Sri. Someshekara Vs Smt Susheelamma

2 . SMT. SUMITHRAMMA W/O ASHWATHAPPA AGED ABOUT 47 YEARS R/AT SOMESHWARA EXTENSION LAKSHMIPURA MAIN ROAD ABBIGERE VILLAGE, YESHWANTHPURA BENGALURU-560090.

¶19

3 . SRI. RAJSHEKAR S/O CHIKKATHIPPAIAH AGED ABOUT 91 YEARS

¶20

SRI KRISHNAPPA SINCE DEAD BY HIS LRS

¶21

4 . SMT. RAMAKKA W/O LATE KRISHNAPPA AGED ABOUT 76 YEARS

¶22

5 . SRI. K. NAGABUSHAN S/O LATE KRISHNAPPA AGED ABOUT 54 YEARS

¶23

6 . SRI. K. VISHWANTATH S/O LATE KRISHNAPPA AGED ABOUT 53 YEARS

¶24

7 . SRI. K. VIJAYKUMAR S/O LATE KRISHNAPPA AGED ABOUT 51 YEARS

¶25

8 . SRI. PRABHU @ B.T. PURSHOTHAM

¶26

3

¶27

S/O LATE CHIKKTHIPPAIAH AGED ABOUT 71 YEARS

¶28

NO.3 TO 8 ARE R/AT NEW EXTENSION, ABBIGERE VILLAGE YESHWANTHPURA BENGALURU NORTH PIN-560 090.

¶29

9 . SRI. CHENGA REDDY S/O HANUMAN REDDY AGED ABOUT 69 YEARS R/AT SOMESHWARA EXTENSION LAKSHMIPURA MAIN ROAD ABBIGERE VILLAGE YESHWANTHPURA BENGALURU-560 090.

¶30

…RESPONDENTS

¶31

(BY SRI. JANARDHANA .G, ADVOCATE FOR C/R1; SRI. N. ANAND, ADVOCATE FOR R2; SRI. S.J. KUMAR, ADVOCATE FOR R3 TO R8; V/O DATED 22.09.2023 NOTICE TO R9 IS DISPENSED WITH)

¶32

THIS RFA IS FILED UNDER SECTION 96 OF CPC, AGAINST

¶33

THE JUDGMENT AND DECREE DATED 21.04.2023 PASSED IN O.S.5746/2014 ON THE FILE OF THE XX ADDITIONAL CITY CIVIL JUDGE, AT BENGALURU, DECREEING THE SUIT FOR PARTITION AND DECLARATION.

¶34

IN RFA NO.1439/2023 BETWEEN:

¶35

1 . SMT. SUSHEELAMMA W/O RAMACHANDRAPPA AGED ABOUT 65 YEARS NO.124, ABBIGERE NEW EXTENSION

¶36

4

¶37

CHIKKABANAVARA POST BANGALORE - 560090.

¶38

...APPELLANTS

¶39

(BY SRI. JANARDHANA .G, ADVOCATE)

¶40

AND:

¶41

SMT. SONNAMMA SINCE DECEASED BY HER LRS APPELLANTS 1 TO 3

¶42

1 . SRI. SOMESHEKARA S/O LATE B. SHAMANNA AGED ABOUT 75 YEARS

¶43

2 . SRI. BACHEGOWDA S/O LATE B. SHAMANNA AGED ABOUT 57 YEARS

¶44

3 . SMT. SUMITHRAMMA W/O ASHWAATHAPPA AGED ABOUT 42 YEARS

¶45

NOS.1 TO 3 ARE R/AT SOMESHWARA EXTENSION LAKSHMIPURA MAIN ROAD ABBIGERE VILLAGE YESHWANTHPURA BANGALORE - 560 090.

¶46

4 . SRI. RAJSHEKAR S/O CHIKKATHIPPAIAH AGED ABOUT 95 YEARS

¶47

5 . SRI. KRISHNAPPA SINCE DEAD BY HIS LRs

¶48

5(A) SMT. RAMAKKA W/O LATE KRISHNAPPA AGED ABOUT 76 YEARS

¶49

5

¶50

5(B) SRI. K. NAGABUSHAN S/O LATE KRISHNAPPA AGED ABOUT 54 YEARS

¶51

5(C) SRI. K. VISHWANATH S/O LATE KRISHNAPPA AGED ABOUT 53 YEARS

¶52

5(D) SRI. K. VIJAYKUMAR S/O LATE KRISHNAPPA AGED ABOUT 51 YEARS ALL ARE R/AT NEW EXTENSION ABBIGERE VILLAGE YESHWANTHPURA BENGALURU NORTH-560 090.

¶53

6 . SRI. PRABHU @ B.T. PURSHOTHAM S/O LATE CHIKKATHIPAIAH AGED ABOUT 71 YEARS NOS. 4 TO 6 ARE R/AT NEW EXTENSION, ABBIGERE VILLAGE YESHWANTHPURA BANGALORE NORTH.

¶54

7 . SRI. CHENGA REDDY S/O HANUMAN REDDY AGED ABOUT 83 YEARS SOMESHWARA EXTENSION LAKSHMIPURA MAIN ROAD ABBIGERE VILLAGE YESHWANTHPURA BANGALORE - 560090. …RESPONDENTS

¶55

(BY SRI. NARASHIMHA MURTHY .K, ADVOCATE FOR R1 AND R2; SRI. N. ANAND, ADVOCATE FOR R3; SRI. S.J. KUMAR, ADVOCATE FOR R4 AND R6 AND ALSO LRs OF R5; V/O DATED 11.10.2023 NOTICE TO R7 IS DISPENSED WITH)

¶56

6

¶57

THIS RFA IS FILED UNDER SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 21.04.2023 PASSED IN O.S NO. 5746/2014 ON THE FILE OF THE XX ADDL. CITY CIVIL JUDGE, BANGALORE DECREEING THE SUIT FOR PARTITION.

¶58

IN RFA NO.1503/2023 BETWEEN:

¶59

1 . SRI RAJASHEKAR S/O CHIKKATHIPPAIAH AGED ABOUT 91 YEARS

¶60

2 . SRI. KRISHNAPPA SINCE DEAD BY LRS

¶61

2(A) SMT. RAMAKKA W/O LATE KRISHNAPPA AGED ABOUT 76 YEARS

¶62

2(B) SRI. K. NAGABHUSHAN S/O LATE KRISHNAPPA AGED ABOUT 54 YEARS

¶63

2(C) SRI. K. VISHWANATH S/O LATE KRISHNAPPA AGED ABOUT 53 YEARS

¶64

2(D) SRI. K. VIJAYAKUMAR S/O LATE KRISHNAPPA AGED ABOUT 51 YEARS

¶65

3 . SRI. PRABHU @ B.T. PURSHOTHAM S/O LATE CHIKKATHIPPAIAH AGED ABOUT 71 YEARS

¶66

ALL ARE R/OF NEW EXTENSION ABBIGERE VILLAGE

¶67

7

¶68

YESHWANTHPURA BENGALURU NORTH-560090.

¶69

...APPELLANTS

¶70

(BY SRI. KUMAR S.J., ADVOCATE)

¶71

AND:

¶72

1 . SMT SUSHEELAMMA W/O RAMACHANDRAPPA AGED ABOUT 61 YEARS R/AT NO.124 ABBIGERE NEW EXTENSION CHIKKABANAVARA POST BENGALURU-560090.

¶73

2 . SRI. SOMESHEKARA S/O LATE B. SHAMANNA AGED ABOUT 71 YEARS

¶74

3 . SRI. BACHEGOWDA S/O LATE B. SHAMANNA AGED ABOUT 53 YEARS

¶75

4 . SMT. SUMITHRAMMA W/O ASHWATHAPPA AGED ABOUT 47 YEARS

¶76

R2 TO R4 ARE R/OF SOMESHWARA EXTENSION LAKSHMIPURA MAIN ROAD ABBIGERE VILLAGE YESHWANTHPURA BENGALURU-560090.

¶77

5 . SRI. CHENGA REDDY S/O HANUMAN REDDY AGED ABOUT 69 YEARS R/OF SOMESHWARA EXTENSION LAKSHMIPURA MAIN ROAD

¶78

8

¶79

ABBIGERE VILLAGE YESHWANTHPURA BENGALURU-560090.

¶80

…RESPONDENTS

¶81

(BY SRI. JANARDHANA .G, ADVOCATE FOR C/R1; SRI. NARASIMHA MURTHY .K, ADVOCATE FOR R2 AND R3; SRI. N. ANAND, ADVOCATE FOR R4; V/O DATED 05.08.2025, NOTICE TO R-5 DISPENSED WITH)

¶82

THIS RFA IS FILED UNDER SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 21.04.2023 PASSED IN O.S NO. 5746/2014 ON THE FILE OF THE XX ADDL. CITY CIVIL JUDGE, BANGALORE DECREEING THE SUIT FOR PARTITION.

¶83

THESE RFAs HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 19.01.2026, THIS DAY JUDGMENT WAS PRONOUNCED THEREIN, AS UNDER:

¶84

CORAM: HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

¶85

C.A.V. JUDGMENT

¶86

These three Regular First Appeals arise out of the judgment and decree dated 21.04.2023 passed by the Trial Court in O.S.No.5746/2014 on the file of the XX Additional

¶87

City Civil Judge (CCH No.32) at Bengaluru filed for partition and separate possession.

¶88

9

¶89

Since all the appeals emanate from the same judgment and involved common questions of fact and law, they are taken together.

¶90

The parties are referred as they are ranked before the

¶91

Trial Court.

¶92

Brief facts leading to the case as under;

¶93

RFA No.1439/2023 is filed by the plaintiff questioning restriction of share granted in item Nos.2 and 5 of the suit schedule properties. RFA No.1503/2023 is filed by defendant Nos.5 to 7 contending that an extent of 2 acres 12 guntas in item No.1 is the self-acquired property of defendant No.7. RFA No.1510/2023 is filed by defendant Nos.2 and 3, who are the brothers of the plaintiff, assailing the decree as it grants share to the plaintiff disputing the findings relating to joint family character of the suit schedule properties.

¶94

This Court before delves into the matter deems it fit to cull out genealogical tree and admitted relationship, which reads as under;

¶95

10

¶96

Kempegouda
Bachappa Muniyappa @ Manegouda
Dodda Nanjamma (wife)
Chikathipayya B Shammanna
Muniyamma (wife) Sonnamma (wife) (D.1)
B T Rajashekhara
(Deft. No. 5)
B.T.Krishnappa Sushilamma Sumithramma B Bachegowda Someshekara
(Deft. No. 6) (Pltff) (Deft. No. 4) (Deft. No. 3) (Deft. No. 2)
Meenakshamma
B T Purushottam
(Deft. No. 7)

¶97

The plaintiff – Smt. Susheelamma, daughter of defendant No.1 and late Shamanna, and sister of defendant Nos.2 to 4, instituted the suit against her mother, siblings, and cousin brothers representing the branch of Chikathippaiah.

¶98

The plaintiff specifically pleaded that suit schedule item Nos.1 to 3 and 5 are joint family ancestral properties, whereas item

¶99

No.4 is the self-acquired property of her father - late

¶100

11

¶101

Shamanna. It was asserted that even after the demise of her father and uncle, the two branches, namely the branch of Shamanna and the branch of Chikathippaiah, continued to live jointly as an undivided Hindu joint family. On this premise, defendant Nos.5 to 7, representing the branch of Chikathippaiah, were arrayed as parties to the suit.

¶102

The plaintiff’s principal grievance was that despite repeated demands for partition of item Nos.1 to 3 and 5, defendant Nos.1, 2, 4 to 6 disclosed that an extent of 20 guntas had been sold in favour of defendant No.8. This disclosure constrained the plaintiff to approach the Civil Court by instituting the suit in O.S. No.5746/2014.

¶103

The defendants filed a common written statement admitting that item Nos.1 to 3 and 5 were acquired by the family of Bachappa. However, it was contended that the suit schedule properties had already been partitioned and therefore, the plaintiff was not entitled to any share. While disputing the plaintiff’s claim, the defendants alleged that

¶104

12

¶105

defendant Nos.1 to 4 had performed the plaintiff’s marriage nearly five decades ago and that she had received her legitimate share at the time of marriage in the form of cash and gold as stridhana. It was further contended that the plaintiff was born prior to codification and therefore, was disentitled to claim any share.

¶106

The defendants also alleged that the plaintiff’s father, Shamanna, had incurred substantial debts, which were partly discharged by defendant Nos.1 to 4 and that some liabilities were still being cleared by them. Insofar as item No.1 was concerned, defendant Nos.1 to 7 contended that defendant Nos.3 and 4 and their family had no share therein and sought for dismissal of the suit.

¶107

Based on the rival pleadings, the Trial Court framed issues and permitted the parties to adduce evidence. Upon appreciation of the oral and documentary evidence on record, the Trial Court partly decreed the suit granting the plaintiff

¶108

13

¶109

1/8^th share in item Nos.1, 3 and 5 and 1/4^th share in item Nos.2 and 4.

¶110

The learned counsel appearing for defendant Nos.5

¶111

to 7 reiterating the grounds urged in RFA No.1503/2023 and placing reliance on paragraph No.10 of the written statement vehemently contended that the plaintiff’s claim insofar as 2 acres 12 guntas in item No.1 was seriously disputed. It was submitted that defendant Nos.5 to 7 supported the findings of the Trial Court in restricting the plaintiff’s share to 1 acre 28 guntas. Referring to the mutation entries and RTCs pertaining to item No.1, it was contended that defendant No.7 had independently acquired 2 acres 12 guntas from his personal earnings and that the said extent was separately carved out in revenue records. It was further urged that defendant No.7 had developed the said portion by forming a layout and selling sites and therefore, the suit for partition insofar as the said extent was not maintainable. It was submitted that the Trial Court had rightly appreciated the evidence while declining the plaintiff’s claim beyond 1 acre 28 guntas.

¶112

14

¶113

The learned counsel appearing for defendant Nos.2 and 3 in RFA No.1510/2023 reiterated the grounds urged in the appeal and contended that there was a prior severance of status in the family and therefore, the plaintiff was not entitled to any share. It was argued that the Trial Court erred in not examining whether the parties continued to constitute an undivided Hindu joint family. On this premise, the learned counsel sought interference with the judgment and decree of the Trial Court and prayed for dismissal of the suit in its entirety.

¶114

Per contra , the learned counsel appearing for the plaintiff in RFA No.1439/2023, taking this Court through Ex.P.16 relating to item No.1, contended that the Trial Court had misread the evidence while denying the plaintiff’s share beyond 1 acre 28 guntas. Drawing attention to paragraph Nos.7 to 10 of the written statement, it was submitted that there were no specific pleadings asserting that 2 acres 12 guntas in item No.1 constituted the self-acquired property of defendant No.7. It was further contended that although a

¶115

15

¶116

common written statement was filed, defendant No.7 failed to enter the witness box to substantiate his claim of independent acquisition.

¶117

Reliance was also placed on paragraph No.2 of the written statement, wherein the defendants allegedly admitted that there was no severance in the family. Further reliance was placed on paragraph No.2 of the chief-examination of defendant No.3, examined as D.W.1, as well as crucial admissions elicited during cross-examination regarding the nature of the property. On these grounds, it was contended that the plaintiff was entitled to a share in the entire extent of 4 acres in item No.1 and not merely 1 acre 28 guntas.

¶118

The learned counsel for the plaintiff also produced the judgment rendered by a Co-ordinate Bench in W.P. No.24808/2009. Placing reliance on the said judgment, it was contended that the Trial Court erred in granting only 1/8^th share (5 guntas) in item No.5 bearing Sy. No.78/1 measuring 4 acres 28 guntas on the erroneous assumption

¶119

16

¶120

that the remaining extent was lost under Urban Land Ceiling Proceedings. It was submitted that the writ petition filed by defendant Nos.2 and 3 had been allowed and the remaining extent had reverted to the family including the plaintiff.

¶121

With regard to item No.2, it was contended that the Trial Court restricted the extent to 9 guntas without assigning reasons, despite RTC extracts (Ex.P.4 and Ex.P.6) disclosing the extent as 38 guntas. It was submitted that the restricted extent was unsupported by any registered document and therefore, the entire extent of 38 guntas ought to have been taken into account while determining the plaintiff’s share.

¶122

Having heard the learned counsel for the parties at length and upon perusal of the record, the following points arise for consideration:

¶123

i) Whether the Trial Court was justified in restricting the plaintiff’s share in item No.2 to 9 guntas, despite documentary evidence reflecting the extent as 38 guntas?

¶124

17

¶125

ii) Whether the finding of the Trial Court treating item No.5 as measuring only 5 guntas, on the premise that the remaining extent was lost under Urban Land Ceiling proceedings, is sustainable?

¶126

iii) Whether defendant No.7 has established that the extent of 2 acres 12 guntas claimed by him in item No.1 is his selfacquired property?

¶127

iv) Whether the sale of 12 guntas by Shamanna in item No.5 requires exclusion while determining the plaintiff’s share?

¶128

v) Whether the appeals filed by defendant Nos.2 and 3 and defendant Nos.5 to 7 warrant interference?

¶129

vi) Whether the death of defendant No.6 during the pendency of the suit renders the preliminary decree a nullity?

¶130

vii) What order or decree?

¶131

18

¶132

Findings on Point No.(i):-

¶133

Item No.2 of the suit schedule property admittedly measures 38 guntas, as evidenced from the RTC extract marked at Ex.P.6. A careful perusal of the impugned judgment reveals that although the Trial Court has adverted to Ex.P.6, it has curiously relied upon the column reflecting the extent shown against individual holders in the RTC instead of the total extent of the survey number. Proceeding on this erroneous premise, the Trial Court has assumed that the family of the plaintiff and defendant Nos.1 to 4 together held only 9 guntas in item No.2.

¶134

Such an approach, in the considered view of this Court, is legally unsustainable. The extent of 9 guntas reflected against the names of the plaintiff and defendant Nos.2 to 4 in the RTC is neither supported by any registered document nor corroborated by any independent evidence. Significantly, the defendants have not produced a single document to demonstrate loss of land, alienation, acquisition by third parties or any lawful reduction in extent from the

¶135

19

¶136

admitted total extent of 38 guntas. In the absence of proof of divestment or severance, the Trial Court could not have presumed diminution of the extent merely on the basis of entries against individual names in the revenue records.

¶137

It is well settled that revenue entries are maintained primarily for fiscal purposes and do not, by themselves, confer title nor operate to extinguish substantive rights, unless supported by cogent documentary evidence. In the present case, the Trial Court has elevated a revenue entry into a determinative factor, without there being any foundational pleadings or proof to justify such reliance. The assumption that the family held only 9 guntas in item No.2 is thus founded on conjecture rather than evidence.

¶138

What further renders the impugned finding untenable is that acceptance of the extent of 9 guntas would directly run contrary to the defendants’ own admissions. In paragraph No.2 of the written statement, the defendants have categorically admitted the nature and extent of the joint family

¶139

20

¶140

properties without pleading any prior alienation, loss or reduction of item No.2. This admission is further fortified by paragraph No.2 of the chief-examination of defendant No.3, examined as D.W.1, wherein the nature and continuity of the joint family properties are unequivocally affirmed. In the face of such admissions, the Trial Court could not have presumed a reduced extent in item No.2 in the absence of pleadings and proof to that effect.

¶141

It is trite that a party cannot be permitted to approbate and reprobate. Having admitted the joint family character and extent of the properties in pleadings and evidence, the defendants were estopped from contending directly or indirectly that the extent stood reduced to 9 guntas without placing material evidence on record. The Trial Court, therefore, committed a manifest error in overlooking these admissions and in drawing an inference adverse to the plaintiff solely on the basis of revenue entries, which neither have statutory finality nor evidentiary supremacy over admitted pleadings.

¶142

21

¶143

In this backdrop, before adverting further to the documentary and oral evidence on record, this Court deems it appropriate to extract paragraph No.2 of the written statement, which assumes decisive significance in adjudicating the controversy relating to item No.2. The same is extracted hereinbelow for ready reference:

¶144

"2. The averments made in para 3 of the plaint the Propositous of the family Bachappa during his life time acquired Property bearing Survey Nos. 10/3, 4 acres, 54/2, 38 guntas; Sy No.59, 25 guntas, 1 acres 6 guntas in Sy No. 62 and 4 acres in Sy No.78/1; all situated at Abbigere village, Yeshwanthpura, Bangalore North and he died leaving behind Chikathippaiah the father of Defendant Nos.4 to 6 and B Shamanna the father of Plaintiff and Defendant Nos.1 to 3 to succeed to the said properties and these properties are more fully described in the Schedule hereunder at Item Nos.1 to 3. Similarly, the father of the Plaintiff and Defendant Nos. 1 to 3 Shamanna had purchased Property bearing No.62, measuring 1 acre 6 guntas situated at Abbigere Village, Yeshwanthpur Bangalore under a registered sale deed dated 30.10.1957 on his name is true and correct."

¶145

A careful reading of paragraph No.2 of the extracted

¶146

written statement leaves no manner of doubt that the defendants have made a clear, categorical and unequivocal

¶147

22

¶148

admission that item Nos.1 to 3 of the suit schedule are joint family ancestral properties and that no partition by metes and bounds has taken place in respect of the said properties. The admission is neither qualified nor conditional and strikes at the very root of the defence set up by the defendants disputing the plaintiff’s entitlement.

¶149

What lends further credence to this admission is the fact that the very same stand is reiterated by defendant No.3, who stepped into the witness box as D.W.1. In paragraph No.2 of his chief-examination, defendant No.3 has once again affirmed that item Nos.1 to 3 are joint family properties and that there has been no severance of status or division by metes and bounds. The consistency between the pleadings and the sworn testimony unmistakably establishes the joint family character of the properties.

¶150

It is well settled that an admission, whether in pleadings or in evidence, constitutes the best form of proof and dispenses with the necessity of further proof, unless the

¶151

23

¶152

same is shown to be vitiated or withdrawn in accordance with law. In the present case, the defendants have neither explained away nor retracted the admissions made in paragraph No.2 of the written statement and paragraph No.2 of the chief-examination of D.W.1. In the absence of any such explanation, the Court is bound to give due weight to the admissions, which conclusively negate the plea of prior partition or severance. In this backdrop, this Court finds it appropriate to extract paragraph No.2 of the chief - examination of DW1, which assumes determinative significance in adjudicating the nature of item Nos.1 to 3 and the extent of the plaintiff’s entitlement therein. The same reads as under:

¶153

"I state that the Propitious of the family Bachappa during his life time acquired Property bearing Survey Nos.10/3 measuring 4 acres, 54/2 measuring 38 guntas, Sy No.59 measuring 25 guntas and 4 acres in Sy No.78/1, all situated at Abbigere village, Yeshwanthpura, Bangalore North and he died leaving behind Chikathippaiah the father of Defendant No.4 to 6 and B.Shamanna the father of Plaintiff and Defendant No.1 to 3 to succeed to the said properties. My father had purchased Property bearing No.

¶154

24

¶155

62, measuring 1 acre 6 guntas situated at Abbigere village, Yeshwanthpur, Bangalore under a registered sale deed dated 30.10.1957 in his name out of his income. The relationship between the parties is admitted."

¶156

It would be also crucial to extract the crucial admissions elicited in cross-examination of D.W.1 and the same is extracted, which reads as under;

¶157

"It is true to suggest that the revenue records of other schedule properties are still depicting the names of my father and father of defendant no.5 to 7. No layout has been formed in any of the schedule properties. We constructed four houses in our portions of schedule item no.5 property. Defendant no.2 constructed the 2 houses in the said property .................................. It is true to suggest that Ex.P-2 concerned to schedule item no.1 property and the name of my father is appearing in Ex.P-2 as owner. It is true to suggest that the name of my father i.e B. Shamanna is continuing to the RTC of schedule item no.1 property even to this day. It is true to suggest that the name of my father is also continuing in the RTC schedule item no.2, 3 and 5 properties even to this day."

¶158

Upon a careful and cumulative examination of the pleadings contained in the written statement extracted supra, the unequivocal reiteration of the same stand in the chief-

¶159

25

¶160

examination of D.W.1 and the categorical admissions elicited in the cross-examination of D.W.1, this Court finds no ambiguity whatsoever in the factual position that the plaintiff and defendants continue to constitute an undivided Joint Hindu Family insofar as item Nos.1 to 3 of the suit schedule properties are concerned. The consistent stand taken by the defendants in pleadings as well as sworn testimony clearly negatives the plea of severance or prior partition by metes and bounds.

¶161

In that view of the matter, the Trial Court committed a manifest error in restricting the extent of item No.2 to 9 guntas contrary to the documentary evidence on record. The RTC extract marked at Ex.P.6 unmistakably reflects the total extent of item No.2 as 38 guntas and in the absence of any proof of alienation, loss or lawful reduction of extent, the Trial Court could not have curtailed the extent on the basis of revenue entries indicating individual holdings. The impugned finding is therefore perverse and contrary to both

¶162

26

¶163

the pleadings and evidence on record. Accordingly, Point No.(i) is answered in the Negative .

¶164

Findings on Point Nos.(ii) and (iv) :-

¶165

Item No.5 of the suit schedule property admittedly measures 4 acres 28 guntas. The Trial Court has proceeded on the assumption that only 5 guntas remained with the family holding that the remaining extent stood lost under Urban Land Ceiling proceedings. Such a finding, in the considered opinion of this Court, is wholly unsustainable in view of the subsequent and undisputed development, namely, the order passed by the Writ Court in W.P.No.24808/2009.

¶166

A perusal of the judgment rendered by the Writ Court discloses that the proceedings under the Urban Land Ceiling Act, insofar as the subject land is concerned, were set aside and the land stood reverted to the family. The Trial Court, however, has failed to take note of this binding adjudication and has erroneously proceeded on the footing

¶167

27

¶168

that the major portion of item No.5 was irretrievably lost, which is factually and legally incorrect.

¶169

In order to appreciate the legal consequence of the said writ proceedings and its direct bearing on the quantification of the plaintiff’s share in item No.5, this Court deems it appropriate to extract paragraph No.28 and the operative portion of the order passed by the Writ Court in W.P. No.24808/2009, which conclusively clarifies the status of the land. The same reads as under:

¶170

"28. The State is under an obligation to follow due process of law for taking possession of immovable properties of its citizens. The State cannot deprive the right over immovable property by taking unlawful possession and continue to be in unlawful possession stating that the writ petition is hit by delay and laches, when the State Government is a welfare state and governed by rule of law. The petitioner cannot be deprived of his valuable rights over the immoveable property, which is not only a constitutional right but also human right, when there is violation of his substantial legal rights. Admittedly, the lawful possession much less unlawful possession of the subject land having not been taken, the petitioners cannot be deprived of their legitimate right under Section 3(2) and 4 of the Repeal Act, 1999 only on the ground of delay. The State Government

¶171

28

¶172

cannot enrich itself by claiming to be in possession which is unlawful and the said unlawful possession does not bestow any right to the State Government. Hence, the submission of the learned Additional Government Advocate that the writ petition is hit by delay and laches is not acceptable, and the delay if any in filing this writ petition deserves to be condoned.

¶173

29. Accordingly, I pass the following:

¶174

ORDER

¶175

i. Writ petition is allowed.

¶176

ii. The impugned notification dated 05.03.1987 issued by the second respondent at Annexure-E is quashed and the petitioners are entitled for restoration of the excess land as stated under Section 3(2) of the Repeal Act, 1999.

¶177

iii. The petitioners are granted liberty to approach the Tahsildar concerned for deleting the name of the Government and substitute the name of the deceased father in the record of rights pertaining to the land which is declared as excess land bearing Sy. No.78/1.

¶178

iv. If such an application is submitted, the Tahsildar concerned to consider the same and pass appropriate order in accordance with law."

¶179

(emphasis supplied)

¶180

On a careful examination of the order extracted

¶181

supra, it is evident that defendant Nos.2 and 3 had assailed

¶182

29

¶183

the proceedings initiated under the Urban Land Ceiling Act and the Writ Court, upon due consideration, held that the family of the plaintiff and defendant Nos.2 and 3 was entitled to retain the subject property. In view of the authoritative pronouncement rendered by the Co-ordinate Bench, the controversy relating to vesting or loss of possession under the ULC proceedings stands conclusively resolved. The said lis has thus attained finality and is given a quietus.

¶184

In the light of the binding order passed by the Writ Court, the finding recorded by the Trial Court that the plaintiff and defendants were entitled to a share only in 5 guntas out of item No.5 is manifestly erroneous and warrants interference at the hands of this Court.

¶185

However, the material on record discloses that the plaintiff’s father, late Shamanna, had alienated an extent of 12 guntas out of item No.5 during his lifetime. The said alienation is clearly borne out from the RTC extracts as well as the Encumbrance Certificates, which unequivocally reflect the sale

¶186

30

¶187

of 12 guntas and its subsequent conversion. To that extent, the land is no longer available for partition and necessarily requires exclusion while determining the shares of the parties.

¶188

Subject to exclusion of the aforesaid 12 guntas, the remaining extent in item No.5 continues to retain its character as joint family property, in which the plaintiff is entitled to her legitimate share in accordance with law. The Trial Court, therefore, committed a serious error in confining the plaintiff’s entitlement to only 5 guntas, ignoring both the binding writ court judgment and the documentary evidence on record. Accordingly, the finding of the Trial Court in respect of item No.5 is set aside. Point No.(ii) is answered in the Negative and Point No.(iv) is answered in the Affirmative.

¶189

Findings on Point No.(iii) :-

¶190

Defendant No.7 has, for the first time before this Court and by urging elaborate grounds in the appeal, sought to assert that an extent of 2 acres 12 guntas in item No.1 constitutes his self-acquired property, allegedly purchased

¶191

31

¶192

from Muniyappa, the brother of the propositus Bachappa, under a registered sale deed of the year 1991. However, a holistic reading of the entire written statement filed before the Trial Court reveals that defendant No.7 has not pleaded at any stage that the said extent is his independent or self-acquired property.

¶193

There is a complete absence of foundational pleadings setting out the source of acquisition, the manner of purchase, or the exclusion of the said extent from the joint family nucleus. The attempt made by defendant No.7 to project the said extent as his self-acquisition is thus clearly an afterthought and impermissible at the appellate stage.

¶194

A faint and misconceived attempt is sought to be made by placing reliance on paragraph No.10 of the written statement, contending that the plea of self-acquisition can be culled out therefrom. This contention, in the opinion of this Court, is wholly untenable. Paragraph No.10 does not contain any categorical assertion that 2 acres 12 guntas in item No.1

¶195

32

¶196

was purchased by defendant No.7 out of his independent income or that it stood excluded from the joint family properties.

¶197

In order to examine the said contention in its proper perspective, this Court deems it appropriate to extract paragraph No.10 of the written statement, which reads as under:

¶198

"The defendants 1 to 7 submits that, item No.1 schedule property is not concerned to the defendants 3 and 4 family. The item No.2 and 3 are still in the joint names of defendant No.5, 6 and 7. The item No.4 and 5 is the name of the defendants 3 and 4, fallen to their share in the partition."

¶199

A careful reading of paragraph No.10 of the written statement reveals considerable vagueness and ambiguity in the pleadings. Even assuming, arguendo, that the contention of defendant No.7 is accepted to the limited extent that paragraph No.10 contains a plea suggesting that 2 acres 12 guntas in item No.1 is his self-acquired property, such a plea remains wholly unsubstantiated and uncorroborated by evidence. Defendant No.7 has not chosen to step into the

¶200

33

¶201

witness box to establish that he possessed an independent source of income or that the alleged acquisition was made without the aid of joint family nucleus. The failure of defendant No.7 to enter the witness box, despite asserting an exclusive claim, invites an adverse inference.

¶202

More importantly, the stand sought to be projected in paragraph No.10 stands in direct conflict with paragraph No.2 of the written statement, which has been extracted and discussed supra. In paragraph No.2, the defendants, including defendant No.7, have unequivocally admitted that their ancestors inherited item No.1 along with item Nos.2 and 3, thereby acknowledging the joint family and ancestral character of the properties.

¶203

It is well settled that admissions in pleadings occupy a position of paramount importance and carry a higher evidentiary value. Time and again, the Hon’ble Apex Court as well as this Court have held that such admissions go to the root of the matter and override inconsistent or subsequent

¶204

34

¶205

pleas. In the present case, the admission contained in paragraph No.2 of the written statement is further reinforced by the oral evidence of D.W.1 (defendant No.3), who, in paragraph No.2 of his chief-examination, has reiterated that item Nos.1 to 3 are joint family ancestral properties.

¶206

Since a common written statement was filed by all the defendants and defendant No.7 is admittedly a signatory thereto, he cannot, for the first time at the appellate stage, be permitted to take a stand diametrically opposite to the admissions made in the pleadings and evidence. Such a contradictory stand, raised belatedly, is impermissible in law and cannot be entertained by this Court.

¶207

A conjoint reading of paragraph Nos.2 and 10 of the written statement makes it abundantly clear that no plea of self-acquisition is asserted in paragraph No.2, while paragraph No.10 merely suggests that item No.1 was not conveyed to certain branches. There is no categorical assertion that the extent of 2 acres 12 guntas was acquired by defendant No.7

¶208

35

¶209

from his independent income. Further, Ex.P.10 reflects mutation entries jointly standing in the names of defendant Nos.2, 3 and 5 to 7, which completely belies the claim of exclusive ownership.

¶210

The settled principle that the burden squarely lies on the person asserting self-acquisition to prove the same is fully attracted to the facts of the present case. A mere assertion, without pleadings, proof, or corroborative evidence and that too raised for the first time at the appellate stage cannot defeat the lawful claim of the plaintiff. Accordingly, Point No.(iii) is answered in the Negative .

¶211

Findings on Point No.(v):-

¶212

In view of the findings recorded by this Court on Point Nos.(i) and (iii), this Court is of the considered view that the appeal filed by defendant Nos.2 and 3 does not merit consideration. The stand consistently taken by the defendants in paragraph No.2 of the written statement, reiterated during trial, and further fortified by admissions in the chief-

¶213

36

¶214

examination and cross-examination of D.W.1, clearly disentitles them from seeking interference with the judgment of the Trial Court on grounds contrary to their own admissions. Accordingly, Point No.(v) is answered in the Negative.

¶215

Findings on Point No.(vi):-

¶216

The defendants have raised a contention that defendant No.6 – Krishnappa died during the pendency of the suit and therefore, the preliminary decree is rendered a nullity. This contention is devoid of merit and cannot be accepted. The suit is one for partition, and even assuming that defendant No.6 died during pendency of Suit, defendant Nos.5 and 7, who are his siblings and represent the same branch, have effectively contested the proceedings.

¶217

Further, defendant No.3, representing the branch of Shamanna, stepped into the witness box and deposed on behalf of all the defendants. The doctrine of effective representation, as consistently recognised by the Hon’ble Apex

¶218

37

¶219

Court, squarely applies to the facts of the present case. When parties having identical interests are on record and have actively contested the proceedings, the death of one such party does not vitiate the decree.

¶220

The contention raised at this belated stage is nothing but a feeble attempt to unsettle a lawful adjudication, and the same is liable to be rejected. Accordingly, Point No.(vi) is answered in the Negative .

¶221

Findings on Point No.(vii):-

¶222

In the light of the findings recorded on Point Nos.(i) to (vi), this Court proceeds to pass the following:

¶223

ORDER

¶224

i) The appeal filed by the plaintiff in RFA No.1439/2023 is allowed in part. Consequently, RFA Nos.1503/2023 and 1510/2023 filed by defendant Nos.2 and 3 and defendant Nos.5 to 7 respectively are dismissed.

¶225

38

¶226

ii) The preliminary decree passed by the Trial Court stands modified as under:

¶227

a) The plaintiff is entitled for 1/8^th share in item No.2 measuring 38 guntas.

¶228

b) The plaintiff is entitled for 1/8^th share in item No.1 measuring 4 acres.

¶229

c) In respect of item No.5 bearing Sy. No.78/1, after excluding an extent of 12 guntas alienated by the propositus – late B.Shamanna, the plaintiff is entitled for 1/8^th share in the remaining extent.

¶230