Dismissed

Sri B M Poovanna v. Sri B M Belliappa

Karnataka HC3 Jul 2024RSA/749/2018

Case brief

AI extract

What is this about?

Plaintiffs sought partition and separate possession claiming suit lands as joint family properties. Trial Court dismissed the suit finding a prior partition in 1977 under Ex.D.1; First Appellate Court confirmed. The High Court found no error or material proving joint family character and dismissed the second appeal at admission without framing substantial questions of law.

What the court decided

AI extract

Sri B M Poovanna Vs Sri B M Belliappa — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:25001 RSA No. 749 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 3^RD DAY OF JULY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH

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REGULAR SECOND APPEAL NO.749 OF 2018 (PAR)

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BETWEEN:

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SRI B.M. POOVANNA, AGED ABOUT 30 YEARS, S/O B.M. MANDANNA, HOSKERI VILLAGE, MADIKERI TALUK, KODAGU DISTRICT-571201.

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SRI B.M. UTHAPPA, AGED ABOUT 28 YEARS, S/O B.M. MANDANNA, HOSKERI VILLAGE, MADIKERI TALUK, KODAGU DISTRICT-571201.

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…APPELLANTS

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Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

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AND:

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(BY SRI M.M.ASHOKA, ADVOCATE)

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SRI B.M.BELLIAPPA, DEAD BY LRS.

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1(a) B.M.ANITHA, W/O B.M.BELLIAPPA, AGED ABOUT 68 YEARS, R/AT HOSKERI VILLAGE, MADIKERI TALUK, KODAGU -571201.

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1(b) B.B.DAKSHA, D/O B.M.BELLIAPPA, W/O PALLIAUDA NAVEEN,

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2 - NC: 2024:KHC:25001 RSA No. 749 of 2018

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AGED ABOUT 45 YEARS, R/AT MAGGULA VILLAGE, BILGUNDA POST, VIRAJPETE TALUK, KODAGU-57218.

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1(c) B.B.DEVIKA, D/O B.M.BELLIAPPA, W/O KALLIUADA NANJAPPA, AGED ABOUT 41 YEARS, R/AT KOTHUR VILLAGE, KOTHUR POST, PONNAMPET, KODAGU-571216.

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SRI B.M. MANDANNA, S/O LATE MACHAIAH, AGED ABOUT 62 YEARS, HOSKERI VILLAGE, MADIKERI TALUK, KODAGU DISTRICT-571201

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…RESPONDENTS

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 01.02.2018 PASSED IN R.A.NO.23/2016 ON THE FILE OF THE PRL. DISTRICT AND SESSIONS JUDGE, KODAGU, MADIKERI, DISMISSING THE APPEAL AS SANS-MERIT AND CONFIRMING THE JUDGMENT AND DECREE DATED 1.4.2016 PASSED IN O.S.NO.1/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE AT MADIKERI.

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

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J U D G M E N T

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This matter is listed for admission. Heard the learned

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counsel for the appellants.

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This second appeal is filed against the concurrent

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finding of the First Appellate Court.

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3 - NC: 2024:KHC:25001 RSA No. 749 of 2018

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The plaintiffs filed a suit seeking the relief of

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partition and separate possession contending that the suit schedule properties are the joint family properties of the plaintiffs and defendant No.2 and they are in joint and constructive possession and enjoyment of the said properties and hence claimed 2/3^rd share in the suit schedule properties. The defendant No.1 appeared and took the specific contention that the suit schedule properties are the absolute properties of defendant No.1 and also took the additional contention that there was a partition of the properties. The Trial Court framed the issues with regard to the contentions of the parties and allowed the parties to lead evidence. The plaintiffs examined plaintiff No.2 as P.W.1 and got marked the documents at Exs.P.1 to 16. On the other hand, defendant No.1 examined himself as D.W.1 and got marked the document at Ex.D.1.

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The Trial Court having considered the material on record, dismissed the suit coming to the conclusion that there are materials before the Court that there was a division between the parties and partition was taken place and taken note of Ex.P.13. The Trial Court in paragraph No.15 taken note of Ex.P.13 is the copy of the sale deed produced by the plaintiffs. In Ex.P.13, the defendant No.2 has categorically stated that

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NC: 2024:KHC:25001 RSA No. 749 of 2018

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there was a partition in the year 1977. However, he has not stated the nature of partition. As per the recitals of Ex.D.1, on 29.05.1977, earlier partition was reduced into writing. This partition was between the defendants and their brothers. Under this partition, both wet lands and bane lands were divided between the defendants and their brothers. The suit survey numbers are the wet lands. Exs.P.1, 2 and 6 are the RTC extracts in respect of suit survey numbers. In these documents, tenure of the land stated as sagu. In Coorg area, tenure sagu refers to wet lands and tenure bane refers to dry land and coffee estate. As per Ex.D.1, defendant No.2 was allotted only 2 acres in suit survey numbers. However, total extent of suit schedule properties is measuring 3.45 acres. In earlier part of the judgment it is observed that though the names of defendant No.1 and some other persons finds place in the RTC extract, the plaintiffs are claiming right over the entire extent. The defendant No.2 had the knowledge of earlier partition as per Ex.D.1. Because in an undisputed period of time in the year 2003, he has categorically stated that there was a partition in the year 1977. P.W.1 in his evidence has categorically stated that still he is in cordial terms with defendant No.2. Further, P.W.1 in his cross-examination has categorically admitted that

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5 - NC: 2024:KHC:25001 RSA No. 749 of 2018

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the defendants and their brothers divided the properties and in that partition, defendant No.2 was allotted 5 acres. However, as per Ex.P.13, the defendant No.2 has sold more than 5 acres of land. Hence, the plaintiffs have suppressed the material facts. As per the evidence produced by defendant No.1, there was an oral partition and in that earlier partition, father of defendant No.2 was allotted only 2 acres of wet land. However, in the plaint schedule, the plaintiffs are claiming right over 3.45 acres. It is not the case of the plaintiffs that the suit schedule properties are the joint family properties of themselves and defendant Nos.1 and 2. It is their specific case that themselves and defendant No.2 are the exclusive owners of the suit schedule properties. Having taken note of the same, the Trial Court comes to the conclusion that already there was a partition and the same is brought out during the course of the evidence. The document in respect of suit schedule properties i.e., wet lands, shows it is only with regard to sagu land and not proved that the suit schedule properties are the joint family properties as contended by the plaintiffs and dismissed the suit.

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Being aggrieved by the said judgment and decree of the Trial Court, an appeal is filed in R.A.No.23/2016. The First Appellate Court considering the grounds urged in the appeal

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6 - NC: 2024:KHC:25001 RSA No. 749 of 2018

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memo, formulated the points whether the judgment and decree of the Trial Court suffers from illegality and perversity and whether it calls for interference. The First Appellate Court by considering the documents at Exs.P.1 to 16 comes to the conclusion that the plaintiffs have failed to establish their case in proving the case on preponderance of possibility to grant the relief of partition and separate possession. The First Appellate Court held that the Trial Court has not committed any error in coming to such a conclusion and dismissed the appeal.

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Being aggrieved by the said concurrent finding, the

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present second appeal is filed before this Court.

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The learned counsel for the appellants would vehemently contend that both the Courts committed an error and the fact that the property is jamma land is not in dispute and the property is also assessed. The appellants have absolute right over the same as joint family properties and both the Courts have committed an error in not coming to the conclusion that the property belongs to the family, but erroneously held that jamma bane land are not amenable for partition and alienation and the very approach of the Trial Court is erroneous. The First Appellate Court also committed an error in coming to

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the conclusion that the schedule property is already partitioned and sold under sale deed, when the rights of the jamma bane land is limited with the holder and the Government is the absolute owner and hence it requires interference of this Court and this Court has to frame substantial questions of law that both the Courts have committed an error in not accepting the case of the plaintiffs that the suit schedule properties are the joint family properties and both the Courts are not justified in dismissing the suit and confirming the judgment of the Trial Court.

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Having heard the learned counsel for the appellants and also on perusal of the material available on record, the suit is filed for the relief of partition to the extent of 0.47 acres of sagu land bearing Sy.No.78/3P1 and also area of 1.80 acres of sagu land bearing Sy.No.78/4 and an area of 1.1 acres of sagu land bearing Sy.No.78/2. It is also the claim of the plaintiffs that the suit schedule properties are the joint family properties of the plaintiff and defendant No.2 and they are in joint and constructive possession and in order to prove the factum of the properties are the joint family properties, nothing is placed on record, except producing RTC extracts at Exs.P.1, 2 and 6 to 9. It is emerged during the course of evidence that already there

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8 - NC: 2024:KHC:25001 RSA No. 749 of 2018

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was a partition between the defendants and their brothers. The claim of the plaintiffs in the suit is that both the properties belong to the plaintiffs and defendant No.2 and they are the joint family properties. In accordance with the earlier partition between the family in terms of Ex.D.1, some of the portions of the properties allotted to the respective parties were sold and this has been discussed by the Trial Court in paragraph No.15. The Trial Court also considered the sale deed Ex.P.13 and Ex.D.1 partition deed and also the extent which the plaintiffs have sought for the relief of partition in respect of claiming right over 3.45 acres and the Court also taken note of defendant No.2 was allotted 2 acres of wet land in the earlier partition. In order to grant the relief of partition, no material is placed on record that the property belongs to joint family. There was a division in the family in the year 1977 in terms of Ex.D.1. To that effect, there was a pleading in 2003 itself. When such materials were considered by the Trial Court, I do not find any error committed by the Trial Court in dismissing the suit. The First Appellate Court also comes to the conclusion by considering the documents placed on record at Exs.P.1 to 16 and taking note of the evidence of D.W.1 and Ex.D.1, that the plaintiffs have failed to establish their case to prove that the properties are joint

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9 - NC: 2024:KHC:25001 RSA No. 749 of 2018

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family properties and nothing is made out of preponderance of probabilities to grant the relief of partition. When both the Courts have considered both oral and documentary evidence placed on record, in the absence of any error on the part of both the Courts, the question of granting the relief of partition does not arise in the absence of material to show that the properties are the joint family properties and relied upon only the RTC extracts and the same is only for cultivation. Hence, I do not find any ground to admit the appeal and frame substantial question of law invoking Section 100 of CPC.

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In view of the discussions made above, I pass the

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following:

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ORDER

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The second appeal is dismissed.

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Sd/JUDGE

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List No.: 1 Sl No.: 74

Sri B M Poovanna v. Sri B M Belliappa

Case brief

What is this about?

What the court decided

Sri B M Poovanna v. Sri B M Belliappa

Case brief

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