REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 11220 OF 2017
(ARISING OUT OF SLP (C) No.5664/2012)
Adiveppa & Ors. ...Appellant(s)
VERSUS
Bhimappa & Anr. ….Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) Leave granted.
2) This appeal is filed by the plaintiffs against the
final judgment and order dated 22.08.2011 passed
by the High Court of Karnataka Circuit Bench at
Dharwad, in RFA No. 1793 of 2006 whereby the
High Court dismissed the appeal and affirmed the
judgment and decree passed by the Court of
Principal Civil Judge (Senior Division), Bagalkot in
O.S. No.85 of 2001.
1
3) In order to appreciate the short controversy
involved in this appeal, it is necessary to state the
relevant facts.
4) The appellants are the plaintiffs whereas the
respondents are the defendants in a civil suit out of
which this appeal arises.
5) The dispute is between the members of one
family, i.e., uncle, aunt and nephews. It pertains to
ownership and partition of agricultural lands.
6) In order to understand the dispute between
the parties, family tree of the parties needs to be
mentioned hereinbelow:
GENEALOGICAL TREE
Adiveppa (Died about 3—35 years back)
Yamanavva (Died about 10 years back)
Adiveppa
Yamanavva
(Wife)
Hanamappa Bhimappa
Gundavva
(Son – Died 6 years ago) (Son – Defendant No.1)
(Daughter-Defendant No.2)
2
Mangalavva
(Wife – Plaintiff No.3)
Adiveppa Yamanappa
( Son - Plaintiff No.1) (Son - Plaintiff No.2)
7) As would be clear from the family tree,
Adiveppa was the head of the family. He married to
Yamanavva. Out of the wedlock, two sons and one
daughter were born, namely, Hanamappa,
Bhimappa and Gundavva. Hanamappa had two
sons, namely, Adiveppa and Yamanappa.
8) Adiveppa - the head of family owned several
acres of agricultural land. He died intestate. The
dispute started between the two sons of Hanamappa
and their uncle-Bhimappa and Aunt-Gundavva
after the death of Adiveppa and Hanamappa. The
disputes were regarding ownership and extent of the
shares held by each of them in the agricultural
lands.
9) Adiveppa and Yamanappa (appellants herein)
filed a suit (O. S. No.85 of 2001) against - Bhimappa
3
and Gundavva (respondents herein) and sought
declaration and partition in relation to the suit
properties described in Schedule ‘B’, ‘C’, and ‘D’.
10) The declaration was sought in relation to the
suit properties in Schedule ‘B’ and ‘C’ that these
properties be declared as plaintiffs’ self-acquired
properties.
11) So far as the properties specified in Schedule
‘D’ were concerned, it was alleged that these
properties were ancestral and hence the plaintiffs
have 4/9th share in them as members of the family.
It was alleged that since so far partition has not
taken place by meets and bound amongst the family
members, the suit to seek for partition.
12) The respondents (defendants) denied the
plaintiffs’ claim and averred inter alia that the entire
suit properties comprising in Schedule ‘B’, ‘C’ and
‘D’ were ancestral properties. It was alleged that
during the lifetime of Hanamappa, oral partition
had taken place amongst the family members on
4
28.10.1993 in relation to the entire suit properties
(Schedule ‘B’, ‘C’ and ‘D’), pursuant to which all
family members were placed in possession of their
respective shares. It was alleged that the partition
was acted upon by all the family members including
the plaintiffs’ father (Hanamappa) without any
objection from any member. It is on these
averments, the respondents contended that the
plaintiffs’ claim was misconceived.
13) The Trial Court framed the issues and parties
adduced their evidence. By judgment/decree dated
15.07.2006, the Trial Court dismissed the suit. It
was held that the plaintiffs failed to prove the suit
properties specified in Schedule ‘B’ and ‘C’ to be
their self-acquired properties. It was also held that
so far as the properties specified in schedule ‘D’ are
concerned, though they were ancestral but were
partitioned long back pursuant to which, the
plaintiffs through their father-Hanamappa got their
respective shares including other members.
5
14) The plaintiffs felt aggrieved and filed first
appeal before the High Court. By impugned
judgment, the High Court dismissed the appeal and
affirmed the judgment/decree of the Trial Court
giving rise to filing of this appeal by way of special
leave before this Court by the plaintiffs.
15) Heard Ms. Kiran Suri, learned senior counsel,
for the appellants and Mr. Anand Sanjay M. Nuli
and Mr. R.S. Jena, learned counsel for the
respondents.
16) Having heard the learned counsel for the
parties and on perusal of the record of the case
including the written submissions filed by the
learned counsel for the appellants, we find no merit
in this appeal.
17) Here is a case where two Courts below, on
appreciating the entire evidence, have come to a
conclusion that the plaintiffs failed to prove their
case in relation to both the suit properties. The
concurrent findings of facts recorded by the two
6
Courts, which do not involve any question of law
much less substantial question of law, are binding
on this Court.
18) It is more so when these findings are neither
against the pleadings nor against the evidence and
nor contrary to any provision of law. They are also
not perverse to the extent that no such findings
could ever be recorded by any judicial person. In
other words, unless the findings of facts, though
concurrent, are found to be extremely perverse so as
to affect the judicial conscious of a judge, they
would be binding on the Appellate Court.
19) It is a settled principle of law that the initial
burden is always on the plaintiff to prove his case
by proper pleading and adequate evidence (oral and
documentary) in support thereof. The plaintiffs in
this case could not prove with any documentary
evidence that the suit properties described in
Schedule ‘B’ and ‘C’ were their self-acquired
properties and that the partition did not take place
7
in respect of Schedule ‘D’ properties and it
continued to remain ancestral in the hands of
family members. On the other hand, the
defendants were able to prove that the partition
took place and was acted upon.
20) In order to prove that the suit properties
described in Schedule ‘B’ and ‘C’ were their
self-acquired properties, the plaintiffs could have
adduced the best evidence in the form of a sale-deed
showing their names as purchasers of the said
properties and also could have adduced evidence of
payment of sale consideration made by them to the
vendee. It was, however, not done.
21) Not only that, the plaintiffs also failed to
adduce any other kind of documentary evidence to
prove their self-acquisition of the Schedule ‘B’ and
‘C’ properties nor they were able to prove the source
of its acquisition.
22) It is a settled principle of Hindu law that there
lies a legal presumption that every Hindu family is
8
joint in food, worship and estate and in the absence
of any proof of division, such legal presumption
continues to operate in the family. The burden,
therefore, lies upon the member who after admitting
the existence of jointness in the family properties
asserts his claim that some properties out of entire
lot of ancestral properties are his self-acquired
property. (See-Mulla - Hindu Law, 22nd Edition
Article 23 "Presumption as to co-parcenary and
self acquired property"- pages 346 and 347).
23) In our considered opinion, the legal
presumption of the suit properties comprising in
Schedule ‘B’ and ‘C’ to be also the part and parcel of
the ancestral one (Schedule ‘D’) could easily be
drawn for want of any evidence of such properties
being self-acquired properties of the plaintiffs. It
was also for the reason that the plaintiffs
themselves had based their case by admitting the
existence of joint family nucleolus in respect of
9
schedule ‘D’ properties and had sought partition by
demanding 4/9th share.
24) In our considered opinion, it was, therefore,
obligatory upon the plaintiffs to have proved that
despite existence of jointness in the family,
properties described in Schedule ‘B’ and ‘C’ was not
part of ancestral properties but were their
self-acquired properties. As held above, the
plaintiffs failed to prove this material fact for want of
any evidence.
25) We have, therefore, no hesitation in upholding
the concurrent findings of the two Courts, which in
our opinion, are based on proper appreciation of
oral evidence.
26) Learned counsel for the appellants took us
through the evidence. We are afraid we can
appreciate the evidence at this state in the light of
what we have held above. It is not permissible.
27) It was also her submission that the Trial Court
has recorded some findings against the defendants
10
in relation to their rights in the suit properties and
the same having been upheld by the High Court, the
appellants are entitled to get its benefit in the
context of these findings.
28) We have considered this submission but find
no merit in the light of what we have held above. At
the cost of repetition, we may observe that if the
plaintiffs failed to prove their main case set up in
the plaint and thereby failed to discharge the
burden, we cannot accept their any alternative
submission which also has no substance.
29) In the result, we find no merit in the appeal. It
fails and is accordingly dismissed.
……...................................J.
[R.K. AGRAWAL]
…...……..................................J.
[ABHAY MANOHAR SAPRE]
New Delhi;
September 06, 2017
11
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 11220 OF 2017
(ARISING OUT OF SLP (C) No.5664/2012)
Adiveppa & Ors. ...Appellant(s)
VERSUS
Bhimappa & Anr. ….Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) Leave granted.
2) This appeal is filed by the plaintiffs against the
final judgment and order dated 22.08.2011 passed
by the High Court of Karnataka Circuit Bench at
Dharwad, in RFA No. 1793 of 2006 whereby the
High Court dismissed the appeal and affirmed the
judgment and decree passed by the Court of
Principal Civil Judge (Senior Division), Bagalkot in
O.S. No.85 of 2001.
1
3) In order to appreciate the short controversy
involved in this appeal, it is necessary to state the
relevant facts.
4) The appellants are the plaintiffs whereas the
respondents are the defendants in a civil suit out of
which this appeal arises.
5) The dispute is between the members of one
family, i.e., uncle, aunt and nephews. It pertains to
ownership and partition of agricultural lands.
6) In order to understand the dispute between
the parties, family tree of the parties needs to be
mentioned hereinbelow:
GENEALOGICAL TREE
Adiveppa (Died about 3—35 years back)
Yamanavva (Died about 10 years back)
Adiveppa
Yamanavva
(Wife)
Hanamappa Bhimappa
Gundavva
(Son – Died 6 years ago) (Son – Defendant No.1)
(Daughter-Defendant No.2)
2
Mangalavva
(Wife – Plaintiff No.3)
Adiveppa Yamanappa
( Son - Plaintiff No.1) (Son - Plaintiff No.2)
7) As would be clear from the family tree,
Adiveppa was the head of the family. He married to
Yamanavva. Out of the wedlock, two sons and one
daughter were born, namely, Hanamappa,
Bhimappa and Gundavva. Hanamappa had two
sons, namely, Adiveppa and Yamanappa.
8) Adiveppa - the head of family owned several
acres of agricultural land. He died intestate. The
dispute started between the two sons of Hanamappa
and their uncle-Bhimappa and Aunt-Gundavva
after the death of Adiveppa and Hanamappa. The
disputes were regarding ownership and extent of the
shares held by each of them in the agricultural
lands.
9) Adiveppa and Yamanappa (appellants herein)
filed a suit (O. S. No.85 of 2001) against - Bhimappa
3
and Gundavva (respondents herein) and sought
declaration and partition in relation to the suit
properties described in Schedule ‘B’, ‘C’, and ‘D’.
10) The declaration was sought in relation to the
suit properties in Schedule ‘B’ and ‘C’ that these
properties be declared as plaintiffs’ self-acquired
properties.
11) So far as the properties specified in Schedule
‘D’ were concerned, it was alleged that these
properties were ancestral and hence the plaintiffs
have 4/9th share in them as members of the family.
It was alleged that since so far partition has not
taken place by meets and bound amongst the family
members, the suit to seek for partition.
12) The respondents (defendants) denied the
plaintiffs’ claim and averred inter alia that the entire
suit properties comprising in Schedule ‘B’, ‘C’ and
‘D’ were ancestral properties. It was alleged that
during the lifetime of Hanamappa, oral partition
had taken place amongst the family members on
4
28.10.1993 in relation to the entire suit properties
(Schedule ‘B’, ‘C’ and ‘D’), pursuant to which all
family members were placed in possession of their
respective shares. It was alleged that the partition
was acted upon by all the family members including
the plaintiffs’ father (Hanamappa) without any
objection from any member. It is on these
averments, the respondents contended that the
plaintiffs’ claim was misconceived.
13) The Trial Court framed the issues and parties
adduced their evidence. By judgment/decree dated
15.07.2006, the Trial Court dismissed the suit. It
was held that the plaintiffs failed to prove the suit
properties specified in Schedule ‘B’ and ‘C’ to be
their self-acquired properties. It was also held that
so far as the properties specified in schedule ‘D’ are
concerned, though they were ancestral but were
partitioned long back pursuant to which, the
plaintiffs through their father-Hanamappa got their
respective shares including other members.
5
14) The plaintiffs felt aggrieved and filed first
appeal before the High Court. By impugned
judgment, the High Court dismissed the appeal and
affirmed the judgment/decree of the Trial Court
giving rise to filing of this appeal by way of special
leave before this Court by the plaintiffs.
15) Heard Ms. Kiran Suri, learned senior counsel,
for the appellants and Mr. Anand Sanjay M. Nuli
and Mr. R.S. Jena, learned counsel for the
respondents.
16) Having heard the learned counsel for the
parties and on perusal of the record of the case
including the written submissions filed by the
learned counsel for the appellants, we find no merit
in this appeal.
17) Here is a case where two Courts below, on
appreciating the entire evidence, have come to a
conclusion that the plaintiffs failed to prove their
case in relation to both the suit properties. The
concurrent findings of facts recorded by the two
6
Courts, which do not involve any question of law
much less substantial question of law, are binding
on this Court.
18) It is more so when these findings are neither
against the pleadings nor against the evidence and
nor contrary to any provision of law. They are also
not perverse to the extent that no such findings
could ever be recorded by any judicial person. In
other words, unless the findings of facts, though
concurrent, are found to be extremely perverse so as
to affect the judicial conscious of a judge, they
would be binding on the Appellate Court.
19) It is a settled principle of law that the initial
burden is always on the plaintiff to prove his case
by proper pleading and adequate evidence (oral and
documentary) in support thereof. The plaintiffs in
this case could not prove with any documentary
evidence that the suit properties described in
Schedule ‘B’ and ‘C’ were their self-acquired
properties and that the partition did not take place
7
in respect of Schedule ‘D’ properties and it
continued to remain ancestral in the hands of
family members. On the other hand, the
defendants were able to prove that the partition
took place and was acted upon.
20) In order to prove that the suit properties
described in Schedule ‘B’ and ‘C’ were their
self-acquired properties, the plaintiffs could have
adduced the best evidence in the form of a sale-deed
showing their names as purchasers of the said
properties and also could have adduced evidence of
payment of sale consideration made by them to the
vendee. It was, however, not done.
21) Not only that, the plaintiffs also failed to
adduce any other kind of documentary evidence to
prove their self-acquisition of the Schedule ‘B’ and
‘C’ properties nor they were able to prove the source
of its acquisition.
22) It is a settled principle of Hindu law that there
lies a legal presumption that every Hindu family is
8
joint in food, worship and estate and in the absence
of any proof of division, such legal presumption
continues to operate in the family. The burden,
therefore, lies upon the member who after admitting
the existence of jointness in the family properties
asserts his claim that some properties out of entire
lot of ancestral properties are his self-acquired
property. (See-Mulla - Hindu Law, 22nd Edition
Article 23 "Presumption as to co-parcenary and
self acquired property"- pages 346 and 347).
23) In our considered opinion, the legal
presumption of the suit properties comprising in
Schedule ‘B’ and ‘C’ to be also the part and parcel of
the ancestral one (Schedule ‘D’) could easily be
drawn for want of any evidence of such properties
being self-acquired properties of the plaintiffs. It
was also for the reason that the plaintiffs
themselves had based their case by admitting the
existence of joint family nucleolus in respect of
9
schedule ‘D’ properties and had sought partition by
demanding 4/9th share.
24) In our considered opinion, it was, therefore,
obligatory upon the plaintiffs to have proved that
despite existence of jointness in the family,
properties described in Schedule ‘B’ and ‘C’ was not
part of ancestral properties but were their
self-acquired properties. As held above, the
plaintiffs failed to prove this material fact for want of
any evidence.
25) We have, therefore, no hesitation in upholding
the concurrent findings of the two Courts, which in
our opinion, are based on proper appreciation of
oral evidence.
26) Learned counsel for the appellants took us
through the evidence. We are afraid we can
appreciate the evidence at this state in the light of
what we have held above. It is not permissible.
27) It was also her submission that the Trial Court
has recorded some findings against the defendants
10
in relation to their rights in the suit properties and
the same having been upheld by the High Court, the
appellants are entitled to get its benefit in the
context of these findings.
28) We have considered this submission but find
no merit in the light of what we have held above. At
the cost of repetition, we may observe that if the
plaintiffs failed to prove their main case set up in
the plaint and thereby failed to discharge the
burden, we cannot accept their any alternative
submission which also has no substance.
29) In the result, we find no merit in the appeal. It
fails and is accordingly dismissed.
……...................................J.
[R.K. AGRAWAL]
…...……..................................J.
[ABHAY MANOHAR SAPRE]
New Delhi;
September 06, 2017
11
