Rudrappa S/O Ujjappa Gaddadgooli Vs Shivappa S/O Maralashiddappa Gaddadgooli

B.S.MANJULA W/O. B. SIDDESH, AGE: 46 YEARS, OCC: HOUSEHOLD, R/O: #220/22-38, SRI. SIDDESHWARA KRUPA, SHIVA PARVATI LAYOUT, NAGANUR ROAD, SHAMANUR, TQ AND DIST: DAVANAGERE – 577 004.

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A. SHANTHA W/O. LINGAPPA, AGE: 46 YEARS, OCC: HOUSEHOLD, R/O: NO.10, 3^RD CROSS, GAJANANANAGAR, HEGGANAHALLI CROSS, BENGALURU – 560 091.

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FAKIRGOUDA SHANKARGOUDA PATIL, AGE: 40 YEARS, OCC: AGRICULTURE.

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RAMESHGOUDA SHANKARGOUDA PATIL, AGE: 35 YEARS, OCC: AGRICULTURE, R/O: KOTEKAKOLADAVAR ONI, RANEBENNUR – 581 115.

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…APPELLANTS

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[BY SRI. HARSHAWARDHANA M. PATIL, ADVOCATE FOR PROP. A1(A – G)]

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AND:

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SHIVAPPA S/O. MARASIDDAPPA GADDADGOOLI,

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AGE: 83 YEARS, OCC: AGRICULTURE AND RETD. EMPLOYEE, R/O: BURADAKATTI ONI, RANEBENNUR,

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TQ: RANEBENNUR, DIST: HAVERI – 581 115.

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SMT.SUMITRAMMA W/O. MAHADEVAPPA GADDADGOOLI, (DECEASED)

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2. JETTEPPA S/O. MAHADEVAPPA GADDADGOOLI,

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AGE: 45 YEARS, OCC: AGRICULTURE.

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RAVIKUMAR S/O. MAHADEVAPPA GADDADGOOLI,

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AGE: 36 YEARS, OCC: AGRICULTURE.

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HC-KAR

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KURUVATTEPPA S/O. MALASHIDDAPPA AGE: 79 YEARS, OCC: AGRICULTURE, (SINCE DECEASED BY HIS LRS)

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CHANABASAVVA

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W/O. KURUVATEPPA GADDADGOOLI, AGE: 65 YEARS, OCC: HOUSEHOLD.

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NAGARAJ S/O. KURUVATEPPA GADDADGOOLI, AGE: 42 YEARS, OCC: AGRICULTURE.

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PRAKASH S/O. KURUVATEPPA GADDADGOOLI, AGE: 40 YEARS, OCC: AGRICULTURE.

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ALL ARE R/O: HALAGERI ROAD, RANEBENNUR, TQ: RANEBENNUR, DIST: HAVERI – 581 115.

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BABY W/O. UMESH PRADAHALER, AGE: 45 YEARS, OCC: HOUSE HOLD, R/O: MUGALAGERI, TQ: SHIKARIPUR, DIST: SHIVAMOGGA.

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CHANNABASAPPA S/O. MALASHIDAPPA GADDADGOOLI, AGE: 75 YEAS, OCC: AGRI., R/O: HALAGERI ROAD, RANEBENNUR, TQ: RANEBENNUR, DIST: HAVERI – 581 115.

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RAVENAPPA S/O. CHANNABASAPPA GADDADGOOLI, AGE: 70 YEARS, OCC: AGRI AND RETD. EMPLOYEE, R/O: RANEBENNUR, TQ: RANEBENNUR, DIST: HAVERI. AT PRESENT RESIDING IN VINAYAK BADAVANE, VIDYA NAGAR, D/NO.1846/183, DAVANAGERE – 577 005.

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KARABASAPPA S/O. CHANNABASAPPA GADDADGOOLI,

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HC-KAR

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AGE: 70 YEARS, OCC: AGRI, R/O: RANEBENNUR, TQ: RANEBENNUR, DIST: HAVERI. AT PRESENT RESIDING AT KARUR, TQ: DAVANAGERI – 577 005.

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NAGARAJ S/O. CHANNABASSAPPA GADDADGOOLI, AGE: 60 YEARS, OCC: EMPLOYEE, R/O: RANEBENNUR, TQ: RANEBENNUR, DIST: HAVERI. AT PRESENT RESIDING AT HARIHAR – 577 601.

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SMT. CHANDRAKALA W/O. UMESH GADDADGOOLI, AGE: 40 YEARS, OCC: EMPLOYEE, R/O: KANCHIKERI, TQ: DAVANAGERE, DIST: DAVANAGERE – 577 005.

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ROHAN S/O. UMESH GADDADGOOLI, AGE: 14 YEARS, OCC: STUDENT, R/O: KANCHIKERI, TQ: DAVANAGERE, DIST: DAVANAGERE.

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SINCE THE RESPONDENT NO.13 IS THE MINOR R/BY HIS NEXT FRIEND NATURAL MOTHER RESPONDENT NO.12 SMT. CHANRAKALA W/O. UMESH GADDADGOOLI.

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…RESPONDENTS

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(BY SRI. VINAYA KUPPELUR, ADVOCATE FOR SRI. N.R.KUPPELUR, ADVOCATE FOR C/R1, R2, R4 AND R9)

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THIS RSA IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE 1908 PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE LEARNED III ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, RANEBENNUR IN R.A.NO.89/2015 DATED 28.01.2019 BY REVERSING THE JUDGMENT AND DECREE PASSED BY THE ADDITIONAL CIVIL JUDGE AND II ADDITIONAL JMFC, RANEBENNUR IN OS.NO.175/2008 DATED 14.08.2015, BY ALLOWING THIS APPEAL AND DISMISSING THE SUIT OF THE PLAINTIFFS/RESPONDENTS AND ETC.,

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

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL)

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The present appeal is filed by the defendant No.1, since deceased, represented by his legal representatives, being aggrieved by the judgement and decree dated 28.01.2019, passed in Regular Appeal in R.A.No.89/2015 on the file of the II Addl. Senior Civil Judge and JMFC, Ranebennur (hereinafter referred to as ‘First Appellate Court’), by which the First Appellate Court while allowing the said appeal filed by the respondents who are plaintiffs, set aside the judgement and decree dated 14.08.2015 passed in O.S.No.175/2008 on the file of the Addl. Civil Judge and II Addl. JMFC, Ranebennur (hereinafter referred to as ‘Trial Court’) and consequently, decreed the suit holding that plaintiffs are entitled to the relief of partition and separate possession of 2/3^rd share in the suit schedule property by metes and bounds.

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The above suit in O.S. No.175/2008 was filed by

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the plaintiffs seeking partition and separate possession of their 2/3^rd share in the suit property bearing R.S. No.60/1 measuring 6 acres 3 guntas, situated at Hulihalli village, Ranebennur Taluka, contending inter alia that one Irappa was the propositus, who had four children namely Basappa, Ujjappa, Marasiddappa and Chanbasappa through his wife Smt. Siddalingamma. The propositus Irappa and his wife passed away long ago, leaving behind a joint family consisting of the aforesaid four sons. The first son, Basappa, passed away unmarried; the second son, Ujjappa,

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died in the year 1993, leaving behind defendant Nos.1 to 4 and 6 to 9 as his legal heirs; the third son, Marasiddappa, died on 08.07.1994, leaving behind plaintiff Nos.1 to 6 as his legal heirs; and the fourth son, Chanabasappa, died in the year 2002, leaving behind plaintiff Nos.7 to 11 as his legal heirs.

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It is the contention of the plaintiffs that the original propositus, Irappa, was in possession and

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enjoyment of the suit property, which he was cultivating as a tenant. Even after his death, his aforesaid four sons continued to cultivate the said property as members of the joint family. However, they began to reside separately due to differences of opinion amongst the members of the joint family, after taking their respective shares in other ancestral joint family properties. Nevertheless, the suit property continued to be jointly cultivated by them as tenants.

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That in view of the Karnataka Land Reforms Act, 1961, the suit property vested with the Government. The deceased Ujjappa, the second son of the propositus filed Form No.7 before the Land Tribunal, seeking grant of occupancy rights in his favour and for the benefit of the joint family, as the property was being cultivated by the legal heirs of Irappa. The Land Tribunal granted the occupancy rights in favour of Ujjappa for and on behalf of the joint family. Accordingly, Ujjappa, Marasiddappa and Chanbasappa are entitled for equal shares in the suit

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property. As there has been no partition between the plaintiffs and defendants, the above suit seeking for partition was filed.

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Defendant Nos.1 and 5 filed a written statement,

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which was adopted by defendant Nos.2 to 4 and 6 to 9. The defendants denied the geology produced by the plaintiffs, as well as the existence of a joint family, and contended that the suit property is not joint family property. They also contended that the suit was not maintainable due to the non-joinder of necessary parties, namely Smt. Ujjavva and Neelavva, the daughters of propositus. It was further contended that Irappa, the propositus, passed away in the year 1945, and upon his demise, his four sons had entered into partition in the year 1947. Since then, the children of Irappa have been living separately and managing their respective properties independently.

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It is contended that Ujjappa had filed an application seeking grant of occupancy rights in respect of the suit property before the Land Tribunal, and initially, the

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occupancy rights were granted in the names of Ujjappa, Marasiddappa and Chanbasappa. Aggrieved by the same, Ujjappa had preferred a writ petition before the this Court, whereby the matter was remitted for fresh disposal. Subsequently, in LRF No.8/75-76, on 11.12.1981, occupancy right were granted in respect of the suit property solely in favour of Ujjappa. As such, the defendants contended that the plaintiffs have no right in the suit property. It was further contended that Ujjappa had been cultivating the suit property, and after his death, defendants have continued to cultivate the same. Therefore, the plaintiffs have no right, title order interest in the suit property.

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Based on the pleadings and evidence, the trial Court framed the following issues and additional issues for its consideration:

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ISSUES:

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1. Whether plaintiff proves that suit property was the leasehold right property of the joint family of plaintiffs and defendants?

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2. Whether plaintiffs prove that the occupancy right conferred in the name of Ujjappa ensures to the benefit of joint family of plaintiffs and defendants?

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3. Whether defendants No.1 to 7 prove that the suit property was the personal and individual property of late Ujjappa the father of defendants No.1 to 5?

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4. Whether defendants No.1 to 7 prove that this court has no pecuniary jurisdiction to try the suit?

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5. Whether defendants No.1 to 7 prove that this court has no pecuniary jurisdiction to try the suit?

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6. Whether plaintiffs prove that suit property is liable to be divided into three fair and equal shares and they are entitled for 2/3^rd share?

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7. What order or decree?

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ADDITIONAL ISSUE:

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1. Whether defendants prove that in the year 1947 the joint family properties and the tenanted properties were partitioned between the children of the propsitus Erappa by way of Apsat partition?

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2. Whether the defendants prove that the family of prepositus Erappa was cultivating other lease hold properties apart from the suit property?

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3. Whether defendants further prove that the suit property was fallen to their share and other lease hold properties were fallen to the share of Basappa and Marasiddappa in oral partition?

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8. Upon appreciation of the evidence and pleadings,

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the trial Court answered issue Nos.1 to 3 in the negative, issue Nos.4 and 6 as did not survive for consideration, and issue No.5 in the negative by a separate order. Additional issue Nos.1 to 3 were answered in the affirmative, and consequently, the suit was dismissed.

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Being aggrieved by the judgment and decree of the trial Court, the plaintiffs preferred appeal in R.A. No.89/2015 before the First Appellate Court.

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The First Appellate Court framed the following points for its consideration.

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POINTS

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1. Whether the appellants/defendants proves that, impugned judgment and decree of the Court below is against the law and facts and circumstances of the case?

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2. Whether the appellants prove that, the interference of this Court is required with the impugned judgment and decree of the Court below?

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3. What order or decree?

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On re-appreciation of the evidence, the First Appellate Court answered point Nos.1 and 2 in the affirmative and consequently held that the suit property, though granted in the name of Ujjappa, was held for and on behalf of the joint family. Accordingly, the first appellate Court decreed the suit as prayed for.

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Being aggrieved by the judgment and decree of the First Appellate court, the defendants have preferred this regular second appeal before this Court.

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Learned counsel appearing for the appellants, reiterating the grounds urged in the appeal memorandum, vehemently submits that, in the light of the admitted partition that took place in the year 1947, wherein the lands held by the propositus Irappa were divided and the parties began residing separately, the First Appellate Court ought not to have reversed the well-reasoned findings of the trial Court. He submits that though the initial grant was made in the joint names of the three sons of Irappa, Ujjappa challenged the same by preferring a writ petition, which

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resulted in the matter being remanded to the Land Tribunal for fresh consideration. Upon such remand, the majority of the members of the Tribunal opined that Ujjappa was cultivating the land on his own, while a minority members of the Tribunal have held that it was jointly cultivated by Ujjappa and his brothers. Thus, it is contended that the Land Tribunal, rightly relying on the majority view, held that the suit property be granted exclusively in the name of Ujjappa in his individual capacity.

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He, however fairly submits that the suit property bearing R.S. No.61/1 was not included in the partition of the year 1947 and continued to be cultivated jointly by the members of the family until it was granted in the name of Ujjappa. Since the grant was exclusively made in the name of Ujjappa he contends that the reasoning and conclusion arrived at by the First Appellate Court, in reversing the findings of the trial Court, gives rise to a substantial question of law warranting interference by this Court in this appeal.

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Per contra, learned counsel appearing for the plaintiffs, referring to Ex.P3, which is an order passed by the Tribunal, submits that the Tribunal had taken into consideration of the fact that the land was originally being cultivated by Irappa, the propositus, and thereafter by his sons. Based on these factual aspects of the matter, the grant of occupancy rights was made. She contends that, even though the grant was ultimately made in the name of Ujjappa, in view of the settled principles of law, such a grant would enure to the benefit of the joint family. Therefore, no substantial question of law arises for consideration in the present appeal. Hence, seeks for dismissal of the appeal.

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Heard, Perused the records.

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17. From the aforesaid facts and the submissions

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made, what emerges is that the suit property was being cultivated by the original propositus, Irappa, during his life time. Though there appears to have been a partition in the year 1947, it is admitted that the suit property was not the

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subject matter of the said partition. While the parties may have started living separately, even the records reveal that, undisputedly, the suit property continued to be cultivated jointly by the members of the family.

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Initially, the Land Tribunal had granted occupancy rights jointly in the names of all the surviving sons of Irappa. However, upon the said order being challenged by the Ujjapa, this Court remanded the matter for fresh consideration and on such remand, the Tribunal considered the matter afresh and granted occupancy rights exclusively in favour of the Ujjappa.

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It appears that subsequent order granting occupancy rights in favour of Ujjappa was challenged by the plaintiffs in W.P. No.39070/2003, which was disposed by reserving liberty to the parties to seek adjudication of their rights by approaching the Civil Court. Accordingly, the present suit came to be filed.

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The revenue records, even as taken note of by the trial Court at paragraph No.30 of its judgment indicate

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that the suit property continued to stand in the name propositus Irappa till the year 1974 despite his death in the year 1945. That there was no issue with regard to the revenue entries even after of his sons in the year 1967, 1984, 1993 and 2002 respectively. The trial Court however at para 33 has observed that though it is true that rights of tenant is heritable, in the instant case suit property was cultivated by Irappa who died in the year 1945, and the plaintiff had right as a sharer as per Section 21 of Karnataka Land Reforms Act, 1974, but since in the year 1947, joint family members divided joint family properties including suit property, they cannot claim the share as sharer or heirs of original tenants.

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As against the aforesaid finding and observation of the trial Court, the First Appellate Court as seen at paragraph 28, 29 and 30 of its judgment referring to the revenue records and the provisions of Section 25 of the Karnataka Land Reforms Act, 1974 has found that in the family partition of other ancestral joint family properties,

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suit property R.S. No.60/1 measuring 6 acres 3 guntas was not included and it continued to remain in the name of Irappa till the year 1974-75.

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That apart, even as fairly submitted by learned counsel for the appellant as noted above, the suit schedule property has not been subject matter of the partition in the year 1947 and the same continued to be cultivated by all the members of the family. Thus, admittedly suit property continued to be in joint possession and cultivation of all the members of the family, this factual aspect of the matter cannot be lost sight of.

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It is settled law that under certain circumstances, the members of the joint family can severe their joint interest in respect of part of joint estate while retaining their status of joint family and holding the rest as the properties of undivided family.

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In the instant case, Ujjappa did not come in possession of the properties for the first time in his individual capacity. Admittedly, the suit property was being

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cultivated by Irappa, the propositus, during his life time, and cultivation continued thereafter by his sons. It is perhaps for this reason that the revenue records continued in the name of Irappa even after his demise, up till the grant of occupancy rights in the name of Ujjappa. The First Appellate Court has rightly appreciated this aspect of the matter and come to the conclusion that though the grant was made in the name of Ujjappa, it would enure to the benefit of other members of the joint family.

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Therefore, no irregularity, illegality or infirmity can be found in the said reasoning and conclusion arrived by the First Appellate Court.

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In view of the above, no substantial question of law arises for consideration. Accordingly, the appeal is dismissed.

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Sd/(M.G.S. KAMAL) JUDGE

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VB & VNP / CT-ASC List No.: 1 Sl No.: 27

Rudrappa S/O Ujjappa Gaddadgooli v. Shivappa S/O Maralashiddappa Gaddadgooli

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Rudrappa S/O Ujjappa Gaddadgooli v. Shivappa S/O Maralashiddappa Gaddadgooli

Case brief

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