:1: IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD Dated this the 1 7’ Day of March 2011 Present THE HON’BLE MR.JUSTICE K.L.MANJUNATH and THE HON’BLE MR.JUSTICE H.N.NAGAMOHAN DAS REGULAR FIRS LNO.14432QQ5 PAR. BETWEEN: 1. Sadashiv S/o. Shankar Magdum Aged about 51 years, 0cc: Agriculture. 2. Kallappa S/o. Shankar Magdum. Aged about 43 years, 0cc: Agriculture. 3. Roopa W/o. Manohar Magdum, Aged about 31 years, 0cc: Household. 4. Bharat S/o. Manohar Magdum, Aged about 8 years, Minor Rep. by Natural Mother 3rd appellant. All are r/o. nanadi. Tq: Chikkodi. Dist: Belgaum. Appellants (By Sri. R.A. Mali. Adv., for Sri. S.P. Kulkarni. Adv..} S :2: AND: 1. Smt. Laxmibai W/o. Shankar Magdum. Aged about 72 years, 0cc: Household, Rio. Nanadi, Tq: Chikkodi, PIN:591201. 2. Smt. Sushila Rayagounda PaUl, Aged about 46 years, 0cc: Household, R/o. Ankali, Tq: Chikkodi. 3. Smt. Vatsala Shankar Khot, Aged 40 years, 0cc: House Work, Rio. Boragaonwadi, Post: Dhonewadi, Tq: Chikkodi PIN-59 1246. 4. Nagappa Shankar Magdum, Aged about 38 years, 0cc: Agriculture, RIo. Nanadi, Tq: Chikkodi, PIN-591201. 5. Smt. Shanta Sadu Mudale, Aged about 36 years, 0cc: Household, R/o. Janawad, Tq: Chikkodi, PIN-591201. 6. Shiddappa Shankar Magdum, Aged 33 years, 0cc: Agriculture, :3: R/o. Janawad, Tq: Chikodi, PIN-59l201. 7. Smt. Savitri Shankar Khot, Aged about 30 years, 0cc: Household, R/o.C/o. Laxmibai Shankar Khot, Nanadi, Tq: Chikkodi, P1N-59l201. Respondents (By Sri. Subhash B. Sankad, Adv., appearing for Sri. Shivaraj P. Mudhol, Adv., for R1-R3, R5-R7 R4 is served) This appeal is filed under Section 96 of CPC praying to set aside the judgment and decree dated 12.8.2005 made in 0.S.No.133/2000 passed by the Civil Judge (Sr.Dn.), Chikkodi insofar as the same relates to granting/allotting equal 1/10th share to the respondents herein and not granting the share as prayed for by the appellants in the original suit as the same being totally erroneous and not sustainable in law etc., This appeal coming on for Final Hearing this day, K.L.Manjunath, J, delivered the following: JUDGMENT The appellants are the plaintiffs in 0.S.No.133/2000 on the file of Civil Judge (Sr.Dn.), Chikkodi have filed this appeal being not satisfied with :4: the allotment of share in preliminary decree passed by the Court in the aforesaid suit on 12.8.2005. 2. Plaintiffs filed the suit for partition and separate possession of their 33/70 share. According to plaint averments one Shankar was the propositor. He died on 24.2.1999 leaving behind him his widow La.xmibai who is defendant No.1, five sons and four daughters. The plaintiffs No.1 and 2 are the sons and plaintiffs No.3 and 4 are the widow and son of one Mahonar who is pre-deceased son of Shankar. Defendant No.1 is the widow of Shankar. Defendants No.2, 3, 5 and 7 are the daughters and defendants No.4 and 6 are the sons of Shankar. 3. The plaintiff filed the suit contending that plaint schedule properties are the ancestral properties and that Shankar was the Kartha of the joint family and his sons are the coparceners contending that after the death of Shankar, the sons of Shankar and widow would get equal share and out of the share of Shankar :5: the same has to be divided among all his legal heirs. Accordingly, they requested the Court to grant decree for partition and separate possession of their 33/70 share. 4. The defendants contested the suit. They admitted the relationship. However, they contended that plaint schedule properties as the self acquired properties of deceased Shankar and each of the parties are entitled to equal share of 1/10. They requested the court to pass the decree accordingly. 5. Based on the above pleadings, the following issues were framed by the court below: 1) Whether the plaintiffs prove that the suit schedule properties are their ancestral properties? 2) Whether the defendants prove that the suit schedule properties are the seacquired properties ofShankar? 3) Whether the plaintiffs are entitled to partition and separate possession in the CI :6: suit properties? If so, what is the extent of their share? 4) To what reliefthe parties are entitled to? 5) What order or decree? 6. In order to prove their respective contentions plaintiff No.2 was examined as PW. 1. He relied upon Exs.P1 to P8. On behalf of defendants 6th defendant was examined as DW. 1. The trial court after considering the evidence let in by the partie&held Issue No.1 in Negative, Issue No.2 in Affirmative, Issue No.3 in Affirmative. Accordingly, the suit of the plaintiff came to be decreed holding that plaintiffs No.1 and 2 separately and plaintiffs No.3 and 4 together are entitled to 1/10th share each in the suit properties and the defendants as well are entitled to 1/10th share each in the suit properties. 7. Being aggrieved by the judgment and decree of the trial court, the appeal is filed by the appellant contending that the trial court at least should have ci :7: considered suit item No.3 as the ancestral property of Shankar and the trial court ought to have denied the equal share to the daughters of Shankar. In the circumstances, he requested the Court to reconsider the evidence and modify the judgment and decree so far as item No.3 is concerned. The leaned counsel for defendants contend that Shankar did not succeed any ancestral property. Accordingly to them all the plant schedule properties were the self acquired properties of Shankar and therefore the trial court was justified in decreeding the suit. ln the circumstances, he requests the Court to dimiss the appeal. 8. Having heard the counsel for parties. The only point to be considered by us in this appeal is: aj,yjy the allotment of share in the suit item No.3 equally amongst the plaints and defendants is just and proper?” €/ :8: 9. The trial court based on the pleadings had formulated issues. Issue No.1 clearly points out the plaintiffs to prove the plaint schedule properties as their ancestral property. In order to prove the said contention, the plaintiff have not let any satisfactory evidence. It is an admitted fact that Shankar had purchased suit item No. 1, 2 and 4 out of his self acquired funds then but unfortunately the plaintiffs in their pleadings have stated all the schedule properties are the joint family properties. The trial court has turned down their contention by considering the evidence of PW. 1. In his cross-examination, PW. 1 has admitted as hereunder: t ts &x;zc:: ct • ——‘.— c • ...¼ g.e. u’ri i ...n iia.,,.j ..t zDOet ao.’ 10. One of the items of the suit properties was a tenanted property and his father was a tenant under one Desai. Since his father was a tenant the same was V :9: granted to him and the remaining three properties were purchased by his father, if we consider deceased Shankar was a tenant of one land and the same was granted to him under the Land Reforms Act, such land has to be considered as a self acquired property of the deceased and the same cannot be treated as joint family property. When the PW. 1 has admitted that the remaining properties are purchased by his father then, the question of considering the plaint schedule properties as the ancestral properties does not arise at all. 11. In the circumstances, we do not see any reasons to hold that the trial court has committed error in granting a decree allotting equal share to all the legal heirs of deceased Shankar by holding that plaint schedule property as the self acquired property of the deceased Shankar. 12. According to us no material is placed before the trial court by the defendants to show even item No.3 10; was the joint family property. In view of the aforesaid reasons the point formulated by us in this appeal is answered against the appellantp1aintjff Accordingly, this appeal is dismissed Parties to bear their costs. sd/ JUDGE BS