Ningappa S/O Basappa Barker Vs Smt. Kallavva W/O Sannayallappa Barker

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NC: 2025:KHC-D:8942-DB RFA No. 100209 of 2023

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 18^TH DAY OF JULY, 2025

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PRESENT

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THE HON'BLE MR. JUSTICE R.NATARAJ

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AND

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THE HON'BLE MR. JUSTICE RAJESH RAI K

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REGULAR FIRST APPEAL NO.100209 OF 2023 (PAR/POS)

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BETWEEN:

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NINGAPPA S/O. BASAPPA BARKER, AGE: 62 YEARS, OCC. AGRICULTURE, R/O. YADAWAD, TQ AND DIST. DHARWAD-581206.

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…APPELLANT

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(BY SRI. PRANAV UMESH BADAGI, ADVOCATE FOR SRI. R.H. ANGADI, ADVOCATE)

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AND:

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Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA

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SMT. KALLAVVA W/O. SANNAYALLAPPA BARKER, AGE: 74 YEARS, OCC. HOUSEHOLD, R/O. TADAKOD, TQ AND DIST. DHARWAD-581105.

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SMT. NEELAVVA W/O. MARUTI SUNAGAR, AGE: 56 YEARS, OCC. HOUSEHOLD, R/O. TERGAV, TQ. HALIYAL, DIST. UTTAR KANNADA-581329.

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SMT. SHIVAKKA W/O. SIDDAPPA SUNAGAR, AGE: 52 YEARS, OCC. HOUSEHOLD,

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HC-KAR

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R/O. KADROLLLI, TQ. KITTUR, DIST. BELAGAVI-591115.

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SMT. GANGAVVA W/O. DUNDAPPA BARAKI, AGE: 51 YEARS, OCC. HOUSEHOLD, R/O. BUDIHAL, TQ. BAILHONGAL, DIST. BELAGAVI-591102.

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BHEEMAPPA S/O. DODDAYALLAPPA BARKER, AGE: 79 YEARS, OCC. AGRICULTURE, R/O. YADAWAD, TQ. AND DIST. DHARWAD-581206.

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SMT. YALLAVVA W/O. DURGAPPA PUJER, AGE: 52 YEARS, OCC. HOUSEHOLD, R/O. MUGAD, TQ. AND DIST. DHARWAD-580007.

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SMT. NAGAVVA D/O. MALLAPPA BARKER, AGE: 49 YEARS, OCC. HOUSEHOLD, R/O. NARENDRA, TQ. AND DIST. DHARWAD-580005.

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SMT. KONTEVVA W/O. HANUMANTHAPPA BARKER, AGE: 66 YEARS, OCC. HOUSEHOLD, R/O. TADAKOD, TQ. AND DIST. DHARWAD-581105.

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SRI. FAKKIRAPPA S/O. HANUMANTHAPPA BARKER, AGE: 42 YEARS, OCC. AGRICULTURE, R/O. TADAKOD, TQ. AND DIST. DHARWAD-581105.

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HC-KAR

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SMT. NIRMALA W/O. ADIVEPPA ADIN, AGE: 40 YEARS, OCC. HOUSEHOLD, R/O. VANNUR, TQ. BAILHONGAL, DIST. BELAGAVI-591102.

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SRI. SURESH S/O. HANUMANTHAPPA BARKER, AGE: 38 YEARS, OCC. AGRICULTURE, R/O. TADAKOD, TQ. AND DIST. DHARWAD-581105.

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SRI. MANJUNATH S/O. HANUMANTHAPPA BARKER, AGE; 36 YEARS, OCC. AGRICULTURE, R/O. TADAKOD, TQ. AND DIST. DHARWAD-581105.

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SMT. YALLAVVA W/O. GANGAPPA SUNAGAR, AGE: 62 YEARS, OCC. HOUSEHOLD, R/O. KABBUR, TQ. AND DIST. DHARWAD-580007.

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IRAPPA @ VEERAPPA S/O. DODDAYALLAPPA BARKER, AGE: 66 YEARS, OCC. AGRICULTURE, R/O. TADAKOD, TQ. AND DIST. DHARWAD-581105.

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SMT. MAHADEVI W/O. DEVAPPA SUNAGAR, AGE: 49 YEARS, OCC. HOUSEHOLD, R/O. KABBUR, TQ. AND DIST. DHARWAD-580007.

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…RESPONDENTS

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(BY SRI. A.C.CHAKALABBI, ADVOCATE AND SRI. S.B.DODDAGOUDAR, ADVOCATES FOR R4, R8, R9(A), R10, R11 AND R12;

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NOTICE SERVED ON R1 TO R3, R5, R7, R13 AND R15; VIDE ORDER DATED 30.08.2024, NOTICE TO R6 AND R14 IS DISPENSED WITH)

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NC: 2025:KHC-D:8942-DB RFA No. 100209 of 2023

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HC-KAR

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THIS RFA IS FILED UNDER SECTION 96 OF CPC., PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND DECREE PASSED IN O.S.NO.29/2021 DATED 30.09.2022 BY THE 1^ST ADDITIONAL SENIOR CIVIL JUDGE AND CJM, DHARWAD AND CONSEQUENTLY DISMISS THE SUIT FILED BY PLAINTIFFS, TO MEET THE ENDS OF JUSTICE.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE R.NATARAJ AND THE HON'BLE MR. JUSTICE RAJESH RAI K

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE R.NATARAJ)

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The defendant No.10 in OS No.29/2021 on the file of the I Additional Senior Civil Judge and CJM, Dharwad, has filed this appeal challenging the judgment and decree dated 30.09.2022 by which, the Court declared that the plaintiffs, defendant Nos.12 and 13 are entitled to 1/6^th share each in the 1/7^th share of their father and also declared the shares of other defendants.

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For the sake of convenience, the parties shall henceforth be referred to as they were arrayed before the Trial Court.

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HC-KAR

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The suit in OS No.29/2021 was filed for partition

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and separate possession of 14 items of agricultural lands situated in Yadawad village Dharwad District. The plaintiffs claimed the genealogy of their family as follows:

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They contended that amongst the suit properties,

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the land bearing Sy. No.209/2A belonged to Doddayallappa, who was the propositus of the joint family. The remaining properties were all granted to the family by the land Tribunal. They contended that all properties were under joint cultivation and enjoyment of the members of the family and therefore, constituted the corpus of the joint family. They contended that defendant Nos.1 to 3, 5, 7, 8, 11 and 12 had got their names

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HC-KAR

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entered in respect of the suit properties. When plaintiffs demanded their share, the defendants refused to partition and therefore, they sought partition and separate possession of their shares in the suit properties.

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The defendant Nos.7 and 13 filed their written statement, admitting the claim of the plaintiffs and prayed that their share be declared. The defendant Nos.4, 6 to 8 adopted the written statement filed by defendant No.7.

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The defendant No.10 filed a separate statement inter alia contending that the suit properties were not the joint family properties and that the plaintiffs never cultivated or enjoyed the same. He contended that the land granted by the Tribunal were all to individuals who were personally cultivating them and not on the ground that they were cultivating on behalf of the family. In so far as the land granted in favour of defendant No.12, he contended that the defendant No.12 had executed a sale agreement dated 20.03.2019 conveying the property to his brother and delivered possession He claimed that his brother died intestate and therefore he continued in possession He claimed that out of the sale proceeds received,

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HC-KAR

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the family of the plaintiffs had purchased another land and they were in possession and enjoyment of those lands which were not included in the suit. He claimed that certain other properties were not included in the suit and therefore, the suit for partial partition was not maintainable.

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Based on these contentions, the Trial Court framed

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the following issues:

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1. Whether the plaintiffs prove that the suit properties are the ancestral properties of themselves and the defendants and that they are entitled to 1/6^th share each in the 1/7^th share of their father Sannayallappa?

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2. Whether the counter claimants/defendants No.4 to 8 prove that they are entitled to 1/5^th share each in the 1/7^th share of Hanumantappa S/o Doddamallappa Barker?

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3. Whether the plaintiffs are entitled for the relief sought?

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4. What order or decree?

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The plaintiff No.3 was examined as P.W.1 and she produced the revenue records of the suit properties and the mutation entries as Exs.P.1 to P.9. Defendant No.7 was examined as D.W.1 and he marked Exs.D.1 to D.8.

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HC-KAR

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Based on the oral and documentary evidence, the Trial Court held that the plaintiffs had proved that all the properties belonged to the joint family and that all of them were in joint possession and enjoyment and that there was no partition of the suit properties. Since defendants No.4, 6, 7, 8 and 13 had conceded to the claim of the plaintiffs, it held that the plaintiffs had proved that the suit properties belonged to the joint family. However, defendant No.10 did not step into the witness box to prove his claim that the defendant No.12 had executed an agreement of sale in respect of the property that was granted to the father of the plaintiffs. It, therefore, decreed the suit and declared that the plaintiffs, defendants No.12 and 13 are entitled to 1/6^th share out of 1/7^th share of their father in the suit properties. It also decreed the share of defendants No.4 to 8 as well as defendants No.2 and 3 and the share of defendants No.10, 1, 9 and 11.

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Being aggrieved by the said judgment and decree, the defendant No.10 is before this Court.

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Learned counsel for defendant No.10 contended that the defendant No.10 was not granted sufficient opportunity

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HC-KAR

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to lead evidence in proof of his claim made in the written statement and therefore, he contends that an opportunity be granted to defendant No.10 to contest the suit on merits and establish his claim that defendant No.12 had conveyed to his brother the property granted to the father of the plaintiffs for lawful consideration and had purchased other properties that were not included in the suit. Therefore, he is bound to take steps to summon the concerned person to prove the above. He further contends that apart from the above, other properties in the name of plaintiffs are not included in the suit and hence, prays that an opportunity be granted to adduce evidence to prove the above.

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Per contra , learned counsel for defendants No.4 to 8 submitted that there is no dispute regarding the fact that the suit properties were all properties of the joint family as the same was granted when the family was joint. He contends that defendants No.4 to 8 therefore, conceded to the claim made by the plaintiffs for partition and separate possession. He contends that defendant No.13 also conceded to the said fact, while other defendants did not contest the claim of the plaintiffs. He contends that even as per the case of the plaintiffs, the land

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HC-KAR

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allegedly purchased by him from defendant No.12 was granted to the father of the plaintiffs by the Land Tribunal. He contends that if this to be true then it affects only the share of defendant No.12 and not the share of plaintiffs. He contends that defendant No.10 has not purchased the shares of the plaintiffs and therefore, the plaintiffs are entitled to a share in the suit schedule properties. He further contends that defendant No.10 having claimed that defendant No.12 had executed an agreement of sale, did not enter the witness box to establish the claim and did not seek for specific performance of the said agreement and did not establish that he was placed in possession of the property. Therefore, he contends that on all counts, the defence of defendant No.10 is moonshine and is not worthy of consideration. Therefore, he contends that the judgment and decree of the Trial Court is just and proper and does not warrant any interference.

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We have considered the submissions of the learned counsel for defendant No.10 as well as the learned counsel for defendants No.4 to 8. The only point that arises for consideration is,

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HC-KAR

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Whether the defendant No.10 could be given an opportunity to establish the contentions urged by him in the written statement and whether the judgment and decree of the Trial Court is just and proper?

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The genealogy as furnished by the plaintiffs indicates that Doddayallappa was the propositus of the family and he had seven children. The revenue records in respect of the land bearing Sy.No.209/2A stood in the name of the propositus as on the date of the suit. There is no contra evidence placed on record to disbelieve the claim of the plaintiffs that the said property was the property possessed by the ancestors of the plaintiffs and the defendants.

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In so far as the other properties are concerned, it is not much in dispute that they were all granted by the Land Tribunal in the names of the members of the family. Defendant No.10, who is the only contesting defendant, in his written statement, did not seriously dispute the fact that all the properties except the property bearing Sy.No.209/2A were granted by the Tribunal.

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Defendant No.10, in his written statement, though claimed that the suit properties were not the properties of the

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HC-KAR

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joint family and were not in joint possession and cultivation did not enter the witness box to depose in that context. In the written statement, he further claimed that the property that was granted to defendant No.12 was conveyed by defendant No.12 in terms of an agreement of sale dated 20.03.2019 in favour of his brother and that his brother died issueless and therefore, he was in possession and enjoyment of the property so conveyed under the agreement. He claimed that the defendant No.12 had purchased some other properties in Tadkod Village and that the said properties were not included in the suit for partition. He also claimed that the predecessor of defendant Nos.5 to 8 and defendant No.11 had given up their claim in respect of the properties of the family and were separately residing in Tadkod Village and had purchased certain lands in Tadkod which were not included in the suit property.

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It is relevant to note that all the defendants did not dispute that the suit properties belonged to the joint family and were in joint possession of the members.

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The defendant No.10, despite being granted opportunity to establish his defence, did not enter the witness

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HC-KAR

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box. Assuming the case of defendant No.10 to be true then too, defendant No.10 could not resist the suit for partition filed by the plaintiffs. Admittedly, the agreement of sale 20.03.2019 was not executed by the plaintiffs, but was allegedly executed only by defendant No.12 in favour of brother of defendant No.10. If that be so, the plaintiffs being the members of the family, are entitled to an undivided share in the property agreed to be allegedly conveyed to the brother of defendant No.10, as they were not parties to the agreement. Therefore, the agreement set up by defendant No.10 did not bind the interest of the plaintiffs. Since the plaintiffs were all members of the family of Sannayallappa, the grant of the land by the Land Tribunal in favour of defendant No.12 should enure to their benefit also. In this regard, it is apposite to refer to the judgment of the Apex Court in the case of N. Padmamma v. S.Ramakrishna Reddy¹ . T herefore, the only solitary ground raised by defendant No.10 against the claim of the plaintiffs is not worthy of consideration and the Trial Court rightly refused any indulgence to the defendant No.10 and rightly decreed the suit filed by the plaintiffs.

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1 (2008) 15 SCC 517

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HC-KAR

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In view of the above, we hold that there is no need to grant an opportunity to defendant No.10 to contest the suit again on merits and the Trial Court was justified in decreeing the suit of the plaintiffs. Hence, the appeal lacks merit and is accordingly dismissed .

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In the event, if the defendant No.10 intends to pursue his claim against the legal representatives of defendant No.12 in respect of the agreement of sale dated 20.03.2019, he may do so in accordance with law.

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Sd/(R.NATARAJ) JUDGE

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Sd/(RAJESH RAI K) JUDGE

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PJ- Para 1 to 8, KMS - Para 9 to till end. CT: PA LIST NO.: 1 SL NO.: 30

Ningappa S/O Basappa Barker v. Smt. Kallavva W/O Sannayallappa Barker

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Ningappa S/O Basappa Barker v. Smt. Kallavva W/O Sannayallappa Barker

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