Sri Fakeer Naik Vs Sri H P Ganapati

…RESPONDENT THIS RSA FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 09.06.2021 MADE IN RA.No.10016/2018 ON THE FILE OF THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE, SHIVAMOGGA, SITTING AT SAGAR, DISMISSING THE REGULAR APPEAL FILED BY THE APPELLANTS AND ETC., THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

¶16

CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI

¶17

2 - NC: 2025:KHC:9380 RSA No. 2141 of 2021

¶18

ORAL JUDGMENT

¶19

This Regular Second Appeal is filed by the appellants challenging the Judgment and decree dated 09.06.2021 passed in R.A No.10016/2018 by the learned V Addl. District and Sessions Judge, Shivamogga, sitting at Sagar and the Judgment and decree dated 20.09.2018 passed in O.S.No.3/2016 by the learned Prl. Civil Judge and J.M.F.C., Sagar.

¶20

For convenience, the parties are referred to

¶21

based on their rankings before the Trial Court. The appellants were defendants No.1 to 3, and the respondent was the plaintiff.

¶22

Brief facts, leading rise to the filing of this appeal are as follows:

¶23

The plaintiff filed a suit in O.S.No.3/2016 against defendants No. 1 to 3 for partition and separate possession of his 1/4^th share in the suit schedule properties and for mesne profits. It is the case of the

¶24

3 -

¶25

NC: 2025:KHC:9380 RSA No. 2141 of 2021

¶26

plaintiff that, defendant No.1 was cultivating the properties in Sl.No.1 to 4 of the suit “A” schedule properties from the time of his father. Defendant No.1 had applied for a grant of occupancy rights and submitted Form No.7 before the Land Tribunal. The Land Tribunal granted the occupancy rights in the names of defendants No. 2 and 3, they are the sons of the 1^st defendant. It is contended that the plaintiff and the defendants are the members of the Hindu Undivided Family and defendant No.1 was managing the joint family, and the plaintiff and defendants have acquired the ‘B’ schedule property from their joint income. Further, in some portions of the suit schedule properties, the areca nut garden was formed. It is further contended that, Item No.6 of the suit “A” schedule property is the joint family residential house, and the plaintiff demanded partition and separate possession, but defendant No.1 refused to effect the partition. Hence, a cause of action arises for the plaintiff to file a suit for partition and separate possession. Accordingly, he prays to decree the suit.

¶27

4 - NC: 2025:KHC:9380 RSA No. 2141 of 2021

¶28

Defendants No.1 and 3 filed a written statement

¶29

contending that, the plaintiff got married to the daughter of the sister of defendant No.1 by the name Smt. Kollamma and the said Smt. Kollamma had no male issues. Therefore, since 1991, the plaintiff has remained in the house of Kollamma as house-in-law, and has been in

¶30

possession and enjoyment of the dry and wet lands belonging to the family of Smt. Kollamma. As the plaintiff was married in relation, he has given up his rights over the suit schedule properties. It is further contended that Items No. 2 and 3 of “A” schedule properties are the self acquired properties of defendant No.1 and Items No. 1 and 4 to 6 of “A” schedule properties are the ancestral and joint family properties. Defendants No. 2 and 3 have constructed a house on Item No.6 of “A” schedule property with their own income. Item No.3 of “A” schedule property was wet land at the time of granting and thereafter, during 2010, defendants No. 2 and 3 made it into an areca nut garden with their own income. No properties are cultivating as mentioned in “B” schedule properties of the

¶31

5 - NC: 2025:KHC:9380 RSA No. 2141 of 2021

¶32

plaint. Accordingly, the defendants have prayed to dismiss the suit.

¶33

The Trial Court based on the pleadings of the

¶34

parties, framed the relevant issues. The plaintiff to substantiate his case, examined himself as PW1 and marked 17 documents as Ex.P1 to Ex.P17. On the other hand, defendant No.1 examined himself as DW1 and marked 18 documents as Exs.D1 to D18. The trial Court, on assessment of both oral and documentary evidence, decreed the suit of the plaintiff partly, vide judgment dated 20.09.2018. The defendants aggrieved by the said judgment and preliminary decree, preferred an appeal in R.A.No.10016/2018 on the file of the V Addl. District and Sessions Judge, Shivamogga, sitting at Sagar.

¶35

The appellate Court, on the re-assessment of oral and documentary evidence, dismissed the appeal vide judgment dated 09.06.2021, and confirmed the judgment and preliminary decree passed by the Trial Court. The

¶36

6 - NC: 2025:KHC:9380 RSA No. 2141 of 2021

¶37

defendants, aggrieved by the impugned judgment passed

¶38

by the Appellate Court, filed this regular second appeal.

¶39

Heard the arguments of learned counsel for the defendants.

¶40

Learned counsel for the defendants submits that Items No. 2 and 3 of “A” schedule properties are the self-acquired properties of Defendant No.1 and also, the house constructed on Item No.6 of “A” schedule property is the self-acquired property of defendant No.1. Defendant No.1 has produced the grant order passed by the Land Tribunal and the Land Tribunal granted the aforesaid lands in favour of defendant No.1 in his individual capacity and not for the benefit of the entire family. The Trial Court committed an error in granting the share in Items No. 2, 3 and the house constructed on Item No.6 of the suit schedule properties. He further submits that the “B” schedule properties do not exist. The Trial Court committed an error in granting the share in ‘B’ schedule

¶41

7 -

¶42

NC: 2025:KHC:9380 RSA No. 2141 of 2021

¶43

properties. Hence, on these grounds, the defendants pray

¶44

to allow the appeal.

¶45

After having heard the learned counsel for the respective parties and perused the records, it makes clear that there is no dispute regarding the relationship between the parties to the suit and also regarding the Item Nos. 1, 4, 5 and 6 which are the ancestral properties of the plaintiff and the defendants No. 1 to 3. The dispute between the parties is only regarding Items No. 2 and 3 of the suit schedule properties and a house constructed on Item No.6 of the “A” schedule properties.

¶46

It is the case of the plaintiff that the occupancy rights were granted in favour of defendant No.1 for the benefit of the entire family and not in the individual capacity. The plaintiff, to establish that Items No. 2 and 3 are the joint family properties, he has produced a copy of Form No.7 submitted by defendant No.1 before the Land Tribunal and the said application is marked as Exs.P14 to 16. On perusal of the same, it discloses that defendant

¶47

8 - NC: 2025:KHC:9380 RSA No. 2141 of 2021

¶48

No.1 had made an application for the grant of occupancy rights on behalf of the family, and Ex.P.14 discloses that defendant No.1 cultivated the Item No. 3 of “A” schedule property as a tenant since long. His family consists of his wife- Subbamma and a minor son. Ex.P.15 does not disclose the names of family members. On perusal of Ex.P.14, it discloses that, Items No. 2 and 3 properties are granted by the Land Tribunal in favour of defendant No.1 on behalf of the entire family. The said lands were granted for the benefit of the family and not in the individual capacity. Defendant No.1 had failed to establish that Items No. 2, 3 and a house constructed on item No.6 of “A” schedule properties are the self-acquired properties of defendant No.1. It is a settled principle of law that in a suit for partition and separate possession, the initial burden is on the plaintiff to establish the relationship between the parties to the suit and the nature of the suit schedule properties. The plaintiff has discharged the burden, and established that the suit schedule properties are the ancestral and joint family properties of the plaintiff, and

¶49

9 - NC: 2025:KHC:9380 RSA No. 2141 of 2021

¶50

defendants No. 1 to 3. It is not the defence of the defendants that, there was partition between the plaintiff and defendants No. 1 to 3. Admittedly, there is no partition in the family of the parties to the suit. The Trial Court considering the evidence on record has recorded its findings that the suit schedule properties are the ancestral and joint family properties of the plaintiff and defendants No. 1 to 3 and no partition is effected between them and they are the members of the Hindu Undivided Joint Family. The Trial Court granted 1/4^th share to the plaintiff. The judgment and preliminary decree passed by the Trial Court is just and proper. The Trial Court on assessment of oral and documentary evidence partly decreed the suit. Defendants No. 1 to 3 being aggrieved by the judgment and preliminary decree passed in O.S.No.3/2016 preferred an appeal in R.A.No.10016/2018 before the Appellate Court and the Appellate Court on reassessment of oral and documentary evidence, affirmed the judgment and preliminary decree passed by the Trial Court. The Appellate Court considered the admission of D.W.1 who

¶51

10 - NC: 2025:KHC:9380 RSA No. 2141 of 2021

¶52

has categorically admitted that the house constructed on “A” schedule property is by the income of the joint family. Hence, the house constructed on Item No.6 of the “A” schedule property is the joint family property of plaintiff and the defendants and also recorded its findings that Items No. 1 to 5 of the suit schedule properties are the ancestral and joint family property of plaintiff and the defendants. The plaintiff is entitled to 1/4^th share in the suit schedule properties and dismissed the appeal.

¶53

Both the Courts below, have concurrently recorded the findings of the facts against the defendants that, the suit schedule properties are the ancestral and joint family properties of the plaintiff and the defendants No. 1 to 3 and no partition is effected. The plaintiff is entitled to 1/4^th share in the suit schedule properties. Hence, in view of the aforesaid discussions, I do not find any error in the impugned judgments passed by the Courts below or any substantial questions of law that arise

¶54