B. RAMAPPA v. AGRICULTURIST, 1(e) SUMANGALA

B. RAMAPPA, S/O B. DODDABHEEMAPPA, SINCE DEAD BY HIS LRS., 1(a) ANASUYAMMA, W/O LATE B. RAMAPPA AGE 75 YEARS, 1(b) PRAKASH B., S/O LATE RAMAPPA B., AGE 52 YEARS, 1(c) MAMATHA @ RENUKA KUMARI Location: HIGH COURT OF KARNATAKA HANUMANTHAPPA KORISHETTY, AGE 49 YEARS, HOUSE HOLD WORKER, R/O. NEELAGUNDA VILLAGE, HARAPANAHALLI (T), DAVANAGERE DISTRICT, PIN-577 002. 1(d) SUJATHA, S/O LATE RAMAPPA B., AGE 46 YEARS, HOUSE HOLD WORKER AND AGRICULTURIST, 1(e) SUMANGALA, D/O LATE RAMAPPA B., AGE 42 YEARS, HOUSE HOLD WORKER AND - 2 - NC: 2024:KHC:48487 RSA No. 1116 of 2022 AGRICULTURIST, 1(f) PRABHU B., S/O LATE RAMAPPA B., AGE 39 YEARS, AGRICULTURIST, APPELLANT NO.S. (a), (b), (d), (e) AND (f) ALL ARE R/O SARATHI VILLAGE, HARIHARA TALUK, DAVANAGERE DISTRICT, PIN-577 601.

(BY SRI. N. K. SIDDESWARA, ADVOCATE) AND: …APPELLANTS

B. SHEKARAPPA, S/O B DODDARAMAPPA, AGED 72 YEARS, AGRICULTURIST, PERMANENT R/O SARATHI VILLAGE, HARIHARA TALUK, NOW RESIDING AT: DEVARAJ URS LAYOUT, DAVANAGERE CITY, PIN-577 002. SHIVANANDAPPA, S/O HANUMANTHAPPA AGED 58 YEARS, AGRICULTURIST, ANJANAPPA, S/O HANUMANTHAPPA, SINCE DEAD BY LRS. 3(a) MANJAMMA, W/O LATE ANJANAPPA, AGE 54 YEARS, HOUSE WORKER, 3(b) HANUMANTHAPPA, S/O LATE ANJANAPPA, AGE 24 YEARS, COOLIE, - 3 - NC: 2024:KHC:48487 RSA No. 1116 of 2022 WORKER, 3(c) VENKATESH, S/O LATE ANJANAPPA, AGE 22 YEARS, 3(d) MOHAN, S/O LATE ANJANAPPA, AGE 20 YEARS

RESPONDENT NOS. 3(a) TO 3(d) ARE R/O. SARATHI VILLAGE, HARIHARA TALUK, DAVANAGERE DISTRICT. ASHOKA, S/O LATE HANUMANTHAPPA, AGED 56 YEARS, COOLIE WORKER, R/O JOISARAHARALAHALLI VILLAGE, RANEBENNUR TALUK, HAVERI DISTRICT. SMT. GEETHA, W/O BASAVARAJAPPA D/O HANUMANTHAPPA AGED ABOUT 55 YEARS, R/O VIDYANAGARA, NEAR GANESH TEMPLE, HARIHARA TOWN AND TALUK, DAVANAGERE DISTRICT. (BY SMT. SHRUTHI S. P., ADVOCATE FOR R1; V/O DATED 28.10.2022, NOTICE TO R2 TO R5 ARE DISPENSED WITH) …RESPONDENTS THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 10.01.2022 PASSED IN RA.NO. 22/2016 ON THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, DAVANAGERE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 13.11.2015 PASSED IN O.S.NO.17/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE, HARIHAR. - 4 - NC: 2024:KHC:48487 RSA No. 1116 of 2022 THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This Regular second appeal is filed challenging the judgment and decree dated 10.01.2022 passed R.A.No.22/2016 by the II Additional District and Sessions Judge, Davanagere and the judgment and decree dated

13.11.2015 passed in O.S.No.17/2014 by the Senior Civil Judge, Harihar.

For convenience, the parties are referred to as per their ranking before the trial Court. The appellants were the legal representatives of the deceased plaintiff- B.Ramappa, and the respondents, were the defendants.

3. The brief facts leading rise to the filing of this appeal are as under: The Plaintiff is the brother of defendant No.1, who has filed a suit claiming the partition of the suit schedule - 5 - NC: 2024:KHC:48487 RSA No. 1116 of 2022 property, namely item Nos.1, 2 and 3 as described in the plaint schedule. The said suit was contested by defendant No.1. The relationship was not denied. Hence, defendant No.1 sought to set up an oral partition under which properties, including 2, had already been divided, and parties were enjoying their respective shares. It is contended that, item No.1 had been granted to defendant No.1 under Grant Certificate and was not amenable to partition. Regarding land in Sy.No.42 measuring about 4 acres had fallen to the plaintiff's share in the earlier partition and the earlier partition was not included in the suit properties. Insofar as item No.3 is concerned, defendant No.1 had claimed that it is self-acquired property and the same had been purchased under a registered sale deed in the year 1986 and, therefore, was not amenable to the partition and prayed to dismiss the suit.

The trial Court based on the above pleadings, framed relevant issues. - 6 - NC: 2024:KHC:48487 RSA No. 1116 of 2022

1. Whether the plaintiff proves that the suit schedule properties are family properties possession?

2. Whether the plaintiff proves that defendant No.1 is managing the joint family properties?

3. Whether the Court fee paid insufficient?

4. Whether defendant No.1 proves that is already partition in the properties as alleged in the written statement para No.7?

5. Whether the plaintiff is entitled for the reliefs sought for?

What order or decree?

5. The plaintiff, to prove his case, examined himself as PW.1, examined one witness as PW.2 and marked 15 documents as Ex.P1 to Ex.P.15. Defendant No.1 was examined as DW.1 examined three witnesses as DW.2 to DW.4 and marked 35 documents as Ex.D1 to - 7 - NC: 2024:KHC:48487 RSA No. 1116 of 2022 Ex.D35. The trial Court, on the assessment of oral and documentary evidence, decreed the suit of the plaintiff judgment dated 27.07.1998. Defendant No.1, aggrieved by the judgment and decree passed O.S.No.59/1992, preferred an appeal in RFA No.825/2002 on the file of this Court. This Court vide judgment dated

08.03.2012 allowed the appeal in part. This Court has framed the following issue:

1. Whether the defendant No.1 proves that the said item No.3 of the plaint schedule is his self acquired property and whether he had any other independent source of income to acquire the same? Thereafter, the appeal was allowed in part, and the matter was remanded to the trial Court for fresh consideration on the above issue that is framed by this Court.

6. The trial Court shall afford an opportunity to defendant No.1 to tender evidence in support of the above - 8 - NC: 2024:KHC:48487 RSA No. 1116 of 2022 issue that the plaintiff, in-turn shall be afforded an opportunity to rebut such evidence, and the Court shall give its finding and the limited aspect, namely whether, item No.3 of the suit property was self acquired property of the defendant and whether he had any independent source of income to acquire the same and render its findings on the same, in accordance with law and further held that, the judgment and decree insofar as item Nos.1 and 2 are concerned are left undisturbed and therefore, further proceedings shall go on only in respect of suit item No.3. Pursuant to the remand, the parties have to lead their evidence.

The trial Court decreed the suit of the plaintiff in the following terms, is hereby declared with the suit schedule item No.3 of the property bearing Sy.No.49/1P2 measuring 1 acre 6 guntas situated at Sarati village, Harihar taluk, Davanagere district is the self acquired property of defendant No.1 vide judgment dated

13.11.2015. The plaintiff, aggrieved by the judgment and - 9 - NC: 2024:KHC:48487 RSA No. 1116 of 2022 decree passed by the trial Court dated 13.11.2015 passed in O.S.No.17/2014, preferred an appeal in RA No.22/2016. The Appellate Court, dismissed the appeal vide judgment dated 10.01.2022. The plaintiff's legal representatives aggrieved by the judgment and decree passed by the Court below insofar as item No.3 is concerned filed this regular second appeal.

Heard learned counsel representatives of the deceased plaintiff. Learned counsel for the deceased plaintiff submits that item No.3 was purchased out of the income derived from item Nos.1 and 2 of the suit schedule property. He also submits that, DW.1 admitted in the course of cross-examination that item Nos.1 and 2 properties were mortgaged and out of the said amount, item No.3 was purchased and submits that item No.3 is the joint family property of the plaintiff and defendants. Hence, he submits that the plaintiff is entitled to share in item No.3 of the suit schedule property. He submits that, the trial Court committed an - 10 - NC: 2024:KHC:48487 RSA No. 1116 of 2022 error in declaring that item No.3 of the suit schedule property is the self-acquired property of defendant No.1. He submits that, the trial Court failed to consider Ex.P4. Hence, he submitted that the impugned judgments passed by the Courts below are arbitrary and erroneous. Hence, on these grounds he prays to allow the appeal.

Perused records and considered submissions of the of the plaintiff's legal representatives.

It is not in dispute that the plaintiff has filed suit for partition and separate possession in respect of three items of suit schedule properties. Initially, the trial Court decreed the suit of the plaintiff vide judgment dated

27.07.1998. Defendant No.1, aggrieved by the judgment and decree dated 27.07.1998, passed in O.S.No.59/1992, preferred regular first appeal in RFA No.825/2002. This Court vide judgment dated 08.03.2012 allowed the appeal in part and confirmed the judgment and decree insofar as item Nos.1 and 2 of the suit schedule properties. Insofar as item No.3 is concerned, this Court has framed an issue - 11 - NC: 2024:KHC:48487 RSA No. 1116 of 2022 and remanded the matter to the trial Court for fresh consideration on the said issue. After remanding, the parties have lead their evidence, and the defendant No.1 established that the suit schedule property was purchased out of his income and has produced the original registered sale deed marked as Ex.P3. The registered sale deed discloses that defendant No.1 had purchased item No.3 of the suit schedule property. From the perusal of the recital of Ex.P3, which discloses that defendant No.1 had paid the consideration amount to his vendor. In a suit of partition and separate possession the initial burden is on the plaintiff to establish the nature of suit schedule property. Once, the plaintiff discharges the burden that the suit property is the joint family property, after initial discharge, the burden shifts on the defendant to show that the property claimed by the defendant was not purchased out family nucleus and was purchased independently. Admittedly, in the instant case, the plaintiff has not produced any record to show that the family was possessed sufficient nucleus for purchasing item No.3 of - 12 - NC: 2024:KHC:48487 RSA No. 1116 of 2022 the suit schedule property. The plaintiff has failed to discharge the burden of proof that the family was possessed sufficient nucleus and that it was purchased out of the income derived from item Nos.1 and 2 of the suit schedule properties. It is a well settled principle that there is no presumption with regard to joint family property. I would like to place reliance on the judgment of the Hon'ble Apex Court in the case of Appasaheb Peerappa Chandgade vs. Devendra Peerappa Chandgade and Ors. reported in AIR 2007 SC 218 wherein the Hon'ble Apex Court held that:

9. The learned trial Judge affirmed Issue 1 partly and also answered No. 4 in favour of the plaintiff. The trial Judge also answered Issue 8 in favour of the plaintiff and granted a decree as aforesaid. The trial court held that the acquisition of the property was from the joint family nucleus which was available with the joint family propitious; all the parties i.e. Defendants 5, 8 and 11 and the sons i.e. Defendants 1, 4, 9 and 10 and the plaintiff were to share equally and as per principle it was incumbent on the part of Defendants 1 to 3 to prove specifically that it was on account of self-acquired properties which came to be purchased. The learned trial Judge further held that there is absolutely no evidence to support the plea of Defendants 1 to 3 and further held that the suit property acquired vide Ext. D-46 bearing old TMC No. 1846-A and new No. 2178 standing in the name of Defendant 2; the suit - 13 - NC: 2024:KHC:48487 RSA No. 1116 of 2022 property purchased vide Ext. D-48 dated 28-6-1971 standing in the name of Defendant 1; the suit property Ext. D-49 dated 24-2-1983 standing in the name of Defendant 3 and the suit property vide Ext. 50 dated 11-8-1975 standing in the name of Defendant 2 are joint family acquisition wherein the plaintiff and Defendant 9 as coparceners can seek partition of their specific share in them. It may not be out of place to mention here that Defendant 1 is the brother of the plaintiff, Defendant 2 is the wife of Defendant 1 while Defendant 3 is the son of Defendants 1 and 2. Ultimately, the trial Judge concluded as follows: “Consequently, each of the plaintiff and Defendant 9 is entitled to 3/16th share in the suit properties at Sl. Nos. 1 to 4 shown in para (I), and Sl. Nos. 1, 2 and 4 to 7 shown in part (II), and Sl. Nos. 1, 2 and 4 shown in part (III), and at Sl. Nos. 1 to 4 shown in part (VI) of the suit Schedule B.”

Considering the law laid down by the Hon'ble Apex Court, the plaintiff failed to establish that the initial burden placed on him. As observed above, the defendant has produced a registered sale deed, which discloses that the consideration amount was paid by the defendant No.1 and it is self acquired property. The trial Court, was justified in recording a finding that, the said property was purchased by defendant No.1 out of his own income and - 14 - NC: 2024:KHC:48487 RSA No. 1116 of 2022 not from the joint family nucleus and rightly held that the suit item No.3 is the self acquired property of defendant No.1.

The Appellate Court, on re-assessment of oral and documentary evidence, dismissed the appeal. Both the Courts below have concurrently recorded the finding of the fact that item No.3 is self acquired property of the defendant No.1 and it is not the joint family property of the plaintiff and defendant No.1 and rightly held that, the plaintiff is not entitled to share in item No.3 of the suit schedule property. Both the Courts below are justified in passing the impugned judgments.