:1: IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 2h DAY OF JULY, 2011 PRESENT THE HON’BLE MR. JUSTICE V.G.SABHAHIT AND THE HON’BLE MR. JUSTICE B.MANOHAR R.F.A. NO.1242/2006 (PARI BETWEEN: SHIVAPPA 5/0 BASAVANNEPPA TAVARAGONDHI AGE: 70 YEARS, 0CC: AGRICULTURE R/O RANEBENNUR-581 115. DTST HAVERT 2. SMT (IOURAVVA W/0 SKIVAPPA TAVARAG0NDHI AGE: 65 YEARS, 0CC: HOUSE WIFE RIO RANEBENNUR-581 115. 01ST HAVERI 3. MAHALINCiAPPA Sb SHIVAPR TAVARAGONDRI AGE: MAJOR, 0CC: AGRICULTURE, RIO RANEBENNUR-5S1 115. 01ST HAVERI 4. SIDDAPPA S/0 SHIVAPPA TAVARAGONDHI AGE: MAJOR, 0CC: AGRICULTURE. RIO RANEBENNUR-581 115. DISTHAVERI 5. SKARADAVVA W/O BASAVANTAPPA NADUVINAHALLI AGE: MAJOR, 0CC: HOUSE WIFE RIO HIREKERURVA’fl’I, ) ‘IQ 11\D4GALI at,’ 212. DIS1 BItLL\R\ 6. SL’%.NL)Av.\ ‘A ()\1SHS\PRiPLJ4R .\GE M %J()R OCt: 1101. SE ‘AIRs R OTELACil TQ H4RAPNAHLL *3 1 31. DISI DAVV% ChRE SM’! K4R4BSA\\ W 091. RESH %PP MAHAT 4 INGAPPAN4 IRM, AGE: MAJOR. 0CC• HOLSE ‘A IFE R 0 11EELADH’iHLLI TQRANEBES1.R a81 1k,. 1)1St HA\ ERI 8. SMT SA ITRA\ ‘ A W C) NAGARAJAPPA PUJAR GE: MAJOR R 0 TELAGI TQ H \RAPANAHALLI 583 131. DIS’! DA\ ANACiERE 9. SMT JAI ASHEELA A D 0 SIIIVAPPA TAVkRAGONI)HT AGE: MAJC)R. 0CC: IIOLSE ‘A [FE R ORANEI3EN’1.R581 115 1)151’ 1 1A’’ ERI APPELlANTS (BY SRI. F..PArIL DL A 2 TO A-Q 4RE LRs OF DECEASED. 1) AND: MV 4 JAPR S C) BASM ANNEPP TA’,AR\Cj0SDH1 AGES MAJOR. 0CC AGRIC ULTI. RE R ORANEBENNLR-581 113. DIST HA\ ERI 2. SMT MALL\ \A W O%EERAB1L\DRPPA TAARkC flF)111 AGE: MAJC)R, 0CC. HOLSE klFE R 0 RANEBENNUR-581 I lo :3: 01ST HAVERI. 3. BASAVARA 1 JAPR-\ S/t) VEERABHADRAPPA TAVARA(ONDHI AGE: MAJOR. 0CC: AGRICULTURE R/O RANEBENNUR-581 115 DIST HAVERI 4. KARABASAPPA S/O VEERABHADRAPPA TAVARAGONDHI AGE: MAJOR. 0CC: BUSINESS RIO RANEBENNUR-581 115. 01ST HAVERI 5. SHANTAVVA 0/0 VEERABHADRAPPA TAVARAGONDHI AGE: MAJOR, 0CC: HOUSE WIFE R/O RANEBENNUR-581 115, 01ST HAVERI RESPONDENTS (BY SRI. N.R.KUPPELUR. ADVOCATE FOR SRI.B.C.SEETHARAMA RAG ADV.’ FOR RI: SRI.G.K.HIREGOUDAR. ADVOCATE FOR R-2 AND R-3j THIS RFA IS FILED U/S 96 OF CPC R/W ORDER 41 OF THE CPC AGAINST THE JUDGEMENT AND DECREE DT. 18.03.2006 PASSED IN 0.S.N0.109/200I ON THE FILE OF THE ADDLCIVIL JUDGE (SR.DN.) RANEBENNUR, DISMISSING THE SUIT FOR PARTITION AND SEPARATE POSSESSION. THIS RFA COMING ON FOR FINAL HEARING. THIS DAY. V.G.SABHAHIT, J. DELIVERED THE FOLLOWING:- JUDGMENT This appeal is filed by the defendant No.1 in 0.S. No.109/2001 on the file of the ‘Addi. Civil Judge (Sr.Dn.), Ranehennur, vhercin, by the judgment zind decree dated 18.03.2006 the suit filed by the plaintiff Ibr partition and :4: separate possession of the suit schedule property has been dismissed by holding that thc suit is not maintainable lbr the non-inclusion of the property standing in his name and in the name of the legal representatives of Virabhadrappa. 2. in view of the fact that there is specific finding on issue No.4 that the appellant herein/Defendant NC). 1 in the suit has failed to prove that the Survey No.21 is his self-acquired property, this appeal is filed being aggrieved by the finding on the issue No.4 contending that Survey No.21 purchased under Ex.D-2 is the self-acquired property of the appellant/defendant No.1. 3. The material facts necessary 11w the disposal of this appeal, with reference to the ranks of parties before the trial court are as follows: Respondent No.1 herein filed the suit against the defendants I to 13 seeking for partition and possession of the plaintifrs share in the suit schedule properties contending that the suit schedule properties are thc joint family properties and the plaintiff is entitled to share in the said suit schedule properties. :5: 4. The suit was resisted by the delèndants contending that all the joint family properties have not been brought io the hotr ot—Jl since all the joint mmliv properties have not been included, the suit is not maintainable. It was also contended by Defendant No.1 that there was a prior partition before 1970 and Survey No.21 is the self-acquired property and therefore, issue No.4 was framed as follows: (iv) Whether the defendant No.1 proves that Survey No.21 is his self-acquired property? 5. To substantiate thc contention of 11w plaintiff, the plaintiff was examined as PV- 1 ançl got marked the documents Exs.P- 1 to 21 and in support of the contention by defendant No.1 that survey No.21 is his self-acquired property, he examined himself as DW- 1 and also examined DW-2 and got marked Ex.D-2. the sale deed. 6. The trial court, after considering the contentions of the counsel appearing for the parties and on appreciating the oral and documentary evidence qn record, by the inipugned judgment date 18.03.2006 answered the Issue No.4 in the It:\t h\ h )lhine I F It Ut l . I N. I F s Sd t pro:t that Sur e No 2 1 is he St 1! a quired prop rt and being aggrieved h\ the said finding on Issue No. 1, Defendant No. 1 has filed this appeal \k( hH\e htHid 111t ltHrnrd tic 11)5(1 1t)eHrinC For the appellant Deft ndani No. 1 nd 1 trued ic cunsel appealina For the Respondent plaintiff. 8. Learned counsel appearing for the appellants has taken us through the evidei ice ol DWs 1 and 2 and the contents of Lxi) 2 and also the contents of Lxs.P 1 5 in and submitter! that though Ex.[)2 slams ihat he has purchased the property in his eapaelt\ as the lainiger of I he Linil\ the said family relbrs to the family of Defendant No. 1 appellant and not the joint farnil\ referred to h\ the plaintifF. J herefbre, the findings of the trial court is \ itiatecl and is liabie to be set asl(lv. 0 Learned cc uns 1 suhmitt ed hat the ma crial on record would elearl\ show that thc Deldndaiit No, 1 \\ as ser ing in the militar\ from I O9 to 1 and thereafter, he received :7: the terminal benefits and he has invested the said amount in purchasing of the property at survey No.21 under Ex.D-2 as self-acquired property and if the said findings on the said issue is not set aside the same will be binding in the subsequent proceedings. 10. The learned counsel for the respondents argued in support of the judgment and decree passed by the trial court and submitted that the contents of Ex.D-2 would itself show that the Defendant No.1/appellant herein was the manager of the family and he was managing the affiuirs of the joint family and joint family had sufficient income and initial onus is discharged by the plaintiff and dvftmdant NC). I has failed to prove that Survey No.21 is the self-acquired property of the appellant. 11. Having regard to the aforesaid contentions, the points that arise for our consideration are: (i) Whether the findings of the trial court that the defendant No.1/appellant herein has failed to prove that Survey No.21 is his self-acquired •property. is justified or :8: calls of interference in this appeal? (ii) What order? 12. We answer the above points as follows: Point No.1 : The finding of the trial court is justified: Point No.2: As per the final order: For the following reasons: REASONS 13. POINT Nos.1 & 2:- Both the points are taken up together for consideration as they are interconnected and to avoid repetition. 14. It is clear on appreciation of the evidence of PWs. 1 and 2 and the contents of Exs.D-2, P-IS and P-là as also the evidence of DW- 1 that thc joint family possessed properties which had income and in the absence of any material produced by defendant No.1/appellant herein to show that he has received monetary benefits after he retired form military service and the said amount has been invested in purchasing the property at Sy.No.21 under Ex.D-2, the initial onus that the said property was purchased out. of the income of the joint :9:. family has been discharged. Especially, in view of the fact that in Ex.D- 1, defendant No.1 is described as manager of the joint family. Further, it is also clear from the facts elicited in the cross-examination of DW- I that, in the earlier proceedings in O.S.No. 143/1991, he has admitted that he had become manager of the joint family properties, as per Exs.P- 15 and 16. The contents of Ex.D-2 would also show that. the property was purchased by defendant No.1 in his capacity as the manager of the family and the contention of the appellant that the said words refer to the family of the defendant No.1/appellant herein and not to the joint family, cannot be accepted in view of the absence of any material to show that the said property was acquired out of the income earned by defendant No.1 without utilizing the income of the joint family properties. The evidence of DW-2 is also not much helpful in proving that the said property was purchased out of the income of the appellant/defendant No.1. 15. The relationship between the parties is not disputed in the evidence of appellant herein and apart from giving an explanation that under the sale deed Ex.D-2 the property was • - :10: purchased in his capacity as the manger of his family and not the joint family. Thus. it is not at all probablised by any other material on record that the consideration amount was paid out of his income without reference to the income of the joint family properties. 16. Though DW-2 states in his examination-in-chief that Sy.No.2 1 is the self-acquired property of defendant No.1/appellant herein and that he was serving in military and the amount. received after his retirement has been invested in purchasing the property, it is elicited in his cross-examination that he has denied the suggestion that he is deposing flilsely to help defendant No.1. He was aged 10 years when there was alleged prior partition. He has denied the suggestion that Ex.D- 1 is a concocted document. Therefore, the evidence of DW-2 is also not helpful in the absence of any material on record to show that defendant Nc). 1 has purchased the property under Ex.D-2 by paying the consideration amount out of his own income without reference to the income from the joint family properties, that too when he is described as the manager of the joint family and thc initial burden of discharging that the 11 lOifl t I Ill lv lhi(l )ropCi’t iOS \\ ch ould form t ho ii ut ri s k puroLiasiri tIit propt’rt\ has b a dis h irir (1 h tl plaintIff. corrIji iR , hold that I ho findinc of t ho trial mrt is jtistifiod and does not suffer from an error or UP talIt\ as to eall for mien renee in this a ppeai. \ecorriiIlgI\ . We aIls\\ or the points for deteriiiinal 1011 and he i0ll0\\ IIi ondri” ORDER ci) The appeal is dismissed, (ii) The findings given by the Court of Add I. Civil Judge (Sr Dn >. Ranebennur. in 0 S. No 109/2001 answering the Issue No 4 against the defendant No 1/appellant herein is confirmed. (mt There shall be rto order as to costs in this appeal Sdf 3UDGE Sd/ RKb/ JUDGE