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2020 DIGILAW 1958 (KAR)

Namadev Kadappa Naik v. Mayappa Kadesha Naik

2020-09-30

P.S.DINESH KUMAR, S.VISHWAJITH SHETTY

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JUDGMENT P.S.Dinesh Kumar, J. - This first appeal by the plaintiffis directed against the judgment and decree dated 28.04.2018 in O.S.No.33/2016 on the file of the Senior Civil Judge and JMFC, Raibag. 2. For the sake of convenience, parties shall be referred as per their ranking before the trial Court. 3. Heard Shrilaxman T.Mantagani, for the plaintiff, Shri Rajashekhar Burji for defendants 1 and 2, and Shri R.M.Kulkarni, for defendants 4 and 5. 4. Plaintiff 's suit is for partition and separate possession of agricultural properties measuring 5 acres in Sy.No.153/1, 4 acres 2 guntas in Sy.No.153/2, 10 acres 35 guntas in Sy.No.156 and 14 acres 5 guntas in Sy.No.157. The genealogy of the family of Mayappa is as follows: 5. Plaintiff 's case is, Kenchappa was the propositus. The suit properties are 'sanadiinaam lands'. Kenchappa and his eldest son Balappa have served as sanadis. When Kenchappa died on 13.04.1890, plaintiff's grand father Topanna was seven years old. His brother Mayappa was aged 17 years. Kenchappa's son Balappa had pre-deceased on 06.12.1889. Mayappa was appointed as Sanadi and accordingly, properties were mutated in his name. After his death, properties were mutated in the name of his son Kenchappa and finally, in favour of defendants 1 and 2. Thus, in substance, the suit properties are joint family properties and there was no partition and therefore, plaintiffis entitled for one half share in the properties. 6. Defendant No.2 has filed written statement. Defendant No.1 has adopted the same. It is contended in the written statement that lands bearing Sy.No.153, 156, and 157 are exclusive properties of defendants No.1 and 2. Land bearing Sy.No.160/4 was in the name of plaintiff 's father Kadappa. Families of Kenchappa and Balappa were also dealing with their respective properties separately since 1941. Kenchappa and Balappa both sons of Mayappa had purchased property bearing Sy.No.154 under a registered sale deed dated 01.02.1944. The wahiwat register pertaining to suit lands shows that grandfather of defendants 1 and 2 were cultivating lands bearing No.153, 156 and 157 and land bearing Sy.No.160/4 was cultivated by plaintiff 's father Kadappa. The Assistant Commissioner, Chikkodi, has re-granted lands bearing No.153, 156 and 157 in favour of Kadesh (father of defendants 1 and 2) in the year 1968. In 1970, Kadesh has paid the amount for converting the suit lands. The Assistant Commissioner, Chikkodi, has re-granted lands bearing No.153, 156 and 157 in favour of Kadesh (father of defendants 1 and 2) in the year 1968. In 1970, Kadesh has paid the amount for converting the suit lands. The revenue records from 1944 till 1970 show that father of defendants 1 and 2 was the owner of lands bearing Sy.No.153, 156 and 157 and similarly, father of plaintiffis shown as owner of land bearing Sy.No.160/4. 7. It is also further contended by the defendants that defendants 1 and 2 have sold land bearing Sy.No.153/1 in favour of defendants No.4 and 5 in 1973 after obtaining permission from the Assistant Commissioner and since then, defendants No.4 and 5 are in possession of the said land. Plaintiff has not challenged the sale of said land made by defendants 1 and 2. 8. Based on the pleadings in the plaint and the written statement, trial Court has framed following issues: "1. Whether the plaintif f proves that, the proposi tus Kenchappa was doing Sanadi Service? 2. Whether the plaintif f proves that, Mayappa was appointed as Sanadi Service in the year 1980? 3. Whether the defendant No.2 proves that, the sui t properties were granted to his father in the year 1968? 4. Whether the sale by Kadappa in favour of the defendant Nos.4 and 5 is binding on the plaintif f also? 5. Whether all the family properties have brought into the sui t? 6. Whether the sui t is bad for non- joinder of necessary parties? 7. Whether the cour t fee paid is suf ficient? 8. Whether this Court has got pecuniary jurisdiction to entertain the sui t? 9. Whether the plaintif fis enti tled for share? If so, what is extent? 10. What order or decree? 9. On behalf of the plaintiff, two witnesses PWs-1 and 2 have been examined and Exs.P.1 to P.42 marked. On behalf of defendants, DWs-1 and 2 have been examined and Exs.D.1 to D.17 marked. Based on the evidence on record, the learned trial Judge has answered issues No.1, 2, 5, 7 to 9 in the negative, issues No.3, 4 and 6 in the affirmative and dismissed the suit. 10. On behalf of defendants, DWs-1 and 2 have been examined and Exs.D.1 to D.17 marked. Based on the evidence on record, the learned trial Judge has answered issues No.1, 2, 5, 7 to 9 in the negative, issues No.3, 4 and 6 in the affirmative and dismissed the suit. 10. Shri Mantagani, for the plaintiff submitted that the lands in question belonged to the village office and there is no dispute with regard to the fact that the propositus Kenchappa was cultivating these lands and since his son Balappa predeceased him, the lands were transferred in the name of Mayappa. The defendants have not produced any material to show that there was earlier partition of properties. Therefore, in view of admitted facts, plaintiffis entitled for share in the properties. 11. Shri Rajashekhar Burj i, for defendants 1 and 2 argued opposing the appeal. Shri R.M.Kulkarni for defendant No.3 submitted that defendant No.3 has not filed his written statement in the trial Court. However, he pleaded that defendant No.3 would also be entitled for his share. 12. We have carefully considered rival contentions and perused the records. 13. In the light of rival contentions and the pleadings and the arguments of the learned advocates for the parties, the following points arise for our consideration: i ) Whether plaintif f has proved that joint family status existed as on the date of filing the suit? ii) Whether plaintif fis in possession and enjoyment of suit lands? RE:POINT NO.1: 14. It is the case of both plaintiff and defendants that Kenchappa was the propositus and suit schedule lands are sanadiinaam lands. Kenchappa's son Balappa died 6.12.1889. His two brothers Sultan and Kadappa had given up their claim. Balappa had two sons namely, Mayappa and Topanna. Suit lands were transferred in the name of Mayappa on 20.04.1890 based on a vardi. In the vardi dated 01.03.1890 Ex.P.22 (b), it is stated that propositus Kenchappa was in his advanced age and was not in a position to manage the property. Accordingly, he desired that the office be made over to his grandson Mayappa. Kenchappa's wife Satyawwa, his son Sultan and Kadappa have also given their statement at the time of mutation in the name of Mayappa. 15. It is the specific case of defendant No.2 that Sy.No.153, 156 and 157 are the exclusive properties of defendants 1 and 2. Accordingly, he desired that the office be made over to his grandson Mayappa. Kenchappa's wife Satyawwa, his son Sultan and Kadappa have also given their statement at the time of mutation in the name of Mayappa. 15. It is the specific case of defendant No.2 that Sy.No.153, 156 and 157 are the exclusive properties of defendants 1 and 2. They have also pleaded in the written statement that Sy.No.160/4 was in possession of plaintiff's father Kadappa. It is settled that the true test of partition is the intention of the members of family to become separate owners. A severance of joint status may result from any act or transaction having the effect of defining shares. Therefore, the entry in the record of rights showing the shares of each member is a strong circumstance to construe division of shares among the coparceners. 16. As recorded hereinabove, based on the vardi dated 20.04.1890, the village office was transferred in the name of Mayappa. Upon Karnataka Village Offices Abolition Act, 1961, coming into force, the inaam lands vested in the State. PW-1 Namdev was aged 80 years as on the date of tendering his evidence before the trial Court in August, 2016. In his cross-examination, he has admitted that in the revenue records, names of 1st and 2nd defendants and their father Kadesha were entered in the record of rights in respect of Sy.No.153, 156 and 157. He has also admitted that Sy.Nos.154 was purchased by Kenchappa (grandfather of defendants 1 and 2) and Balappa (grandfather of defendant No.3) from one Narayana Kulkarniin the year 1944 and it is their own land. 17. It is relevant to record that PW-1 has admitted in the cross-examination that even prior to 1944, Kenchappa and Balappa were independently handling their respective affairs. He has also admitted that Sy.No.160 was registered in the name of his father Kadappa and his family was taking care of said land and the remaining three lands namely 153, 156 and 157 were cultivated by grandfather of defendants 1 and 2, Kenchappa. 18. So far as the re-grant is concerned, PW- 1 has admitted in the cross-examination that the lands were re-granted by the Assistant Commissioner and they are registered in the name of Kadesh Naik (grandfather of defendants 1 and 2) and finally he has admitted that from 1944, 1st and 2nd defendant; and 3rd defendant were residing separately. 19. 18. So far as the re-grant is concerned, PW- 1 has admitted in the cross-examination that the lands were re-granted by the Assistant Commissioner and they are registered in the name of Kadesh Naik (grandfather of defendants 1 and 2) and finally he has admitted that from 1944, 1st and 2nd defendant; and 3rd defendant were residing separately. 19. On behalf of plaintiff, another witness by name Vasant Ramachandra Kochari has been examined as PW-2. In his cross-examination, he has admitted that plaintiff - Namdev is his sister's son; that he did not know the area of the three lands in question. Thus, in substance, evidence of PW-2 does not advance the case of plaintiff. 20. Marshalling of evidence of PWs-1 and 2 clearly indicates that plaintiff's branch and two branches of defendants 1 and 2; and defendant No.3 were residing separately from 1944 and they were handling their affairs independently. Thus, we conclude that plaintiff has not proved that the joint family status existed and accordingly, answer this point in the negative. RE-POINT NO.2: 21. As recorded hereinabove, PW-1 has admitted that after abolition of village offices, lands were re-granted to the branch of defendants 1 and 2. Hence, this point is also answered in the negative. 22. It is settled that the partition can be proved by the intention of the parties manifested by their conduct. In the case on hand, the evidence on record and specifically the evidence of PW-1, the plaintiff himself, clearly establish that parties were residing separately. They were cultivating their respective lands separately and there is no semblance of either joint holding, joint cultivation of the lands in question and joint living of family members. 23. In view of the above, no exception can be taken to the judgment and decree passed by the learned trial Judge in dismissing the suit. Resultantly, this appeal fails and is accordingly dismissed. No costs.