Shri. Anand S/O Rajaram Patil Vs Sri. Prakash S/O Dattu Patil

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NC: 2025:KHC-D:7526-DB RFA No. 100232 of 2017

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 11^TH DAY OF JUNE 2025 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 REGULAR FIRST APPEAL NO. 100232 OF 2017 (PAR/POS)

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BETWEEN:

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SHRI. ANAND S/O. RAJARAM PATIL AGE: 37 YEARS, OCC: AGRICULTURE, R/O: HONGA, TAL: AND DIST: BELAGAVI.

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…APPELLANT

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(BY SRI. CHETAN MUNNOLI, ADVOCATE)

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AND:

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SRI. PRAKASH S/O. DATTU PATIL AGE: 56 YEARS, OCC: AGRICULTURE, R/O. LAXMI GALLI, HONAGA, TAL AND DIST: BELAGAVI.

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Digitally signed by MOHANKUMAR B SHELAR Location: HIGH COURT OF KARNATKA DHARWAD BENCH Date: 2025.06.19 14:55:16 +0530

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SRI. PAPPU S/O. SIDDAPPA PATIL AGE: 36 YEARS, OCC: AGRICULTURE, R/O. LAXMI GALLI, HONAGA, TAL AND DIST: BELAGAVI.

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SRI. SACHIN S/O. SIDDAPPA PATIL AGE: 34 YEARS, OCC: AGRICULTURE, R/O. LAXMI GALLI, HONAGA, TAL AND DIST: BELAGAVI.

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SMT. FAKIRABAI W/O. OMANI PATIL AGE: 60 YEARS, OCC: HOIUSEHOLD WORK, R/O. LAXMI GALLI, HONAGA, TAL AND DIST: BELAGAVI-590001.

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SRI. PARASHURAM OMANI PATIL SINCE DECEASED BY HIS LR’s.

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SMT. LAXMI @ GOPIKA W/O. PARASHURAM PATIL, AGE: 41 YEARS, OCC: HOUSEHOLD WORK,

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HC-KAR

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R/O. GUGRENATTI, TAL AND DIST: BELAGAVI.

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KUMARI MUKTA D/O. PARASHURAM PATIL AGE: 19 YEARS, OCC: STUDENT, R/O: GUGRENATTI, TAL AND DIST: BELAGAVI-590001.

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SRI. SANJAY S/O. SUBRAO PATIL AGE: 38 YEARS, OCC: AGRICULTURIST, R/O. LAXMI GALLI, HONAGA, TAL AND DIST: BELAGAVI-590001.

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SRI. RAJU S/O. SUBRAO PATIL AGE: 34 YEARS, OCC: AGRICULTURIST, R/O. LAXMI GALLI, HONAGA, TAL AND DIST: BELAGAVI-590001.

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SRI. RAMACHANDRA S/O. BHAIRUI PATIL SINCE DECEASED BY HIS LR’s.

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9(A). SMT. SHANTA W/O. RAMACHANDRA PATIL RESPONDENT NO.9(B) AND 9(C) ARE TREATED AS LR’s OF DECEASED RESPONDENT NO.9(A)

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9(B). NAGESH S/O. RAMACHANDRA PATIL AGE: 51 YEARS, OCC: AGRICULTURE, R/O. PATIL GALLI, HONAGA-591156, TAL AND DIST: BELAGAVI.

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9(C). SMT. PRABHAVATI W/O. YALLAPA JANGLE AGE: 49 YEARS, OCC: HOUSEHOLD WORK, R/O. TANAJI GALLI, HONAGA-590001, TAL AND DIST: BELAGAVI.

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…RESPONDENTS

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(BY SRI. GIRISH A.YADAWAD, ADVOCATE FOR R2 AND R8; SRI. VITTHAL S.TELI, ADVOCATE FOR R5 AND R6; NOTICE TO R1, R4, R7, R9(B AND C) ARE SERVED; APPEAL AGAINST R9 STANDS ABATED; R9(A)-DIED; NOTICE TO R3 IS HELD SUFFICIENT)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 17.04.2017 PASSED IN O.S. NO.229/2011 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE BELAGAVI, DISMISSING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.

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NC: 2025:KHC-D:7526-DB RFA No. 100232 of 2017

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HC-KAR

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THIS APPEAL COMING ON FOR ADMISSION 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 plaintiff in O.S.No.229/2011, on the file of the I

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Additional Senior Civil Judge & CJM, Belagavi, at Belagavi (hereinafter referred to as the ‘trial Court’ for short) has filed this regular first appeal challenging the judgment and decree dated 17.04.2017 passed in the above suit, by which his suit for partition and separate possession of his share in the suit properties was dismissed.

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The parties shall henceforth be referred to as

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they were arrayed before the trial Court.

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The suit in O.S.No.229/2011 was filed for

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partition and separate possession of the plaintiff’s share in the suit schedule properties. The suit schedule properties were land bearing R.S.No.534/3 and R.S.No.534/4, both situate at Honga, Belagavi Taluk. The plaintiff claimed that

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he and defendants were members of a coparcenery. He claimed that Sy.No.534 measuring 1 acre 38 guntas was the joint family ancestral property of four brothers namely Topanna, Siddappa, Paramanna and Omanna who were sons of Bhairu. They were cultivating separate strips of the above land and their names were entered in the revenue records as per cultivation and enjoyment, though there was no actual partition by metes and bounds. He claimed that he and the defendants succeeded to the properties and they continued to be in possession. Defendant No.1 who is the descendent of Topanna was in possession of 32 guntas which is numbered as R.S.No.534/3. The plaintiff who is the descendant of Paramanna was in possession of 22 guntas which is numbered as R.S.No.534/2. The father of defendants No.2 and 3 namely Sri.Siddappa was in possession and cultivation of 8 guntas of land which is numbered as R.S.No.534/4. The father of the defendants No.4 to 7 namely Sri.Omanna was in possession of R.S.No.534/1. The plaintiff claimed that the father of

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defendants No.2 and 3 had sold away the land bearing R.S.No.534/4 without the consent, notice and knowledge of the plaintiff and other defendants. He contended that the suit lands lay in adjacent to the National Highway No.4 and due to the formation of the road, the land became uncultivable and the portions of land possessed by the plaintiff and the defendants could not be identified. He contends that defendant No.1 with an intention to make illegal gain tried to alienate R.S.No.534/3 without the notice and knowledge of the plaintiff. On coming to know of such attempt, the plaintiff demanded partition and separate possession of his lawful share in the suit properties which were refused by the defendants. Therefore, the plaintiff was advised to file a suit for partition of his 1/4^th share in the suit schedule properties by metes and bounds.

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4. Defendant No.1 contested the suit and claimed

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that there was no joint family comprised of the plaintiff and the defendants since the last more than 100 years. He

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also claimed that the plaintiff and the defendants were in possession of their respective properties and they were cultivating them. He claimed that the plaintiff who got R.S.No.534/2 as his share, got it converted for nonagricultural purposes and formed three plots and sold one of them to a Muslim gentleman and constructed building in the remaining portion. He contended that Sy.No.534 of Honga measuring 1 acre 38 guntas was not a joint family property as contended by the plaintiff as there was already a partition long back and the parties were enjoying their property separately. He contended that the land bearing Sy.No.534 was reassigned as R.S.Nos.534/1, 534/2, 534/3 and 534/4 and separate diary entries were certified by the revenue authorities namely M.E.No.1997 dated 07.10.1976 in respect of R.S.No.534/3 and M.E.No.5124 dated 7.6.1992 in respect of R.S.No.534/2. He contended that there were several other properties and the plaintiff had selectively claimed share only in the landed properties. He also claimed that the suit without

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impleading the female members of the family was not maintainable.

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Defendants No.2, 6 and 7 on the other hand

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conceded to the claim of the plaintiff and demanded their share in the suit properties.

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Defendants No.4 and 5 on the other hand filed a separate written statement inter alia contending that the father of the plaintiff has not arrayed in the suit. It is contended that defendant No.5 had five sons and the plaintiff had deliberately not shown the genealogy of all the five children. They also claimed that the plaintiff was not in joint possession of the suit properties as contended.

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The legal heirs of defendant No.5 namely defendants No.5(A) and 5(B) conceded to the case of the plaintiff and claimed their share.

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Based on these contentions, the trial Court framed the following issues:

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“1. Whether the plaintiffs are entitled for relief sought for? If yes, what is the quantum in each item of suit lands?

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2. What decree or order?

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Additional issues:

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1. Whether plaintiffs prove that, they and defendants are joint owners and possessors of suit land as on the date of suit?

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2. Whether plaintiffs prove that, sale deed executed by Siddappa in favour of defendant No.8 with respect of 8 gunthas of land is not binding on them?

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3. Whether suit of plaintiffs is bad for non-joinder of necessary parties?

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4. Whether suit is bad for non-inclusion of other properties?

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5. Whether court fees paid is insufficient?

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6. Does Defendant No.1 proves that there was partition more than 100 years ago?

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7. Is the suit barred by limitation?”

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The plaintiff was examined as PW.1 and also

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examined his father as PW.2 and marked Exs.P.1 to P.5. The defendants examined defendant No.2 as DW.1.

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Based on the oral and documentary evidence, the

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trial Court held that Ex.P.1 to Ex.P.4 showed that Sy.No.534 was bifurcated and separate numbers were

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assigned as R.S.Nos.534/1, 534/2, 534/3 and 534/4. It noticed that PW.1 admitted that Sy.No.534 was divided about 25 years ago. It also noticed that PW.1 admitted that R.S.No.534/1 stood in the name of defendants No.4 and 5, R.S.No.534/2 stood in his name, R.S.No.534/3 stood in the name of defendant No.1 and R.S.No.534/4 stood in the name of father of defendants No.2 and 3. PW.1 also admitted that the names of the aforesaid were appearing in the revenue records for more than 40 to 50 years and that they were in possession of their respective portions. It noticed that PW.1 also admitted the mutation entries that were certified. The trial Court therefore held that the division of Sy.No.534 into four portions was done almost 50 to 60 years ago. It also noticed the admission made by the PW.1 that since 50 to 60 years, the plaintiff and defendants were residing separately and there was a partition of other properties which were separately cultivated and maintained and the income generated from those properties were utilized separately. It therefore held

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that there was a partition between the plaintiff and the defendants in respect of other properties and hence, the contention of the plaintiff that there was no partition of Sy.No.534 cannot be accepted.

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It referred to the evidence of PW.2 who

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deposed that he had partitioned all his properties amongst his children. He also admitted that in Sy.No.534, there were four divisions and the names of the persons who were entitled to portions of the Sy.No.534 were mentioned in the respective survey numbers and they were in possession and enjoyment. The trial Court therefore held that PW.1 and PW.2 categorically admitted that there was a partition of the properties long back including the land bearing Sy.No.534 and that they are in lawful possession of their respective shares.

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It also noticed that PW.1 had admitted that R.S.No.534/2 fell to his share and that he had sold a piece of that land to one Mr.Moula. He also admitted that in the

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remaining portion of the land of R.S.No.534/2, he had constructed buildings. He also admitted that defendants No.6 and 7 had constructed their respective houses in R.S.No.534/1. Therefore, the trial Court held that the plaintiff failed to prove that he and the defendants were joint owners in possession and enjoyment of the suit properties and that defendant No.1 had proved that there was a partition long back. Consequently, it held that the sale by Siddappa in favour of defendant No.8 in respect of the land bearing R.S.No.534/4 was valid. It further held that the suit without including all the properties of the family was not maintainable and the suit was hit by nonjoinder of necessary parties. It also held that the suit for partition was highly belated as the plaintiff had admitted that there was a division of the properties nearly 50 to 60 years ago. Consequently, it held that the plaintiff is not entitled to relief of partition and separate possession and dismissed the suit. Being aggrieved by the said judgment and decree, this appeal is filed.

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Sri.Chetan Munnoli, learned counsel for the

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appellant contended that though the plaintiff admitted that Sy.No.534 was divided into four pieces and re-assigned as R.S.Nos.534/1, 534/2, 534/3 and 534/4, there was no actual partition of the said property and that the parties were enjoying the portions based on their convenience. He contends that the salient feature of a Hindu Family is that it is joint and therefore, the properties held by it should also be deemed to the property belonging to the family. He contends that it is for the defendants to establish that there was a partition of the property of the family and the suit properties were also subject to division. He therefore contends that in the light of the contention of the defendants that the suit properties were divided, they have admitted that the suit properties were earlier owned and possessed by the joint family. Therefore, he contends that the only defence that the defendants can take is that there was a prior partition. He contends that though the defendants had taken such a defence, they had not

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produced any document in that regard and hence, the findings of the trial Court that there was a prior partition is without any basis and deserves to be interfered.

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Sri.Vitthal S.Teli., learned counsel for

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respondents No.5 and 6 (i.e. defendants No.5A and 5B) on the other hand contended that PW.1 and PW.2 had categorically admitted the fact that Sy.No.534 was bifurcated into R.S.Nos.534/1, 534/2, 534/3 and 534/4. He contends that R.S.No.534/2 was allotted to the share of the plaintiff and his name was entered in the revenue records. Likewise, the names of the other defendants were entered in the revenue records in respect of the other portions. He contends that the R.S.No.534/4 was sold away by Siddappa long back while R.S.No.534/2 which belonged to the plaintiff was converted to non-agricultural use and a portion of the said property was conveyed by the plaintiff to one Moula and he had developed the remaining portion by constructing house. He therefore contends that even as per the case of the plaintiff, the

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plaintiff was in lawful possession of the property that was allotted to his share. He contends that since this arrangement is in existence from about 50 to 60 years as admitted by the plaintiff, he was bound to prove that this was not a partition of the property. He contends that the members of the joint family can effect the partition of the property orally and there is no prohibition for such oral partition. He contends that such oral partition can be proved by the conduct of the parties and the way they have enjoyed the properties that fell to their shares, etc. He contends that division of Sy.No.534 into four portions and registering the names of the concerned persons in the revenue records and they being in possession of their respective shares shows that the parties have agreed that there was a partition of the properties. He therefore contends that the plaintiff had filed a mischievous suit seeking partition of the property which is already partitioned. He contends that PW.2 admitted this fact in very categorical terms and therefore, there is no sign of

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any doubt that the suit properties were partitioned long back and the members of the family were in respective possession of their respective shares.

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He contends that the very fact that the plaintiff

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has got the property that was allotted to his share converted to non-agricultural purpose and thereafter sold it to one Moula establishes beyond doubt that the plaintiff had also accepted this partition. He contends that the plaintiff never objected against Siddappa selling R.S.No.534/4 and also against defendants No.6 and 7 constructing buildings in their respective properties. Therefore, he contends that the instant suit is a mischievous attempt by the plaintiff to extract more property from the defendants.

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We have considered the submissions of the learned counsel for the plaintiff and the learned counsel for defendants No.5A and 5B.

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Since the questions of fact lie on a narrow compass and the trial Court has dismissed the suit based on the evidence of the plaintiff, we do not see any substantial question of law or fact that requires to be deeply examined by this Court. Therefore, we do not deem it appropriate to admit this appeal and dispose of the same at the stage of admission.

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After having heard the learned counsel for the plaintiff, learned counsel for defendants No.5A and 5B and on perusing the plaint, written statement, and the depositions of PW.1 and PW.2 which was furnished to us by the learned counsel for the plaintiff and the judgment and decree of the trial Court we find that the following point arises for consideration:

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Whether the plaintiff proved that the suit properties belonged to the joint family and whether the plaintiff was entitled to a share therein ?

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The plaintiff in his plaint claimed that the land bearing Sy.No.534 was an ancestral property belonging to the joint family comprised of Topanna, Sididappa, Paramanna and Omanna. He admitted that four brothers were cultivating separate portions of Sy.No.534 and that their names were entered in the revenue records as per their cultivation and enjoyment. He admitted that Sy.No.534 was bifurcated into R.S.Nos.534/1, 534/2, 534/3 and 534/4 as per possession and enjoyment. He also admitted that the land bearing R.S.No.534/4 which fell to the share of Siddappa was alienated by him but he did not object it. He also admitted that mutation entries were made in M.E.No.5124 dated 07.06.1992 in respect of R.S.No.534/2 which fell to the share of his father. He also admitted that R.S.No.534/1 and R.S.No.534/4 were certified in the names of other defendants while R.S.No.534/3 was certified in the name of defendant No.1. He also admitted that these divisions of Sy.No.534 took place almost 50 to 60 years ago. He also admitted that

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since from last 50 to 60 years, all the members of the family were residing separately and that there was partition of other properties of the family. He also admitted that the other properties were separately cultivated and maintained and the income generated from such properties was utilized separately.

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PW.2, the father of the plaintiff also admitted that there were four divisions of Sy.No.534 and that the names of the sharers as per earlier partition were entered in revenue records. In addition, the plaintiff admitted that R.S.No.534/2 which was allotted to him was converted to non-agricultural residential use and he sold a portion of the said property to one Moula and constructed in the remaining portion. Likewise, he admitted that defendants No.6 and 7 had constructed their houses in R.S.No.534/1 which was not obstructed by him. It is therefore evident that the predecessors of the plaintiff and defendants were

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divided long back and were in possession of their respective portions. There is no justification offered by the

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plaintiff to justify the division of Sy.No.534 into four bits and the continuation of the revenue records in the names of the predecessors of the plaintiff and defendants. The way in which the parties have dealt with their properties establishes that all the parties have understood that the

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suit property was partitioned. This apart, PW.2 had admitted that in respect of other properties of the family, there was a partition and that in respect of Sy.No.534, the names of the sharers as per the earlier partition was entered in the revenue records. Therefore, there is clinching evidence which shows that there is prior partition of Sy.No.534 and that the same was divided between the predecessors of the plaintiff and the defendants long back. Under the circumstances, the trial Court was justified in holding that the plaintiff and the defendants did not presently constitute a joint family and that the suit properties were divided long back between the predecessors of the plaintiff and the defendants. There is no error in the appreciation of facts and application of law

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by the trial Court warranting interference with the

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judgment and decree.

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In view of the above, we hold that the plaintiff

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had failed to prove that the suit properties were the joint family ancestral properties and that there was a prior partition of the suit property and hence, the plaintiff is not entitled to seek for partition and separate possession of his share in the suit properties. Hence, the regular first appeal lacks merits and is dismissed .

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No order as to costs.

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Sd/(R.NATARAJ) JUDGE

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Sd/(RAJESH RAI K) JUDGE

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RH Ct:vh List No.: 1 Sl No.: 28

Shri. Anand S/O Rajaram Patil v. Sri. Prakash S/O Dattu Patil

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Shri. Anand S/O Rajaram Patil v. Sri. Prakash S/O Dattu Patil

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