Dismissed

Sri. Papalingegowda v. Ganganna

Karnataka HC2 Dec 2024RSA/244/2015

Case brief

AI extract

What is this about?

This regular second appeal against concurrent judgments held that the suit property was the self-acquired property of Defendant No.1, not joint family property. The Court affirmed that prior partitions excluded the suit property, validating the lower courts' dismissal of the partition suit.

What did the court decide?

Confirmation of dismissal of the appeal and validation of the defendant's title to the suit property.

Sri. Papalingegowda Vs Ganganna — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:49296 RSA No. 244 of 2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2^ND DAY OF DECEMBER, 2024 BEFORE

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THE HON'BLE MR JUSTICE RAVI V HOSMANI REGULAR SECOND APPEAL NO.244 OF 2015 (PAR)

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BETWEEN:

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SRI. PAPALINGEGOWDA, S/O KANIMEMAREGOWDA, AGED ABOUT 71 YEARS, R/AT KALLAPURA, KALLAMBELLA HOBLI, SIRA TALUK-512 737, TUMKUR DISTRICT.

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…APPELLANT

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[BY SRI R.NAIK RAMACHANDRA, ADVOCATE (PH)]

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AND:

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GANGANNA, S/O KANIMEMAREGWODA, AGED ABOUT 53 YEARS, R/AT KALLAPURA, KALLAMBELLA HOBLI, SIRA TALUK-572 137, TUMKUR DISTRICT.

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Digitally signed by ANUSHA V Location: High Court Of Karnataka

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SRI. RANGAPPA, S/O KANIMEMAREGOWDA, AGED ABOUT 56 YEARS, R/AT ANJANEYA BADAVANE, NEAR BAPUJI ENGINEERING COLLEGE, DAVANAGERE TALUK AND DISTRICT-577 002.

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SMT. CHIKKATHAYAMMA, D/O KANIMEMAREGOWDA, AGED ABOUT 51 YEARS, R/AT KALLAPURA, KALLAMBELLA HOBLI, SIRA TALUK-572 137, TUMKUR DIST.

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…RESPONDENTS

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(BY SRI H.V. MANJUNATHA, ADVOCATE FOR R-1; R-2 & R-3 ARE SERVED)

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NC: 2024:KHC:49296 RSA No. 244 of 2015

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THIS RSA FILED IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT & DECREE DTD 19.9.2014 PASSED IN R.A.No.84/2009 ON THE FILE OF SENIOR CIVIL JUDGE, GUBBI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DTD 16.6.2009 PASSED IN OS.NO.17/2003 ON THE FILE OF ADDL. CIVIL JUDGE (JR.DN) GUBBI.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI

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ORAL JUDGMENT

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Challenging judgment and decree dated 19.09.2014 passed by Senior Civil Judge, Gubbi, in R.A.no.84/2009 and judgment and decree dated 16.06.2009 passed by Additional Civil Judge (Jr.Dn.), Gubbi, in O.S.no.17/2003, this appeal is filed.

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Brief facts as stated are appellant was plaintiff in suit for partition and separate possession of land bearing Sy.no.24/2 measuring 3 acres 30 guntas situated at Kallugudi village, Chellur Hobli, Gubbi Taluk (hereinafter referred to as 'suit property'). In plaint, it was stated, propositus Kanimemaregowda died leaving behind three sons namely, Papalingegowda (plaintiff herein), Rangappa (defendant no.2) and Ganganna (defendant no.1). It was stated, defendant no.2 had separated after allotment of share in family partition deed,

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NC: 2024:KHC:49296 RSA No. 244 of 2015

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while plaintiff and defendant no.1 continued to reside together and jointly cultivating family properties, when suit property was granted under LNDSR.no.11/1982-83 and name of defendant no.1 mutated vide MR.no.17/1990-91.

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It was stated, plaintiff and defendant no.1 invested Lakhs of rupees of joint family funds, developed suit property. They were jointly cultivating it prior to and after grant. But, on strength of revenue records, defendant no.1 was trying to alienate suit property without consent and for legal necessity. Since suit property was joint family property of plaintiff and defendant no.1, it was liable for partition and plaintiff entitled for half share in it. Hence, suit was filed.

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On appearance, defendant no.1 filed written statement denying plaint averments, but admitted grant of suit property to him. It was stated apart from three sons propositus had a daughter, who was not arrayed as party. Therefore, suit was hit by non-joinder. It was stated, due to misunderstanding in family, defendant no.1 had left house during lifetime of his father and residing in Ranganahalli. It was stated, as he was bonded labour for few years, authorities had granted suit property to him. It was stated, he had invested huge amount

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NC: 2024:KHC:49296 RSA No. 244 of 2015

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by borrowing hand loans and developed it and that same remained unpaid.

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It was stated, plaintiff, defendant no.1 and other brother Ranganna had divided ancestral and joint family properties under registered palupati . As house property was not included in palupati, there was further partition in which new house was allotted to plaintiff along with outstanding loan except to extent of Rs.20,000/-, which was to be paid by defendant. It was further stated that defendant no.1 paid same and obtained acknowledgment. It was stated, suit property was not ancestral or joint family property of plaintiff and defendant no.1 and therefore, not included in palupatti . It was stated on basis of palupatti, revenue records were mutated and parties were in possession of their respective shares as absolute owners. On above grounds, defendant no.1 sought dismissal of suit.

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Defendant no.2 in his written statement denied plaint averments, stating that on strength of palupatti , names of parties were mutated in revenue records. It was stated, suit was bad for non-joinder of all parties mentioned in palupatti . It was also stated, suit property was absolute property of

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NC: 2024:KHC:49296 RSA No. 244 of 2015

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defendant no.1 and plaintiff filed suit to harass and knock off property of defendant no.1. On above grounds, sought dismissal of suit.

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Based on pleadings, trial Court framed following

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recasted issues:

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1. Whether the plaintiff proves that suit schedule property is the ancestral joint family property of plaintiff and defendants?

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2. Whether the defendants proves that already partition was affected in between plaintiff and defendants in their ancestral joint family property?

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3. Whether this suit bad for non-joinder of necessary party?

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4. Whether the plaintiff proves that he is entitle for 1/2 share in the suit schedule property?

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5. Whether the plaintiff is entitled for the reliefs as claimed in the suit?

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6. What order or decree?

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In support of his case, plaintiff examined himself

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and one witness as PWs.1 and 2 and got marked Exs.P1 to P4.

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In rebuttal, defendant no.1 examined himself as DW.1 and one witness as DW.2 and got marked Exs.D1 to D13(A).

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On consideration, trial Court answered issues no.1

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and 3 to 5 in negative, issue no.2 in affirmative and issue no.6

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NC: 2024:KHC:49296 RSA No. 244 of 2015

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by dismissing suit. Aggrieved, plaintiff filed R.A.no.84/2009 on

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several grounds.

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Based on contentions, first appellate Court framed

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following points:

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1. Whether the impugned judgment and decree requires interference at the hands of this Court?

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2. What order?

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On Consideration, first appellate Court answered point no.1 in negative and point no.2 by dismissing appeal. Aggrieved, this appeal is filed.

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Sri R. Naik Ramachandrappa, learned counsel for plaintiff submitted appeal was by plaintiff against concurrent findings in suit for partition and separate possession. It was submitted, relationship between parties and suit property as granted land, was admitted. There was no dispute that suit property was not included in Ex.P4 - palupatti . It was submitted, only Ganganna - defendant no.1 contested suit. It was submitted, though suit property was granted to defendant no.1, said property was in joint cultivation, enjoyment and possession of both plaintiff and defendants. Therefore, grant would inure to both plaintiff and defendant no.1.

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NC: 2024:KHC:49296 RSA No. 244 of 2015

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It was submitted, plaintiff produced ration cards, record of rights (RoRs) and Panchayath palupatti. But , both Courts failed to appreciate same and erroneously dismissed suit. It was submitted, same was contrary to principle of law that property granted to any member of joint family would be joint family property. Hence, learned counsel submitted following substantial question of law would arise for consideration and sought for allowing appeal by answering it in favour of plaintiff.

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"Whether both Courts were justified in holding suit property was self-acquired by defendant no.1 and dismissing suit?"

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Heard learned counsel and perused impugned judgment and decree.

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From above, it is seen appeal is by plaintiff against concurrent finding that suit property was self-acquired property of defendant no.1 and therefore, not available for partition. Before trial Court, plaintiff stated that plaintiff, defendants no.1 and 2 constituted undivided joint family with their father Kanimaregowda and that there was partition between them by executing registered palupatti on 21.01.1994. Thereafter, on 06.06.2002, there was partition of house property left out in

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NC: 2024:KHC:49296 RSA No. 244 of 2015

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earlier partition. However, claiming that even after above partition, plaintiff and defendant no.1 had continued as joint family members and further that suit property though granted to defendant no.1 was being jointly cultivated by them and therefore plaintiff was entitled for share, suit was filed.

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To substantiate suit claim, plaintiff - PW1 deposed along with PW.2 - an independent witness and produced Ex.P1 - ration card, Ex.P2 - RoRs, Ex.P3 - Genealogical tree and Ex.P4 - Panchyat palupatti .

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It is seen, though defendants admitted suit property was granted, they denied it as joint family property. They stated there was severance of joint family status with execution of Ex.P4 - palupatti , whereunder joint family properties were partitioned on 21.01.1994 and thereafter on 06.06.2002 in respect of house property under Ex.D1 and as suit property was granted to defendant no.1, it was his selfacquired property. Defendant no.1 specifically denied continuation of joint family with plaintiff by stating that during life time of their father Kanimemaregowda, there was partition as per Ex.P4. To corroborate same, defendant no.1 deposed as DW.1 and an independent witness as DW.2 and produced

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NC: 2024:KHC:49296 RSA No. 244 of 2015

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Ex.D1 - partition deed dated 06.06.2002, Exs.D2 to D4 - RoRs, Exs.D5 to D7 - mutation extracts, Ex.D8 - demand register extract, Exs.D9 to D11 - tax paid receipts and Ex.D12 - pattabook .

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While giving its finding on issue no.1, trial Court referred to deposition of PW.1, who deposed that suit property was granted to defendant no.1 under order no.LNDSR:11/1982-83. It noted that grant was not disputed, but, plaintiff assertion was that plaintiff and defendant no.1 were cultivating suit property jointly prior to as well as after grant which was denied and plaintiff had failed to substantiate same with any evidence. It also noted that grant was prior to partition effected between joint family members in year 1994 and 2002 and there was no explanation for its exclusion. It further noted recital in Ex.D1 that except property under division in said deed, there were no other immovable properties to be partitioned. It also noted that plaintiff had admitted in cross-examination, to have acted as Yajamana of family for ten years prior to partition effected in year 1994. However, there was no explanation for grant in name of defendant no.1 instead of plaintiff. Therefore, it answered issue no.1 in negative.

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10 -

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NC: 2024:KHC:49296 RSA No. 244 of 2015

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Trial Court answered issue no.2 in affirmative based on admitted prior partition. Remaining issues were answered based on above conclusions.

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In appeal, first appellate Court while answering point no.1 re-examined entire material. It specifically referred to admission by PW.1 that after Rangappa - defendant no.2 left out house at age of ten years and settled at Davanegere, he was kartha of family even after partition in year 1994. It also refers to admission that in 1994 family had only joint family properties, which were divided with his brothers. It also noted that PW.1 admits, he did not produce any document to show that his father had filed application for grant of suit property on behalf of joint family and his further admission that after partition, they were in possession and enjoyment of their respective shares. To conclude that all joint family properties were partitioned in year 1994 and 2002 as per Ex.P4 and Ex.D1 respectively. And since suit property was not included in above partition, it could be inferred that it was self-acquired property of defendant no.1 and therefore, conclusions of trial Court were justified and did not call for interference.

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11 -

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NC: 2024:KHC:49296 RSA No. 244 of 2015

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Though, learned counsel for appellant had sought to contend that there was no proper appreciation of material on record and conclusion that suit property was self-acquired property of defendant no.1 was contrary to evidence admittedly, suit property was granted to defendant no.1 in year 1982-83. Further, there are admitted partition of joint family properties as per Ex.P4 in year 1994 and Ex.D1 in year 2002. There is specific observation by trial Court by referring to contents of Ex.D1 that there were no other immovable joint family properties available for partition. First appellate Court has referred to admission by PW.1 that in year 1994, there were only three joint family properties which were partitioned. Both Courts have concurrently drawn adverse inference against plaintiff for failure to explain non-inclusion of suit property in Ex.P4 and Ex.D1 - partition and there is also no recital about present suit property. Thus, as conclusion of both Courts are by reference to material on record and assigning proper reasons, no substantial question of law arises for consideration.

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22. Appeal is dismissed.

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Sd/(RAVI V HOSMANI) JUDGE

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GRD:List No.: 1 Sl No.: 33

Sri. Papalingegowda v. Ganganna

Case brief

What is this about?

What did the court decide?

Sri. Papalingegowda v. Ganganna

Case brief

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