Dismissed

Sri Venkatesh v. P Ashwathappa

Karnataka HC24 Aug 2021RSA/568/2015

Case brief

AI extract

What is this about?

The High Court dismissed the second appeal in a suit for partition, holding the trial court correctly dismissed the suit as time-barred under the Limitation Act due to the plaintiff's failure to present evidence that the property was joint family property requiring joinder of heirs.

What did the court decide?

Appeal dismissed at the admission stage; suit upheld as time-barred and error due to non-joinder of necessary parties.

Sri Venkatesh Vs P Ashwathappa — Specific Performance | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24^TH DAY OF AUGUST, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE E.S.INDIRESH

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R.S.A. No. 568/2015

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BETWEEN

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SRI VENKATESH S/O ERAPPA, AGED ABOUT 49 YEARS, R/AT. VENKATALA YELAHANKA BANGALORE NORTH (ADDL) BANGALORE URBAN DISTRICT -560064

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...APPELLANT

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(BY SRI CHANDRASHEKAR SWAMY K B, ADVOCATE)

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AND

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P. ASHWATHAPPA S/O LATE PUTTANANJAPPA AGED ABOUT 46 YEARS R/AT. BOMMAVARA VILLAGE KASABA HOBLI DEVANAHALLI TALUK BANGALORE RURAL DISTRICT -562 110

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…RESPONDENT

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(BY SRI MANJUNATH N M, ADVOCATE)

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THIS RSA IS FILED U/S 100 AGAINST THE JUDGMENT AND DECREE DATED:20.02.2015 PASSED IN R.A NO.15006/2014 ON THE FILE OF VTH ADDITIONAL DISTRICT & SESSIONS JUDGE, DEVANAHALLI, BANGALORE RURAL DISTRICT, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED

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5.10.13 PASSED IN O.S NO.227/2008 ON THE FILE OF SENIOR CIVIL JUDGE & J.M.F.C, DEVANAHALLI.

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THIS R.S.A. COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed by the plaintiff challenging the judgment and decree dated 20.02.2015 passed in R.A.No.15006/2014, on the file of the V Additional District and Sessions Judge, Devanahalli, confirming the judgment and decree dated 05.10.2013 passed in O.S.No.227/2008, on the file of the Senior Civil Judge and JMFC, Devanahalli dismissing the suit of the plaintiff.

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For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the trial Court.

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It is the case of the plaintiff that he has filed a suit for partition against the defendant stating that the father of the plaintiff Erappa and his uncle Venkatappa are the children of Gurappa and

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Pillamma. It is the case of the plaintiff that the said Venkatappa has illegally sold the suit schedule property to defendant No.1 under registered sale deed dated 10.11.1967 and in turn, defendant No.1 has sold the same in favour of the father of defendant No.2 under registered sale deed dated 22.05.1973 and the said sale deeds are not binding on the plaintiff. It is the case of the plaintiff that he is entitled for half share in the suit schedule property and as such, he has filed O.S.No.227/2008 on the file

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of the Trial Court, seeking relief of partition and separate possession in respect of the suit schedule property.

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In the said suit, defendant No.2 entered appearance and filed detailed written statement denying the averments made in plaint.

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The Trial Court after considering the

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pleadings on record, has formulated the following issues for its consideration:

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1. Whether the plaintiff proves that, suit property belonged to his senior uncle Venkatappa and it was ancestral property of father of plaintiff Erappa and his brother Venkatappa and Venkatappa sold the schedule property to one Krishnapa and it underwent subsequent alienation's and which do not bind the share of the plaintiff father Erappa?

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2. Whether the plaintiff proves that the alienation in favour of defendant No.1 and defendant No.2 is unlawful and does not bind the same to plaintiff?

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3. Whether the defendant No.2 proves that defendant No.1 Krishnappa died long back before filing of suit and thereby the suit against dead defendant is not maintainable?

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4. Whether the defendant No.2 proves that schedule property was owned by his father and he got the schedule property through his family partition dated 30.05.2000 and got changed the katha and has been in its exclusive possession?

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5. Whether the defendant No.2 proves that Venkatappa was the absolute owner having exclusive right to alienate schedule property?

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6. Whether suit is barred by limitation?

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7. Whether the suit is hit by provisions of Specific Relief Act?

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8. Whether suit is bad for non-joinder and misjoinder of necessary parties?

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9. Whether valuation of suit is incorrect and the payment of court fee is improper?

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10. Whether the plaintiff is entitled for partition and separate possession of his ½ share in the schedule property by metes and bounds?

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11. What order or decree?

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The plaintiff was examined as PW.1 and produced 11 documents and same were marked as Exs.P1 to P11. Defendant No.2 was examined as DW.1 and examined another witness as DW.2 and produced 35 documents and the same were marked as Ex.D1 to Ex.D35.

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The trial Court, after considering the material on record, by its judgment and decree dated 05.10.2013, dismissed the suit. Being aggrieved by the same, plaintiff preferred R.A. No.5006/2014, on the file of the First Appellate Court and the same was resisted by defendant No.2. The First Appellate Court, after considering the material on record, by its judgment and decree dated 20.02.2015, dismissed the appeal and thereby confirmed the judgment and decree passed by the trial Court. Being aggrieved by the judgment and decree passed by Courts below, the plaintiff has preferred this second appeal.

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I have heard Sri. Chandrashekar Swamy K.B., learned counsel appearing for the appellant and Sri. Manjunath K.M., learned counsel appearing for the respondent.

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Sri. Chandrashekar Swamy K.B., learned counsel appearing for the appellant contended that both the Courts below have erred in not considering

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the factual aspects of the case that the suit schedule property is the joint family property of Gurappa and his sons Venkatappa and Erappa and said Venkatappa without consent of the father of the plaintiff, had sold the suit schedule property and the same is not binding on the plaintiff. He further contended that both the Courts below had dismissed the suit on the ground that the plaintiff fails to array the children of Venkatappa as parties to the suit and therefore, held that, plaintiff has failed to prove that there is existence of the joint family of Venkatappa and Erappa. He places reliance on the judgment of this Court in the case of Kallappa vs. Mallamma and others reported in 2015 (4) KCCR 3432 and contended that First Appellate Court ought to have directed the parties to rectify the mistake or should have remanded the matter to the Trial Court.

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Per contra, learned counsel appearing for the respondent sought to justify the judgments of both the Courts below.

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In the backdrop of the pleadings on record, I have carefully considered the findings recorded by the Trial Court, whereunder it is not in dispute that the plaintiff is the son of Erappa; Venkatappa and Erappa are the children of Gurappa. It is the case of the plaintiff that there is no partition between Venkatappa and Erappa insofar as the joint family of Gurappa and his sons. Therefore, the sale deed executed by Venkatappa in favour of defendant No.1 is not binding on the plaintiff. Undisputably, the plaintiff has not arraigned the children of Venkatappa as defendants to the suit. Despite his claim is that, the schedule property is the joint family property of Venkatappa and Erappa.

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The Trial Court, after considering the materials on record had come to a conclusion that the

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plaintiff failed to prove that the schedule property as the joint family property of Venkatappa and Erappa and accordingly held that in view of not arraigning of proper parties to the suit to claim his relief, the plaintiff has failed to prove that the suit schedule property is the joint family property.

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Insofar as issue No.6 relating to limitation is concerned, I have carefully considered the finding recorded by the Trial Court at paragraph 20 of the judgment, whereunder, admittedly, the suit is filed after 41 years of alienation of the land by Venkatappa in favour of defendant No.1. The plaintiff is well aware about his rights and also aware about the execution of sale deed dated 10.11.1967 by his uncle Venkatappa in favour of defendant No.1. In view of Article 109 of

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the Limitation Act, the plaintiff ought to have approached the Court within 12 years. The Trial Court after considering the materials on record, has come to a conclusion that though the execution of sale deed

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made in the year 1967 by Venkatappa in favour of defendant No.1, however, the plaintiff has not taken any steps to challenge the sale deed executed by his uncle Venkatappa in favour of defendant No.1, and had rightly answered issue No.6 in favour of the defendants saying that the suit is barred by time.

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Having considered the findings recorded by the Trial Court, I am of the considered opinion that the trial Court, having taken note of the entire materials on record that the children of Venkatappa have not been made as parties to the suit and also the plaintiff has failed to prove that the suit schedule property is the joint family property has rightly dismissed the suit.

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I have also carefully considered the findings recorded by the first Appellate Court, whereunder the first Appellate Court has reappreciated the entire materials on record as required under Order XLI Rule 31 of CPC and considered the

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applications made by the plaintiff under Order XLI Rule 27 of CPC and had come to the conclusion that the documents sought to be produced by the plaintiff cannot be a basis to arrive at the conclusion that suit schedule property is the joint family property of the plaintiff. I have also noticed that at paragraph 25 of the judgment, the First Appellate Court has taken note of the fact that Article 109 of the Limitation Act is squarely applicable to the case on hand though the sale deed executed in favour of defendant No.1 in the

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year 1967. However, the suit is filed beyond time in the year 2008, that too the plaintiff has not arraigned the proper persons to the suit to determine whether the suit schedule property is the joint family property or not. In the result, the First Appellate Court after re-appreciating the material on record, had come to a conclusion that the plaintiff failed to prove that the suit schedule property is the joint family property.

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I have also noticed that the law declared by this Court in the case of Kallappa referred to by the appellant. However, in the said case, this Court has held that the Appellate Court has all the trappings of the Trial Court and ought to have directed the parties to rectify the mistakes and hence, remanded the matter to the Trial Court. However, in the present case, the appellant has filed I.A under Order XLI Rule 27 of CPC and sought to produce certain documents and the same has been considered by the first Appellate Court and as per paragraph 26 of the judgment come to a conclusion that the name of Venkatappa is not referred to in the aforementioned documents.

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In that view of the matter, the judgment

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referred to by the learned counsel appearing for the appellant, is not applicable to the case on hand. Both the Courts below have concurrently held that the plaintiff failed to prove that the suit schedule property

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is the joint family property. In the result, I do not find any merit in the appeal and both the Courts below have rightly dismissed the suit based on record holding that the plaintiff has failed to prove that the suit schedule property is the joint family property of the plaintiff and also in view of the fact that the suit is filed beyond the time as required under Article 109 of the Limitation Act.

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Accordingly, the appeal fails.

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Since the appellant has not made out a case for

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formulation of substantial question of law as required under Section 100 of CPC, appeal stand dismissed at the admission stage itself.

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Sd/JUDGE

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Sri Venkatesh v. P Ashwathappa

Case brief

What is this about?

What did the court decide?

Sri Venkatesh v. P Ashwathappa

Case brief

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What did the court decide?

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