HASSAN TALUK, HASSAN DISTRICT 573201.
PRESENTLY R/AT NO. 64, BOVIPALYA, SADANAHALLI POST, NAVARATNA AGRAHARA, BANGALORE 562110
Digitally signed by VANDANA S Location: HIGH COURT OF KARNATAKA
W/O. H R CHANDRA, AGED ABOUT 41 YEARS R/AT TEJAS NILAYA, 2ND STAGE, NEAR PARK, VIJAYANAGARA EXTENSION, HASSAN 573201
…APPELLANTS
(BY SRI. CHETHAN B., ADVOCATE)
AND:
W/O. PRAKASHA AGED ABOUT 46 YEARS R/O. NO. 3RD CROSS, VALLABAYI ROAD,
NC: 2023:KHC:43304 RFA No. 130 of 2022
HASSAN 573201
…RESPONDENTS
(BY SRI.D.NAGARAJ., ADVOCATE FOR R1, R2 & R5 R3 & R4 ARE SERVED & UNREPRESENTED)
THIS RFA IS FILED UNDER SEC. 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 29.11.2021 PASSED IN OS.NO. 72/2019 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, HASSAN, PARTLY DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION AND ETC.,
NC: 2023:KHC:43304 RFA No. 130 of 2022
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the impugned judgment and decree dated 29.11.2021 passed in O.S.No.72/2019 by the Additional Senior Civil Judge & JMFC, Hassan (hereinafter referred to as the ‘Trial Court’ for short) whereby the said suit filed by respondent No.1-plaintiff against the appellants-defendants No.3 and 5 and respondents No.2 to 5 - defendants No.1, 2, 4 and 6 for partition and separate possession of the plaintiff’s alleged share in the suit schedule immovable properties was decreed in part, thereby declaring that the plaintiff and defendants No.1 to 6 were entitled to 1/7th share in item Nos.2 and 3 of the suit schedule properties. By the impugned judgment and decree, the Trial Court dismissed the suit of the plaintiff in respect of item No.1 of the plaint schedule properties.
Dyavegowda, while the appellants-defendant Nos.3 and 5 and respondents No.3 to 5 - defendant Nos.2, 4 and 6 are the remaining daughters of respondent No.2-defendant No.1.
contention of the plaintiff that the suit schedule properties are joint family properties and sought for dismissal of the suit.
ISSUES
1. Whether the plaintiff proves that the suit schedule properties are joint family properties of herself and defendants?
2. Whether the plaintiff has share in the suit properties? If so, to what extent?
3. Whether the defendant No.1 proves that item No.1 property is his self-acquired property?
4. What order or decree?
were marked. Defendant No.1 examined himself as DW1 and defendant No.6 as DW2 and Exs.D1 to D4 were marked. After hearing the parties, the Trial Court came to the conclusion that it was an undisputed fact that item Nos.2 and 3 of the suit schedule properties were joint family properties and were liable to be partitioned. However, in the light of the pleadings and evidence of
the parties coupled with the registered sale deed in particular, the unimpeached, unchallenged and uncontroverted evidence of DWs.1 and 2 to the effect that item No.1 of the suit schedule properties was a separate and self-acquired property of defendant No.1, the Trial Court proceeded to dismiss the suit insofar as item No.1 was concerned. In this context, it is relevant to state that the plaintiff has not filed a separate appeal/cross-objection/crossappeal as against dismissal of the suit in respect of item No.1 of the suit schedule properties. However, the present appeal is preferred by defendants No.3 and 5 inter alia contending that item No.1 of the suit schedule properties was also a joint family property and the same deserves to be partitioned between the parties.
consequently available for partition. It is therefore contended that the impugned judgment and decree insofar as it relates to dismissing the suit for partition and separate possession in respect of item No.1 of the suit schedule properties deserves to be set aside and a decree for partition is to be passed in respect of item No.1 of the suit schedule properties also.
family property and consequently, the Trial Court was fully justified in dismissing the suit in respect of item No.1, particularly when the plaintiff (PW1) herself had admitted that item No.1 was separate and self-acquired property of defendant No.1 and the plaintiff had not filed a separate appeal/cross-appeal/cross-objection challenging the impugned judgment and decree. It was therefore submitted that there is no merit in the appeal and the same is liable to be dismissed.
11. Re:Point Nos.1 and 2:
Since both these points are inter-linked, they are taken up together for consideration.
NC: 2023:KHC:43304 RFA No. 130 of 2022
the plaintiff specifically contended that all three items of suit schedule properties were joint family and ancestral properties. However, in their common written statement, the appellantsdefendants No.3 and 5 along with defendant Nos.2 and 4 disputed and denied the various contentions and claims put forth by the plaintiff. A perusal of the written statement of appellants-defendant Nos.3 and 5 will indicate that there is no averment to the effect that item No.1 of the suit schedule property was a joint family/ancestral property. In this regard, it is trite law that in the absence of pleadings, no amount of evidence can be looked into by a Court and on this ground alone, the claim of the appellants-defendant Nos.3 and 5 that item No.1 of the suit schedule property was a joint family property cannot be accepted.
NC: 2023:KHC:43304 RFA No. 130 of 2022
admitted that item No.1 of the suit schedule property was a separate and self-acquired property of her father-defendant No.1.
NC: 2023:KHC:43304 RFA No. 130 of 2022
was a joint family property is by inviting my attention to the entries in the revenue records which state that item No.1 was an ancestral property in the hands of defendant No.1. In this context, it has to be stated that the said entry is clearly erroneous inasmuch as Ex.D1, the registered sale deed dated 28.11.1968 clearly establishes that the said property was purchased by defendant No.1 and consequently, the presumption available under Section 133 of the Karnataka Land Revenue Act, 1964, regarding genuineness and validity of the entries in the revenue records clearly stand rebutted by registered sale deed dated 28.11.1968 which came into existence at an undisputed point in time evidencing that item No.1 of the suit schedule property was a separate and self-acquired property of defendant No.1.
considered opinion that the Trial Court was fully justified in coming to the conclusion that item No.1 of the suit schedule property was a separate and self-acquired property of defendant No.1. Accordingly, point Nos.1 and 2 are answered against the appellants.
In view of dismissal of the appeal, all pending IAs., stand disposed of accordingly.
JUDGE
Sd/-
JT/-
3 issues framed by the court
Whether the Trial Court was justified in concluding that the disputed property was self-acquired rather than joint family property?
Whether the registration of the sale deed rebutted the presumption of ancestral property under revenue records?
Whether the appeal warrants interference given the lack of counter-evidence by appellants?
Colour shows how this judgement treated each authority
nullReferred
2 provisions across 2 enactments
Hemalatha
Tulasi D R
Lolakshi
Dyavegowda @ Raju @ Rajegowda
Renukamma
Kumari
S.R. Krishna Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
