Partly allowed

Shri.Ghulappa S/O Balappa Doddamani v. Shri.Subhas S/O Ghulappa Doddamani

Karnataka HC6 Dec 2024RFA/100324/2019

Case brief

AI extract

What is this about?

Cross appeals in a partition suit over agricultural and purchased properties. The High Court held 'B' schedule tenancy was acquired by defendant No.1 individually in 1963, not inherited from the propositus, so 'B' to 'E' schedule properties were self-acquired; properties in plaintiffs No.2 and 4's names were also self-acquired; suit on sold items failed as time-barred.

What the court decided

AI extract

Shri.Ghulappa S/O Balappa Doddamani Vs Shri.Subhas S/O Ghulappa… — Partition | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 6^TH DAY OF DECEMBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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REGULAR FIRST APPEAL NO.100190 OF 2019 (PAR/DEC-) C/W

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REGULAR FIRST APPEAL NO.100324 OF 2019

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IN RFA NO.100190/2019 BETWEEN:

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SHRI. SUBHAS S/O. GHULAPPA DODDAMANI, AGE:49 YEARS, OCC:MILITARY SERVICE, R/O HUKKERI, TQ:HUKKERI, DIST:BELAGAVI 591309 NOW R/O. NASIK – 422001.

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ASHPAK KASHIMSA MALAGALADINNI

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Location: HIGH COURT OF KARNATAKA

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SHRI. BASAVANNI S/O. GHULAPPA DODDAMANI AGE: 60 YEARS, OCC:AGRICULTURE and SERVICE, R/O ANJANEYA NAGAR, HUKKERI, TQ:HUKKERI, DIST:BELAGAVI 591309.

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SHRI. MALLAPPA S/O. GHULAPPA DODDAMANI, AGE: 56 YEARS, OCC: MILITARY SERVIC, R/O: SWAMI VIVEKANAND NAGAR, HUKKERI, TQ:HUKKERI, DIST:BELAGAVI 591309.

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SHRI. SHIVASHANKAR S/O. GHULAPPA DODDAMANI, AGE:52 YEARS, OCC:AGRICULTURE and SERVICE,

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R/O: SWAMI VIVEKANAND NAGAR, HUKKERI, TQ:HUKKERI, DIST:BELAGAVI 591309.

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…APPELLANTS

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(BY SRI. SHIVARAJ S. BALLOLI AND SRI. RAMESH I. ZIRALI, ADVOCATES)

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AND:

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SMT.GANGAVVA W/O. GHULAPPA DODDAMANI, AGE: 90 YEARS, OCC:HOUSEHOLD WORK, R/O: COURT CIRCLE, HUKKERI, TQ:HUKKERI, DIST: BELAGAVI 591309.

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SHRI. SHIVAPPA S/O. GHULAPPA DODDAMANI, AGE:58 YEARS, OCC:AGRICULTURE, R/O COURT CIRCLE, HUKKERI, TQ:HUKKERI, DIST:BELAGAVI 591309.

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SHRI. BALAPPA S/O. GHULAPPA DODDAMANI, AGE:54 YEARS, OCC:AGRICULTURE, R/O COURT CIRCLE, HUKKERI, TQ:HUKKERI, DIST:BELAGAVI 591309.

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SMT. REKHA W/O. MARUTI DODDAMANI, AGE:48 YEARS, OCC:HOUSEHOLD WORK, R/O COURT CIRLCE, HUKKERI, TQ:HUKKERI, DIST:BELAGAVI 591309.

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SHRI. SHUBHAM S/O. MARUTI DODDAMANI, AGE:22 YEARS, OCC:EDUCATION,

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R/O COURT CIRCLE, HUKKERI, TQ:HUKKERI, DIST:BELAGAVI 591309.

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SHRI. VICKY S/O. MARUTI DODDAMANI, AGE: 20 YEARS, OCC:EDUCATION, R/O: COURT CIRCLE, HUKKERI, TQ:HUKKERI, DIST:BELAGAVI 591309.

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SMT. LAXMIBAI W/O. DUNDAPPA TALWAR, AGE:62 YEARS, OCC: HOUSEHOLD WORK/AGRICULTURE, R/O. C/O. GANGAVVA W/O. GHULAPPA DODDAMANI, COURT CIRCLE, HUKKERI, TQ:HUKKERI, DIST:BELAGAVI 591309.

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SMT. BALAVVA W/O. CHANDRAPPA NIJANNAVAR, AGE: 66 YEARS, OCC: HOUSEHOLD WORK/AGRICULTURE, R/O: GAVANAL, TQ:HUKKERI, DIST:BELAGAVI 591309.

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SMT. PARVATI W/O. NAGAPPA TALAWAR, AGE: 63 YEARS, OCC: HOUSEHOLD/AGRICULTURE, R/O H.NO.C-126, HIDKAL DAM, TQ:HUKKERI, DIST: BELAGAVI 591309.

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SHRI. BASAVANT S/O. MALLAPPA SANKESHWARI, AGE:77 YEARS, OCC:PENSIONER/AGRICULTURE, R/O: YALIMUNNOLI, TQ:HUKKERI, DIST: BELAGAVI 591309.

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…RESPONDENTS

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(BY SMT. SUNANDA P. PATIL, ADVOCATE FOR R1 TO R3 & R7; SRI. SHARAD V. MAGADUM, ADVOCATE FOR R4 TO R8; R9 AND R10 SERVED, BUT UNREPRESENTED )

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THIS RFA FILED UNDER ORDER 41 R(1) R/W SEC. 96 OF CPC., PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 18.02.2019 PASSED IN O.SNO.56/2012 ON THE FILE OF SENIOR CIVIL JUDGE, HUKKERI IN SO FAR AS IT RELATES TO THE FINDING AND OBSERVATION ON ADDITIONAL ISSUE NO.3 BY ALLOWING THE TOP NOTED APPEAL TO MEET THE ENDS OF JUSTICE AND EQUITY.

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IN RFA NO.100324/2019 BETWEEN:

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SHRI.GHULAPPA S/O. BALAPPA DODDAMANI SINCE DECEASED BY HIS LEGAL REPRESENTATIVES APPELLANTS and RESPONDENTS 1 TO 9

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SMT.GANGAVVA W/O. GHULAPPA DODDAMANI, AGE: 90 YEARS, OCC: HOUSEHOLD/AGRICULTURE, R/O: COURT CIRCLE, HUKKERI-591309, TQ: HUKKERI, DIST: BELAGAVI.

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SHRI. SHIVAPPA S/O. GHULAPPA DODDAMANI, AGE: 58 YEARS, OCC: AGRICULTURE, R/O: COURT CIRCLE, HUKKERI-591309, TQ: HUKKERI, DIST: BELAGAVI.

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SHRI.BALAPPA GHULAPPA DODDAMANI, AGE: 54 YEARS, OCC: AGRICULTURE, R/O: COURT CIRCLE, HUKKERI-591309, TQ: HUKKERI,

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DIST: BELAGAVI.

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SMT. LAXMIBAI W/O. DUNDAPPA TALAWAR, AGE: 62 YEARS, OCC: HOUSEHOLD/AGRICULTURE, R/O: C/O. GHULAPPA BALAPPA DODDAMANI, COURT CIRCLE, HUKKERI-591309, TQ: HUKKERI, DIST: BELAGAVI.

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…APPELLANTS

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(BY SMT. SUNANDA P. PATIL, ADVOCATE)

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AND:

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SHRI. SUBHAS S/O. GHULAPPA DODDAMANI, AGE: 49 YEARS, OCC: MILITARY SERVICE, R/O: HUKKERI-591309, TQ: HUKKERI, DIST: BELAGAVI, NOW AT R/O: NASIK-MAHARASHTRA.

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SHRI. BASAVANNI S/O. GHULAPPA DODDAMANI, AGE: 60 YEARS, OCC: AGRICULTURE/SERVICE, R/O: AANJANEYA NAGAR, HUKKERI-591309, TQ: HUKKERI, DIST: BELAGAVI.

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SHRI. MALLAPPA S/O. GHULAPPA DODDAMANI, AGE: 56 YEARS, OCC: MILITARY SERVICE, R/O: SWAMI VIVEKANAND NAGAR, HUKKERI-591309, TQ: HUKKERI, DIST: BELAGAVI.

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SHRI.SHIVASHANKAR S/O. GHULAPPA DODDAMANI, AGE: 52 YEARS, OCC: AGRICULTURE/SERVICE, R/O: VIVEKANAND NAGAR, HUKKERI-591309, TQ: HUKKERI, DIST: BELAGAVI.

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SHRI.MARUTI GHULAPPA DODDAMANI, SINCE DECEASED BY HIS LRS.

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SMT. REKHA W/O. MARUTI DODDAMNI, AGE: 48 YEARS, OCC: HOUSEHOLD, R/O. HOUSE NO.54/4, POLICE HEAD QUARTERS, BELAGAVI- 590 001. TALUKA: BELAGAVI, DIST: BELAGAVI.

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SHRI. SHUBHAM S/O. MARUTI DODDAMANI, AGE: 22 YEARS, OCC: EDUCATION, R/O: HOUSE NO.54/4, POLICE HEAD QUARTERS, BELAGAVI-590001, TQ: BELAGAVI, DIST: BELAGAVI.

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SHRI. VICKY S/O. MARUTI DODDAMANI, AGE: 20 YEARS, OCC: EDUCATION, R/O: HOUSE NO.54/4, POLICE HEAD QUARTERS, BELAGAVI-590001, TQ: BELAGAVI, DIST: BELAGAVI.

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SMT. BALAVVA W/O. CHANDRAPPA NIJANNAVAR, AGE: 66 YEARS, OCC: HOUSEHOLD/AGRICULTURE, R/O: GAVANAL-591001,

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TQ: BELAGAVI, DIST: BELAGAVI.

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SMT. PARVATI W/O. NAGAPPA TALAWAR, AGE: 64 YEARS, OCC: HOUSEHOLD/AGRICULTURE, R/O: H.NO.C-126, HIDAKAL DAM-591107, TQ: HUKKERI, DIST: BELAGAVI.

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SHRI. BASAVANT S/O. MALLAPPA SANKESHWARI, AGE: 77 YEARS, OCC: PENSIONER/AGRICULTURE, R/O: YALIMUNNOLI-591236, TQ: HUKKERI, DIST: BELAGAVI.

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…RESPONDENTS

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(BY SRI. SHIVARAJ S. BALLALI, ADVOCATE FOR R1 TO R4; SRI. PRAVEEN GEJJI, ADVOCATE FOR R5 TO R9; R10-SERVED BUT UNREPRESENTED)

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RFA FILED UNDER SEC. 96 READ WITH ORDER 41 RULE 1 OF CPC., PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 18.02.2019 PASSED BY THE SENIOR CIVIL JUDGE, HUKKERI IN 56/2012 AND DISMISS THE SUIT OF THE PLAINTIFFS.

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THIS APPEAL COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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CORAM: THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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ORAL JUDGMENT

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RFA No.100190/2019 is arising from a decree in O.S.No.56/2012 on the file of Senior Civil Judge, Hukkeri. This appeal is filed by the plaintiffs.

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The suit filed by the plaintiffs is decreed. However, on additional issue No.3, the Court has given a finding that plaintiffs have to include three properties bearing Plot No.16 in R.S.No.111/1B and Plot Nos.9 and 12 in R.S.No.57/1B of Hukkeri village of Hukkeri taluk as schedule properties and ordered partition in the said properties as well.

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The plaintiffs contend that plot No.16 in Sy.No.57/1B belongs to plaintiff No.2 and remaining two properties belong to plaintiff No.4. It is their contention that both of them are employed and those properties are purchased from their self-earning. Hence, plaintiffs are aggrieved by the aforementioned portion of the decree and finding on additional issue No.3.

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Defendants No.2, 3, 4 and 6 filed RFA

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No.100324/2019 aggrieved by the decree in respect of the property in schedule ‘A’, which is already sold and decree in respect of ‘B’ and ‘E’ schedule properties.

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The defendants also contend that item No.3 and 4 of ‘A’ schedule were sold 35 years prior to the institution of the suit and purchasers are not made as parties and suit is not maintainable in respect of those properties.

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The defendants further contend that ‘B’ schedule properties are self-acquired properties of defendant No.1 as tenancy was acquired by defendant No.1 in his individual capacity in the year 1963 and later occupancy right is granted in favour of defendant No.1 by the Land Tribunal in his individual capacity. As such, suit is not maintainable in respect of said properties.

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As far as ‘C’ and ‘D’ schedule properties are concerned, it is stated that those properties are purchased by defendant No.1. Hence, suit is not maintainable in

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respect of said properties. It is further stated that item No.1 in ‘C’ schedule is the property situated in schedule ‘B’, the tenanted land for which the occupancy is granted. As far as schedule ‘D’ property is concerned, said property is said to have been purchased by defendant No.1 in the year 1977. As far as item No.2 in schedule ‘D’ is said to have been purchased in the year 1977.

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Existence of ‘E’ schedule property is disputed. As such, they prayed for dismissal of suit in respect of ‘E’ schedule properties.

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The trial Court on appreciation of the evidence held that ‘A’ schedule properties are ancestral properties and granted a decree for partition.

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As far as ‘B’ schedule properties are concerned, trial Court held that tenancy is inherited by defendant No.1, as such, grant of occupancy enures to the benefit of plaintiffs as well. As far as ‘C to E’ schedule properties are concerned, trial Court again concluded that they are the

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properties acquired from the income from the joint family

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properties and granted a decree for partition.

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In Addition, trial Court noticed that three other properties stand in the names of plaintiffs No.2 and 4 as already discussed above and those properties are also purchased from the joint family income and issued a direction to include those properties in the final decree proceedings. Hence, aforementioned two appeals.

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Sri Shivaraj Balloli, learned counsel appearing for the appellants would contend that finding on additional issue No.3 is erroneous. It is his contention that plaintiffs No.2 and 4 were admittedly employed and they had independent source of income and from that they have purchased the properties and the defendants cannot claim that those properties are the joint family properties. It is his contention that presumption in favour of selfacquisition is strengthened given the fact that plaintiffs No.2 and 4 were employed and having salary. There was no evidence to rebut the presumption and trial Court could

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not have issued a direction to include those properties as the joint family properties while giving finding on issue No.3. Thus, he would urge that finding on additional issue No.3 has to be expunged and portion of the decree that the aforementioned three properties standing in the names of plaintiffs No.2 and 4 are to be included in the final decree proceedings, is to be set-aside.

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Learned counsel appearing for the defendants/appellants would contend that plaintiffs’ contention that ‘B’ schedule properties are the ancestral properties, is not established.

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On the other hand, defendant No.1 has produced evidence to show that tenancy is acquired for the first time in the year 1963. Whereas Balappa, the propositus died in the year 1943 and he was not a tenant in respect of ‘B’ schedule properties. Occupancy right is granted noticing the acquisition of tenancy for the first time in the year 1963 and said grant would enure to the benefit of defendant No.1 alone.

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It is also her contention that items No.2 and 3 of ‘A’ schedule have been sold 35 years prior to institution of suit and plaintiffs were aware of the sale and they did not challenge the alienation after attaining majority and the suit is time barred. It is also her further contention that remaining properties at ‘C’ and ‘D’ schedule are the properties acquired from the income from ‘B’ schedule properties. Since ‘B’ schedule properties are the selfacquired properties of defendant No.1, the ‘C’ and ‘D’ schedule properties should be construed as self-acquired properties of defendant No.1.

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It is further stated that existence of movables i.e., ‘E’ schedule properties is not established, a decree for ‘E’ schedule properties is liable to be set-aside.

¶95

Sri Shivaraj Balloli, learned counsel appearing for the plaintiffs/appellants by way of reply, would contend that form No.7 produced by the plaintiffs marked at Exs.P17 and 18 would disclose the fact that defendant No.1 had made a statement in the year 1974 that they are

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cultivating the property for the past 30 years which would relate back to 1944. Thus, he would contend that plea that it is the ancestral property, is established.

¶98

Learned counsel appearing for defendant No.1 would contend that recital in form No.7 is proved to be wrong as the name of defendant No.1-Ghulappa is entered in the property records of suit schedule property for the first time in the year 1963 and she would also submit that after the death of Ghulappa-defendant No.1, mutation is certified only in respect of three properties bearing Sy.Nos.200/30, 200/37 and 380/34 as evidenced in M.E.No.1747 marked at Ex.P.56.

¶99

This Court has considered the contentions

¶100

raised at the bar and perused the records.

¶101

The following points arise for consideration.

¶102

(a) Whether plaintiffs establish that ‘B’ to ‘E’ schedule properties are the joint family properties?

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(b) Whether defendant No.1 establishes that properties bearing Plot No.16 in R.S.No.111/1B and Plot Nos.9 and 12 in R.S.No.57/1B, standing in the name of plaintiffs No.2 and 4 are the joint family properties?

¶105

(c) Whether suit is maintainable in respect of item Nos.3 and 4 of ‘A’ schedule, which have been sold 35 years prior to institution of the suit without impleading the purchasers?

¶106

Admittedly, item No.1 and 2 of ‘A’ schedule

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properties are the ancestral properties, which were standing in the name of family members when the suit was filed in the year 2012. Those are the properties bearing Sy.Nos.380/10 measuring 2-Guntas, 380/11 measuring 2-Guntas. However, in Sy.No.380/11 only ½ share is claimed. In item No.3 and 4 i.e., Sy.No.200/30 measuring 13 guntas and Sy.No.200/37 measuring 12 guntas, partition is sought in the ½ share and the purchasers are not made as parties to the suit.

¶108

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¶109

As can be seen from the aforementioned property records, one can easily conclude that these are not the properties which were yielding income.

¶110

The question is whether ‘B’ schedule properties are the ancestral properties. If so, then the properties purchased from the income from ‘B’ schedule properties would also become the joint family properties. ‘B’ schedule properties measured 10 acres 4 guntas and 1 acre 10 guntas comprising in two distinct survey numbers namely Sy.Nos.205/8 and 241/3. Again in these properties, the partition is sought in the ½ share. Thus, it is evident that the extent of ‘B’ schedule property would be around 5 acre 25 guntas. The plaintiffs claim is that ‘B’ schedule properties being the tenanted properties, propositus was the tenant and after his demise the tenancy is inherited.

¶111

However, no records produced to show that tenancy is inherited from propositus Balappa. The order passed by the Land Tribunal marked at Ex.P.19 would reveal that tenancy is acquired for the first time by

¶112

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defendant No.1-Ghulappa in the year 1963. A reference is made to the said mutation in the order of the Land Tribunal.

¶114

M.E.No.1747 does not disclose inheritance of tenancy after the death of propositus Balappa. Thus, this Court has to hold that plaintiffs have failed to establish that the properties at ‘B’ schedule are ancestral properties.

¶115

There is a presumption that the properties standing in the name of an individual is the self-acquired property. There is also a presumption that the property which is granted in the name of an individual is the selfacquired property. However, the presumption is rebuttable. The burden is on the person, who alleges that property is the joint family property.

¶116

On appreciation of the evidence, this Court is of the view that presumption in favour of defendant No.1 in respect of self-acquisition of ‘B’ schedule properties, is not

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rebutted. Plaintiffs have failed to establish the tenancy

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belonged to propositus Balappa.

¶120

Though there is a recital in form No.7 to the effect that tenant was cultivating the property for more than 30 years and the recital is written in the year 1974, and it relates back to 1944, the said statement cannot be construed as an accurate statement and said statement is shown to be wrong from Ex.P.56, the mutation entry. Moreover, the order passed by the Land Tribunal, makes reference to acquisition of tenancy for the first time in the year 1963. In case the property was in the hands of propositus Balappa, after his demise, mutation in respect of the tenancy would have been certified recording succession in respect of the tenancy. Such a mutation is not found. Hence, this Court is of the view that plaintiffs have failed to establish that the properties in ‘B’ schedule are the joint family properties.

¶121

It is noticed that entire case of the plaintiffs is that schedule ‘C’ to ‘E’ properties are acquired from the

¶122

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joint family income. Since ‘A’ schedule properties did not yield income, obviously plaintiffs must be claiming that those properties are the joint family properties on the premise that income derived from ‘B’ schedule properties are utilized to purchase properties at schedule ‘C’ to ‘E’. Since ‘B’ schedule properties are held to be self-acquired properties, the contention that ‘C’ to ‘E’ schedule properties are also the joint family properties, cannot be accepted.

¶124

The defendants in the written statement have taken a stand that the properties standing in the name of plaintiffs No.2 and 4 are the joint family properties derived income from schedule ‘B’ schedule properties. The defendants though they have taken a contention that ‘B’ to ‘E’ schedule properties are the self-acquired properties, in the alternative they have also contended that the suit is not maintainable without including the properties standing in the names of plaintiffs No.2 and 4. Since, defendants themselves contend that ‘B’ to ‘E’ schedule properties are

¶125

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the self-acquired properties, they cannot raise a contention that income derived from ‘B’ to ‘E’ schedule properties is utilized to purchase the properties in the names plaintiffs No.2 and 4.

¶127

The presumption of self-acquisition in favour of plaintiffs No.2 and 4 in respect of three properties standing in their names stands strengthened given the fact that plaintiffs No.2 and 4 were gainfully employed. They had independent source of income. Merely because the particulars of the source of income is not pleaded in the plaint and merely because there is no statement in the plaint that those properties are the self-acquired properties, the trial Court could not have held that the properties are the joint family properties.

¶128

It is relevant to note that it is the defendants who raised a contention that said properties are the joint family properties of plaintiffs and defendants. Hence, burden is on the defendants to establish that those properties are standing in the names of plaintiffs No.2 and

¶129

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4 and they are the joint family properties. Since, this Court has concluded that there is no income from the ‘A’ schedule properties, the contention of the defendants that properties standing in the names of plaintiffs No.2 and 4 are also the joint family properties has to be rejected. This Court has to hold that properties standing in the names of plaintiffs No.2 and 4, which are sought to be included in the final decree proceeding are the self acquired properties of plaintiffs No.2 and 4 over which the defendants cannot claim any right.

¶131

It is now stated that defendant No.1-Ghulappa is no more. During his lifetime, he claims to have transferred item Nos.2, 3 and 4 of ‘B’ schedule properties in favour of defendant No.3, schedule ‘C’ in favour of defendants No.3 to 5, schedule ‘D’ in favour of defendants No.3 to 6. Excluding those properties, item No.1 of ‘B’ schedule property would devolve on the plaintiffs as well as all the remaining defendants equally. Hence, decree of the trail Court has to be modified.

¶132

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¶133

As far as item Nos.3 and 4 of the ‘A’ schedule properties is concerned, the properties are sold 35 years prior to the institution of the suit. The plaintiffs have not chosen to challenge the alienation and plaintiffs have not impleaded the purchasers as parties to the proceeding.

¶134

Hence, suit is not maintainable in respect of item Nos.3

¶135

and 4 of ‘A’ schedule.

¶136

Hence, the following:

¶137

ORDER

¶138

(i) Both the appeals are allowed in part.

¶139

(ii) Judgment and decree dated 18.02.2019 passed in O.S.No.56/2012 on the file of Senior Civil Judge, Hukkeri are modified.

¶140

(iii) Suit of the plaintiffs is decreed in part.

¶141

(iv) Each of the plaintiffs is entitled to 1/11^th share in item No.1 and 2 of ‘A’ schedule and each of the defendants No.2 to 8 is entitled to 1/11^th share.

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(v) Suit in respect of item No.3 and 4 of ‘A’ schedule is dismissed on the ground of limitation.

¶144

(vi) Suit in respect of item No.1 in ‘B’ schedule is decreed awarding 1/11^th share to each of the plaintiffs and defendants No.2 to 8.

¶145

(vii) Suit in respect of remaining properties is dismissed.

¶146

(viii) No order as to cost.

¶147

Sd/(ANANT RAMANATH HEGDE) JUDGE

¶148

¶149

CT:ANB

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List No.: 1 Sl No.: 33

Shri.Ghulappa S/O Balappa Doddamani v. Shri.Subhas S/O Ghulappa Doddamani

Case brief

What is this about?

What the court decided

Shri.Ghulappa S/O Balappa Doddamani v. Shri.Subhas S/O Ghulappa Doddamani

Case brief

What is this about?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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