Dismissed

Shri.Chandrakant v. Shri.Kallappa

Karnataka HC3 Mar 2017RSA/100837/2016

Case brief

AI extract

What is this about?

In a second appeal regarding partition of joint family property, this Court upheld the dismissal of the suit. The Court held that since the appellant failed to prove the second property was joint family property, no substantial question of law arose regarding the failure to frame a specific issue on the defendant. Consequently, the appeal against the dismissal of the suit and the application under

What did the court decide?

The appeal filed in RA No.55/2009 against the judgment and decree dismissing the suit for partition and the application under Order 41 Rule 27 CPC is dismissed.

Shri.Chandrakant Vs Shri.Kallappa — Partition | Karnataka HC (2017)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 03^RD DAY OF MARCH, 2017

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BEFORE

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THE HON’BLE MR.JUSTICE SREENIVAS HARISH KUMAR

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R.S.A. NO. 100837/2016 (PART & SEP. POSS)

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BETWEEN:

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SHRI. CHANDRAKANT ANANDA SAWANT, SINCE DECEASED BY HIS LRS. SMT.SHOBHA W/O CHANDRAKANT SAWANT, AGE: 58 YEARS, OCC: HOUSE HOLD WORK, R/O: H.NO.993/4, 6TH LANE, SHIVAJI NAGAR, BELAGAVI, TQ & DIST: BELAGAVI-590016.

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SHRI. SANTOSH S/O CHANDRAKANT SAWANT, AGE: 35 YEARS, OCC: PRIVATE SERVICE, R/O: H.NO.993/4, 6TH LANE, SHIVAJI NAGAR, BELAGAVI, TQ & DIST: BELAGAVI-590016.

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SMT. SANGEETA D/O CHANDRAKANT SAWANT, W/O VIVEK MANDOLKAR, AGE: 37 YEARS, OCC: HOUSEHOLD WORK, R/O: H.NO.993/4, 6TH LANE, SHIVAJI NAGAR, BELAGAVI-590016, NOW R/O: BASAWAN GALLI, SHAPUR, TQ & DIST: BELAGAVI-590016.

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SMT. SAVITA D/O CHANDRAKANT SAWANT, W/O NETAJI BIRANJE, AGE: 28 YEARS, OCC: HOUSE HOLD WORK, R/O: H.NO.993/4, 6TH LANE, SHIVAJI NAGAR, BELAGAVI-590016, NOW R/O: GHODKE NAGAR, INCHALKARNJI, DIST: KOLHAPUR, MAHARASHTRA STATE.

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MISS. MEENAXI D/O CHANDRAKANT SAWANT, AGE: 33 YEARS, OCC: HOUSE HOLD WORK, R/O: H.NO.993/4, 6TH LANE, SHIVAJI NAGAR,

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...APPELLANTS

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BELAGAVI, TQ & DIST: BELAGAVI-590016.

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(By SRI. SANTOSH. B. RAWOOT, ADVOCATE)

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AND

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SHRI.KALLAPPA ANANDA SAWANT SINCE DECEASED BY YHIS L.RS. SMT.SHANTA W/O KALLAPPA SAWANT, AGE: 62 YEARS, OCC: HOUSEHOLD WORK, R/O: H.NO.995/4-5, 5^TH LANE, SHIVAJI NAGAR, BELAGAVI, TQ: & DIST: BELAGAVI-590016.

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SHRI.GAJANAN S/O KALLAPPA SAWANT, AGE: 41 YEARS, OCC: PRIVATE SERVICE, R/O: H.NO.995/4-5, 5^TH LANE, SHIVAJI NAGAR,BELAGAVI, TQ: & DIST: BELAGAVI-590016.

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MISS.BHARATI D/O KALLAPPA SAWANT, AGE: 40 YEARS, OCC: HOUSEHOLD WORK, R/O: H.NO.995/4-5, 5^TH LANE, SHIVAJI NAGAR,BELAGAVI, TQ: & DIST: BELAGAVI-590016.

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MISS.KAVITA D/O KALLAPPA SAWANT, AGE: 39 YEARS, OCC: HOUSEHOLD WORK, R/O: H.NO.995/4-5, 5^TH LANE, SHIVAJI NAGAR,BELAGAVI, TQ: & DIST: BELAGAVI-590016.

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MISS.SWATI D/O KALLAPPA SAWANT, AGE: 38 YEARS, OCC: HOUSEHOLD WORK, R/O: H.NO.995/4-5, 5^TH LANE, SHIVAJI NAGAR,BELAGAVI, TQ: & DIST: BELAGAVI-590016.

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SHRI.RATAN KRISHNA MARATHE, AGE: 57 YEARS, OCC: PVT. SERVICE, R/O: H.NO.992/A, (CTS NO.10150)

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PLOT NO.32, 5^TH LANE, SHIVAJI NAGAR, BELAGAVI, TQ: & DIST: BELAGAVI-590016.

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SMT.LAXMIBAI SAMBHAJI RAMANE, AGE: 65 YEARS, OCC: HOUSEHOLD WORK, R/O: H.NO.992/A (CTS NO.10150) PLOT NO.32, 5^TH LANE, SHIVAJI NAGAR, BELAGAVI, TQ: & DIST: BELAGAVI-590016.

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SHRI.HUSSAINSAB VAZIRSAB NALBAND, AGE: 66 YEARS, OCC: DRIVER, R/O: H.NO.992/A (CTS NO.10150) PLOT NO.32, 5^TH LANE, SHIVAJI NAGAR, BELAGAVI, TQ: & DIST: BELAGAVI-590016.

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SHRI.MAILARAPPA FAKIRAPPA DHAMBAL, AGE: 49 YEARS, OCC: DRIVER, R/O: H.NO.992/A (CTS NO.10150) PLOT NO.32, 5^TH LANE, SHIVAJI NAGAR, BELAGAVI, TQ: & DIST: BELAGAVI-590016.

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SHRI.ARUN S/O APPASAHEB DHUMALE, AGE: 35 YEARS, OCC: DOCTOR, R/O: H.NO.4860/B/19, RAIL NAGAR, SADAHIV NAGAR, BELAGAVI, TQ: & DIST: BELAGAVI-590001.

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... RESPONDENTS

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(SRI. ARUN S/O APPASAHEB DHUMALE PARTY IN PERSON)

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THIS RSA IS FILED U/SEC.100 OF CPC, AGAINST THE JUDGEMENT & DECREE DATED: 20.07.2016 PASSED IN R.A.NO.55/2009 ON THE FILE OF THE II ADDITIONAL DISTRICT JUDGE, BELAGAVI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED:31.01.2009, PASSED IN O.S. NO.269/1998 ON THE FILE OF THE III-ADDITIONAL CIVIL JUDGE (SR.DN.),

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BELAGAVI, PARTLY DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.

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THIS APPEAL COMING ON FOR ORDERS THIS DAY, THIS COURT, PASSED THE FOLLOWING:

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ORDER

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This Second Appeal is filed by the appellants in RA No.55/2009 on the file of the II Additional District Judge, Belagavi. By the judgment dated 20.07.2016, the learned District Judge dismissed the appeal by confirming the judgment of the Trial Court which had dismissed the suit of the plaintiffs in respect of the house property bearing No.992/A, Plot No.32, CTS No. 10150 and movable properties. The learned District Judge also dismissed IA No.5 filed by the plaintiff under Order 41, Rule 27 of CPC.

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The facts of the case briefly stated are as follows:

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The appellants No.1-A to 1-E are the legal representatives of Chandrakant Ananda Sawant. The respondents No.1-A to 1-E are the legal representatives of Kallappa Ananda Sawant. Respondent No.2 to 6 are said to be tenants. Chandrakant Ananda Sawant and Kallappa Ananda Sawant are the full brothers. Chandrakant Ananda Sawant filed a suit for partition and separate possession of

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his half share in two house properties bearing numbers CTS No.10150 and CTS No. 10074, both situated at Shivaji Nagar of Belagavi and some movables stating that all these properties are the joint family properties. He stated in the plaint that he was working in KSRTC. He used his salary income to meet the expenses of family and brought up his brother Kallappa Ananda Sawant and performed his marriage and also. From his income, he purchased a house i.e. CTS No. 10150 for Rs.15,000/for valuable consideration under a Registered Sale Deed dated: 19.07.1984. He got registered the sale deed in the name of his brother heeding to the request of his mother. Actually, he borrowed money from Urban Co-operative Bank and constructed residential buildings as well as 4 shops out of his salary. After demise of their mother, the 1^st defendant took undue advantage of the sale deed being in his name, got his name entered in the revenue records and started claiming rights over the suit property wrongfully. He was collecting the entire rent amount from the tenants. He was not ready to share the rent amount with him. In spite of repeated demands to give half share in the rented amount, the 1^st defendant did not pay anything. So he tried to settle

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the dispute by taking the help of elders and it was not possible because of adamant behavior of the 1^st defendant. At last, he issued notice to the 1^st defendant calling upon him to divide the property. Though the 1st defendant received the notice, but he did not take any steps for amicable settlement. Therefore, he filed suit for partition

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The 1^st defendant filed the written statement admitting that the house property bearing CTS No.10074 was acquired by his father, but he denied the plaintiff’s case that the another house property bearing CTS No.10150 was joint family property. His specific stand with respect to the second house property is that it is his self-acquired property. He was running a Kirana shop in a rented premises. From the income of the said shop, he purchased property bearing CTS No. 10150 and got the sale deed registered in his name by paying valuable consideration to its owner. Actually, he got the building constructed there by obtaining license from the Corporation and has been paying taxes to the Corporation also. He also stated that he leased out four shops to defendants No.4 and 5 and is collecting rent from them. Therefore, it is his specific stand that there cannot be

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any partition in respect of house property with CTS No. 10150. Further he has also taken a stand that there are other legal heirs of his elder brothers Laxman and Mahadev, and that they too are entitled to a share and that they have not been made as parties in this suit.

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The Trial Court framed six issues. The 1^st issue is that “Whether the plaintiff proves that “B” schedule properties are joint family properties and he is in joint possession of that property?” This issue is answered partly in affirmative. Issue No.2 is also connected with 1^st issue and it is also answered in the affirmative. This is the reason for decreeing the suit in respect of Item No.1 of “B” schedule (CTS No.10074) property, and dismissing suit in respect of Item No.2 of “B” schedule property (CTS No.10150).

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The First Appellate Court has given a finding that the PW-1 in her cross-examination has clearly admitted that the 1^st defendant was running a Kirana Shop and he had good income. It has also noticed the fact that the plaintiffs have not produced any document to show that Item No.2 of “B” schedule property was constructed jointly by the contribution made by the 1^st plaintiff and the 1^st defendant.

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Therefore, the Trial Court came to the conclusion that this Item No.2 of “B” schedule property cannot be partitioned as it absolutely belongs to the 1^st defendant. The First Appellate Court has also came to the conclusion that the 1^st plaintiff failed to prove that the 2^nd item of “B” schedule property belongs to the joint family. Actually it has upheld the findings of the Trial Court. Now the counsel for the appellant argues that when the 1^st defendant took up a contention in written statement that the 2^nd item of “B” schedule property belongs to him, an issue should have been framed throwing burden of its proof on him. Issue was not raised at all. Further, the Trial Court proceeded to dismiss the suit in respect of Item No.2 of “B” schedule property only on stray answers given by PW-1. Therefore, it is his argument that a substantial question of law arises in the facts and circumstances and therefore, this appeal is to be admitted.

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Having gone through the judgments of the Trial Court and the First Appellate Court, it can be seen that both the courts below have not committed any error in law. It is specific case of the plaintiff that two house properties described in “B” schedule are the joint family properties.

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Therefore, initial burden is on the plaintiff to prove that the properties are joint family properties. Burden of proving the first issue is on the plaintiff. If the plaintiff discharges his initial burden, then the defendant is at liberty to disprove it by placing cogent evidence. Though the defendant has taken a contention that the property belongs to him exclusively, there is no need to frame an issue in this regard separately. Actually issue is a comprehensive one; initial burden is on the plaintiff and subject to discharge of his burden, the onus shifts on to the defendant, who can put forth his defence to disprove the plaintiff’s case. The Trial Court has discussed the evidence thoroughly. PW-1 has clearly stated that the 1^st defendant was running a Kirana Shop and had good income. The plaintiff who has stated that he borrowed the loan from the co-operative bank has failed to prove it. Both the courts came to consistent conclusion and that they cannot be disturbed now.

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With regard to the application filed under Order 41 Rule 27, it is to be stated that the First Appellate Court has given cogent reasons for dismissing that application. When initial burden cast on the plaintiff appears to have not been

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discharged and for that reason both the Courts have dismissed the suit, in so far as 2^nd item of “B” schedule property is concerned, even if application under Order 41 Rule 27 had been allowed, it would have served no purpose. So in these circumstances, substantial question of law to admit his appeal does not emerge. Hence, appeal is dismissed.

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Sd/JUDGE

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yan

Shri.Chandrakant v. Shri.Kallappa

Case brief

What is this about?

What did the court decide?

Shri.Chandrakant v. Shri.Kallappa

Case brief

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