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.

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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)                       

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                                                                       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

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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

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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.

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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

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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

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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

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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

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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  cannot

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

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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  

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