Yallappa S/O Ishwarappa Belagali Vs Smt. Mahananda W/O Beerappa Banahatti

THIS RFA IS FILED U/SEC. 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 13.04.2018 PASSED IN O.S.NO.48/2013 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE AND JMFC, MUDHOL, DECREEING THE SUIT FILED FOR DECLARATION AND INJUNCTION.

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IN RFA NO. 100174/2019

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BETWEEN:

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SMT. NAGAVVA D/O YALLAPPA BELAGALI AGE: 52 YEARS, OCC: AGRICULTURE, R/O AT POST: SAIDAPUR, TQ: MUDHOL DIST: BAGALKOT-587316.

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SMT. SATTEVVA @ LAKKAVVA W/O RAMAPPA NAIK, AGE: 48 YEARS, OCC: HOUSE WIFE, R/O AT POST: HOSATTI, TQ: GOKAK, DIST: BELAGAVI-591310

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...APPELLANTS

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(BY SRI. ROSHANSAHEB CHABBI, ADV.)

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AND:

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SRI. YALLAPPA S/O ISHWARAPPA BELAGALI AGE: 36 YEARS, OCC:AGRICULTURE,

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SRI. MALLIKARJUN S/O ISHWARAPPA BELAGALI AGE: 32 YEARS, OCC: AGRICULTURE,

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SRI. RAMESH S/O ISHWARAPPA BELAGALI AGE:29 YEARS, OCC:SERVICE,

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SRI. BASAPPA S/O YALLAPPA BELAGALI AGE:51 YEARS, OCC:AGRICULTURE,

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SMT. MAHANANDA W/O BIRAPPA BANATTI AGE:28 YEARS, OCC:HOUSEWIFE,

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SMT. SUNANDA W/O UMESH MENASAPPAGO

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AGE:25 YEARS, OCC:HOUSEWIFE, R/O. AT POST, KANATTI, TQ:GOKAK, DIST:BELAGAVI-591307.

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SRI. SIDDAPP S/O YALLAPPA BELAGALI AGE: 47 YEARS, OCC AGRICULTURE

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SRI. SHIVALINGAPPA S/O YALLAPPA BELAGALI AGE: 46 YEARS, OCC:AGRICULTURE,

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RESPONDENT NOS. 1 TO 5, 6 & 7 ARE R/O. AT POST, SAIDAPUR, TQ:MUDHOL, DIST: BAGALKOT-587316.

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...RESPONDENTS

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(BY SRI. B.S. KAMATE, ADV FOR R5 & R6, NOTICE TO R1 TO R4, R7 & R8 ARE SERVED)

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THIS RFA IS FILED U/SEC. 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 03.11.2018 PASSED IN O.S.NO.12/2015 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE AND JMFC, MUDHOL, DISMISSING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.

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

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CORAM: HON'BLE MR. JUSTICE ASHOK S. KINAGI

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ORAL JUDGMENT

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R.F.A.No.100210/2018 is filed by the appellants

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challenging the judgment and decree dated 13.04.2018 passed in O.S.No.48/2013 by the Addl. Senior Civil Judge and JMFC, Mudhol.

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R.F.A.No.100174/2019 is filed by the appellants

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challenging the judgment and decree dated 03.11.2018 passed in O.S.No.12/2015 by the Addl. Senior Civil Judge and JMFC, Mudhol.

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For convenience, the parties are referred to

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based on their rankings before the trial Court. The appellants in R.F.A.No.100210/2018 were the defendants

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and the respondents were the plaintiffs. The appellants in R.F.A.No.100174/2019 were the plaintiffs and the respondents were the defendants.

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Brief facts, leading rise to the filing of R.F.A.No.100210/2018, are as follows:

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The plaintiffs filed a suit against the defendants for declaration of title and permanent injunction. It is the case of the plaintiffs that one Yallappa was the original propositus. He had six children viz., Ishwarappa, Nagavva, Basappa, Sattevva, Siddappa and Shivalingappa. Plaintiffs are the daughters of Basappa. Yallpppa,

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Mallikarjun and Ramesh i.e., defendants No.1 to 3 are the children of Ishwarappa. Siddappa and Shivalingappa are the uncles of the plaintiffs. It is contended that they are the joint owners of the suit land bearing R.S.No.52/2 measuring 3 acres 14 guntas situated at Saidapur village, Mudhol Taluk, which is shown in the letters 8ABCD9 annexed in the annexed hand sketch map. Defendants No.1 to 3 are the joint owners in possession of land bearing No.51/1 situated at Saidapur village, which is shown by the letters 8FEAC9 in the hand sketch map. Defendant No.4 is in the possession of R.S.No.51/3 shown

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in the letters 8BGTH9 and defendant No.3 is the owner of

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the land bearing R.S.No.51/4 shown by the letters 8GIHJ9. The father of Basappa, the father of defendants No.1 to 3, and defendants No.4 and 5 are brothers and they partitioned the joint family properties in 1982. In that partition, R.S.No.51/1 fell to the share of defendants No.1 to 39s father i.e., Ishwarappa, Sy.No.51/2 fell to the share of the father of plaintiffs i.e., Basappa, Sy.Nos.51/3 and

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51/4 fell to the shares of defendants No.4 and 5

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respectively. Based on the oral partition, mutation was effected in M.E.No.1426 and names of respective parties are appearing in the revenue records in respect of the lands fell to their shares. There are wells situated in the shares of Ishwarappa and Shivalingappa. From the said wells, all the brothers have got a right to fetch water two days each in a week for their respective lands. A road has also shown by the letters 8EKIL9 which is situated towards eastern side of the shares of the each party. The plaintiffs9 father acquired the suit property in the partition between his brothers. It is contended that on 28/09/2012, there

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was a partition between their father, mother and themselves and the suit property fell to their share. Accordingly, mutation was effected as per M.R.No.H11/2012. Defendants No.1 to 39s father passed away on 10.02.2004 and thereafter the names of defendants No.1

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to 3 were entered in the revenue records as per M.E.No.46/2004-05 and they are the joint owners in

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possession of the suit land s. The defendants without having any right, title and interest in the suit land s , caused obstruction the plaintiffs9 possession in the suit schedule property. The plaintiffs requested the defendants not to cause any obstruction in the suit schedule property but the defendants did not heed to the request made by the plaintiffs. Hence, a cause of action arose for the plaintiffs to file the suit for declaration of title and permanent injunction.

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Defendants No.1 to 5 appeared through the counsel but defendants No.1, 2, 4 and 5 filed their written statements denying the averments made in the plaint. It is contended that original land bearing Sy.No.51 was barren land and to develop the land and to get benefit of small holders, Ishwarappa, Basappa, Siddappa and Shivalingappa got effected the partition. The partition effected is a nominal and not an actual partition. It is contended that in the said partition, R.S.No.51/1 was fell to the share of Ishwarappa, R.S.No.51/2 fell to the share

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of Basappa, R.S.No.51/3 and 51/4 fell to the shares of defendants No.4 and 5 respectively. It is contended that the partition effected in 1982 is not effected by meets and bounds and as per the said partition the parties are not enjoying and cultivating their lands. It is contended that the land allotted to the share of the plaintiffs9 father was acquired by the KEB authorities and plaintiffs9 father alone received the compensation amount and he has also sold one valuable old neem tree stood in the portion of the said land. It is further contended that the plaintiffs filed the suit only to harass the defendants. Hence, prays to dismiss the suit.

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The trial Court based on the pleadings of the

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parties, framed the following issues:

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1. Whether the plaintiffs prove that, they are joint owners and lawful possessors of suit land Sy.No.51/2 measuring 3 acres 14 guntas of Saidapur, Tq: Mudhol?

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2. Whether the plaintiffs prove alleged interference caused by defendants?

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3. Whether suit of the plaintiffs is bad for nonjoinder of necessary parties?

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4. Whether valuation made and court fee paid is correct and sufficient?

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5. Whether the plaintiffs are entitled for declaration and injunction as sought for?

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6. What order or decree?

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The plaintiffs, to substantiate their case, plaintiff No.2 was examined as PW-1, examined two witnesses as PW-2 and PW-3 and marked 24 documents as Exs.P-1 to P-24. In rebuttal, defendant No.4 was examined as DW-1, examined 2 witnesses as DW-2 and DW-3 and marked 41 documents as Exs.D-1 to D-41.

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The trial Court, after recording the evidence, hearing on both sides, and assessing the verbal and documentary evidence, answered issue Nos.1, 2, 4 and 5 in the affirmative, issue No.3 in the negative and issue No.6 as per the final order. The suit of the plaintiffs was decreed. The plaintiffs were declared as the joint owners

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of the suit property and the defendants were permanently restrained from causing interference in the plaintiffs possession and enjoyment of the suit land and causing obstruction to the plaintiff for using suit road and also causing obstruction from fetching water from suit wells.

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The defendants, aggrieved by the judgment and decree dated 13.04.2018, passed in O.S.No.48/2013, filed R.F.A.No.100210/2018.

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Brief facts leading rise to the filing of this R.F.A.No.100174/2019 are as follows:

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The plaintiffs filed a suit against the defendants

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for partition and separate possession. It is contended that the original propositus Yallappa was having two daughters and four sons. Out of four sons, Ishwarappa died and other three sons viz., Basappa-defendant No.4, Siddappadefendant No.7, Shivalingappa-defendant No.8. Defendants No.1 to 3 are the sons of the deceased Ishwarappa and defendants No.5 and 6 are the daughters

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of defendant No.4. The suit schedule properties were owned and possessed by the original propositus-Yallappa. He died on 20.10.1977 leaving behind his two daughters and four sons. They are the members of a Hindu Undivided Family and no partition is effected in the suit schedule properties. The plaintiffs demanded for partition and separate possession but the defendants refused to effect partition. Hence, a cause of action arose for the plaintiffs to file a suit for partition and separate possession. Accordingly, prayed to decree the suit.

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Defendants No.1 to 8 appeared before the trial Court. Defendants No.5 and 6 filed the written statement and other defendants did not file a written statement.

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Defendants No.5 and 6 filed the written statement denying the averments made in the plaint and it is contended that they are the joint owners in possession of the suit schedule property bearing R.S.No.51/2 measuring 3 acres 14 guntas. It was denied that there

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was no partition effected between the sons of the deceased Yallappa by metes and bounds. It is contended that after the demise of Yallappa, the properties owned and left by him were divided between his four sons in the

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year 1982. Based on the partition, a mutation was effected in M.E.No.1426. It is contended that the parties are in possession of their respective portion of lands. It is also contended that they have instituted a suit in O.S.No.48/2013 against defendants No.1 to 3, 7 and 8 for declaration and permanent injunction in respect of the land bearing R.S.No.51/2 measuring 3 acres 14 guntas. The plaintiffs knowing all the events of the family have filed this false suit, seeking partition and separate possession. Hence, pray to dismiss the suit.

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The trial Court, based on the pleadings of the parties, framed the following issues:

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1. Whether the plaintiffs prove that, themselves and defendants are constituted joint family and

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suit schedule properties are the ancestral properties?

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2. Whether plaintiffs are entitled for share in the suit schedule property? If so, what extent?

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3. Whether defendant No.5 and 6 proves that, suit is barred by limitation?

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4. What order or decree?

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The plaintiffs, to substantiate their case,

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plaintiff No.1 was examined as PW-1, examined one witnesses as PW-2 and marked 6 documents as Exs.P-1 to P-6. In rebuttal, defendant No.6 was examined as DW-1, examined one witness as DW-2 and marked 1 document as Ex.D-1.

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The trial Court, after recording the evidence,

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hearing on both sides, and assessing the verbal and documentary evidence, answered issue Nos. 1 to 3 in the negative and issue No.4 as per the final order. The suit of the plaintiffs was dismissed vide judgment dated 03.11.2018. The plaintiffs, aggrieved by the dismissal of

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the suit in O.S.No.12/2015, have filed

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R.F.A.No.100174/2019.

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Heard the arguments of the learned counsel for the plaintiffs and the defendants and clubbed the appeals.

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Learned counsel for the appellant-defendants in O.S.No.48/2013 submits that the suit land in O.S.No.48/2013 was originally barren land and to develop the same and to get benefits of small holders, the said land was sub divided between the sons of the original propositus, Yallappa. He submits that though mutation entries have been entered in the name of the sons of the deceased Yallappa, till today the defendants and the father of the plaintiffs are the joint owners, in possession of the suit property. He submits that the partition effected in 1982 is not effected by meets and bounds and the parties have not acted upon the same. He also submits that the plaintiffs in O.S.No.48/2013 are not the joint owners and in possession of the suit land bearing R.S.No.51/2. Hence,

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on these grounds, he prays to allow the appeal in

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R.F.A.No.100210/2018.

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Learned counsel for the plaintiffs in O.S.No.12/2015 submits that admittedly, the suit schedule properties were owned and possessed by Yallappa i.e., original propositus. He submits that the plaintiffs are the daughters of the deceased Yallappa are coparceners as per Section 6 of the Hindu Succession (Amendment) Act, 2005 and they are entitled for an equal share in the suit schedule properties. He further submits that the alleged partition was effected nominally and it was not acted upon. To buttress his arguments, he places reliance on the judgment of the Hon9ble Apex Court in the case of Vineeta Sharma vs. Rakesh Sharma and others¹ . He also submits that though the father of the plaintiffs died in 1977, as of the date of the death of the father, there was no severance of status. Hence, he submits that the plaintiffs are entitled to an equal share in the suit schedule

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1 [(2020) 9 SCC 1]

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properties. He submits that the trial Court has committed an error in recording its finding that there was a partition between the sons of Yallappa in 1982 and parties have acted upon the same. He submits that as per the

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contention of defendants No.5 and 6 that in the said partition, plaintiff No.1 was allotted 1 acre of land but till today, the defendants have not delivered the possession of the said land. He submits that it clearly goes to show that the partition was not acted upon. Hence, he submits that the trial Court has committed an error in dismissing the suit in O.S.No.12/2015 and decreeing the suit in O.S.No.48/2013. He also submits that the plaintiffs were

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not parties to the alleged partition, effected in 1982. Hence, alleged partition is not binding on the plaintiffs in O.S.No.12/2015. Hence, on these grounds, he prays to allow the appeal in R.F.A. No.100174/2019.

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Per contra, learned counsel for the plaintiffs in O.S.No.48/2013 who were defendants No.5 and 6 in O.S.No.12/2015 submits that the suit schedule properties

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were owned and possessed by the deceased Yallappa.

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After his demise, partition was effected between the sons of Yallappa in 1982 and based on the partition, a mutation was effected and revenue records stand in the names of the respective parties. He also submits that the land fell to the share of Basappa was acquired by KEB authorities and Basappa alone received the compensation amount from the KEB. Despite having the knowledge about the partition effected in 1982, the plaintiffs filed the suit in O.S.No.12/2015. Hence, they have no right to claim a share in the suit schedule properties. He also submits that the plaintiffs in O.S.No.12/2015 have not challenged

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the partition effected in 1982 on the ground that it is only a nominal and not acted upon. He also submits that DW-1 in O.S.No.12/2015 during the cross-examination has admitted regarding the prior partition effected between

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the sons of Yallappa in 1982 and further they have also obtained loan by mortgaging the suit lands. To buttress his arguments, he relied upon the judgment of the Hon9ble

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Apex Court in the case of Digambar Adhar Patil vs.

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Devram Girdhar Patil (died) and another² . He also placed

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reliance on the judgment of the Division Bench of this Court in the case of Rathnamma vs. K. Rajappa³ . Hence,

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on these grounds he prays to dismiss both the appeal.

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Perused the records and considered the

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submissions of the learned counsel for the parties.

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The points that would arise for consideration in R.F.A.No.100210/2018 are:

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1) Whether the plaintiffs prove that they are the absolute owners of the suit schedule properties?

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2) Whether the defendants prove that the judgment and decree passed in O.S.No.48/2013 is arbitrary and erroneous?

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3) What order or decree?

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The points that would arise for consideration in RFA No.100174/2019 are:

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2 AIR 1995 SC 1728

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3 HCR 2011 Kant. 801

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1) Whether the plaintiffs prove that the suit schedule properties are the joint family properties of the plaintiffs and defendants and no partition is effected?

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2) Whether the plaintiffs are entitled for a share in the suit schedule properties?

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3) Whether the plaintiffs prove that the judgment and decree passed in O.S.No.12/2015 is arbitrary and erroneous?

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4) What order and decree?

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Reg. Point No.1 in R.F.A.No.100210/2018:

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The plaintiffs to substantiate their case, plaintiff No.2 was examined as PW-1. She has deposed that plaintiff No.1 is her sister and they are the joint owners and in possession of the land in R.S.No.51/1 which is shown by letters 8FEAC9 in the hand sketch and defendant No.4 is the owner and in possession of the land in R.S.No.51/3. The defendant No.5 is the owner in possession of the land in R.S.No.51/4. There was a partition effected between four sons of Yallappa in the year 1982. The mutation was effected. Since from the

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date of partition parties are in possession of their respects shares as absolute owners. It is also deposed that there is a well as shown by the letter 8W19 in the land of Ishwarappa, 5HP electric motor and pump set is installed to the said well. The father of the plaintiffs, Ishwarappa and defendants No.4 and 5 have got right to fetch water each two days in eight days in a week. It is also deposed that her father and mother partitioned their land in Sy.No.51/2 as per 8Apsat Watni Patra9 dated 28.09.2012 and the suit land R.S.No.51/2 fell to the share of the plaintiffs jointly and based on the partition effected on 28.09.2012, their names were entered in the revenue records as per M.R.No.H-11/12. Ishwarappa died on 10.02.2004 leaving behind his sons i.e., defendants No.1 to 3 as his legal representatives and also his wife and daughters. The plaintiffs are the joint owners in possession and enjoyment of the suit schedule property.

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The plaintiffs to prove their case, produced documents i.e., Ex.P-1 is RTC extract of R.S.No.51/2

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stands in the name of the plaintiffs jointly, Ex.P-2 is the copy of mutation extract dated 14.02.1982 which discloses that there was a partition effected between the sons of Yallappa and Sy.No.51/1 fell to the share of Ishwarappa, Sy.No.51/2 fell to the share of Basappa, Sy.No.51/3 fell to the share of Siddappa and Sy.No.51/4 fell to the share of Shivalingappa based on the partition effected between them. Ex.P-3 is the mutation extract of M.R.No.H11/2012-13 which reflects the names of plaintiffs i.e., Sunanda and Mahananda. Ex.P-4 is the copy of the mutation extract of M.R.No.46/2004-05 which discloses that a partition was effected between Ishwarappa and his children and it reflects of the name of the sons of Ishwarappa. Ex.P-5 is the certified copy of 8Apsat Watni Patra9 which discloses that Sy.No.51/2 was partitioned between the plaintiffs and their father. Ex.P-6 is the RTC extract of R.S.No.51/2 measuring 3 acres 14 guntas which discloses the names of Mahananda and Sunanda i.e., plaintiffs. Ex.P-7 is the receipt issued by the survey

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authorities. Ex.P-8 is the survey map. Ex.P-9 is M.E.No.1149 dated 10.11.1977 which discloses that Yallappa had acquired the properties in the partition effected between him and his siblings. Ex.P-10 is M.R.No.1426 (which is also marked as Ex.P-2). Ex.P-11 is M.R.No.h11/2012-13 (which is also marked as Ex.P-3). Ex.P-12 is the certificate of PKPS, Saidapur, which discloses that Mahananda-plaintiff No.1 has obtained a loan of Rs.50,000/- from the bank and the said certificate is issued on 21.03.2017. Ex.P-13 is the bank statement which discloses that plaintiff No.1 had obtained a loan from Union Bank of India, Saidapur which discloses that the said account stands in the name of plaintiff No.1. Exs.P-14 to P-19 are tax paid receipts. Ex.P-20 and P-21 are sugarcane weigh bills. Ex.P-22 is the certified copy of the order sheet in C.C.No.766/2014. Ex.P-23 is the final report in Crime No.12/2013. Ex.P-24 is the FIR in Crime No.12/2013.

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In the cross-examination, it was suggested to PW-1 that the suit schedule property is the ancestral and joint family property of the plaintiffs and defendants; no partition is effected between the plaintiffs and defendants; they are the members of the Hindu Undivided Family and the said suggestion was denied by PW-1.

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In the cross-examination of PW-1 it was elicited that she got married about 17 years back and plaintiff No.1 married about 20 years back and she has been given to Saidapur village. Sy.No.51/1 originally measures 3 acres 14 guntas and the said land fallen to her father9s

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share in a partition effected between her father and brothers of her father in the year 1982. She was unable to say on which date the partition was effected between her father and his elder brothers and in whose presence the partition was effected. It was denied that Sy.No.51 was not a fertile land. It was suggested to her that her father and her uncles have taken the land with an intention to get Government facilities. The said suggestion

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was denied by PW-1. It is also denied that the parties

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have not acted upon the alleged partition. It is elicited that in Sy.No.51/1 Ishwarappa9s children, in Sy.No.51/3 Siddappa and in Sy.No.51/4 Shivalingappa were used to live. It is also elicited that her father built a house in Sy.No.51/2 and the children of Ishwarappa had grown maize crop in Sy.No.51/1 and everybody had built their houses in 35 guntas of kharab land. The suggestion was denied that she is deposing falsely that maize crop has been growing in the land. She admits that her father had received the compensation amount for the land acquired by the KEB.

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The plaintiffs also examined one Mahaveer as PW-2 who deposed that there was a partition effected between the father of the plaintiffs and his brothers. In the said partition, the suit schedule property fell to the share of plaintiffs9 father and subsequently partition was effected between the plaintiffs and their father.

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The plaintiffs also examined one Shivalingappa

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as PW-3 who deposed in the same line that of PW-2. He deposed that the suit is in respect of Sy.No.51/2. He further deposed that the suit property is in the name of the plaintiffs and the plaintiffs9 father did not have any sons. The suit schedule property was succeeded by the plaintiffs being the daughters of their father.

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From the perusal of the cross-examination of PW-1 to PW-3, nothing has been elicited from the mouth of these witnesses to disbelieve their evidence.

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In rebuttal, Siddappa was examined as DW-1

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who reiterated the written statement averments in the examination-in-chief and produced the documents. He deposed that the suit schedule property is the ancestral property of the plaintiffs and the defendants and no partition is effected. He deposed that the land was barren land and to develop the said land and to get small holders benefit, partition was effected and the said partition was a

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nominal and nominal shares were allotted and M.E.No.1462 came to be certified. The plaintiffs and defendants are in possession of the respective lands as shown in the written statement sketch not as per the plaint sketch and he deposed that no partition is effected between the sons of Yallappa.

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During cross-examination, DW-1 admits that Sy.No.51 was originally measuring 13 acres 14 guntas and his father had four sons. He stated that Sy.No.51 is the property that was acquired from their elders. It is stated that his father was passed away when he was aged about

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12 to 13 years old and denied that the partition was effected in Sy.No.51 in the year 1982. He admits that he has seen the copies of Sy.No.51 and Sy.No.51/1 stands in the name of the Ishwarappa9s children. He further admits that Sy.No.51/2 stands in the name of the plaintiffs; Sy.No.51/3 stands in his name and Sy.No.51/4 stands in

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the name of defendant No.5-Shivalingappa. After the demise of Ishwarappa, Sy.No.51/1 was transferred in the

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names of the legal representatives of Ishwarappa and Ishwarappa died about 13 years back and he did not raise any objection while the plaintiffs i.e., the children of Basappa entering their names in respect of Sy.No.51/2. He pleads ignorance that in the year 2004, the father of the plaintiffs transferred Sy.No.51/2 in the name of the plaintiffs. It is denied that the patti of northern side of Sy.No.51/2 measuring 3 acres 14 guntas was in the possession of Basappa since 1982 and he admits that the all have taken the loan from the banks in whose name the lands in Sy.Nos.51/1 to 51/4 are standing and specifically admits that he has also taken the loan on Sy.No.51/3 which stands in his name. He admits that there are two wells in southern and northern side of Sy.No.51 and the parties will take care of the expenses of motor and pump set attached to the wells. A hand map was confronted to

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DW-1 and he admits that the contents of the map are correct. To the suggestion that he house of defendant No.1-Yallappa is located in Saidapur-Mahalingapur road to

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the northern side of Sy.No.51, DW-1 stated that Yallappa9s

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house is located next to which the house of the father of the plaintiffs9 is located, next to it, his house is located and next to his house, house of defendant No.5-Shivalingappa

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is located. He admits that his sisters have filed a suit while the present suit is pending consideration. He stated that the relationship of his sisters with brothers is cordial.

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The defendants examined one Basappa as DW-

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2, who has deposed that he is the permanent resident of Saidapur Village. The said witness deposed in the same line that of DW-1. In the cross-examination, he admits

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that there is a well in the land fell to the share of Ishwarappa and there is another well in the last patti and the plaintiffs and defendants are taking water from the said two wells according to their shares. He pleads ignorance about the complaint filed by the plaintiffs against the defendants for disturbing the plaintiffs while they were cultivating the land and fetching water from the well.

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The defendants also examined one Hanumant

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as DW-3. He deposed in the same line that of DW-2.

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From the perusal of the entire evidence on record, it is clear that the suit schedule property was earlier owned and possessed by Yallappa. After the death of Yallappa, the partition was effected between 4 sons of Yallappa in 1982 and accordingly a mutation was effected in M.E.No.1426. In the said partition, the land bearing Sy.No.51/1 was allotted to the share of Ishwarappa, R.S.No.51/2 was allotted to the share of Basappa, R.S.Nos.51/3 and 51/4 were allotted to the shares of defendants No.4 and 5. The respective parties were put in possession of the properties fallen to their respective shares. Though the defendants contended that the partition between the sons of Yallappa as per M.E.No.1426 dated 14.02.1982 is a nominal, defendants were well aware about the partition dated 14.02.1982. The defendants have not challenged the partition effected on 14.02.1982. Based on the partition , names of the parties

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were entered in the revenue records. The RTC extracts stand in the names of the respective parties. The entries were made while discharging the official duty.

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The Hon9ble Apex Court in the case of Digambar Adhar Patil (supra) held that 8the entries in the revenue records regarding the factum of partition is a relevant piece of documentary evidence in support of the oral evidence given, by the respondent and his brother to prove the factum of partition. Even in the evidence of Ram Chander, he clearly stated that there was a partition but he could not give the date and year in which the partition was effected nor the deed of the partition produced. Under the Hindu law, it is not necessary that the partition should be effected by a registered partition deed. Even a family arrangement is enough to effectuate the partition between coparceners and to confer right to a separate share and enjoyment thereof. Under those circumstances, when the factum of partition was evidenced by entries in the Record of Rights, which was maintained in official course of

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business, the correctness thereof was not questioned; it corroborates the oral evidence given by the brother and lends assurance to accept it9.

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Admittedly, in the instant case partition was effected in between sons of Yallappa in 1982 and based on the partition, the mutation entry was effected vide M.E.No.1426 dated 14.02.1982 and further, the defendants and their witnesses during the crossexamination have admitted regarding the shares allotted to the respective parties. But it is contended that it is a nominal partition. As observed above, the defendants have not challenged the mutation i.e., M.E.No.1426 dated 14.02.1982. The plaintiffs by producing M.E.No.1426 have proved that there was a prior partition between the sons of Yallappa and accordingly they are in possession of their respective shares and by virtue of the partition, the suit schedule property was allotted to the share of plaintiffs9 father and in the subsequent partition, the plaintiffs became the absolute owners of the suit schedule property.

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In view of the above discussion, I answer the

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point No.1 in the affirmative.

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Reg. Point No.2 in R.F.A.No.100210/2018:

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The trial Court, considering the entire evidence on record and also the admission of the defendants in regard to the prior partition effected on 14.02.1982, has rightly held that there was a partition between the four sons of Yallappa; parties have acted upon the partition effected in 1982; the suit schedule property fell to the share of the plaintiffs9 father i.e., Basappa and thereafter a partition was effected between the plaintiffs and Basappa; in the said partition, the suit schedule property was partitioned between the plaintiffs and they became the absolute owners of the suit schedule property and mutation was effected vide M.R.No.H11/2012-2013 which is marked at Ex.P-3. Even the defendants have not challenged the said mutation entry in Ex.P-3. Thus, the trial Court, considering the entire evidence on record was justified in recording a finding that there was a partition

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between the sons of Yallappa and subsequently there was a partition between Basappa and the plaintiffs in the year 2012. Thus, the plaintiffs became the absolute owners of the suit schedule property and the trial Court was justified in decreeing the suit in O.S.No.48/2013 declaring that the plaintiffs are the absolute joint owners of the suit schedule property.

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Further, the plaintiffs lodged a complaint against the defendants for disturbing their possession. The Police gave an endorsement stating that the dispute between the plaintiffs and defendants is of a civil nature and directed the plaintiffs to approach the Civil Court. The plaintiffs have produced the documents at Ex.P-22. Which is the certified copy of the order sheet in C.C. No.766/2014 and Ex.P-23 is the final report in Crime No.12/2013 and Ex.P-24 is the FIR in Crime No.12/2013.

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From the perusal of Exs.P-23 and P-24, it is clear that the defendants were interfering with the

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peaceful possession and enjoyment of the suit schedule property by the plaintiffs. I do not find any error in the impugned judgment and I concur with the findings recorded by the trial Court.

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In view of the above discussion, I answer the

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point No.2 in the negative.

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Reg. Point No.3 in R.F.A.No.100210/2018:

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As per the final order.

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Reg. Points No.1 to 3 in R.F.A.No.100174/2019:

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Points No.1 to 3 are interlinked are discussed

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together to avoid the repetition of facts.

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The daughters of propositus Yallappa filed the suit in O.S.No.12/2015 contending that the suit schedule properties were owned and possessed by Yallappa and he

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died intestate. After his demise, the plaintiffs and the defendants in O.S.No.12/2015 are the members of the

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Hindu Undivided Family and no partition is effected

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between them.

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As observed above in R.F.A.No.100210/2018,

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this Court has already recorded a finding that there was a severance effected between the sons of Yallappa in 1982 and the sons of Yallappa are in the possession of their respective shares and their names were entered in the revenue records. In the said partition, Sy.No.51/2 fell to the share of Basappa-defendant No.4. Further, there was subsequent partition between Basappa-defendant No.4 and defendants No.5 and 6 in O.S.No.12/2015 in respect

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of the land bearing R.S.No.51/2 and by virtue of the subsequent partition, the plaintiffs became the absolute owners of the same. Accordingly, the plaintiffs in O.S.No.48/2013 have proved the partition between the sons of Yallappa and the plaintiffs in O.S.No.12/2015 who are the daughters of Yallappa are not entitled for a share in the suit schedule properties in O.S.No.12/2015.

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In view of the above discussions, the points

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No.1 to 3 in R.F.A.No.100174/2019 do not survive for consideration and in view of the trial Court decreeing the suit in O.S.No.48/2013, the suit in O.S.No.12/2015 does not survive for consideration. Hence, the trial Court was justified in dismissing the suit in O.S.No.12/2015 on the ground that there was a prior partition between the parties to the suit and they are in possession of their respective shares in the suit schedule properties and there is severance of status as on the date of filing of the suit and the plaintiffs and the defendants in O.S.No.12/2015 were not the members of the Hindu Undivided Family and the suit schedule properties were not the ancestral joint family properties.

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In view of the above discussions, I do not fine any error in the judgment passed by the trial Court in O.S.No.12/2015. Accordingly, the points for consideration Nos.1 to 3 are answered.

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Reg. Point No.4 in R.F.A.No.100174/2019:

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As per the final order.

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48. In the result, I pass the following:

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ORDER

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(i) These Regular First Appeals are dismissed .

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(ii) The judgment and decree dated 13.04.2018 passed in O.S.No.48/2013 and the judgment and decree dated 03.11.2018 passed in O.S.No.12/2015 by the Addl. Senior Civil Judge and JMFC, Mudhol, are hereby confirmed.

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(iii) No order as to the costs.

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Sd/(ASHOK S. KINAGI) JUDGE

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NAA

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CT: BSB List No.: 1 Sl No.: 18

Yallappa S/O Ishwarappa Belagali v. Smt. Mahananda W/O Beerappa Banahatti

Case brief

What is this about?

What did the court decide?

Yallappa S/O Ishwarappa Belagali v. Smt. Mahananda W/O Beerappa Banahatti

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

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