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IN THE HIGH COURT OF DHARWAD BENCH

ON THE 27 TH DAY OF OCTOBER 2016

BEFORE

THE HON’BLE MR.JUSTICE RAVI MALIMATH

REGULAR SECOND APPEAL NO .882 of 2004

BETWEEN

1. BALAKRISHNA HAADU NAIK DECEASED BY HIS LRS

1(a) PURUSHOTTAM HAADU NAIK RANE

1(a)(i) VASANTI W/O PURUSHOTTAM HAADU NAIK RANE, AGE 55 YEARS R/O. VILLAGE KINNAR TALUK DIST. UTTARA

1(a)(ii) RAJASHREE @ NAYANA W/O PRAKASH NAIK, C/O PRAKASH NAIK, AGED ABOUT 42 YEARS, R/O GTSSK LTD., HARALI, TQ. GODHINGLAG, DIST. KHANAPUR.

1(a)(iii) BHAGYASHREE @ SHITAL, W/O SHANTARAM K. NAIK, AGED 40 YRS., R/O HINDALGA COLONY, J 142, BELGAUM.

1(a)(iv) RAJENDRA, S/O PURUSHOTTAM HAADU NAIK RANE AGED ABOUT 39 YRS., C/O TIPPANNAVAR, VINAYAK NAGAR, II CROSS, NAVALUR, DIST. DHARWAD.

1(a)(v) ROOPALI @ VIJAYASHREE W/O MARUTI S. AIGAL, AGE 33 YEARS, : 2 :

NEAR VENKATRAM TEMPLE, ANKOLA, DIST. KARWAR.

1(a)(vi) DEVENDRA, S/O PURUSHOTTAM HAADU NAIK RANE, AGED ABOUT 35 YEARS, II CROSS, SHETTAR COLONY, P.B. ROAD, DHARWAD.

2. MANOHAR NAIK S/O. BALAKRISHNA HAADU NAIK 72 YEARS, R/O. VILLAGE KINNAR TALUK KARWAR, DIST .

3. LATA LAXMAN NAIK D/O. BALAKRISHNA HAADU NAIK 46 YEARS, R/O. PANTAL BAG, MUDAGERI TALUK KARWAR, DIST UTTARA KANNADA

4. GITA V SAIL D/O. BALAKRISHNA HAADU NAIK 45 YEARS R/O. SEGEBAG, MAJALI TALUK KARWAR, DIST UTTARA KANNADA

5. REKHA HAADU NAIK D/O. BALAKRISHNA HAADU NAIK 35 YEARS R/O. ASNOTI TALUK KARWAR, DIST UTTARA KANNADA

6. SAVITA SAIROBA NAIK D/O. BALAKRISHNA HAADU NAIK 45 YEARS, R/O. ASNOTI TALUK KARWAR DIST UTTARA KANNADA

7. SHAM HAADU NAIK S/O. BALAKRISHNA HAADU NAIK 53 YEARS, R/O. ASNOTI TALUK KARWAR, DIST UTTARA KANNADA

8. YAMUNA HAADU NAIK D/O. BALAKRISHNA HAADU NAIK 66 YEARS, R/O. ASNOTI TALUK KARWAR, DIST UTTARA KANNADA ... APPELLANTS : 3 :

(By Sri PRUTHVI K.S., ADV. FOR SRI ARAVIND D KULKARNI )

AND

1. APPA HAADU NAIK DECEASED BY HIS LRS

1(a) GOPAL KRISHNA APPA NAIK S/O APPA HADDU NAIK, 51 YEARS, R/O. ULGA VILLAGE TALUK KARWAR, DIST UTTARA KANNADA ALSO WORKING AS CLERK, MUHASATI SENIOR COLLEGE ULGA, TALUK KARWAR, DIST UTTARA KANNADA

2. SHABU LAXMAN GOENKAR S/O. ILLELLE HAADU NAIK 76 YEARS, R/O. BHAIRE TALUK KARWAR DIST UTTARA KANNADA

3. VISHRANTI W/O. BALSU NAIK 71 YEARS D/O. ILLELLE HAADU NAIK R/O. WAILAWADA TALUK KARWAR DIST UTTARA KANNADA

4. SHAVATU @ RUKMINI DECD BY HER LRS

4(A) VASANTI KESHAV DESAI, D/IN-LAW OF SHAVAI 60 YEARS, R.O. ENNAGAJIH (KOLA) POST SADASHIVAGADD , TALUK KARWAR DIST UTTARA KANNADA

4(b) RUPALI SANTOSH NAIK D/O. SHAVAT 45 YEARS R/O. MASKEWADA, ULGH POST ULGH TALUK KARWAR DIST UTTARA KANNADA : 4 :

5. AVADU W/O GOVIND NAIK DECD BY LRS

5(a) GANAPATI GOVIND NAIK S/O. AVADU GOVIND NAIK 52 YEARS, R/O. HOUSING BOARD QUARTERS, (NEAR MARUTI TEMPLE) , STATE

5(B) MANJUNATH GOVIND NAIK (HEAD CONSTABLE) S/O. AVADU GOVIND NAIK 49 YEARS R/O. POLICE HEAD QUARTERS KAJABAR, TALUK KARWAR DIST UTTARA KANNADA

6. YAMUNA HAADU NAIK D/O. SUGUNA HAADU NAIK 66 YEARS R/O. DESAIWADA ASNOTI TALUK KARWAR DIST UTTARA KANNADA ... RESPONDENTS (By Sri S.V. YAJI, ADV. FOR R1(A). R2,3, 4(A-B), 5(A-B), 6 ARE SERVED.)

THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CODE OF CIVILPROCEDURE AGAINST THE JUDGEMENT & DECREE DATED 18.6.04 PASSED IN R.A.NO.52 OF 93 ON THE FILE OF THE PRL. CIVIL JUDGE (SR. DN.), KARWAR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 28.7.93 PASSED IN OS.NO.20 OF 75 ON THE FILE OF THE CIVIL JUDGE (JR. DN.), KARWAR.

THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT

The case of the plaintiff is that defendant No.1 is his brother and defendants 2 to 5 are his sisters. The suit land : 5 : measures 33 guntas. Both the plaintiff and the first defendant are entitled to half share in the suit land. Defendant No.1 is trying to enjoy the entire usufructs of the said land alone. In spite of requests, defendant No.1 did not share the usufructs of the land and therefore, the plaintiff is entitled to half share in it. There was one brother by name Jogy who was younger to him and elder brother of defendant No.1. All the three purchased the malki rights in the year 1945 in Sy.No.187/1. In the year 1969, there was a compromise in respect of this land. After a long drawn litigation, defendant No.1 accepted 1/3 rd share of the amount paid by him to the malkidar. Second brother died on 13.12.1970.

Therefore, defendant No.1 and plaintiff are the only persons entitled for the share in the suit land. The plaintiff had filed

Form No.7 independently. Defendant No.1 also did so. Certain lands were belonging to the joint family. The name of the defendant was illegally entered in the revenue records. When the share of the plaintiff was demanded, the same was refused.

Therefore, the plaintiff filed the instant suit for partition by metes and bounds. : 6 :

2. Defendant No.1 entered appearance and denied the plaint claim. It was contended that the defendant is in exclusive possession of the suit land and he has got a right as a tenant of the land which he is cultivating. The house standing on the suit land is constructed by defendant No.1 out of his own funds.

Defendant No.1 has purchased malki rights by registered sale deed. Defendant No.1 has separated from the plaintiff for the last 45 years prior to the filing of the suit. He has taken his half share in the ancestral property. The records were not changed and the entries remained in the names of both the patties. Hence, he sought for dismissal of the suit.

3. Based on the pleadings, the trial Court framed the following issues and the additional issues:

Issues: 1. Whether the plaintiff proves that he and defendant purchased mulgeni right in the suit property, including the house standing thereon? 2. Whether the plaintiff proves that he has purchased malki rights of the suit land? 3. Whether the defendant proves that he is the tenant of the land? (deleted by the order of the Court, dated 17-3-1989)? : 7 :

4. Whether the defendant proves that the house was built by him and he is in exclusive possession of the same? 5. Whether the suit valuation and court fee paid are correct? 6. Whether the plaintiff is entitled to partition, if so, to what share? 7. What decree and what order?

Additional issues framed on 14.01.1991 1. Whether the plaintiff proves that he is entitle for partition and separate possession of half share in the suit schedule properties? 2. Whether defendant 1 proves that suit land Sy.No.192 of Siddar village is his exclusive acquisition?

Additional issues framed on 20.09.1991

3. Whether defendant 1 proves that other than the suit schedule properties, there are some more properties belonging to the joint family, which are not included in the suit schedule, as alleged?

4. Whether the defendant 1 proves that without including these properties,, referred to at para-4 of Additional W.S., dated, 7.9.1992, in the suit schedule, the suit is not maintainable? 5. Whether the defendant 1 proves that this Court has no pecuniary jurisdiction to try the suit? : 8 :

6. Whether defendant 1 proves that Court fee on plaint is insufficient and not correct?

4. Son of plaintiff was examined as PW-1 as the power of attorney holder of the plaintiff and examined another witness and marked 46 documents. Defendant No.1 was examined as

DW-1 and marked 3 documents. Issues 1, 2 and 6 and additional issue No.1 were held in the negative. The rest of the issues were held in the affirmative. Issue No.3 was held as “does not survive for consideration”. The suit of the plaintiff was dismissed.

5. Aggrieved by the same, the plaintiff filed an appeal which was rejected. Hence, the present second appeal.

6. The appellants contends that the impugned order of both the Courts below are erroneous and liable to be set aside.

Both the courts below have failed to consider the material and evidence on record. That the plaintiff had led in substantial evidence to show that there was no partition between the brothers. That the suit schedule properties requires to be divided : 9 : in the manner known to law. Failure to do so, has led to miscarriage of justice.

7. On the other hand, learned counsel for the respondents defends the same. He contends that the properties have been divided as far back as in the year around 1941-42. That the brothers have remained separate since then. After separation each one of the brothers are in exclusive possession of the same.

Therefore, it cannot be said that the suit schedule land is liable for partition.

8. By the order dated 13.06.2012, the appeal was admitted to consider the following substantial questions of law:

(1) Whether the trial court was justified in dismissing the suit for declaration, partition and separate possession of the immovable property on the premise that there was severance of joint family status, though first defendant in the amended written statement admitted the fact of joint possession and cultivation of the suit schedule property by the joint family?

(2) Whether the lower appellate court was justified in dismissing the appeal without recording reasons? : 10 :

9. With regard to the first substantial question of law, the appellants’ counsel contends that the first defendant in the amended written statement has admitted the fact of joint possession and cultivation of the suit schedule properties by a joint memo. None of the other defendants have supported the same. All the other defendants have contended that there is no status of joint family that exists between the plaintiff and the defendants.

10. I have considered in depth the additional written statement filed by the defendant. This is what he has stated in para 1:

“ 1. It is not admitted that Siddar Village Sy.No.192 measuring 7-15-0 Acres is the joint family or samayk land of the plaintiff and defendants. This defendant separated from the plaintiff about more than 45 years back taking his ½ share in the ancestral properties, as per which the family lands were entered in one name of the plaintiff and this defendant as samayak owners in the record of rights and separately enjoyed by them. Even though such a separation was there, record of right entries remained in the joint names of the plff. And the deft. in such ancestral properties.” : 11 :

11. Therefore, it cannot be said that there is an admission by the defendant that there is joint family status. On the contrary, what he narrates is that defendant separated from the plaintiff more than 45 years and took away his half share.

However, the record of rights continued in the name of the brothers. Therefore, it was to be considered to be an ancestral property. In fact, it is the case of the plaintiff also. However, the case made out is that notwithstanding the partition, the record of rights continued to remain in the names of the both the brothers.

Therefore, that does not mean that there is no severance of status or that the family continued to be joint. It is misreading of the additional written statement. Therefore, the first substantial question of law is answered by holding that there is no admission by the defendant with regard to the joint possession and cultivation of the suit schedule property and therefore, the trial

Court was justified in dismissing the suit for declaration, partition and separate possession. : 12 :

12. So far as the second substantial question of law is concerned, the same is as to whether the first appellate Court was justified in dismissing the appeal without giving any reasons.

13. I have considered the judgment of the first appellate

Court. Substantial reasons have been assigned by the first appellate Court while affirming the order passed by the trial

Court. The entire evidence on record as well as the other material documentation have also been considered by the appellate Court.

Therefore, it cannot be said that there was absence of any reasons while dismissing the appeal. Therefore, the second substantial question of law is answered by holding that the first appellate

Court was justified in dismissing the appeal by recording acceptable reasons.

In view of answer to both the substantial questions of law, the second appeal is dismissed. No costs.

Sd/- JUDGE kmv