Dismissed

Hanumanthappa Yallappa Biradi v. Basappa Kallappa Baradi

Karnataka HC25 Apr 2025RSA/157/2008

Case brief

AI extract

What is this about?

Second appeal by plaintiffs claiming exclusive ownership of granted agricultural land through an adopted son of the original grantee. The High Court held the property remained joint family property of the propositus's three sons, rejected reliance on Section 14(1), and dismissed the appeal upholding reversal of the trial court decree.

What the court decided

AI extract

Hanumanthappa Yallappa Biradi Vs Basappa… — Succession and Inheritance | Karnataka HC (2025)

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NC: 2025:KHC-D:6903 RSA No. 157 of 2008

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 25^TH DAY OF APRIL, 2025

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BEFORE

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THE HON'BLE MR. JUSTICE C.M. POONACHA REGULAR SECOND APPEAL NO.157 OF 2008 (DEC/INJ)

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BETWEEN:

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SRI HANUMANTHAPPA YALLAPPA BARDI, SINCE DECEASED BY HIS LRS.

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1A. SRI. PUTTAPPA HANUMANTHAPPA BARDI, AGED ABOUT 45 YEARS, OCC: AGRICULTURE, R/O: KALLEDEVARU, TQ: BYADGI, DIST: HAVERI – 581 106.

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1B. SRI. KALLAPPA HANUMANTHAPPA BARDI, AGED ABOUT 43 YEARS, OCC: AGRICULTURE, R/O: KALLEDEVARU, TQ: BYADGI, DIST: HAVERI – 581 106.

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Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: High Court of Karnataka

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1C. SMT. SHEKAWWA W/O. ASHOK SOTTAMMANAVAR, AGED ABOUT 42 YEARS, OCC: HOUSE WIFE, R/O: KALLEDEVARU, TQ: BYADGI, DIST: HAVERI – 581 106.

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1D. SMT. SHANTAWWA W/O. NAGAPPA SUNKAD, AGED ABOUT 41 YEARS, OCC: HOUSE WIFE, R/O: ARASINGUPPA, TQ: HANGAL, DIST: HAVERI – 581 106.

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1E. SRI. UMESH S/O. HANUMANTHAPPA BARDI, AGED ABOUT 40 YEARS, OCC: AGRICULTURE, R/O: ARASINGUPPA, TQ: HANGAL, DIST: HAVERI – 581 106.

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SMT. NEELAVVA W/O. MARUTEPPA BARADI,

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SINCE DECEASED BY HER LRS.

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2A. SRI. HONNAPPA M. BARDI, AGED ABOUT 36 YEARS, OCCU: AGRICULTURE, R/O: KALLEDEVARU, TQ: BYADDGI, DIST: HAVERI – 581 106.

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SMT. HANUMAVVA @ UMAVVA W/O. SHEKHAPPA HAVANUR, AGE ABOUT 45 YEARS, OCC: HOUSE WIFE, R/O: KALLEDEVARU, BYADAGI TALUKA, HAVERI DIST: – 581 106.

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SRI. NAGAPPA S/O. YELLAPPA BARADI, AGED ABOUT 35 YEARS, OCC: AGRICULTURE, R/O: KALLEDEVARU, BYADGI TALUKA, DIST: HAVERI – 581 106.

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SMT. MANGALAVVA D/O. MARUTEPPA BARADI, AGED ABOUT 37 YEARS, OCC: HOUSE WIFE, R/O: KALLEDEVALU, BYADGI TALUKA, HAVERI DIST: – 581 106.

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(MENTALLY UNSOUND PERSON AND IS REPRESENTED BY HER NEXT FRIEND AND BROTHER APPELLANT NO.2A)

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…APPELLANTS

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(BY SRI MRUTYUNJAY TATA BANGI, ADVOCATE AND SRI S.S. YALIGAR, ADVOCATES FOR A1(A TO E) AND A2 (A), A3 AND A4)

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AND:

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SRI. BASAPPA KALLAPPA BARADI, SINCE DECEASED BY HIS LRS.

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1A. SMT. BHEEMAWWA W/O. BASAPPA BARADI, AGED ABOUT 79 YEARS, OCC: HOUSEWIFE, R/O: KALLEDEVARU, BYADGI TALUKA, DIST: HAVERI - 581 106.

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1B. SRI. SHAKARAPPA BASAPPA BARADI, AGED ABOUT 61 YEARS, OCC: AGRICULTURE, R/O: KALLEDEVARU, BYADGI TALUKA, DIST: HAVERI - 581 106.

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1C. SMT. NINGAVVA W/O. HONNAPPA TALAWAR, AGED ABOUT 67 YEARS, OCC: HOUSEWIFE, R/O: ANVERI, RANEBENNUR TALUKA, DIST: HAVERI - 581 115.

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1D. SMT. SHIVAKKA W/O. HANUMANTAPPA KADARMANDALGI, AGED ABOUT 62 YEARS, OCC: HOUSEWIFE, R/O: KALLEDEVARU, TAL: BYADGI, DIST: HAVERI - 581 106.

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1E. SMT. SHANTAWWA W/O. KALLPPA DEVARAGUDDA, SINCE DECEASED BY LRS.

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1E(I) SRI. KALLAPPA S/O MARIYAPPA DEVARGUDDA, AGED ABOUT 56 YEARS, OCC: AGRICULTURE, R/O: KALLEDEVARU, TQ: BYADGI, DIST: HAVERI – 581 106.

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1E(II) SRI NINGAPPA S/O. MARIYAPPA DEVARGUDDA, AGED ABOUT 30 YEARS, OCC: AGRICULTURE, R/O: KALLEDEVARU, TQ: BYADGI, DIST: HAVERI – 581 106.

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1F. SMT. SHARAVVA D/O. BASAPPA BARADI, AGED ABOUT 68 YEARS, OCC: HOUSEWIFE, R/O: KALLEDEVARU, TAL: BYADGI, DIST: HAVERI - 581 106.

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1. SRI. NINGAPPA S/O. KALLAPPA BARADI, AGED ABOUT 91 YEARS, OCC: NIL,

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R/O: KALLEDEVARU, TAL: BYADGI, DIST: HAVERI - 581 106. 3. SRI. MUTTAPPA S/O. BHARMAPPA BARADI, SINCE DECEASED BY HIS LRS. 3A. SMT. RENUKA W/O. MUTTAPPA BARADI, AGED ABOUT 61 YEARS, OCC: AGRICULTURE, R/O: KALLEDEVARU, TAL: BYADGI, DIST: HAVERI - 581 106. 3B. SMT. KAVITA D/O. MUTTAPPA BARADI, AGE: 35 YEARS, OCC: HOUSEWIFE, R/O: KALLEDEVARU, TAL: BYADGI DIST: HAVERI - 581 106. 3C. SRI. BHARMAJJA S/O. MUTTAPPA BARADI, AGED ABOUT 18 YEARS, OCC: AGRICULTURE, R/O: KALLEDEVARU, TAL: BYADGI, DIST: HAVERI - 581 106. 3D. KUM. JYOTHI D/O. MUTTAPPA BARADI, AGED ABOUT 16 YEARS, OCC: STUDENT, R/O: KALLEDEVARU, TAL: BYADGI, DIST: HAVERI - 581 106. 3E. KUM. RAMESH S/O. MUTTAPPA BARADI, AGED ABOUT 14 YEARS, OCC: STUDENT, R/O: KALLEDEVARU, TAL: BYADGI, DIST: HAVERI - 581 106. (RESPONDENTS 3C TO 3E ARE MINORS AND ARE REPRESENTED BY THEIR NEXT GUARDIAN RESPONDENT NO.3A.) 4. SRI. PANDAPPA S/O. KALLAPPA BARADI, AGED ABOUT 60 YEARS, OCC: AGRICULTURE, R/O: KALLEDEVARU, TAL: BYADGI, DIST: HAVERI - 581 106.

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SRI. SHANKRAPPA S/O. BASAPPA BARADI, AGED ABOUT 60 YEARS, OCC: AGRICULTURE, R/O: KALLEDEVARU, TAL: BYADGI, DIST: HAVERI - 581 106.

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SMT. BHEEMAVVA W/O. BASAVVA BARADI, SINCE, DECEASED AND HE LRS ALREADY ON RECORD AS R1(B), R1 (C), R1(D), R-2 & R16.

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SRI. MAHADEVAPPA S/O. NINGAPPA BARADI, AGED ABOUT 62 YEARS, OCC: AGRICULTURE, R/O: KALLEDEVARU, TAL: BYADGI, DIST: HAVERI - 581 106.

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SRI. SHAMBANNA S/O. NINGAPPA BARADI, AGED ABOUT 40 YEARS, OCC: AGRICULTURE, R/O: KALLEDEVARU, TAL: BYADGI, DIST: HAVERI - 581 106.

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SMT. NEELAVVA W/O. PANDAPPA BARADI, AGED ABOUT 65 YEARS, OCC: HOUSEWIFE, R/O: KALLEDEVARU, TAL: BYADGI, DIST: HAVERI - 581 106.

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SRI. HONNAJJA @ HONNAPPA S/O. MARUTEPPA BARADI, AGED ABOUT 18 YEARS, OCC: STUDENT, R/O: KALLEDEVARU, TAL: BYADGI, DIST: HAVERI - 581 106.

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SMT. LAXMAVVA W/O. MAHADEVAPPA HADIMANI, AGED ABOUT 73 YEARS, OCC: HOUSEWIFE, R/O: KATENAHALLI, DIST: HAVERI - 581 173.

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SMT. PARVATEVVA W/O. HANUMANTAPPA RITTI, AGED ABOUT 71 YEARS, OCC: HOUSEWIFE, R/O: BUDDANAHALLI, TAL: BYADGI, DIST: HAVERI - 581 106.

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SRI. FAKKIRAPPA S/O. HANUMANTHAPPA GUDENHALLI, SINCE DECEASED, LRS RESP NO.14 TO 16 ALREADY ON RECORD.

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SRI. HANUMANTAPPA S/O. FAKKIRAPPA GUNDENHALLI, AGED ABOUT 63 YEARS, OCC: AGRICULTURE, R/O: KALLEDEVARU, TAL: BYADGI, DIST: HAVERI - 581 106.

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SMT. KALLAVVA W/O. RAMANNA, AGED ABOUT 57 YEARS, OCC: HOUSEWIFE, R/O: KALLEDEVARU, TAL: BYADGI, DIST: HAVERI - 581 106.

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SRI. KALLAPPA S/O. FAKKIRAPPA GUNDENHALLI, AGED ABOUT 42 YEARS, OCC: AGRICULTURE, R/O: KALLEDEVARU, TAL: BYADGI, DIST: HAVERI- 581 106.

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…RESPONDENTS

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(BY SRI MRUTYUNJAYA S.HALLIKERI, ADVOCATE FOR R1(B), R1(D), R1(E), R1(F), R2, R3(A TO E), R4, R5 AND R7 TO R9;

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SRI A.C. BALARAJ, ADVOCATE FOR R10 TO R12 & R14 TO R16; SRI S.N. BANAKAR, ADVOCATE FOR R1(A TO D AND F); R2, R3(A TO E) AND R4 TO R9 AND R1E(I AND II); SRI M.V.HIREMATH, ADVOCATE AND SRI V.S. KALASURMATH, ADVOCATE FOR R1(B TO F), R2, R3(A TO E) R4, R5, R7 TO R9; V/O DATED 28.07.2015 R1(B TO E) AND R2 TREATING AS LR’S OF DECEASED R4;

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R13 DECEASED LR’S ARE ALREADY ON RECORD AS R14 TO R16; R6 DECEASED LR’S ARE ALREADY ON RECORD AS R1(B TO E) AND R2)

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NC: 2025:KHC-D:6903 RSA No. 157 of 2008

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CIVIL PROCEDURE CODE PRAYING TO SET ASIDE THE DECREE DATED 21.11.2007 IN R.A.NO.02/2001 PASSED BY THE ADDITIONAL CIVIL JUDGE (SR.DN), RANEBENNUR AND RESTORE THE DECREE DATED 25.11.2001 IN O.S.NO.53/1989 PASSED BY THE CIVIL JUDGE (JR.DVN.) AND J.M.F.C., BYADGI, IN THE INTEREST OF JUSTICE AND ETC.,.

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THIS REGULAR SECOND APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 17.12.2024 COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:-

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CAV JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA)

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The present second appeal is filed under Section 100 of the Code of Civil Procedure, 1908¹ by plaintiff No.1 and the legal representatives of the deceased plaintiff No.2 challenging the judgment and decree dated 21.11.2007 passed in R.A.No.2/2001 by the Additional Senior Civil Judge and JMFC, Ranebennur² .

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2. The parties will be referred to as per their rank

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in O.S.No.53/1989 on the file of the Civil Judge (Jr.Dvn) and J.M.F.C., Byadgi³ for the sake of convenience.

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1 Hereinafter referred as “CPC”

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2 Hereinafter referred to as “the First Appellate Court”

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3 Hereinafter referred to as the ‘Trial Court’

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It is the case of the plaintiffs that the suit property bearing R.S.No.317/1 to the extent of 24 acres 13 guntas⁴ earlier belonged to one Ningappa @ Ningajja S/o.Ningappa Biradi. That, after the death of Ningajja, his wife Smt.Hanamavva inherited the suit property and became its absolute owner and in that regard, M.E.No.737 was effected on 05.12.1941. It is the further case of the plaintiffs that after some time, the property was forfeited to the Government from Hanamavva and the said Hanamavva was re-granted the land on 16.05.1958 by the Tahsildar, Byadagi and she became the absolute owner of the suit property and in that regard M.E.No.2390 dated 10.10.1966 was effected.

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It is further case of the plaintiffs that Hanamavva had no issues and had taken the father of the plaintiffs by name Yallappa Biradi in adoption on 20.07.1943 according to the customs that prevailed in their community and the Adoption Deed was also

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4 Hereinafter referred to as the ‘suit property’

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registered. That, the said Hanamavva and her adopted son-Yallappa have been enjoying the suit property as its absolute owners. That, Hanamavva died on 17.06.1969 leaving behind the father of the plaintiffs as her sole legal heir. That, after the death of Hanamavva, the suit property was enjoyed by the plaintiffs and their father as joint family property and that they were in possession and cultivation of the same.

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It is further case of the plaintiffs that their father-Yallappa died on 15.05.1980 and that their mother predeceased their father. That, the sisters of the plaintiffs have no right, title or interest over the suit property and in that regard M.E.No.4322 was effected on 18.02.1986. Even though the defendants have no manner of right, title or interest over the suit property, with oblique motives they attempted to interfere with the possession of the plaintiffs in the suit schedule property. That, in view of the objections raised by the defendants, the plaintiffs filed the suit for declaration and injunction.

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The defendants 1 to 9 entered appearance through their counsel. The defendant No.1 has filed written statement which has been adopted by defendants 2 to 9. Defendants 10 to 15 have also appeared through their counsel, but no written statement is filed.

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It is the case of the defendants that the suit property was originally owned by one Ningappa Biradi and after his death, it was entered in the name of Hanamavva Biradi as a Manager of the joint family and that the suit property was in joint possession of Hanamavva till 1967. That there was no partition of the suit property among the branches of Yallappa, Kallappa and Kariyappa and each of the branch members has got his respective share and memo of partition was executed by Hanamavva. That ever since the date of partition, defendants 1 to 9 have been in possession and enjoyment of their respective shares. It is further contended that the suit of the plaintiffs without

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making their sisters as parties to the suit is not maintainable. The defendants have denied that the suit

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property was re-granted in favour of Hanamavva alone as her absolute property. The defendants admit that the father of the plaintiffs viz., Yallappa was taken in adoption by Hanamavva as she had no issues. It is further contended that at the time of re-grant, the ancestors of the branch of defendants 1 to 9 have also contributed the amount for re-grant and that Hanamavva had no independent income to pay the amounts to the Government. The defendants further contended that in the event the Court holds that there is no partition in the year

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1967, the re-grant of the suit property in the name of Hanamavva was required to be considered as a joint family property of Ningappa and his two brothers. Hence, the defendants sought for dismissal of the suit.

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Based on the pleadings of the parties, the Trial

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Court framed the following:

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“ISSUES

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1. Do plaintiffs prove that they are the absolute owners of the suit land?

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2. Do they prove their exclusive lawful possession of the suit land on the date of suit?

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3. Whether the defendants, prove that the suit property is the joint property of themselves and plaintiffs?

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4. Whether the suit is bad for non - joinder of necessary party?

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5. Do defendants prove that there was partitioned between plaintiffs father and father of defendant No.4 and father of deft.1 In respect of the suit property as contended in W.S.?

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6. Do plaintiffs prove that the obstruction of the defendants?

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7. Are plaintiffs. entitled to the relief sought?

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8. What decree or order?”

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The plaintiff No.3 examined himself as PW1 and

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marked Ex.P1 to Ex.P33. Defendant No.1 examined himself as DW1 and a witness is examined as DW2. Ex.D1 to Ex.D18 have been marked in evidence. The Trial Court by its judgment and decree dated 25.11.2000 decreed the suit and passed the following:

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“ORDER

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The suit of the plaintiffs is decreed with cost.

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It is hereby declared that the plaintiffs are the absolute owners in possession and enjoyment and occupation of the suit property. Further the defts.No.1 to 9, their men, servants, etc., are hereby permanently restrained from interfering over the peaceful possession and enjoyment of the suit property of the plaintiffs in any manner.

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Draw decree accordingly.”

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Being aggrieved, the legal representatives of

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the deceased defendants 1 to 3 and defendants 4 to 9 preferred R.A.No.2/2001. The plaintiffs entered appearance before the First Appellate Court and contested the appeal. The First Appellate Court framed the following points for consideration:

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“POINTS

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1. Whether the appellants prove that trial court has erred in decreeing the suit in

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O.S.No.53/89 on 25/11/00 on the file of C.J.(JR.DN) Byadgi?

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2. Whether the appellants further prove that trial court judgment is capricious, perverse, illegal and wrong and same is required to be set aside by interference of this court?”

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The First Appellate Court by its judgment and decree dated 21.11.2007 allowed the appeal and set aside the judgment and decree passed by the Trial Court. Being aggrieved, the present second appeal is filed.

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This Court, by order dated 26.02.2008 admitted the appeal and framed following substantial questions of law:

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1. Whether the judgment and decree of the lower appellate Court is in Conformity with order 41 Rule 31 of CPC?

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2. Whether the lower appellate Court was justified in holding that the adoption is not established beyond reasonable doubt when the execution of the adoption deed was not

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in dispute and when the adoption itself was not disputed?

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3. Whether the lower appellate Court was justified in holding that the plaintiff and defendant are Co-Owners of the suit Schedule Property?

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The learned counsel, Sri.Mrityunjaya Tata Bangi, appearing for the appellants, assailing the judgment and decree passed by the First Appellate Court contends:

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i. That the property inherited by Hanamavva is her absolute property as per Section 14

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of the Hindu Succession Act;

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ii. That although the land was forfeited to the Government, possession continued with Hanamavva and hence the property would be her exclusive property in terms of Section 14 of the Hindu Succession Act;

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iii. Ex.D.3 being a Xerox copy of the partition

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deed, is inadmissible in evidence as it is not registered;

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iv. The defendants have failed to prove their assertion regarding partition;

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v. That the adoption having been admitted, the finding of the First Appellate Court that adoption is not proved, is erroneous;

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vi. The First Appellate Court has not properly

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framed the points for consideration and has erred in interfering with the judgment and decree passed by the Trial Court;

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Hence, learned counsel seeks for allowing of the above appeal and granting of the reliefs sought for.

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Per contra, learned counsel, Sri.Mrutyunjay S Hallikeri appearing for the respondents justifying the order of the First Appellate Court contends:

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i) That the suit property is the ancestral property of the plaintiff as well as the defendants since the same was owned and possessed by the propositus Ningappa and after his death, although the name of the Ningajja was alone entered in the revenue records, the same was entered as he was the elder son of the propositus Ningappa and that the property of the Ningappa devolved upon his three sons, Ningajja, Kariyappa and Kallappa. Hence, it is contended that Hanamavva did not inherit the suit property as her absolute property and that the defendants being the legal heirs of Kariyappa and Kallappa also have right and interest over the suit property;

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ii) Hanamavva divided the suit property in the year 1967 which has been admitted;

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iii) The re-grant made in the name of Hanamavva was a restoration of the property in

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her name and since Hanamavva, Kariyappa and Kallappa have repaid the land revenue, the forfeiture was cancelled. Hence, it is contended that even after the re-grant, Kariyappa and Kallappa continued to have right, title and interest over the suit property;

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iv) That the First Appellate Court has rightly reappreciated the entire aspect of the matter and set aside the order of the Trial Court which ought not to be interfered with by this Court in the present second appeal;

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Hence, learned counsel seeks for dismissal of the above appeal.

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Both the learned counsels have relied upon various judgments which shall be considered in this judgment to the extent that the same is necessary for adjudication of the questions that arise for consideration.

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The submissions of both the learned counsels have been considered and the material on record including the records of the Trial Court and the First Appellate Court have been perused.

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Before considering the contentions put forth by both the learned counsels, it is necessary to notice the findings recorded by the Trial Court and the First Appellate Court.

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The Trial Court while considering issue Nos.1, 2,

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3 and 5, has recorded the following findings:

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i) It was suggested during the course of crossexamination of DW.1 (defendant No.1) that before 1967 Kallappa and Kariyappa were dead. This suggestion was admitted by DW.1;

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ii) DW.1 has admitted the suggestion that in the year 1941 there was partition in the family of the Ningappa and after the partition the defendants and Kallappa and Kariyappa have purchased

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certain properties and the property was also allotted in favour of defendant No.1 by the Government;

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iii) On perusal of Ex.P.1, it shows that the suit property came in possession of Hanumawwa after the death of Ningajja. In this regard the PW.1 has clearly deposed before the Court that Hanumawwa was the sole legal heir of Ningajja and after the death of Ningajja, the property came in possession of Hanumawwa and eversince the date of possession of the property Hanumawwa had been enjoying the suit property. During the course of evidence the PW.1 has deposed that in the year 1956 as the Hanumanwa had violated the condition of the granted land, the said land was forfeited to the Government. In this regard Ex.P.2 is a clear document which speaks in respect of forfeiture of the land to the Government;

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iv) On perusal of Ex.P.3 i.e., M.E.No.2043 which speaks that on 08.08.1958, Assistant

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Commissioner, Haveri has regranted the land in favour of Hanumawwa for enjoyment of the property successively. In this respect, Ex.P.5 is the document which shows that the name of Hanumawwa has been entered;

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v) The vital document in this case is Ex.P.4, which is an agreement executed by Hanumawwa in favour of Tahasildar, Byadgi on 16.05.1958 in which the suit land was regranted in favour of Hanumawwa. On perusal of this document, throughout it is maintained that the suit property was granted in favour of Hanumawwa alone in her individual capacity and nowhere I find any recital about the grant of the suit land in favour of Hanumawwa for and on behalf of the joint family of the plaintiffs and the defendants No.1 to 9;

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vi) On perusal of Ex.P.4 and the oral evidence of PW.1, absolutely there is no mentioning about the grant of suit land by the Tahasildar, Byadgi in favour of Hanumawwa for and on behalf of the joint family;

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vii) On perusal of the oral evidence of DW.1 he has clearly admitted that there was a partition of the family properties in the year 1941 and other members of the family by name Kallappa, Kariyappa have purchased certain properties after the year 1941 after the partition of the family property. Even this admissions given by the DW.1 that Kariyappa has sold certain properties as per Ex.P.31 and 32;

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viii) To prove that there was partition in the year 1967, the evidence of DW.2 has been adduced who is claiming to be an independent person having knowledge over the partition effected by the

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Hanumawwa between Yellappa, Kallappa and

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Kariyappa;

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ix) An important and crutial point that requires to

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be noted from the evidence of DW.2 is that the plaintiffs counsel during the course of crossexamination, has confronted an affidavit which was filed by the defendant No.2 at the time of hearing of the interim application for injunction. The contents of the said affidavit was read over to the witnesses and the DW.2 has clearly denied for having sworn to the fact in respect of the partition that was entered into in the family of Hanumawwa in the year 1967. The relevant portion of the sworn affidavit has been marked as Ex.P.33;

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x) On perusal of Ex.P.33, the DW.2 has clearly made an affidavit on oath before the Court that suit property was the joint family property of Ningappa, Kariyappa and Kallappa and the said property was partitioned by Hanumawwa in the

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year 1967 and the branch members of Yellappa, Basappa and Kallappa have been in enjoyment of the said property. But very strangely the DW.2 has denied the sworn statement made in the affidavit;

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xi) Ex.D.3 is not a registered document and such an unregistered document will not get any legal effect to claim the partition by the defendants;

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xii) Even though DW.1 and 2 have deposed that there was partition in the year 1967 and Hanumawwa has executed Ex.D.3. The very document itself is not reliable in the eye of law to hold it as an evidence;

¶180

xiii) In my opinion the oral evidence adduced by the defendants in proving Ex.D.3, will not help them to show that there was partition in the year 1967;

¶181

xiv) It is very crucial to note that the suit land was

¶182

re-granted by the Government in the year 1967 in

¶183

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favour of the Hanumawwa and afterwards there was mutation proceedings and mutation has been entered in the name of Hanumawwa;

¶186

xv) The claim of the learned counsel for the defendants No.1 to 9 is that the other members by name Kariyappa and Kallappa had also shared the amount when Hanumawwa had to get re-grant of suit property. But the very admissions given by the DW.1 during the course of cross-examination that the Kariyappa and Kallappa were dead earlier to 1967, the effect of the contention raised by the defendants No.1 to 9 that the Kariyappa and Kallappa had also shared the amount for re-grant of property certainly falsifies their claim;

¶187

xvi) The clinching document is Ex.P4. It is very clear that the suit schedule property was allotted in favour of Hanumawwa alone and nowhere there is any mention that the suit property was granted in

¶188

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favour of the family members headed by

¶191

Hanumawwa;

¶192

xvii) The burden always lies in person who claims that such a property is a joint family property. In the instant case having regard to the admissions given by DW.1 and 2 in their cross-examinations and consistent evidence maintained by the PW.1 in his cross-examination, I am of the clear view that the property stood in the name of Hanumawwa was her absolute property and no inference could be drawn to hold that suit property was granted by the Government for and on behalf of family members of Hanumawwa;

¶193

xviii) At the time of presenting the suit, the plaintiffs had also moved for temporary injunction against the defendants and this Court has allowed the said application holding that the plaintiffs have been in lawful possession of the suit property on the date of suit. Even the appeal preferred by the

¶194

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defendants against the order of I.A.No.I was disallowed by the Appellate Court conforming the order of the Trial Court;

¶197

xix) In my opinion, even though the defendants have claimed that after the partition in the year 1967 the bunds were formed between the land to bifurcate shares of each members of the family and they have been in possession of each part as claimed in the pleadings, the same is not proved;

¶198

xx) In my opinion the plaintiffs who are the sons of adopted son of Hanumawwa have become the owners of the suit property by virtue of inheritance

¶199

after the death of their father Yellappa. The very act of the defendants in entering the partition in the year 1941 and purchasing of the property after 1941 in their individual names and acquired the property by means of Government grant clearly speaks to the effect that the suit property was the absolute property of Hanumawwa and the branch

¶200

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members of Kallappa and Kariyappa are not at all concerned to the suit property in any way and they cannot be held as joint owners or co-owners of the suit property;

¶203

xxi) On appreciating oral evidence of the plaintiffs and the defendants, even though the notice has been issued by the Revenue Authority and it has been produced by the defendant No.1, in my opinion no any adverse inference can be drawn against the factum of possession and ownership of the property to the plaintiffs basing only on Ex.D.13;

¶204

xxii) Just because the notice Ex.P.13 has been issued to the defendants and it has been produced by him, in my opinion much weightage cannot be attached to said document as the defendants have failed to establish the burden casted on them through Issues No.3 and 5;

¶205

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xxiii) Even though the defendants have produced several receipts for payment of assessment, absolutely there is no khatha numbers or survey numbers mentioned in the receipt and thereby in my opinion mere production of assessment receipts would not create any legal right in a person when there are clear documents which have conferred the right over Hanumawwa in respect of the suit property;

¶208

xxiv) The defendants had also preferred an appeal to the Assistant Commissioner, Haveri in respect of mutation entry made in the name of Hanumawwa. Assistant Commissioner, Haveri has rejected the appeal of the defendants holding that the property stood in the name of Hanumawwa as she became absolute owner of the suit property which was granted in her name. In this regard, even though the plaintiffs have produced Ex.P.30, the defendants have not produced any documents to

¶209

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show that the order of the Assistant Commissioner, Haveri was set aside or stayed by a higher forum and the mutation entry stood in the name of Hanumawwa was not in accordance with law;

¶212

xxv) I am of the clear view that there are cogent revenue documents to show that plaintiffs have been in possession of the suit property as on the date of suit in respect of its entirety and at no point of time there was any partition of the suit property as claimed by the defendants;

¶213

xxvi) The defendants No.1 to 9 have utterly failed to discharge the burden casted on them through issues No.3 and 5 to hold that suit property is joint family property and it was partitioned in the year 1967 by Hanumawwa among Yellappa, Kallappa and Kariyappa;

¶214

xxvii) The contention of the DW.1 is that there are also other properties and those properties were not

¶215

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put into partition in the year 1967. If really there were to be such a fact that the whole family members of the plaintiffs and the defendants were not partitioned, nothing prevented them to mention the said fact in the Ex.D.3 to show that the other properties of the family were kept aside from the partition;

¶218

xxviii) In view of the reason that the defendants No.1 to 9 have failed to establish that the Ex.D.3 can be acted in accordance with law, I am of the clear view that any amount of oral evidence adduced by the defendants will not help their case and the pleadings raised by them in the written statement are not proved through cogent documentary evidence;

¶219

xxix) Having regard to the clear admissions by the DWs.1 and 2 in the cross-examination, I am of the clear view that in the year 1967, absolutely there was no joint family status of Yellappa, Kallappa and

¶220

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Kariyappa headed by Hanumawwa and

¶223

Hanumawwa has partitioned the property as claimed in the written statement;

¶224

xxx) Considering all these points, in the light of documentary evidence and legal propositions submitted by both sides, I am of the clear view that the plaintiffs have been able to establish that on the date of suit, the suit property had been in their exclusive possession and even today the plaintiffs have been in possession of the suit property as its absolute owners having exclusive possession;

¶225

xxxi) The production of assessment receipt and all other revenue documents by the plaintiffs including Ex.P.4 clearly speak to the effect that the plaintiffs have been in possession of the suit property as its lawful owners and further the defendants have failed to establish that the suit property was the

¶226

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¶228

joint family property and it was partitioned in the year 1967.

¶229

The Trial Court while considering issue No.6 with regard to interference of the defendants, has noticed that the very claim by defendants No.1 to 9 in their written statement that the suit property is their ancestral property and they have right in the property amounts to interference over the possession of the property of the plaintiffs. Hence, issue No.6 has been answered in the affirmative.

¶230

The First Appellate Court while considering the appeal filed by the defendants No.1 to 9 has recorded the following findings:

¶231

i) It is clear that with regard to the grant of land, even though it is made by the government i.e., Tahasildar, Byadagi, but all these plaintiffs as

¶232

well as defendants have not partitioned the same and the same was in joint possession according to

¶233

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cross examination of defendants and they were also denied the taking of adoption of father of the plaintiffs by name Hanumavva;

¶236

ii) Under these circumstances of the case, the plaintiffs and defendants goes on cultivating the suit properties as co-owners as shares to each other and for earlier partition also there is no records produced by the plaintiffs to prove that they are in possession in accordance with the partition;

¶237

iii) The defendants have stated that there was a partition, but it is not got written and the same is not brought before the Court and the same has not been accepted;

¶238

iv) Mere payment of land revenue tax to the government does not create any right, title and interest in favour of the plaintiff;

¶239

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v) After appreciation of the oral and

¶242

documentary evidence of plaintiffs, they could not succeed, because it is a government land, which is given for benefit of plaintiffs as well as defendants. It is also granted land. Even after grant, certainly limitations were fixed by the government in respect of non alienation for a period of 20 years. If there is any violation of condition of the grant, the government has empower to reoccupy the said suit property only on the ground of violation of condition of the grant;

¶243

vi) In view of no partition, it can be held that the said suit property is ancestral joint family property which is granted in favour of Hanumavva by way of regrant;

¶244

vii) Adoption pleaded by the plaintiffs is not proved beyond reasonable doubt. The said Hanumavva has not been examined, the person who has taken adoption and also witness to

¶245

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adoption deed were not cross examined before the Court in order to prove the adoption deed. Therefore, in these circumstances, the very adoption deed which goes not proved beyond all reasonable doubts;

¶248

viii) The plaintiffs and defendants were in common possession and enjoyment of the suit schedule property as per contention of the defendants in their evidence. If the common enjoyment of suit property is pleaded in their evidence, the evidence of defendants clearly reveals that there was no earlier partition;

¶249

ix) Ex.D1 is apsat watni , same is not admissible in evidence and it is not deed of partition and separate possession;

¶250

x) The Plaintiffs are not exclusive owners and suit property is the joint family property of plaintiffs as well as the defendants;

¶251

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xi) Ex.D3 cannot be relied upon as it is unregistered partition deed. Therefore, Court comes to the conclusion that the evidence on record does not give rise to any cause of action to the plaintiff to get relief of declaration and injunction;

¶254

xii) The total lands were made into three strips as 8A 05 guntas, 8A 04 guntas and 8A 06 guntas and bunds were laid in between the three strips. Till 1986, the records of rights were not changed in the names of plaintiffs as well as defendants as also father of plaintiff and for the entire extent of land i.e., 24 acres stood in the name of Hanumavva;

¶255

xiii) This Court comes to the conclusion that the reasoning given by the lower Court and also findings given on all the issues are incorrect and they are required to be reversed in the negative

¶256

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findings stating that the plaintiffs are not owners in possession of the suit properties;

¶259

xiv) This Court comes to the conclusion that the Trial Court judgment is flimsy and they does not reveals either the ownership of plaintiff for granting the relief of declaration and injunction;

¶260

xv) Even if one of the grounds as stated by the appellant is taken into consideration, the Trial Court judgment is capricious, erroneous and required to be set aside even on facts and also point of law;

¶261

xvi) The Trial Court ought to have refused the granting the relief of declaration, unless there is partition made in respect of plaintiffs and defendants and that the partition deed is required to be produced along with RTC extract. In this case, there is no partition deed and even though it is produced, which is in the form of memorandum

¶262

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of partition and it cannot be relied upon by the Court;

¶265

xvii) The appellants were cultivating the suit property since 04.08.86 in the form of strips. Therefore at this stage clear possession ownership documents in the form of RTC is not produced before the Court;

¶266

xviii) Under these circumstances of the case, the inheritance, succession and also separation of RTC entries are required to be proved beyond all reasonable doubts;

¶267

Regarding Substantial Question of Law No.(1):

¶268

Learned counsel for the appellants vehemently contends that the First Appellate Court did not exercise its jurisdiction under Order XLI Rule 31 of the CPC. In this context, reliance is placed on the judgment of the Hon’ble

¶269

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Supreme Court in the case of K.Karuppuraj v.

¶272

M.Ganesan⁵ , wherein it has been held as follows:

¶273

“7. ……………. In an appeal filed before the High Court under Section 96 read with Order 41 by the impugned judgment and order, the High Court has allowed the said appeal and has quashed and set aside the decree passed by the learned trial court dismissing the suit and consequently has decreed the suit for specific performance. Having gone through the impugned judgment and order passed by the High Court, it can be seen that there is a total non-compliance of Order 41 Rule 31 CPC. While disposing of the appeal, the High Court has not raised the points for determination as required under Order 41 Rule 31 CPC. It also appears that the High Court being the first appellate court has not discussed the entire matter and the issues in detail and as such it does not reveal that the High Court has re-appreciated the evidence while disposing of the first appeal. It also appears that the High Court has disposed of the appeal preferred under Order 41 CPC read with Section 96 in a most casual and perfunctory manner. Apart from the fact that the High Court has not framed the points for determination as required under Order 41 Rule 31 CPC, it appears that even the High Court has not exercised the powers vested in it as a first appellate court. As observed above, the High Court has neither reappreciated the entire evidence on record nor has given any specific findings on the issues which were even raised before the learned trial court.”

¶274

(emphasis supplied)

¶275

The said submission is responded to by the

¶276

learned counsel for the respondents and it is contended

¶277

that although the First Appellate court has not framed proper points for consideration, the First Appellate Court has considered the factual matrix of the matter in the

¶278

5 AIR 2021 SC 4652

¶279

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proper perspective and has adjudicated upon the matter that arose for consideration and merely because the First

¶281

Appellate court has not framed proper points for consideration and reappreciated the entire factual aspect of the matter, the said aspect cannot be the sole ground for setting aside the judgment of the First Appellate Court. In this context, reliance is placed on a coordinate Bench

¶282

judgment of this Court in the case of Bangarappa v. Rudrappa and Anr.,⁶ wherein this Court held as follows:

¶283

“ 9. It would be necessary, at this stage, to observe that from perusal of the judgement if it is clear/apparent or it could be demonstrated that the Appellate Court considered and discussed in detail, the facts and evidence, after application of mind and dealt with all the points for consideration, in such case, merely because points were not formulated properly, cannot be a ground for settingaside the judgment, though it is necessary/desirable for the Courts of first appeal to formulate properly the points for consideration in the suit.”

¶284

(emphasis supplied)

¶285

It is relevant to note here that although the

¶286

Trial Court framed eight issues, the First Appellate Court

¶287

has merely framed two points for consideration i.e., as to whether the appellants proved that the Trial Court erred in

¶288

decreeing the suit and as to whether the judgment of the

¶289

6 ILR 2012 KAR 1020

¶290

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Trial Court is capricious, perverse or illegal and required to be interfered with. Although there is some justification in

¶293

the contention put forth by the learned counsel for the appellants that the procedure as contemplated under Order XLI Rule 31 of the CPC has not been followed by the First Appellate Court, it is relevant to note that the factual matrix of the matter has properly been appreciated by the First Appellate Court. Further, having regard to the fact that the above litigation is an old one and the suit having been filed on 9.6.1986, which was disposed of on 25.11.2000, the first appeal having been disposed of on 21.11.2007 and the present second appeal being pending before this Court since the past about 17 years, it is just and proper that merely by substantial question of law No.(1) being answered in the negative it is not appropriate to remand the matter to the First Appellate Court, but it is necessary for this Court to also consider substantial questions of law Nos.(2 & 3) framed for consideration. Hence, the substantial question of law No.(1) is answered accordingly.

¶294

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Regarding Substantial Question of Law No.(2):

¶297

The First Appellate Court has held that the adoption has not been proved. It is relevant to note that the defendants at para 6 of the written statement have admitted that the father of the plaintiffs was adopted by Hanumavva. Having regard to the said admission, the findings recorded by the First Appellate Court holding that the adoption has not been proved is ex facie untenable and liable to be interfered with. In fact, learned counsel for the respondents has also not sought to justify the said finding of the First Appellate Court. Hence, substantial question of law No.(2) is answered in the negative.

¶298

Regarding Substantial Question of Law No.(3):

¶299

Admittedly, the suit property bearing RS No.317/1 measuring 24 acres 13 guntas belonged to the propositus/Ningappa. It is forthcoming from ME No.508 dated 13.1.1936 (Ex.P8) that consequent to the death of Ningappa, who died on 12.11.1935, the name of his elder

¶300

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¶302

son Ningappa @ Ningajja was entered. Admittedly, the propositus/Ningappa had three sons i.e.,

¶303

Ningappa @ Ningajja, Kariyappa and Kallappa. Mere inclusion of the eldest son’s name i.e., the name of Ningappa @ Ningajja in the revenue records pertaining to the suit property as is forthcoming from ME No.508 dated 13.1.1936 (Ex.P8), in the absence of any other material on record, it cannot be construed that the eldest son alone is the absolute owner of the suit property and the said mutation entry would not in any manner take away the rights of the other two sons i.e., Kariyappa and Kallappa. It is forthcoming from ME No.737 dated 5.12.1941 (Ex.P1) that the eldest son Ningappa @ Ningajja died and the name of his wife Hanumavva was added. ME No.2043 dated 8.8.1958 (Ex.P3) discloses that the suit property was regranted in the name of Hanumavva and it is specifically mentioned in Ex.P3 that the regrant is for the benefit of the family, as in Ex.P3, it is specifically mentioned as “ªÀA±À ¥ÀgÀA¥ÀgÉAzÁV”. Consequently, entry of the

¶304

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¶306

name of Hanumavva w/o Ningappa @ Ningajja as is forthcoming from ME No.737 dated 5.12.1941 (Ex.P1) also will not in any manner take away the rights of the other two sons i.e., Kariyappa and Kallappa, in the absence of any other document/material to indicate that the suit property absolutely vested with Hanumavva.

¶307

It is forthcoming that there was forfeiture of the land which was subsequently regranted as is evident from ME No.2043, dated 8.8.1958 (Ex.P3). Although the regrant has been made in the name of Hanumavva, having regard to the admitted position that the suit property has been regranted since the same was owned by the original propositus/Ningajja, it cannot be construed that the regrant is solely in favour of Hanumavva and that she is absolutely entitled to the said property.

¶308

It is the specific contention of the learned counsel for the appellants/plaintiffs that by virtue of the regrant, Hanumavva became the absolute owner of the suit property since the re-grant is in her name. It is

¶309

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¶311

further contended that by virtue of Section 14(1) of the Hindu Succession Act, 1956⁷ the said property absolutely vests with Hanumavva and the father of the plaintiffs being adopted son of Hanumavva, the suit property devolved on to the father of the plaintiffs absolutely and hence, the plaintiffs are entitled for declaration as sought for in the plaint. However, it is the contention of the learned counsel for the respondents/defendants that Hanumavva had no pre-existing right over the suit property and hence, Section 14(1) of the Succession Act would be inapplicable in the present case. Further, it is contended by the respondents that the re-grant made is for the benefit of the family and the regrant is not solely to Hanumavva. In this context, learned counsel for the respondents places reliance on the judgment of the Hon’ble Supreme Court in the case of N.Padmamma v.

¶312

S.Ramakrishna Reddy⁸ , wherein it has been held as follows:

¶313

7 Hereinafter referred to as ‘Succession Act’

¶314

8 (2015) 1 SCC 417

¶315

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¶316

“ 15. It is evident from the above that the right of partition was held to have been lost by operation of law. Till such time the grant was made no such right could be recognised, observed this Court. This Court specifically held that it was not concerned with the consequences that would ensue after grant is made. The suit in the present case was filed after the grant of occupancy rights. The question here is whether the grant of such rights is for the benefit of one of the members of the joint family or for all the heirs left behind by Ramachandra Reddy. Our answer to that question is in favour of the appellants. In our opinion, the grant of such occupancy rights in favour of Respondent 1 was for the benefit of all the legal heirs left behind by Ramachandra Reddy. …………. “

¶317

(emphasis supplied)

¶318

The contention put forth by the learned counsel

¶319

for the appellant that Hanumavva is absolutely entitled to the suit property by virtue of the regrant and by virtue of Section 14(1) of the Succession Act is liable to be rejected in view of the fact that as on the date of regrant, Hanumavva did not have any pre-existing right in the suit property. Any right of Hanumavva in the suit property, is at best to the extent of the share of her husband Ningappa

¶320

@ Ningajja and Hanumavva can in no manner seek to assert absolute right, title and interest over the suit property to the exclusion of the brothers of the Ningappa @ Ningajja i.e., Kariyappa and Kallappa. With regard to

¶321

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¶323

operation of Section 14 of the Succession Act, it is relevant to notice the judgment of the Hon’ble Supreme Court in

¶324

the case of Tulasamma and Others Vs. Sesha Reddy (Dead) By Lrs⁹ ., wherein it has been held as follows:

¶325

“69. Sub-section (2) must, therefore, be read in the context of sub-section (1) so as to leave as large a scope for operation as possible to sub-section (1) and so read, it must be confined to cases where property is acquired by a female Hindu for the first time as a grant without any pre-existing right, under a gift, will, instrument, decree, order or award, the terms of which prescribe a restricted estate in the property. …… This circumstance would also seem to indicate that the legislative intendment was that sub-section (2) should be applicable only to cases where acquisition of property is made by a Hindu female for the first time without any pre-existing right — a kind of acquisition akin to one under gift or will. Where, however, property is acquired by a Hindu female at a partition or in lieu of right of maintenance, it is in virtue of a pre-existing right and such an acquisition would not be within the scope and ambit of sub-section (2), even if the instrument, decree, order or award allotting the property prescribes a restricted estate in the property.”

¶326

(emphasis supplied)

¶327

It is forthcoming that the Trial Court noticing the agreement (Ex.P4) which is the agreement executed

¶328

by the Tahsildar Byadgi, in favour of Hanumavva on 6.5.1958 has recorded a finding that the re-grant is in

¶329

9 (1977) 3 SCC 99

¶330

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¶332

favour of Hanumavva alone in her individual capacity and that there is no recital for grant of the suit land on behalf of the joint family of plaintiffs and defendant Nos.1 to 9. However, the Trial Court has not noticed the entries made in M.E No.2043 dated 08.08.1958 (Ex.P3). Further, having

¶333

regard to the admitted position that the property originally belonged to Ningappa @ Ningajja, admittedly the said original owner Ningappa having three sons i.e., Ningappa @ Ningajja, Kariyappa and Kallappa, upon the death of original owner, mere entry of the name of the elder son Ningappa @ Ningajja in the revenue records, would not take away the rights of other two sons in the absence of any other material available on record. Further, the said property having been forfeited and thereafter regranted in the name of Hanumavva, in whose name, the revenue records of the property stood at the time of forfeiture, having regard to the position of law as held by the Hon’ble Supreme Court in the case of N.Padmamma v. S.Ramakrishna Reddy⁷ , it is clear that the suit property continues to be the joint family property of the sons of the

¶334

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¶336

original owner Ningappa. Hence, the said finding of the Trial Court is erroneous and liable to be interfered with.

¶337

The Trial Court has also noticed that DW.1 has admitted in his cross-examination that in the year 1941 there was a partition in the family of Ningappa and after the partition, the defendants and Kallappa and Kariyappa have purchased certain properties and the property was also allotted in favour of defendant No.1 by the Government. The finding of the Trial Court that there was partition in the year 1941 is ex facie erroneous, having regard to the fact that DW.1 has not specifically admitted in his cross-examination regarding partition of the year 1941. Further, it is relevant to note that it is not the case of the plaintiffs that there was partition amongst the sons of the original owner Ningappa i.e., Ningappa @ Ningajja, Kariyappa and Kallappa and hence, the plaintiffs were the absolute owners of the suit property by virtue of the said partition. The plaintiffs not having specifically pleaded and put forth any case of partition in the year 1941, the

¶338

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¶340

question of a finding being recorded with regard to the same by relying upon an alleged stray sentence in the cross-examination of DW.1 does not arise. Hence, the said finding of the Trial Court is erroneous and liable to be interfered with.

¶341

The defendants have averred in their written statement that the three sons of Ningappa i.e., Ningappa @ Ningajja, Kariyappa and Kallappa, had divided the suit property of an extent of 24 acres 13 guntas of Sy.No.317/1 of Byadagi taluk, Kalledevara village, into three parts of 8 acres 5 guntas, 8 acres 4 guntas and 8 acres 4 guntas in a partition dated 20.09.1967. The Trial Court has held that the defendants have not proved the said partition dated 17.09.1969. Notwithstanding the fact that the defendants have not proved the partition dated 17.09.1967, having regard to the admitted position that the plaintiffs have failed to prove that the suit property absolutely vested with Hanumavva, the question of

¶342