IN THE HIGH COURT OF , DHARWAD BENCH

DATED THIS THE 9 th DAY OF APRIL 2015

PRESENT

THE HON’BLE MR.JUSTICE B.S.PATIL

AND

THE HON’BLE MR.JUSTICE P.S.DINESH KUMAR

REGULAR FIRST APPEAL NO.100163/2014(PARTN & SEP. POSSN)

BETWEEN:

1. SMT. BASAVVA, W/O KRISHNANAIK PATIL AGE 55 YEARS, OCC: HOUSEHOLD WORK R/O NUGGANATTI, TAL. DIST. PIN 591 119

2. SMT. MALLAVVA, W/O BHIMANAGOUDA PATIL, AGE 53 YEARS, OCC: HOUSEHOLD WORK, R/O , TQ. SAUNDATTI DIST. BELGAUM PIN 591 703

3. SRI. RANGAPPA CHANDRAPPA PUJER AGE 52 YEARS, OCC: AGRIUCLTURE R/O , TQ. SAUNDATTI DIST. BELGAUM PIN 591 129

4. SMT. PARAVVA, W/O FAKIRANAIK KALLIHOND AGE 51 YEARS, OCC: HOUSEHOLD WORK R/O NUGGANATTI, TQ. SAUNDATTI DIST. BELGAUM PIN 591 119

5. SHRI MARUTI RANGAPPA CHANDRAPPA PUJER, AGE 47 YEARS, OCC: AGRICULTURE R/O SOPPADLA, TQ. SAUNDATTI, 2

DIST.BELGAUM PIN 591 129

6. SHRI RAVI, S/O DODABHIMAPPA @ BHIMAPPA PUJER AGE 33 YEARS, OCC: AGRICULTURE R/O SOPPADLA, TQ. SAUNDATTI, DIST. BELGAUM PIN 591 129

7. SMT. SHOBHA, W/O LAKKAPPA PUJER AGE 26 YEARS, OCC: HOUSEHOLD WORK, R/O , TQ. , DIST. BELGAUM 591 307

8. SHRI ADIVEPPA, S/O CHANDRAPPA PUJER AGE 49 YEARS, OCC: AGRICULTURE R/O SOPPADLA, TQ. SAUNDATTI DIST. BELGAUM PIN 591 129

9. SHRI KRISHNAPPA, S/O CHANDRAPPA PUJER AGE 48 YEARS, OCC: AGRICULTURE R/O SOPPADLA, TQ. SAUNDATTI DIST. BELGAUM PIN 591 129

10. SHRI BASAVARAJ CHANDRAPPA PUJER AGE 47 YEARS, OCC: AGRICULTURE R/O SOPPADLA, TQ. SAUNDATTI, DIST. BELGAUM PIN 591 129. ... APPELLANTS (BY SRI. VITTHAL S. TELI, ADV.)

AND

1. SMT. GANGAVVA, W/O BHIMAPPA @ SANNABHIMAPPA PUJER AGE 53 YERS, OCC: HOUSEHOLD, R/O SOPPADLA, TQ. SAUNDATTI DIST BELGAUM, PIN 591 129 NOW RESIDING AT BADLI, TAL. SAUNDATTI DIST. BELGAUM PIN 591 111.

2. SMT. SUVARNA, W/O RAMAPA KADAKOL, 3

AGE 33 YEARS, OCC: HOUSEHOLD WORK, R/O BADLI, TQ. SAUNDATTI, DIST. BELGAUM PIN 591 111

3. SRI HANAMANT ADIVEPPA PUJER SINCE DEAD. BY L.RS.

3A. MARUTI HANAMANT PUJER AGE 43 YEARS, OCC: AGRICULTURE

3B. BHIMAPPA HANAMANT PUJER AGE 37 YEARS, OCC: SERVICE,

3C. BHIMAVVA RANGAPA WALIKAR, AGE 37 YEARS, OCC: HOUSEHOLD WORK,

3D. SUNANDA, W/O HANAMANT PATIL, AGE 37 YEARS, OCC: HOUSEHOLD WORK,

3A TO 3D ARE RESIDENT OF R/O SOPPADLA, TQ. SAUNDATTI DIST. BELGAUM PIN 591 129

4. SMT. RUKAMMAVVA, W/O DODDABHIMAPPA @ BHIMAPPA PUJER AGE 50 YEARS, OCC: HOUSEHOLD WORK, R/O SOPPADLA, TQ. SAUNDATTI DIST. BELGAUM PIN 591 129 NOW RESIDING AT R/O NUGGANATTI, TQ. SAUNDATTI DIST. BELGAUM PIN 591 119

5. SRI. VITHAL, S/O DODDABHIMAPPA @ BHIMAPPA PUJER, AGE 28 YEARS, OCC: AGRICULTURE, R/O SOPPADLA, TQ. SAUNDATTI, DIST. BELGAUM PIN 591 129, NOW RESIDING AT R/O NUGGANATTI, TQ. SAUNDATTI DIST. BELGUAM PIN 591 119. ... RESPONDENTS

THIS APPEAL IS FILED UNDER SECTION 96 OF CPC 1908 AGAINST THE JUDGMENT AND DECREE DATED 21/08/2014 PASSED IN O.S.NO.80/2011 ON THE FILE OF THE SENIOR CIVIL 4

JUDGE, SAUNDATTI, DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.

THIS APPEAL COMING ON FOR ADMISSION THIS DAY, B.S.PATIL J., DELIVERED THE FOLLOWING:

JUDGMENT

This regular first appeal is preferred challenging the judgment and decree dated 21/08/2014 passed by the learned Senior Civil Judge, Saundatti, decreeing

O.S.No.80/2011 holding that plaintiffs/respondents 1 and

2 herein are entitled for 1/20 th share in the suit schedule properties and that they shall be put in possession of the same. The preliminary decree drawn has been challenged by defendants 2 to 6 and 9 to 13. The other defendants have been arrayed as respondents 3 to 5.

2. For the sake of convenience, parties are referred to by their rank in the trial Court.

3. Facts involved in this case stated in brief are that plaintiff No.1-Gangavva is the wife of deceased

Bhimappa @ Sannabhimappa Pujer and second plaintiff- 5

Suvarna is the daughter born out of the wed lock between plaintiff No.1 and Bhimappa @ Sannabhimappa Pujer.

4. It is not in dispute that original propositus

Adviveppa had two sons namely Chandrappa and

Hanamantappa. Hanamantappa is defendant No.1.

Chandrappa having died, his sons and daughters are arrayed as defendants 2 to 6, 11, 12 and 13 and his another son Bhimappa @ Doddabhimappa also having died, his wife Rukamavva-defendant No.7 and her two sons and daughter are arrayed as defendants 8 to 10.

5. Suit was filed praying for partition and separate possession of 1/10 th share out of ½ share of deceased Chandrappa in the landed properties and also in the properties situate within the limits of the village panchayat. Plaintiffs contended that husband of first plaintiff-Bhimappa @ Sannabhimappa along with other family members constituted a Hindu Joint Family and 6

that there was no partition of the joint family properties.

Her husband having died, herself along with her daughter have succeeded to the undivided share of her husband-

Bhimappa @ Sanabhimappa and therefore, they were entitled for partition and separate possession of the share that would have fallen to Bhimappa @ Sannabhimappa.

Defendants 1 to 13 filed written statement contending inter alia that husband of plaintiff No.1 and father of plaintiff No.2 had died prior to the death of

Chandrappa. After his death, plaintiff started residing in

Badli village along with second plaintiff. During 1984, plaintiff No.1 had approached deceased Chandrappa

Adiveppa Pujer with a request to pay some amount in respect of share of her husband whereupon the elders in the village settled the matter, as per which, a sum of

Rs.3,000/- was received by plaintiff No.1 in lieu of her husband’s share in the suit properties. They contended that a relinquishment deed was executed by first plaintiff 7

in favour of Chandrappa on 12/12/1984 and that since

1984, plaintiffs were out of possession and enjoyment of the suit schedule properties. They sought for dismissal of the suit.

6. Based on the pleadings, the trial Court framed the following issues:

1. Whether the plaintiffs prove the genealogy furnished in the plaint?

2. Whether the plaintiffs prove that suit schedule properties are ancestral joint family properties of plaintiffs and defendants?

3. Whether the plaintiffs are in joint possession and enjoyment of all the suit schedule properties along with defendants?

4. Whether the D4, 6, 9, 11 and 13 prove the relinquishment deed dated 12.12.1984 said to have been executed by plaintiff No.1 in favour of Chandrappa Adiveppa Poojar? 5. Whether the suit is barred by limitation? 8

6. Whether the suit is not maintainable before this Court? 7. Whether the plaintiffs are entitled for suit relief’s

8. What decree/order?

7. In support of the case of the plaintiffs, the first plaintiff examined herself as PW-1 and Exs.P-1 to P-18 were produced and marked. For the defendants, defendant No.4 was examined as DW-1 and DWs.2, 3, and

4 were examined as witness to prove relingquishment deed. Exs.D-1 to D-3 were produced and marked.

8. The trial Court after appreciating the evidence on record both oral and documentary, has found that the suit schedule properties were the joint family properties of plaintiffs and defendants. It has further found that relinquishment deed dated 12/12/1984 was not proved.

It has also held that plaintiffs were entitled for share in the joint family properties. The share of the plaintiffs was quantified as 1/20 th in all the suit properties. 9

9. Aggrieved by this judgment and decree, the present regular first appeal is filed.

10. Though the matter has been listed for admission, we have heard the learned counsel for appellants on merits in detail and perused the entire materials on record.

11. It is the contention of the learned counsel for the appellants that the trial Court was in error in not believing the relinquishment of rights by plaintiff No.1 in favour of other members of the joint family as per Exs.D-

1-Relinquishment deed. He has also contended that though there was prior partition and mutation entries effected in the revenue records had been relied upon in that regard, the trial Court erroneously disbelieved the same.

12. Upon hearing the learned counsel and on perusal of the materials on record, pleadings, evidence 10

and the judgment under challenge, the points that arise for consideration in this case are:

1. Whether the trial Court has erred in not placing reliance on Ex.D.1- Relinquishment deed?

2. Whether the defendants have established prior partition?

3. What judgment or order deserves to be passed in the instant case?

13. Ex.D-1 is not a registered document. As per

Ex.D-1, plaintiff No.1 is stated to have relinquished her rights in respect of immoveable properties in favour of other members of the joint family particularly Chandrappa

Adiveppa Pujer as back as in the year 1984. This document is required to be compulsorily registered. As it is not registered, the same cannot be admitted in evidence to prove the transaction of relinquishment. There is no other material except this document to show that first plaintiff had given up her right in the joint family properties in favour of Chandrappa or in favour of any 11

other member of the family. The revenue records do not disclose any such relinquishment by first plaintiff.

Therefore, the trial Court was right and justified in not placing reliance on Ex.D-1 or for that matter on the evidence of DWs.2 to 4, who are stated to have attested the document as witnesses.

14. Insofar as the other contention canvassed by learned counsel for the appellants that there was a prior partition, admittedly, there is no such specific plea taken in the written statement. This contention runs counter to the plea of relinquishment. If there was a prior partition, it should have been prior to 1984. Had there been any partition between the plaintiff and other family members, the same would have been reflected in the revenue records based on the report/wardi submitted by the plaintiff. No such report or wardi, given by the first plaintiff, has been produced or spoken to in the course of evidence before the trial Court. In such circumstance, merely because the 12

names of other members of the family were mutated in respect of the joint family properties or the house properties, it cannot be said that there was a prior partition involving the plaintiff. If there was any such partition, there should have been a specific plea taken in this regard and evidence led to show when and how such a prior partition had taken place and what was the property that was given to the share of plaintiffs. In the absence of such materials in the form of pleadings and evidence, a bare assertion made during the course of argument cannot be countenanced. The trial Court has rightly rejected the said contention.

15. Thus in our considered view, the points raised deserve to be answered against the appellants and in favour of the respondents 1 and 2/plaintiffs. The judgment and decree passed by the trial Court is just and proper. The trial Court has rightly appreciated and analyzed the evidence on record and has come to a right 13

conclusion. We do not find any illegality or perversity in the reasons assigned and the findings recorded by the trial

Court.

Hence, the appeal being devoid of merits is dismissed.

SD/- JUDGE

SD/- JUDGE

Kmv