Dismissed

Girish S/O Premanand Jambavalikar v. Pandurang Bhikaro Sunkeri

Karnataka HC11 Jul 2024RSA/100273/2021

Case brief

AI extract

What is this about?

Cross second appeals by defendants against confirmation of a decree granting the plaintiff a half share (5 guntas) in agricultural land on proof of paternity through school records, revenue entries and testimony of cohabitation of his parents. The High Court found no substantial question of law and dismissed both appeals at admission.

What the court decided

AI extract

Girish S/O Premanand Jambavalikar Vs Pandurang Bhikaro Sunkeri — Partition | Karnataka HC (2024)

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NC: 2024:KHC-D:10418 RSA No. 100440 of 2022 C/W RSA No. 100273 of 2021

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 11^TH DAY OF JULY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE C.M. POONACHA

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REGULAR SECOND APPEAL NO. 100440 OF 2022 (PAR-)

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C/W

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REGULAR SECOND APPEAL NO. 100273 OF 2021

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IN RSA NO. 100440 OF 2022

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BETWEEN:

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NARENDRA S/O PREMANAND JAMBAVALIKAR AGE: 42 YEARS, OCC: BUSINESS AND AGRICULTURIST, R/O SUNKERI, TQ: KARWAR- 581305.

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…APPELLANT

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(BY SRI K.L.PATIL, SRI S.S.BETURMATH, ADVOCATES)

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Digitally signed by SAROJA HANGARAKI

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Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD

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AND:

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PANDURANG BHIKARO SUNKERI AGE: 75 YEARS, OCC: PENSIONER, R/O JOSHIWADA, NANDANGADDA, KARWAR-581304.

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BHANUDAS RAYA JAMBAVALIKAR AGE: 86 YEARS, R/O SUNKERI, TQ: KARWAR, PIN 581305.

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TUKARAM OMESH JAMBAVALIKAR AGE: 84 YEARS, R/O SUNKERI, TQ: KARWAR, PIN 581305.

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NC: 2024:KHC-D:10418 RSA No. 100440 of 2022 C/W RSA No. 100273 of 2021

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SMT. SHRIMANTI TAI OMI JAMBAVALIKAR AGE: 92 YEARS, R/O SUNKERI, TQ: KARWAR, PIN 581305.

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GIRISH S/O PREMANAND JAMBAVALIKAR AGE: 49 YEARS, OCC: SERVICE AND AGRICULTURIST, R/O SUNKERI, TQ: KARWAR, PIN 581305.

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…RESPONDENTS

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(BY SRI GIRISH A. YADAWAD, ADVOCATE FOR R1; SRI GIRISH A. YADAWAD, ADVOCATE FOR R1; SRI N.V.YAJI, ADVOCATE FOR R5)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, 1908, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE ADDITIONAL SENIOR CIVIL JUDGE, KARWAR IN R.A.NO.2/2017 DATED 11.02.2021 IN DISMISSING THE CROSS APPEAL OF THE APPELLANT HEREIN AND THE JUDGMENT AND DECREE PASSED IN O.S.NO.188/2010 DATED 10.04.2017 PASSED BY THE ADDITIONAL CIVIL JUDGE, KARWAR AS IT IS ILLEGAL.

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IN RSA NO. 100273 OF 2021

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BETWEEN:

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GIRISH S/O PREMANAND JAMBAVALIKAR AGE: 49 YEARS, OCC: SERVICE AND AGRICULTURIST, R/O. SUNKERI, KARWAR, PIN-581305.

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…APPELLANT

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(BY SRI. NARAYANA V. YAJI, ADVOCATE)

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AND:

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PANDURANG BHIKARO SUNKERI AGE: 75 YEARS, OCC: PENSIONER, R/O. JOSHIWADA, NANDANGADDA, KARWAR-581304.

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NC: 2024:KHC-D:10418 RSA No. 100440 of 2022 C/W RSA No. 100273 of 2021

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BHANUDAS RAYA JAMBAVALIKAR AGE: 86 YEARS, R/O. SUNKERI, TQ. KARWAR, PIN-581305.

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TUKARAM OMESH JAMBAVALIKAR AGE: 84 YEARS, R/O. SUNKERI, TQ. KARWAR, PIN-581305.

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SMT. SHRIMANTI TAI OMI JAMBAVALIKAR AGE: 92 YEARS, R/O. SUNKERI, TQ: KARWAR, PIN-581305.

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NARENDRA S/O PREMANAND JAMBAVALIKAR

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AGE: 42 YEARS, OCC: BUSINESS AND AGRICULTURIST, R/O. SUNKERI, TQ. KARWAR, PIN-581305.

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…RESPONDENTS

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(BY SRI GIRISH A. YADAWAD, ADVOCATE FOR R1; NOTICE TO R2 TO R4 DISPENSED WITH SRI. K.L.PATIL, SRI. S.S.BETURMATH, SMT. P.S.TADAPATRI AND S.S.SONDUR, ADVOCATES FOR R5)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, 1908, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE ADDITIONAL SENIOR CIVIL JUDGE, KARWAR IN R.A.NO.2/2017 DATED 11.02.2021 AND THE JUDGMENT AND DECREE PASSED IN O.S.NO.188/2010 DATED 10.04.2017 PASSED BY THE ADDITIONAL CIVIL JUDGE, KARWAR AS IT IS ILLEGAL.

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THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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RSA No.100273/2021 is filed by defendant No.3 and RSA No.100440/2021 is filed by defendant No.4. Hence, both the second appeals are taken up together for consideration.

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For the purpose of convenience, the parties will

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be referred to as per their ranking before the Trial Court.

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It is the case of the plaintiff that his father Sri.Bhikaro Shevatu Sunkeri was conferred with occupancy rights in respect of the half share in agricultural land bearing Sy.No.66, measuring 10 guntas of Sunkeri village, Karwar Taluk and half share was conferred on the defendants. It is further contended that his father died on 27.01.1984 leaving behind the plaintiff as his sole legal heir. That the mother of the plaintiff, Kalyanibai expired on 17.01.1991. Hence, the share of the father of the plaintiff in the suit property devolved upon the plaintiff. It is further averred that the name of the plaintiff has been mutated in the revenue records, and the plaintiff is in

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possession and cultivation of the suit property along with the defendants. That the defendants who are the coowners of the suit property are having half share in the same. That in the last week of July 2010 the defendants started construction in the suit property. That the plaintiff requested the defendants for partition and to put him in possession of his half share, but the defendants flatly refused and continued with the construction activity. Hence, the plaintiff filed a suit for partition by granting half share in the suit property.

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The defendant Nos.1, 2 and 5 were placed ex-

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parte. Defendant Nos.3 and 4 have appeared and contested the case of the plaintiff. Defendant No.3 filed the written statement which is adopted by defendant No.4. The said defendants denied that the plaintiff is the son of Bhikaro Shevatu Sunkeri. However, it is admitted that occupancy rights to the extent of half a share in the suit

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property were granted to said Bhikaro Shevatu Sunkeri and half a share to the defendants. It is further contended

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that the said Bhikaro Shevatu Sunkeri was unmarried and therefore the question of the plaintiff being his son does not arise. It is further contended that the plaintiff does not belong to the family of late Bhikaro Shevatu Sunkeri.

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It is the further case of the defendants that they are the only legal heirs of Bhikaro Shevatu Sunkeri and are entitled to his share. That said Bhikaro Shevatu Sunkeri was serving as a primary school teacher and in his service register, there is also no mention about his dependents, as he was unmarried. That after his death, defendant Nos.3 and 4 have performed the last rituals of late Bhikaro Shevatu Sunkeri.

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It is further contended that the residential house situated in the suit property originally belonging to Santosh Omu Jambavalikar and after his death, the names of defendant Nos.3 and 4 entered in the revenue records and that during the lifetime of Bhikaro Shevatu Sunkeri, he used to visit their house. That even during the lifetime of Bhikaro Shevatu Sunkeri he told defendants No.3 that

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NC: 2024:KHC-D:10418 RSA No. 100440 of 2022 C/W RSA No. 100273 of 2021

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after his death the property will devolve upon defendant No.3 only and the said fact was known to all. That the defendants and their predecessors who are in possession of the property for more than 60 years uninterruptedly to the knowledge of Bhikaro Shevatu Sunkeri. Hence, the defendants sought for dismissal of the suit.

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7. Based on the pleadings of the parties, the Trial

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Court framed the following issues:

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“Whether the plaintiff proves that the suit schedule property is undivided Hindu family property?

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Whether the plaintiff further proves that he is entitled to ½ share in the suit schedule property and entitled to partition and separate possession of the same?

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Whether the plaintiff is entitled for the relief claimed?

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What order or decree?

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Addl. Issue

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Whether the plaintiff proves that he is the son of Bhikaro Shevatu Sunkeri?”

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8. The plaintiff examined himself as PW.1 and

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examined a witness as PW.2. Ex.P.1 to Ex.P.7 have been

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NC: 2024:KHC-D:10418 RSA No. 100440 of 2022 C/W RSA No. 100273 of 2021

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marked in evidence. Defendant No.3 examined himself as DW.1. Ex.D.1 to Ex.D.19 have been marked in evidence.

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The Trial Court by its judgment and decree dated 10.04.2017 decreed the suit and passed the following order:

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“Suit of the plaintiff is decreed with costs.

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It is hereby declared that the plaintiff is entitled for 5 gunta in Sy.No.66/1 of Sunkeri village, Karwar Taluka.

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Draw decree accordingly.”

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Being aggrieved, the defendant No.3 preferred

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RA No.2/2017 before the First Appellate Court. Defendant No.4 who was arrayed as respondent No.5 before the First Appellate Court preferred cross-objection in the said appeal. The First Appellate Court framed the following

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points for consideration:

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1. “Whether the trial court erred in decreeing the suit of plaintiff?

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2. Whether the judgment and decree of the trial court call for any interference at the hands of this court?

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3. What order?”

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NC: 2024:KHC-D:10418 RSA No. 100440 of 2022 C/W RSA No. 100273 of 2021

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The First Appellate Court on a re-appreciation of the oral and documentary evidence on record dismissed the appeal and cross-appeal with costs and confirmed the judgment and decree passed by the Trial Court. Being aggrieved, the present second appeals are filed under Section 100 of the Code of Civil Procedure¹ .

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Learned counsel appearing for the appellants in both the appeals vehemently contends that the name of the plaintiff is not mentioned in the Birth Certificate (Ex.D.1) and PW.2 in his evidence has admitted that he has not seen the service record of deceased Bhikaro Shevatu Sunkeri. Hence, it is contended that the order of the Trial Court and the First Appellate Court are erroneous and liable to be set aside.

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Per Contra , learned counsel for the respondent No.1/ plaintiff justifies the concurrent findings recorded by the Trial Court and the First Appellate Court and submits that a combined reading of the SSLC Marks card (Ex.P.6),

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1 Hereinafter referred to as ‘CPC’

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Diploma Marks card (Ex.P.7) and the testimony of PW.2 makes it clear that the plaintiff was the son of deceased Bhikaro Shevatu Sunkeri. It is further contended that both the Courts have concurrently held that the plaintiff is the son of deceased Bhikaro Shevatu Sunkeri and the said concurrent finding recorded ought not to be interfered with by this Court in the present second appeals.

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The submissions of the learned counsels have been considered and the materials on record have been perused including the records of the Trial Court and the First Appellate Court.

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The Trial Court, while adjudicating upon the issues, has recorded the following findings.

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i) It is not in dispute that Bhikaro Shevatu Sunkeri is the owner of the suit property to the extent of 5 guntas. What is in dispute is the fact as to whether the plaintiff is entitled to the property of Bhikaro Shevatu Sunkeri or not;

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NC: 2024:KHC-D:10418 RSA No. 100440 of 2022 C/W RSA No. 100273 of 2021

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ii) PW.1 in his evidence admits that he has not produced any document to show that Bhikaro Shevatu Sunkeri has married his mother Kalyanibai. He further admits that Ganapathi and other daughters of Kalyani Mesta as seen from the Ex.D.14 to Ex.D.17 are his brothers and sisters and they are the sons and daughters of Bhikaro Shevatu Sunkeri;

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iii) To substantiate his case, the plaintiff examined PW.2 who stated that Bhikaro and Kalyani were living together as husband and wife in Sunkeri and that the plaintiff is the only son of Bhikaro Shevatu Sunkeri. He further states that the plaintiff completed primary education in Sunkeri and higher education at Baad Karwar and completed his diploma in Karwar and went to Pune for employment in the year 1967;

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iv) In the cross examination, PW.2 admits that the mother of the plaintiff had children before marrying Bhikaro;

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v) The plaintiff has produced Ex.P.6 and Ex.P.7, the SSLC Marks Card and diploma certificate;

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vi) The defendants came to know that the plaintiff is claiming to be the son of Bhikaro Shevatu Sunkeri by filing objections to the application filed by one Vasant Bandodkar in the year 1984, when the plaintiff claimed that he is the son of Bhikaro Shevatu Sunkeri in the year 1984 and an order is passed entering his name in the record of rights on the basis of the said claim. If the defendants are really interested in denying the paternity, they ought to have filed objections to the claim of the plaintiff as legal heir of Bhikaro Shevatu Sunkeri or ought to have taken some legal steps to ensure that the

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NC: 2024:KHC-D:10418 RSA No. 100440 of 2022 C/W RSA No. 100273 of 2021

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property is not gulped by a stranger, but unlike a common prudent man they have kept quiet;

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vii) The evidence of PW.2 who is an independent witness, clearly states that Bhikaro and Kalyani were living together as husband and wife. In the cross-examination, nothing has been elicited to disprove the statement made in the affidavit;

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viii) As could be seen from the dictum laid down by the Hon’ble High Court and the Apex Court, that when the plaintiff was admittedly born on 28.11.1946, the question of he producing the marriage invitation card or marriage certificate or any document to show that his mother got married to Bhikaro does not arise. It is also to be noted here that just because, the father’s name is left blank in the column to avoid embarrassment in the society, it does not affect

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NC: 2024:KHC-D:10418 RSA No. 100440 of 2022 C/W RSA No. 100273 of 2021

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the rights of the children born in living in relationship;

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ix) On perusal of the documents produced by the defendants to show that mother of the plaintiff, Kalyani was having many children who are not the sons of Bhikaro, the defendants cannot be said to have discharged their burden to prove that plaintiff is not the son of Bhikaro. On the other hand, plaintiff has produced Ex.P.1, Ex.P.2, Ex.P.6 and Ex.P.7 of which it can be seen that a presumption can be raised that he is the son of Bhikaro;

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x) Moreover, in spite of having knowledge regarding the claim of the plaintiff in respect of suit property since, 1984, it perplexes as to how the defendants did not take any steps to disprove the claim of the plaintiff that he is the son of Bhikaro. Hence, I am of the opinion that

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NC: 2024:KHC-D:10418 RSA No. 100440 of 2022 C/W RSA No. 100273 of 2021

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the plaintiff is able to show that he is the son of Bhikaro;

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The First Appellate Court while considering the

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appeal filed by the defendants has recorded the following findings:

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i) The evidence of PW.1 specifically reveals that there is no dispute that the suit property is tenanted property granted in favour of Bhikaro

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Shevatu Sunkeri and defendants;

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ii) RTC (Ex.P.1) with respect to the suit property specifically discloses that the plaintiff has half share and defendant Nos.1 to 5 together are entitled to half share;

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iii) Ex.P.2 discloses that the names of Bhikaro Shevatu Sunkeri and defendant Nos.1 to 5 are entered in view of the issuance of Form No.10;

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iv) On perusal of Ex.P.6 – SSLC Marks card of the plaintiff, it discloses the name of the father of

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NC: 2024:KHC-D:10418 RSA No. 100440 of 2022 C/W RSA No. 100273 of 2021

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the plaintiff as Bhikaro Sunkeri. The said document is of the year 1962;

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v) Ex.P.7 - the Diploma Examination Marks card reveals the name of the plaintiff as Pandurang Bhikaro Sunkeri. The said document is of the year 1965;

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vi) Ex.D.9 is the order sheet of the proceedings before the Taluka Magistrate bearing No. RTS.SR.1545/1985. In the said proceedings, the plaintiff filed an objection against one Vasant.K Bandodkar and Ganapati K.Bandodkar to delete their names in the revenue records in respect of the suit property and the said petition was allowed and the names of Vasant and Ganapati are deleted and the name of the plaintiff is entered;

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vii) Though the learned counsel for the defendants argued that Ex.D.1 does not disclose the name

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NC: 2024:KHC-D:10418 RSA No. 100440 of 2022 C/W RSA No. 100273 of 2021

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of the father and only discloses the name of the mother as Kalyani and Ex.D.2 discloses the name of Kalyani as Kalyani Savalo which indicates that Kalyani is not the wife of Bhikaro and she is the wife of Savalo Mesta, the defendants have not produced any document to show that Kalyani married Savalo. On the other hand, as discussed above, Kalyani is shown as the daughter of Savalo as per Ex.D.1;

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viii) DW.1 in the cross-examination admitted that Bhikaro Shevatu Sunkeri is the father of the plaintiff. Nevertheless, Ex.P.6 and Ex.P.7 are the old documents of the years 1962 and 1965 and Ex.D9 is of the year 1985. The defendants have not challenged Ex.D.9 i.e., entering the name of the plaintiff with respect to the suit survey number;

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ix) Though the defendants have disputed the marriage of Bhikaro Shevatu Sunkeri and

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NC: 2024:KHC-D:10418 RSA No. 100440 of 2022 C/W RSA No. 100273 of 2021

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Kalyani, but the marriage of Bikaro Sukheri with Kalyani is a rebuttable presumption and the defendants have not discharged their burden to rebut the presumption arising out of they longstanding living as husband and wife, which fact is also deposed by PW.2 in his evidence stating that Bhikaro Shevatu Sunkeri married Kalyanibai;

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x) PW.2 is also a retired employee who has specifically admitted that Kalyani was having children before marriage with Bhikaro Shevatu Sunkeri.

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It is forthcoming from the aforementioned that the birth certificate of the plaintiff (Ex.D.1) discloses that the name of the mother as Kalyani, daughter of Savalo. The name of the father is not mentioned in Ex.D.1. The RTC Ex.P.1 discloses that the name of the plaintiff is entered in respect to the half share of the suit property and the name of the defendants with respect to the other

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half share. The School Certificate (Ex.P.6) and Diploma Examination Certificate (Ex.P.7) discloses the name of the father of the plaintiff as Bhikaro.

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PW.2 has deposed regarding Bhikaro Sunkeri and Kalyani living together as husband and wife and the plaintiff being their son. The other aspect regarding the suit property and the education of the plaintiff has also been deposed by PW.2. The said testimony has not been shaken in his cross-examination.

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It is clear from the aforementioned that although the name of the father is not mentioned in the birth certificate (Ex.D.1) of the plaintiff, as concurrently held by both the Courts, in terms of testimony of PW.2, there is a presumption that Bhikaro Shevatu Sunkeri and Kalyani were living together as husband and wife. Further, the School and Diploma Certificates (Ex.P.6 and Ex.P.7) which are of the years 1962 and 1965 indicate the name of Bhikaro Shevatu Sunkeri as the father of the plaintiff.

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As rightly noticed by the First Appellate Court, the said documents were issued at an undisputed point of time.

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The contention of the defendants that PW.2 has not seen the service record of Bhikaro will not in any manner aid the case of the appellants/ defendants as there are overwhelming materials on record to indicate that the plaintiff is the son of Bhikaro Shevatu Sunkeri.

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Another aspect which is detrimental to the case of the defendants is the fact that the order of the Taluka Magistrate (Ex.D.9) passed in the year 1985 wherein, the name of the plaintiff has been ordered to be inserted by deleting the names of Vasant and Ganapati, which fact was within the knowledge of the defendants and they have not taken any steps to dispute the contention raised by the plaintiff, that he is the son of Bhikaro Shevatu Sunkeri.

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It is clear from the aforementioned that the Trial Court has appreciated the oral and documentary evidence on record while decreeing the suit. The First

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Appellate Court has appropriately re-appreciated the oral and documentary evidence while affirming the judgment and decree passed by the Trial Court.

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The appellants have not demonstrated that the said concurrent findings are in any manner erroneous and contrary to any specific oral or documentary evidence on record.

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In view of the aforementioned, the appellants have failed in demonstrating that any substantial question of law arises in the above appeals. Hence, the above appeals are dismissed as being devoid of merit at the stage of admission itself.

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Sd/JUDGE

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PJ CT:GSM List No.: 1 Sl No.: 15

Girish S/O Premanand Jambavalikar v. Pandurang Bhikaro Sunkeri

Case brief

What is this about?

What the court decided

Girish S/O Premanand Jambavalikar v. Pandurang Bhikaro Sunkeri

Case brief

What is this about?

What the court decided

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