Second appeal by plaintiffs challenging concurrent dismissal of their partition suit claiming ancestral joint family properties. Both courts had found no evidence of joint family nucleus or joint ownership. The High Court found no substantial question of law arose and dismissed the appeal at admission.
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NC: 2024:KHC-D:9418 RSA No. 100590 of 2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 5TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 100590 OF 2020 (PAR/POS-)
BETWEEN:
Digitally signed by SAROJA HANGARAKI
Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD
(BY SRI VITTHAL S. TELI, ADVOCATE)
AND:
…APPELLANTS
- 2 - NC: 2024:KHC-D:9418 RSA No. 100590 of 2020
BABU MALLAPPA KORABU (SINCE DECEASED BY HIS LRS)
- 3 - NC: 2024:KHC-D:9418 RSA No. 100590 of 2020
YAMANAPPA KAREPPA WADIYER SINCE DECEASED BY HIS LRS
- 4 - NC: 2024:KHC-D:9418 RSA No. 100590 of 2020
R/O: AINAPUR, TQ: ATHANI,
DIST: BELAGAVI-591304.
…RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC, 1908, PRAYING TO SET ASIDE OR MODIFY THE JUDGMENT AND DECREE DATED 07.02.2020 PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE, ATHANI IN R.A.NO.17/2015 IN CONFIRMING THE JUDGMENT AND DECREE DATED 13.02.2015 PASSED BY THE I ADDITIONAL CIVIL JUDGE AND JMFC, ATHANI IN O.S.NO.573/2003.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
NC: 2024:KHC-D:9418 RSA No. 100590 of 2020
JUDGMENT
The present second appeal is filed under Section 100 of the Code of Civil Procedure, 19081 by the plaintiff Nos.2 to 4, challenging the judgment and decree dated 07.02.2020 passed in R.A.No.17/2015 by the Principal Senior Civil Judge, Athani2 and the judgment and decree dated 13.02.2015 passed in O.S.No.573/2003 by the I Additional Civil Judge and JMFC, Athani3 , whereunder the suit for partition filed by the plaintiffs has been dismissed by the Trial Court which has been affirmed by the First Appellate Court.
1 Hereinafter referred to as the ‘CPC’
2 Hereinafter referred to as the ‘First Appellate Court’
3 Hereinafter referred to as the ‘Trial Court’
R.S.No.406 measuring 1 acre 36 guntas, R.S.No.802/1A
measuring 8 acre 25 guntas, R.S.No.58/12 measuring 2 acre 9 guntas and R.S.No. 115 measuring 6 acre 12 guntas situated at Ainapur Village4 . That the plaintiffs and defendants are Hindu joint family members. That the suit properties originally belonged to the propositus Waggeppa, who had 2 sons by name Siddappa and Amasidda. That Amasidda is the father of the plaintiffs. That the suit properties were the ancestral joint family properties of Amasidda and Siddappa.
4 Hereinafter referred to as the ‘suit properties’
enjoyment along with Siddappa. That Amasidda also did not give Vardi to get his name entered to the extent of his share along with Siddappa. That taking benefit of the same, Siddappa, during his lifetime, changed the katha into the name of his children. That after the demise of Amasidda, the present plaintiffs are in possession of their legitimate share of the suit properties. That the defendants objected to enter the name of the plaintiffs in the records of rights. Hence, the plaintiffs have filed the suit.
denying the case of the plaintiffs. The defendants admitted that the original propositus by name Waggeppa had 2 sons by name Siddappa and Amasidda. However, the defendants denied that the suit properties are the ancestral joint family properties of Waggeppa and after his demise the said properties were transferred to his sons i.e. Siddappa and Amasidda. The defendants further denied that the father of the plaintiffs was in possession
and enjoyment of the suit properties and after his demise
the plaintiffs are in possession of their half share.
6. It is the further case of the defendants that the
original propositus Waggeppa was not having any property in his name. That Siddappa has 5 children who are in possession and enjoyment of the suit properties.
That said Siddappa Waggeppa Wadiyar and one Murari Siddappa Kurabar purchased 12 acres of land in R.S.No.802/1 from its owner for a consideration of ₹400/on 15.04.1935 and accordingly the joint names of Siddappa and Murari were appearing in the records of rights. That Siddappa Wadiyer from his own earnings purchased the land in R.S.No.115 to the extent of 6 acre 12 guntas of land from its owner for a consideration amount of ₹5,500/- vide registered Sale Deed dated 11.04.1969. That both the lands are self acquired properties of Siddappa and the plaintiffs have no right, title or interest in the said properties. That neither the plaintiffs nor their father were in possession and
enjoyment of the said properties. That the said Siddappa Wadiyer died on 28.09.1985 leaving behind his wife and his children and after his demise, the said properties were transferred in the name of his children, which entry has not been challenged by the plaintiffs till date.
by Govt. of Karnataka to Siddappa as he was in the service of the deity. Hence, it is contended that the
NC: 2024:KHC-D:9418 RSA No. 100590 of 2020
plaintiffs have no right, title or interest in the suit properties.
8. Consequent to the pleadings of the parties, the
Trial Court framed the following issues:
2. Whether the plaintiffs prove that, the defendants have denied the share in the suit properties.?
3. Whether the defendants prove that, the plaintiffs are not the members of the joint family.?
4. Whether the defendants prove that, the plaintiffs have no right over the suit properties.?
5. Whether the defendants prove that the property bearing R.S.No.802/1 and 115 are their self acquired properties.?
6. What order or decree the parties entitled?”
9. Plaintiff No.3 examined himself as PW.1 and
two witnesses have been examined as PWs.2 and 3. Exs.P1 to P7 have been marked in evidence. The defendants have not adduced any evidence before the Trial Court. The Trial Court by its judgment and decree dated 13.02.2015 dismissed the suit with costs.
NC: 2024:KHC-D:9418 RSA No. 100590 of 2020
2. Whether the findings given by the trial court are contrary to the facts and evidence on record?
3. Whether the judgment of the trial court is against law and requires interference?
4. What order?”
acquired properties of their ancestors and the defendants not having adduced any evidence in that regard, both the Courts concurrently erred in dismissing the suit. That the findings recorded by both the Courts that the plaintiffs are not the members of joint Hindu family are erroneous. Hence, he seeks for allowing of the above appeal and granting of the reliefs sought for.
defendants are in possession and enjoyment of the suit properties;
ii. PW.2 has also deposed that as per the instructions of the plaintiffs he has deposed that the properties are ancestral and joint family properties of the plaintiffs and defendants. PW.2 is not aware about anything pertaining to the suit properties;
iii. The plaintiffs have not produced any document to show that the suit properties are the ancestral and joint family properties of the propositus Waggeppa;
iv. The documents produced at Exs.P1 to P4 are the record of rights pertaining to the suit properties standing in the name of the defendants;
that the plaintiffs are not required to discharge their burden of proving that the suit properties are the ancestral and joint family properties of the plaintiffs and defendants;
properties stand in the name of the defendants and there is no joint family property in the name of the plaintiffs and defendants.
NC: 2024:KHC-D:9418 RSA No. 100590 of 2020
the name of the joint family or there was any joint family nucleus so that Siddappa could purchase the suit properties using the joint family nucleus;
viii. There is absolutely no documentary evidence to show that the plaintiffs and defendants and their fathers lived together as a joint family.
liable to be rejected having regard to the fact that the assertion of the plaintiffs that the suit properties are the joint family properties has been denied by the defendants. Hence, the plaintiffs were required to prove that the suit properties were the joint family properties, which they have failed to demonstrate. Since the plaintiffs having failed to produce any document to show that the suit properties stood in the joint names of the ancestors of the plaintiffs and the ancestors of the defendants, it cannot be held that the onus has shifted to the defendants to prove that the suit properties are the self acquired properties of their ancestors. Hence, the contention put forth by the learned counsel for the appellants is rejected.
NC: 2024:KHC-D:9418 RSA No. 100590 of 2020
demonstrating that any substantial question of law arises
for consideration in the present appeal.
appeal is dismissed as being devoid of merit at the stage of admission itself.
Sd/JUDGE
Nd/SH CT:GSM List No.: 1 Sl No.: 42
3 issues framed by the court
Do the suit properties constitute ancestral joint family properties entitling the plaintiffs to a partition share?
Does the failure of defendants to adduce evidence shift the onus onto defendants to prove self-acquisition?
Does any substantial question of law arise in the second appeal?
2 provisions across 1 enactments
Mahadev Amasidda Wadiyer
Oudappa Amasidda Wadiyer
Bilyani Amasidda Wadiyer
Inawandi Waggeppa Wadiyer
Basu Laxman Wadiyer
Madu Siddappa Wadiyer
C.M. Poonacha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
