Dismissed

Smt Byramma v. Smt Sompamma

Karnataka HC24 Aug 2022RFA/835/2007

Case brief

AI extract

What is this about?

Appeal by unsuccessful plaintiffs in a suit for partition of ancestral joint family property. The trial court found the parties to be members of a joint family but held the suit properties no longer available for partition, having been sold and reconveyed between 1947 and 1973 with revenue entries standing in the defendants' names. On re-appreciation, the High Court agreed and dismissed the appeal

What the court decided

AI extract

Smt Byramma Vs Smt Sompamma — Partition | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 24^TH DAY OF AUGUST, 2022

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BEFORE

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THE HON’BLE MR. JUSTICE V. SRISHANANDA

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R.F.A.No.835/2007(PAR)

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BETWEEN

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1 . SMT BYRAMMA D/O LATE PULLAIAH AGED ABOUT 70 YEARS R/AT MOTAGANAHALLI VILLAGE SOLUR HOBLI MAGADI TQ BANGALORE RURAL DISTRICT REPRESENTED BY GPA HOLDER D.KESHAVAMURTHY

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2 SRI DASAPPA @ MAYADASAPPA S/O LATE SRI MAYANNA DECEASED BY HIS LEGAL REPRESENTATIVES

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2(a). SMT.BORAMMA W/O LATE DASAPPA AGED ABOUT 82 YEARS

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2(b) SRI A.CHIKKANNA S/O LATE SRI DASAPPA @ MAYADASAPPA SINCE DEAD

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2(c) SRI D.GOVINDARAJU S/O LATE SRI DASAPPA @ MAYADASAPPA AGED ABOUT 57 YEARS

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REPRESENTED BY G P A HOLDER D.KESHVAMURTHY

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2(d) SRI D.VARADARAJU S/O LATE SRI DASAPPA @ MAYADASAPPA DECEASED BY HIS LEGAL REPRESENTATIVES

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2(d1) SMT.SHANTHAMMA W/O LATE VARADARAJU AGED ABOUT 47 YEARS OCC : HOUSE HOLD

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2(d2) SMT.YASHODA D/O LATE D.VARADARAJU AGED ABOUT 27 YEARS OCC: HOUSE HOLD

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2(d3) SMT.TULASI D/O LATE D.VARADARAJU AGED ABOUT 23 YEARS OCC: HOUSE HOLD

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2(d4) SRI CHADRASHEKAR S/O LATE D.VARADARAJU AGED ABOUT 20 YEARS, OCC: STUDENT

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2(e) SRI D.B.VENKATESH S/O LATE SRI DASAPPA @ MAYADASAPPA AGED ABOUT 48 YEARS REPRESENTED BY GPA HOLDER OF D.KESHVAMURTHY

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2(f) SRI KESHAVAMURTHY S/O LATE SRI DASAPPA MAYADASAPPA AGED ABOUT 42 YEARS

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2(g) SRI D.SHANTAMMA S/O LATE SRI DASAPPA @ MAYADASAPPA AGED ABOUT 34 YEARS REPRESENTED BY G P A HOLDER D.KESHVAMURTHY.

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2(h) SMT.D.CHANDRAKALA S/O LATE SRI DASAPPA @ MAYADASAPPA AGED ABOUT 40 YEARS

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2(i) SMT.D.JAYAMMA S/O LATE SRI DASAPPA @ MAYADASAPPA SINCE DEAD BY LRS

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2(i)(a) SRI RAKEASH KUMAR K S/O LATE D.JAYAMMA AGED ABOUT 38 YEARS

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2(i)(b) LEPANA.K D/O LATE D.JAYAMMA AGED ABOUT 36 YEARS

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BOTH 2(i)(a) and 2(i)(b) RESIDING AT #105/3, 4^TH MAIN ROAD, LAKSHMINARAYANAPURA BENGALURU-560 021

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2(j) SRI D.SUMITHRA S/O LATE SRI DASAPPA @ MAYADASAPPA AGED ABOUT 37 YEARS

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2(k) SMT.D.VIJAYALAKSHMI S/O LATE SRI DASAPPA @ MAYADASAPPA AGED ABOUT 39 YEARS

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2(l) SRI D.B.RAJESH S/O LATE SRI DASAPPA MAYADASAPPA AGED ABOUT 31 YEARS REPRESENTED BY G P A HOLDER D.KESHVAMURTHY

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LRs 2(a) to 2(l) ARE RESIDING AT NO.U-17, 12^TH CROSS, 4^TH MAIN, LAKSHMINARAYANAPURA BENGALURU.

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...APPELLANTS

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[BY SRI RAVI H.K, ADVOCATE FOR A1, A2(c,e,f,g, i & l); SRI G.G.CHAGASHETTI, ADVOCATE FOR R2(a, b, d,h,i,j,k)]

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AND

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1 . SMT SOMPAMMA W/O LATE SRI HUCHAIAH AGED ABOUT 79 YEARS

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2 . SRI DODDA MAYAPPA S/O LATE SRI HUCHAPPA AGED ABOUT 49 YEARS

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3 . SRI CHIKKA MAYANNA S/O LATE SRI HUCHAIAH AGED ABOUT 47 YEARS

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4 . SRI KRISHNA S/O LATE SRI HUCHAIH AGED ABOUT 42 YEARS

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5 . SRI RAJA S/O LATE SRI HUCHAIH AGED ABOUT 37 YEARS

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RESPONDENTS 1 TO 5 ARE RESIDENTS OF HEGGADADEVANAPURA VILLAGE DASANAPURA HOBLI BANGALORE NORTH TALUK BENGALURU DISTRICT

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6 . SMT LAKSHMAMMA DIED DURING PENDENCY OF THE SUIT AND REPRESENTED BY HER ONLY LEGAL HEIR RESPONDENT NO.7

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7 . SRI NARAYANA S/O LATE SRI APPANNA AGED ABOUT 37 YEARS

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RESPONDENTS 6 AND 7 ARE RESIDENTS OF KOTTAPPANAPALYA MAGADI TOWN BANGALORE RURAL DISTRICT

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8 . SRI VEERABHADRAPPA @ VEERAPPA SINCE DECEASED BY HIS LRS

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8(a) SMT HANUMAKKA

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W/O LATE SRI VEERABHADRAPPA @ VEEERAPPA AGED ABOUT 69 YEARS

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8(b) SMT PARVATHAMMA

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W/O LATE SRI VEERABHADRAPPA @ VEERAPPA AGED ABOUT 54 YEARS

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RESPONDENTS 8(a) to 8(b) ARE RESIDENTS OF HEGGADADEVANAPURA VILLAGE DASANAPURA HOBLI BANGALORE NORTH TALUK BANGALORE DISTRICT

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...RESPONDENTS

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(SRI V.D.GANIGER AND ASSOCIATES, ADVOCATE FOR R1; SRI VIJAY KRISHNA BHAT .M, ADVOCATE FOR R2 TO R5; R6-DECEASED;

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VIDE ORDER DATED 12.10.09, NOTICE TO R7 HELD SUFFICIENT; VIDE ORDER DATED 16.10.09, NOTICE TO R8(a) HELD SUFFICIENT; NOTICE TO R8(b) SERVED AND UNREPRESENTED)

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THIS RFA IS FILED U/S 96 OF CPC AGAINST THE JUDGEMENT AND DECREE DT.08.01.2007 PASSED IN O.S.NO.186/1999 ON THE FILE OF THE I ADDL.CIVIL JUDGE (SR.DN.) BANGALORE RURAL DISTRICT, BANGALORE, DISMISSING THE SUIT FOR PARTITION.

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THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Heard Sri. Ravi H.K., learned counsel appearing for

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appellants 1, 2 (c, e, f, g, i and l) and insofar as remaining appellants 2(a, b, d, h, j and k) learned counsel

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Sri. G.G. Chagashetti was earlier appearing and he is absent today.

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Unsuccessful plaintiff has preferred this appeal challenging the validity of the judgment and decree passed in O.S.No.186/1999.

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Brief facts of the case are as under:

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Plaintiffs namely Smt.Byramma and Sri Dasappa @ Maya Dasappa claiming to be the wife and son of Sri Pullaiah filed a suit against defendants stating that the suit schedule properties are joint family properties and plaintiff No.1 is entitled to 50% of the share in both the suit items, whereas, second plaintiff is entitled to 1/3^rd share of the suit schedule properties.

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The plaint averments further reveal that Huchaiah is the common propositous had four children. The genealogy is as under:

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Huchaiah @ Huchappa
Mayanna Pullaiah
Helavaiah Varadaiah
=Thimmakka Byramma( Pltf.No.1)
(Died issueless) (Died issueless)
Huchaiah Mayadasappa Appanna
=Sompamma (Pltf. No.2) @ Appaiah
deft.No.1 = Lakkamma
(Deft. No.6)
Narayana
(Deft. No.7)
Byramma Lakkamma Gangamayamma
* * *
Doddamayappa Chikkamayanna Krishnappa Raja
(D.2) (D.3) (D.4) (D.5)
*Byramma, Lakkamma and Gangamayamma, the daughters
of Mayanna are not arrayed as parties to the suit."

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The present plaintiffs claim share under Pullaiah, one of the sons of late Huchaiah. Plaintiffs

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further contended that plaintiffs and defendant Nos.1 to 7 are the members of undivided Hindu joint family and governed by Hindu Succession Act. However, plaintiffs and defendant Nos.1 to 7 for the sake of convenience are residing separately and mere residing separately did not disrupt the joint family status among the parties and the suit schedule properties are joint family properties.

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Plaintiffs further submitted that Sy.No.75/1 of Heggadadevanahalli village, Dasanapura Hobli, measuring 2 acres 10 guntas which is described with details in item No.1 of the suit schedule property and house property bearing Khaneshumari No.58 and 34 situated adjacent to each other in Heggadadevanahalli village limits is described as item No.2 of the schedule property are jointly owned by the plaintiffs and defendant Nos.1 to 7. It is further contended that the first defendant for the sake of convenience got mutated the revenue entries in her name with respect to the first item of the suit schedule

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properties and the same was not questioned by the plaintiffs. It is further contended that second item of the suit schedule properties are still standing in the name of Huchaiah who was the elder brother of the second plaintiff and with respect to Khaneshumari No.34 and in the name of Dodda Mayappa - the second defendant in respect to the Khaneshumari.No.58.

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Plaintiffs further contended that first plaintiff is entitled to 50% of the share in the suit schedule properties and second plaintiff is entitled to 1/3^rd share out of the remaining 50% share and defendants are entitled to 1/3^rd share out of 50% share and defendant Nos.6 and 7 are also entitled for remaining 1/3^rd share out of the 50% share of the suit schedule properties. They further contended that when they demanded for partition, the defendants refused to grant the share to the plaintiffs which necessitated convening panchayath and ultimately,

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the plaintiffs were constrained to issue legal notice on 17.02.1999.

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It is further contended that notice issued

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through the registered post has been returned and defendants have avoided to receipt of legal notice which constrained the plaintiffs to file the suit for partition.

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On receipt of suit summons, defendants appeared and common written statement came to be filed by defendant Nos.1 to 5. In the written statement, the genealogy was given and relationship came to be admitted.

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They denied the other plaint averments in toto and took a specific contention that the properties were at one point of time joint family properties and they have been sold back and the same is not questioned by the plaintiffs or Pullaiah under whom the plaintiffs claim the share. It is also contended that since no properties

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available for partition, the suit itself is not maintainable and sought for dismissal of the suit.

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Based on the rival contentions, the Trial Court

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framed the following issues:

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"1. Whether the plaintiffs prove that the suit schedule properties are the joint family properties of consisting of themselves and defendants and they are in joint possession as alleged ?

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2. Whether the defendant Nos.1 to 5 prove that the suit in the present form is not maintainable under the circumstances pleaded in para No.8 of the written statement?

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3. Whether the plaintiffs are entitled for partition and separate possession of their legitimate share in all the suit schedule properties ?

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4. Whether the plaintiffs are entitled for mesne profits ? If so, to what amount and from whom?

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5. To what relief if any, the parties are entitled?"

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In order to prove the case of the plaintiffs, Sri

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D.Keshava Murthy, who is the power of attorney holder of the plaintiffs is examined as P.W.1 and he filed his affidavit before the Court in lieu of his examination in chief as is contemplated under order XVIII Rule 4 CPC reiterating the contents of the plaint.

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On behalf of the plaintiffs, special general power of attorney executed in favour of P.W.1 is marked as Ex.P.1. Ex.P.2 is the RTC extract in respect of suit item No.1. Ex.P.3 is the copy of the legal notice and Exs.P.4 to P.11 are the undelivered postal covers. On behalf of the plaintiffs one Venkataramaiah is also examined as P.W.2.

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In the cross-examination of P.W.1, it is elicited that his grand father is one Mayanna and Mayanna had four brothers and a sister and none of them are alive. Mayanna had six children. Among them, three are daughters and three are sons. They are Huchappa, Dasappa @ Mayadasappa, Appanna @ Appaiah, Ganga

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Mayamma, Lakkamma and Byramma. Among them, Mayanna is no more. But, he does not know the date of death of Mayanna. So also first son of Mayanna namely Huchaiah is no more and except second son Dasappa none else is alive. Mayanna’s daughter is Byramma. She was alive at the time of suit, but she has not been impleaded as a party to the suit. Children of Byramma also died before filing of the suit.

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It is further elicited that Maya Dasappa has got six sons and five daughters. Appanna’s wife and daughter are sixth and seventh defendants. He has pleaded ignorance about children born to Smt. Gangamma. It is further elicited that Mayanna’s younger brother is Pullaiah. Pullaiah’s daughter is the first defendant. Pullaiah father's name is Huchaiah and he had four children namely; Mayanna, Varadaiaha, Pullaiah and Helavaiah. He has answered that none of them are alive.

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It is elicited that first plaintiff got married about 50 years earlier and she is living in her husband’s house in Motaganahalli of Magadi Taluk. He denies the suggestion that Huchaiah did not possess any property. However, he has volunteer to say that suit properties belongs to Huchaiah. He pleaded ignorance that Mayanna’s wife Thimmakka and Huchaiah had mortgaged the suit item No.1 on 02.04.1947 in favour of Puttabyrappa for a sum of Rs.300/- for a period of five years. He denies the suggestion that being unable to redeem the mortgage, the said property was sold in favour of Puttabyrappa.

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He denies further suggestion that with that money the plaintiffs’ family came and settled in Bengaluru. He denies the suggestion that his father settled in Bengaluru in the year 1952-53. He pleads ignorance about the sale deed that has taken place on 16.04.1956 in respect of suit item No.1 from Gangappa to Huchaiah. He has answered that he has not verified documents and title

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deeds in this regard. He denies the suggestion that the suit item number is Huchaiah’s self acquired property. He denies the suggestion that out of the entire item No.1 of the suit schedule properties, Huchaiah has sold 25 guntas of land in favour of Appanna by registered sale deed dated 07.06.1961. Likewise, he denies the suggestion that 25 guntas of land was sold by Huchaiah on 16.10.1968 in favour of Ramaiah. He also denies the suggestion that on 24.02.1970 first defendant sold portion of the first item of the suit property to the extent of 1 acre 5 guntas in favour of Thimmaiah. He also denied the suggestion that on 27.02.1973 first defendant repurchased 1 acre 5 guntas of land from Thimmaiah. He denies the suggestion that on 09.10.1969 again first defendant purchased the 20 guntas of land from Ramaiah. He denied the suggestion that Appanna had sold 25 guntas of land which has been purchased from first defendant to some private person. He denies the suggestion that in Sy.No.75/1 (first item of

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the suit property) only 1 acre 25 guntas is in the name of first defendant.

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In his further cross-examination, he admits that Ganga Mayamma, Lakkamma and Byramma are his paternal aunts. Ganga Mayamma and Lakkamma are not alive. Ganga Mayamma had three sons and two daughters. He denies the knowledge of the names of those children as Gangaiah, Anjinappa, Ramanjani, Dodda Putti, Chikka Putti. In respect of suit item No.2, he has answered that it is an ancestral property.

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However, he has answered that he has not produced any documents to show that the house properties were succeeded to by the parties from Mayanna. He denies the suggestion that second item of the suit property is not the ancestral property. He denies the suggestion that since Huchaiah was managing the suit item No.2 in the revenue records, his name has been mentioned. He denies the suggestion that after death of

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Huchaiah, his children have succeeded the suit item No.2 of the plaint schedule. He further denies the suggestion that the suit items were never his ancestral properties.

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P.W.2 is one Venkataramaiah. He has filed an affidavit in lieu of his examination in chief. In the said affidavit, he has stated that he is acquainted with the plaintiffs and their native place is Heggadadevanahalli. He has further stated that the suit properties are joint family properties of plaintiffs and defendant Nos.1 to 7. He has further stated that the defendant No.8 is not related to the plaintiffs and defendant Nos.1 to 7. He has further stated that according to his knowledge, there was no partition in respect of the suit properties, even though plaintiffs and defendant Nos.1 to 7 are living separately for their convenience.

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He further answered that defendant Nos.1 to 7 have created some documents in support their claim over the suit schedule properties without the knowledge of the

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plaintiffs. He has further stated that plaintiffs are entitled to their share in the suit schedule properties. He further stated that there is a long standing dispute between plaintiffs and defendants with regard to the partition of the suit land.

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In his cross-examination, it has been elicited that Byramma’s fathers name is Helavappa. Huchaiah, Maya Dasappa and Appanna are brothers. Huchappa, Maya Dasappa did not have any sisters. He denies the suggestion that Huchaiah and Maya Dasappa had three sisters. He denies the suggestion that he is not acquainted with any of the family affairs of plaintiffs and defendant Nos.1 to 7. He denies the suggestion of sale transactions has taken place in respect of suit item No.1 from 1947 to 1973. He has answered that Sompamma (1^st defendant) had purchased suit item No.1 from Thimmaiah to the extent of 1 acre 5 guntas. He has further answered that he is residing near the house of plaintiffs in

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Heggadadevanahalli. He has answered that Mayadasappa, Byramma are not residing in Heggadadevanahalli. Sompamma and her children are residing in Heggadadevanahalli. He admits that in respect of a vacant space between his house and Sompamma’s house, there is a dispute and in this regard he has approached the police. He has further answered that defendant Nos.1 to 5 have constructed a house, but he has not filed any civil suit. He also admits that the land in Khaneshumari Nos.58 and 34 are part of jodidar inam land. He admits that the persons who are in possession of the property would be entered in the revenue records in respect of jodidar inam lands. He denies that Sy.Nos.58 and 34 are not the ancestral properties. He denies the suggestion that since he had a dispute against the defendant Nos.1 to 5, he has tendered false evidence to support the plaintiffs on account of enmity.

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On behalf of defendants, son of Huchaiah by name Krishnappa is examined as D.W.1. He has filed an

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affidavit in lieu of his examination in chief wherein he has reiterated the contents of written statement in verbatim.

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In his further examination in chief he has

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marked the certified copy of the mortgage deed as Ex.D.1 and certified copy of the sale deeds at Exs.D.2 to D.8. He has produced the RTC extract in respect of the suit item No.1 at Ex.D.9 and the tax paid receipt at Exs.D.10 , Ex.D.11 and D12 are mutation register extracts and Ex.D.13 and 14 are assessment register extracts in respect of suit item No.2 of the property. Ex.D.15 and D16 are tax paid receipts in respect of suit item No.2.

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In his cross-examination, he admits that his grand father's name is Mayanna. Mayanna’s father's name is Huchaiah and his great grand father has four sons, but no daughter. He denies the suggestion that Huchappa had a daughter by name Mayamma. He has admitted that Huchaiaha’s children are Mayanna, Pullaiah, Varadaiah and Helavaiah. He admits that Pullaiah’s daughter name is

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Byramma, who is the first plaintiff. He also admits that Mayanna had sons by name Huchappa, Mayadasappa, Appanna, Ganga Mayamma, Lakkamma and Byramma. He also admits that Mayanna is also called Maya Dasappa. He denies the suggestion that second plaintiff Dasappa is also called Maya Dasappa. He admits that suit properties were jointly cultivated by Mayanna, Dasappa, Huchaiah and Appaiah and it was the joint family properties earlier. He denies the suggestion that the properties were not partitioned and he has volunteer to say that properties were partitioned and sold and no properties are now available for partition. He has specifically answered that on 02.04.1947, the suit item No.1 in Sy.No.75/1 was mortgaged and he was not born at that point of time. However, he has answered that he has gone through the contents of the said mortgage deed and then he has deposed before the Court.

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25. He has answered that for the said mortgage

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deed second plaintiff has signed. He also admits that his father Pullaiah has not signed, because he was no more at the time of execution of Ex.D.1. He further answered that first plaintiff Byramma was young and therefore she was not signed and nobody has signed as her guardian. He answered that suit item No.1 was succeeded to by the joint family from the ancestors and his great grand father. Among the four sons of his great grand father, Helavaiah and Vardaiah are no more and they died issueless. He admits that first plaintiff Byramma is Pullaiah’s sole daughter. He admits that second plaintiff is his junior uncle. He also admits that the suit properties were not partitioned among his grand father Mayanna and his children. He also admits that his father Huchaiah and his uncle Mayadasappa also did not partition the suit property. He denied the suggestion that plaintiffs have not signed to the alienations made in respect of the suit properties. He denies the suggestion that even on the date of cross-

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examination of D.W.1, the properties are being enjoyed by the plaintiffs and defendant Nos.1 to 7 jointly as a joint family property. He further denies that as on the date of cross-examination of D.W.1, the suit items were still standing in the joint family. He admits that 25 guntas of land in suit item No.1 is standing in the name of defendant No.8 Veerabhadrappa. He further admits that plaintiffs have not sold suit item No.1 either to himself or his sister or his mother or for that matter to eighth defendant.

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A specific question that there is no document to establish that there was a partition between plaintiffs and defendant Nos.1 to 7, this witness has answered that, even before the partition took place, the parents of Mayadasappa, his uncle and another Maya Dasappa have sold the property. He has further answered that on 02.04.1947 Maya Dasappa and his mother and Putta Byrappa have sold 2 acres 10 guntas of land through a registered sale deed. He admits that in the said sale deed

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it has been mentioned as “Kraya Bhogya”. He denies the suggestion that thereafter the mortgage was redeemed and the property was come back to the joint family. He denies the suggestion that on 16.04.1956, the same property was repurchased for and on behalf of the joint family and thereafter, the property was enjoyed as a joint family property.

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The above evidence on record is sought to be reappreciated. Placed on the above evidence, the trial Court heard the parties and dismissed the suit of the plaintiffs holding that the plaintiffs have failed to establish that the suit properties are available for partition.

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Being aggrieved by the same, the present appeal has been filed by raising following grounds:

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The appellants submit that the relationship between the parties is not in dispute and the same is referred to in the impugned judgement.

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The appellants submit that the evidence adduced on behalf of the appellants is cogent and clear and

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the documents produced on behalf of the appellants as plaintiffs at exhibits P1 to P14 are crystal clear to demonstrate that the suit schedule properties are the ancestral properties of the appellants and the respondents 1 to 7. In addition, the 4^th respondent who has given evidence as DW-1 in support of defendants 1 to 5 has clearly admitted the relationship between the parties and the nature of the properties.

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The appellants submit that the RTCs and the

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Kaneshumari extracts are produced by the appellants in respect of the suit schedule properties. The 1^st respondent's name is found in the RTC extract. The entry of the name of the 1st respondent in respect of the 1st Item of the suit schedule is on the basis of certain documents which are made within the family. Those documents does not confer absolute right and title in favour of the 1^st respondent.

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The appellants submit that DW-1 has admitted in his cross-examination the relationship between the parties. DW-1 has further admitted in his crossexamination that the suit schedule 1^st Item was being cultivating jointly and it was the joint family property. When questioned about the right and

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share of the appellants, DW-1 has replied that there is no property left over for partition. This witness has further admitted that the 1st appellant's father had not signed the mortgage deed and the 2nd appellant is not a party for sale of the 1st item of the suit schedule properties.

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� The appellants submit that they have produced relevant documents in support of their case and the evidence on record has not been appreciated by the learned Trial Judge. The trial court has not considered the positive evidence on behalf of the appellants and where as adverse inference is drawn in favour of the respondents. The inference in favour of the respondents is against to the evidence on record. The appellants have suffered injustice through the judgement and decree in dismissing the suit. The judgement and decree impugned in this appeal is against to the facts, evidence and probabilities of the case. The entire family background of the joint family of the appellants and the respondents 1 to 7 has not been taken into consideration by the Trial Court in dismissing the suit.

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The appellants submit that the impugned judgement and decree is against to equities and natural justice

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and liable to be set aside. The impugned judgement and decree is not sustainable in law as the same is against to the evidence on record. The impugned judgement and decree is also otherwise opposed to law and procedure and liable to be set aside. It is just and necessary to set aside the impugned judgement and decree by allowing this appeal and decreeing the suit in terms of the prayer made in the plaint.

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The appellants submit that they crave for leave to urge any other legal ground/s in support of their case at the time of hearing this appeal on merits.

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Reiterating the grounds urged in the appeal memorandum, Sri Ravi H.K., learned counsel representing the appellants, vehemently contended that the Trial Court has grossly erred in dismissing the suit of the plaintiffs by holding that no properties are available for partition. He also pointed out that though sale deeds have taken place in favour of different persons, later on the joint family repurchased the properties and thereafter, the properties are being enjoyed by the parties jointly and there is a presumption available under law that there is a joint family

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and the relationship between the plaintiffs and defendant Nos.1 to 7 having been admitted, the Trial Court ought to have decreed the suit of the plaintiffs to the extent of the Pullaiah’s share and therefore, sought for allowing the appeal.

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Per contra, Sri Vijaya Krishna Bhat, learned counsel representing respondent Nos.2 to 5 contended that the suit properties were originally belongs to Huchaiah, who had four sons. Among them, the father of the plaintiffs namely Pullaiah had a share. It is found from the records that Vardaiah and Helavaiah who are also sons of late Huchaiah have sold the property, which has been repurchased by individual members of the family and therefore, it cannot be construed as the joint family properties.

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He also pointed out that the first sale transaction took place in the year 1953 by then, second plaintiff had attained majority and therefore, he should have questioned

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the sale deed that had executed in the year 1953 and 1956 itself. Last sale deed took place in the year 1973. Having not questioned the sale deed executed in the year 1953 and filing the suit by the second plaintiff along with his sister in the year 1999 is totally time barred and none of the sale deeds have been questioned by the plaintiffs and there was a total silence between 1973 and 1999 and as such, plaintiffs relief if any, besides being the plaintiffs do not have any right in respect of the suit properties and sought for dismissal of the appeal.

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In view of the rival contentions of the parties,

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following points would arise for consideration.

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Whether the plaintiffs have made out a case for decreeing the suit as prayed for?

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Whether the impugned Judgment is suffering from legal infirmity or perversity and thus calls for interference?

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What order?"

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In the plaint it has been contended that

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plaintiffs and defendants 1 to 7 formed joint family.

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Instead of examining the first plaintiff or second plaintiff on behalf of the plaintiffs as referred to supra, one D. Keshava Murthy is examined as P.W.1. P.W.1 did not possess any personal knowledge as to the affairs of the family. In his cross examination it is elicited that he is not aware of personal aspects of the family of the plaintiffs. It is also elicited in his cross examination that he does not know the transactions that took place in respect of the suit item No.1 of schedule property.

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Nothing prevented Smt.Byramma, first plaintiff who is the daughter of Pullaiah or second plaintiff who is the son of Mayanna to be examined before the Court as witnesses. Infact second plaintiff (son of Mayanna) was the best person to speak about as he was born in the year 1935 and he was fully aware of the transactions in respect of the suit properties. Assuming that he was born in the year 1935 he attained majority in the year 1953. The first sale that took place in respect of portion of the suit item

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¶168

No.1 was in the year 1953. Therefore, second plaintiff ought to have challenged the said sale deed atleast in the year 1956 i.e., three years after second plaintiff attained majority. Age of the first plaintiff is not forthcoming clearly and answer is elicited in the cross examination that first plaintiff got married 50 years earlier and she is living in Magadi. Further, there are number of registered transactions that has taken place in respect of the suit schedule item No.1 of the property from the year 1947 to 1973. None of these transactions are questioned by the plaintiffs.

¶169

A legal notice came to be issued in the year 1999. The same is marked at Ex.P.3. Admittedly legal notice was not served on defendant Nos.1 to 7 and returned undelivered covers are also not before the Court. What prompted the plaintiffs to issue legal notice only in the year 1999 is also not forthcoming from the plaint. Cause of action in the plaint reads as under:

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¶171

"10. The cause of action for this suit arose on 10.01.1999 when the Plaintiffs held panchayat and demanded partition of the suit schedule properties in which meeting the Defendants deliberately avoided for partition and did not show any interest thereafter and subsequently on 17.02.1999 when the attention of the Defendants was drawn through issue of legal notice."

¶172

It is very vague in nature. When registered transactions have taken place in respect of the portion of the suit schedule item No.1 of the property in different years, it is deemed public notice. Therefore, plaintiffs cannot plead that the properties are still available for partition. RTC extracts on behalf of the plaintiffs did not establish that the suit schedule item No.1 is still standing in the joint family. On the contrary, the number of transactions that have taken place and transfer of revenue entries thereof would clearly establish that there was disruption of joint family long ago. No doubt, an admission is obtained in the cross examination of D.W.1 that there is no partition in the family. But that itself

¶173

¶174

would not be sufficient enough for the plaintiffs to claim a share in the property inasmuch as even though there was no partition as admitted by D.W.1 the entire suit schedule properties were sold in bits and pieces and are reconveyed to the defendants and infact eighth defendant is one such purchaser who purchased suit schedule property. Further in respect of suit schedule item No.2, the same is two houses.

¶175

Admittedly, revenue entries are standing in the name of defendants, not in the name of plaintiffs at any given point of time. There is an admission in the cross examination that these two houses are built on Khaneshumari Nos.58 and 34. These two Khaneshumari vacant sites were formed part of Jodidar Inamti land. Therefore, except the revenue entries no other documents would be available. It is also admitted in the cross examination that the revenue authorities collected taxes from the occupants and their names would be entered in

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¶177

the revenue records after verification by the revenue authorities.

¶178

Admittedly, suit schedule item No.2 is entered in the individual names since it is two house properties, first plaintiff residing in Magadi and second plaintiff residing in Bangalore from the year 1967 and that they could not have claimed that these two properties are joint family properties and available for partition. Infact, the Trial Court has recorded a finding that even though plaintiffs were successful in establishing that they were members of the joint family, but suit schedule properties are not available for partition and therefore, dismissed the suit of the plaintiffs.

¶179

On re-appreciation of the entire materials on record, this court is of the considered opinion that no other material is there on record which the Trial Court has ignored while reaching out a finding when properties are not available for partition, plaint should fail. Further, long

¶180

¶181

silence with regard to alienation that has taken place in respect of suit schedule item No.1 of the property and not claiming any right, title and interest in respect of item No.2 of the suit schedule properties non-suited the plaintiffs.

¶182

Therefore, even after re-appreciation of the entire material on record this court is of the considered opinion that the trial court has rightly recorded the finding and dismissed the suit of the plaintiffs which requires no interference by this court. Accordingly, points are answered and following order is passed:

¶183

ORDER

¶184

Appeal is meritless and it is hereby dismissed. No order as to costs.

¶185

Sd/JUDGE

¶186

MR/SBN

Smt Byramma v. Smt Sompamma

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Smt Byramma v. Smt Sompamma

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