:1: IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 06th DAY OF JUNE 2011 BEFORE THE HON’BLE MR.JUSTZCE K.GOVINDARAJULU R.F.A. No.419/2002 [PAR] BETWEEN: 1. MUPPANNA S/O AYYAPPA PUJARI AGE: 64 YRS. 0CC: AGRICULTURE R/0 VPC NO.2466, BILAGI TALUK & DISTRICT: BAGALKOT SINCE DIED ON 08.08.2004 REP. BY HIS L.R.’S. 1(A) CHANDRAVVA (WIFE), SINCE DED BY LRS 1(B) TO 1(J) AGE: 75 YEARS, 1(B) YELLAVVA (DAUGHTER) AGE: 54 YEARS 1(C) KARIAPPA (SON) AGE: 48 YEARS 1(D) SIDDAVVA (DAUGHTER) AGE: 45 YEARS 1(E) LAXMIBAI (DAUGHTER) AGE: 42 YEARS 1(F) BHIRAPPA (SON) AGE: 36 YEARS 1(G) RENUKA (DAUGHTER) AGE: 33 YEARS 1(H) SURESH (SON) AGE: 30 YEARS 1 (I) SAVITRI (DAUGHTER) AGE: 27 YEARS 1(J) NINGAPPA (SON) AGE: 24 YEARS APPELLANTS (By Sri, R D DESAI ADV. FOR 1(B-J) AND: 1. BUDDEVVA W/O SANGAPPA MALNAD MAJOR, R/O BEVINAMATh TALUK & DISTRICT: BAGALKOT 2. SMT BHAGAVVA W/O SHIDDAPPA RONIHAL MAJOR, SINCE DEAD, REP. BY HER L.R.’S: 2(A) KALLAPPA (SON) 2(B) LAXMAN (SON) 2(C) BAPPA (SON) 2(D) MAHADEVAPPA (SON) 2(E) BHIRAPPA (SON) 2(F) LAXMIBAI (DAUGHTER) ALL ARE MAJORS R/O BEVINAMATh TALUK & DISTRICT: BAGALKOT 3. SMT MALLAWWA W/O DARIYAPPA PUJARI MAJOR, R/O BILAGI TALUK & DISTRICT: BAGALKOT RESPONDENTS (By Sri. AT SAVANUR ADV. FOR Ri, R2(A-F); R3 - SERVED) :3: THIS RFA IS FILED U/S. 96 OF CPC AGAINST THE JUDGEMENT & DECREE DATED: 28.02.2002 PASSED IN O.S.NO:37/1996 ON THE FILE OF THE PRL,C,J.(SR.DN), JAMKHANDI, DECREEING PLAINTIFFS / RESP.NOS: 1&2 SUIT FOR PARTITION & SEPARATE POSSESSION & PERMANENT INJUNCTION. This appeal coming on for final hearing this day, the Court delivered the following: JUDGMENT Defendant No.1 in O,S No.37/96 on the file of the Prl. Civil Judge (Sr.Dn), Jamkhandi, is the appellant in this appeal under Section 96 CPC. 2. Parties will be referred to according to their status found in the court below for convenience. 3. Suit is filed by the plaintiffs for (a> seeking partition and separate possession, (b> consequential relief of permanent injunction, (c) a preliminary decree, declaring that the plaintiffs have half share in ‘B’ Schedule property, (d) future profits. 4. Case of the plaintiffs is that the plaintiffs and deceased Sagaravva, the mother of defendant No.2 were :4: the daughters of Avvappa and defendant No. 1. The defendant No. 1 is the step brother of the plaintiffs. The plaintiffs have given the following genealogical tree: SCHEDULE ‘A’ GENEOLOGY Ningappa (Died 60 years back) / Appa Shiappa Karippa (Died-i 1/8/85) (Died-20 vrs. back) (Died-15 yrs. Back) / / / / / Siddavva Padiyavva Seperated from Ayyappa (Wife) (wife) died 20 died prior years back to Ayyappa / / Muppanna (Deft.1) / / / Buddevva Bhagavva Sagaravva Plff-1 Plff-2 Died / Mallavva (Deft- 2) 5. It is the further case of the plaintiffs that B schedule property in RS No.218/5 of Mannikeri village and ‘C’ schedule property described in the plaint are the fr properties of Avyappa. Ayyappa has enjoyed properties during his life time and died on 11/8/ 1885. Defendant No. 1 was divided from Ayappa and he was given separate property and land at Bilagi village and Avyappa, his wife and their daughters were separately residing in the house No.2466 and cultivating jointly R.S.No.218/5 measuring 4 acres 39 guntas, 219/2+3A+3B measuring 2 acres and 219/2+3A+3B measuring 3 acres 7 guntas of Mannikeri village separately. There being no share given to the plaintiffs, seek for decreeing the suit. 6. Defendant No. 1 has filed the written statement. In the written staement, the claim of the plaintiffs in regard to the blood relationship with Ayyappa is denied and contend that plaintiffs have called upon to prove the legality and validity of the marriage. It is also further contended that the plaintiffs and defendant No.2 are not the daughters of the deceased Ayyappa. :6: Avyappa had only one wife by name Shiddawwa, who died leaving behind defendant No.1 alone, who has succeeded to S.No.1,3,4 and 5. So he is in possession of the property. Survey No.219/2+3A+3B do not belong to Ayyappa. It belong to Shiddappa, the younger brother of Ayyappa and father of the defendant No.1. Shiddappa’s son Kariyappa has given it to defendant No.1 and as such defendant No. 1 is the exclusive owner and as such, he is in possession of the property. Plaintiffs and defendant No.2 have absolutely no manner of right, title and interests over the property. Plaintiffs and defendant No.2 being not the daughters of Ayyappa, they did not have any legal right in any of the suit schedule properties and as such they are not entitled to any share muchless ¼ of the share in the plaint schedule properties. So, plaintiffs and the defendant No.2. have no share in the property. :7: 7. Further contended that Schedule B and C properties are not the self-acquired properties as alleged. Except RS No.2 19/2+3A÷3B, rest are the ancestral properties of Avvappa, who has succeeded by defendant No.1, alone as Class-I heir to his (father’s) ¼ share. Thus defendant No. 1 has become the exclusive owner of the properties. So, claim of the plaintiffs partition is denied. It is also contended that the defendant No.1, after the death of Ayyappa has become the exclusive owner of the property. There was no partition during the life time of Ayyappa and that the plaintiffs and defendant No.2, began to reside with Ayyappa in house No.2466 cultivating jointly and and that they were enjoying the lands. 8. It is also contended that there is no cause of action for the suit. So pray for dismissal of the suit. 9. Learned trail Judge has framed the issues. Permitted the parties to lead evidence. On behalf of the :8: plaintiffs first plaintiff is examined as PW 1. PWs2 to 5 are examined. In response, defendant No.1 is examined as DW- 1 In respect of the case of the defendant No. 1, DW-2 is examined. Exs,P1 to -P- 16 are marked. Learned trail Judge has accepted the case of the plaintiffs decreed to suit for partition, while answering the following issues with the following reasons: (1) Whether the Genealogy given in the plaint is true and correct? (2) Whether the plaintiffs prove that they are the daughters of deceased Ayyappa? (3) Whether the present suit is bad for not seeking declaration of their title and status, by the plaintiffs? (4) Whether the defendant No.1 proves that is the only heir entitled to succeed to the suit properties? (5) To what order or decree? Answer to the above issues are as follows: 1. In the affirmative, 2. In the affirmative, 3. In the affirmative, 4. In the negative, :9: 5. As per the final order 10. The learned advocate for the defendant No. 1 substantiates his client’s case with the following submissions: In the facts of the case except the voter’s list, nothing is produced by the plaintiffs to show the blood relationship which they claim with Ayyappa. 11. It is further submitted that it is for plaintiffs to prove the case. Though the plaintiffs have come to Court, have not produced any material evidence to prove that the properties are being enjoyed by Ayyappa. So the approach of the learned Judge in decreeing the suit is not proper. Further it is the case of the plaintiffs that during the life time of Ayvapa, the defendant No.1 is got separated by taking ‘C’ schedule land. However no evidence is produced in this regard. So, pray for dismissal of the appeal. 12. On the other hand, learned advocate for the plaintiffs contend that in a case of this nature blood relationship has to be proved by the plaintiffs. In this regard not only the evidence of PW- 1 is adduced but also it is supported by voter’s list entered at an undisputed point of time. This is marked as Ex.P-14. When there is undisputed entry in regard to the blood relationship, burden of proof shifts under Section 101 to 104 of the Evidence Act, but no such evidence is placed by defendant No.1. When the blood relationship with Ayyappa is proved, the defence of claiming right, title and interest by the defendant No.1 in the plaint schedule property can be accepted if they are self acquired properties of defendant No. 1. But there is an admission that the properties are that of Ayvappa. So, pray for dismissal of the appeal. 13. Carefully considered the submissions addressed, also the evidence placed by the parties 4— :11: a i before the Court. The points that arise for consideration are: (1) Whether decreeing of the suit by the learned Civil Judge (Sr.Dn) for partition is in accordance with law? (2) Whether the decreeing of the suit by the trial court in regard to the mesne profits in accordance with law? (3) What order? 14. POINT NO.1: It is the case of the plaintiffs that they are the daughters of Ayyappa through Padiyawwa. In support of this contention, Ex.P-14 is marked. Ex.P-14 is the voters’ list prepared during 1980. Defendant No.1 denies the blood relationship with the plaintiffs. But, the Defendant No.1 has not produced any material to rebut the entries in Ex.P-14. Ex.P-14 is a document prepared by the State for the purpose of election. Why the entries in Ex.P-14 has to be disbelieved remains unsubstantiated. In this situation, the principle laid down by the Apex Court in the ruling between Armugham (dead) by LRs. and others Vs. Sundarambal and another reported in AIR 1999 SC 2216 is attracted, wherein the apex court has held after framing of the issues and 4— 12 leading of the evidence, the burden shifts from stage to stage, and the burden when shifted on the defendant, the defendant has to substantiate the same. No evidence is placed by the defendant to disbelieve the entry in Ex.P-14. So, the stand taken by the defendant that the plaintiffs are not the legal representatives of Avvappa is not established. But, the unchallenged evidence of PW- 1 about the blood relationship claimed by her go unchallenged. So, the plaintiffs have proved that they are the legal representatives of Ayyappa. 15. The next point to be considered is whether the plaintiffs are entitled for a partition. The defence by Defendant No. 1 is that he got the regrant after the death of Ayvappa. The regrant proceedings are claimed by the defendant is a defence, but not even a single regrant order is produced before the Court. So, the defence taken by the Defendant No. 1 is not substantiated with evidence. Further, the regrant claimed if it is under the Land Reforms Act, the regrant should be in the presence of the owner by the tenant, In the facts of the case, the owner is the father and 13: the grant is claimed by the son. So, the ingredients for the attraction of the Land Reforms Act are not fulfilled in the facts of the case. So, examining the facts in this angle also, the defendant No. 1 has failed to prove the regrant. 16. The crucial stage of the plaintiff proving that the property belong to Avyappa having been proved by the action of the defendants, the further assertion and the defence that the Defendant No.2 gave one property to the Defendant No.1 and that Defendant No.1 is in possession loses its significance as no documents of such a transfer is marked by the defendant No.1. So, the defence put forth by the defendants is rightly rejected by the learned trial judge. 17. The discussion and findings of this Court supra would probablise that plaintiff having proved the blood relationship, they are entitled for share in the plaint schedule property. 18. POINT NO.2: The next point that arises for consideration is in regard to mesne profits, the claim of the plaintiffs for partition is that they are in joint possession of 14: S the properties. If the properties are excluded from the possession of the plaintiffs then they have to plead for possession in accordance with the explanation to Section 34 of the Specific Relief Act, 1963. No such relief of possession 0) is sought. Further, the suit is framed under Section 35 of the Karnatakg Court Fees and Suits Valuation Act, 1958. The subject of mesne profits in a partition suit is considered in P. Satyanarayana Vs. P. Venkatarao and Others reported in AIR 1989 AP 273. The ratio reads as under: “Therefore, when a coparcener laid a suit, though there is severance in status from the date of the suit, the possession of the manager is not wrongful and that he continues to remain in possession till the actual partition and division by metes and bounds. He is liable only to render an account for the profits he has received from the estate till handing over the possession to the appellant pursuant to the final decree.” So, decreeing of the suit by the Court below in regard to the mesne profits is not in accordance with law. So, it is set aside. 15 The appeal is allowed in part. The judgment of the trial court in regard to the decreeing of the suit for partition is confirmed. Sd! JUDGE RKK/VMB