Dismissed

Sri Jayarama Reddy S/O Late Muniswamappa v. Sri Venkataswamy Reddy S/O Late Muniswamappa

Karnataka HC5 Oct 2023RFA/336/2008

Case brief

AI extract

What is this about?

This first appeal concerns a suit for partition of ancestral property left by the appellant's late father. The appellant contended an earlier oral partition occurred, denying the trial court's decree of a 1/4 share to the plaintiff. The High Court found no substantive evidence for the alleged partition and dismissed the appeal.

What did the court decide?

The appeal is dismissed; no order as to costs; trial court records to be returned.

Sri Jayarama Reddy S/O Late Muniswamappa Vs Sri Venkataswamy… — Partition | Karnataka HC (2023)

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NC: 2023:KHC:36064 RFA No. 336 of 2008

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE V SRISHANANDA REGULAR FIRST APPEAL NO. 336 OF 2008 (PAR)

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Between:

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Sri. Jayarama Reddy S/o. Late Muniswamappa Aged about 59 years Rep. by Smt. Dhanamma W/o. Jayarama Reddy Residing in No.123/2, Opp: Maa Bazaar, Munnekolala Village, Marathalli Post. Bengaluru-560 037.

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…Appellant

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(By Sri. R.S.Prasannakumar, Advocate and Sri. Kushal S.Reddy, Advocate)

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And:

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Digitally signed by R MANJUNATHA Location: HIGH COURT OF KARNATAKA

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Sri Venkataswamy Reddy, S/o. Late Muniswamappa Aged about 50 years Residing in No.123/1, Opp: Maa Bazaar, Munnekolala Village, Marathalli Post. Bengaluru-560 037.

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Muni Reddy S/o. Late Muniswamappa Adult Residing of No.123/3, Opp: Maa Bazaar, Munnekolala Village, Marathalli Post. Bengaluru-560 037.

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Pilla Reddy S/o. Late Muniswamappa Adult

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Residing in No.82, Salavardha Annaya Reddy Layout Rama Murthy Nagar Road Doddabanasavadi Post Bengaluru-560 043.

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…Respondents

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(By Sri. S.G.Parthasarathy, Advocate for R1 to R2 R3 - served)

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This RFA is filed u/s 96 read with Order XLI Rule 1 of the CPC 1908, against the judgment and order dated 26.08.2006 passed in OS No.3537/02 on the file of the XVIII Additional City Civil Judge, (CCH.No.32) Bengaluru, decreeing the suit for partition and separate possession and mesne profits..

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This RFA coming on for hearing, this day, the court delivered the following:

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JUDGMENT

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Heard Sri Kiran Gowda, learned counsel

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appearing on behalf of Sri R.S.Prasanna Kumar and Sri Kushal S Reddy, learned counsel for the appellant and Sri S.G.Parthasarathy, learned counsel for respondents No.1 and 2.

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The present appeal is directed against the judgment and decree dated 26.08.2006 passed in O.S.No.3537/2002 by the XVIII Additional City Civil Judge, Bengaluru City (CCH-32).

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NC: 2023:KHC:36064 RFA No. 336 of 2008

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The parties are referred to as plaintiff

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and defendants as per their original ranking in the court below.

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Brief facts which are utmost necessary

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for disposal of the appeal are as under:

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That the plaintiff is one of the sons of Muniyamma and Muniswamappa. Suit property in its whole was owned by Smt. Muniyamma, the mother of the parties who is said to have died intestate, in the year 1972. After the death of Muniyamma, by oral partition, the suit property was divided into 5 portions among the plaintiff and defendants and their father Muniswamappa. Muniswamappa said to have died in the year 2005. After the death of Muniswamappa, in his 1/5^th share which was measuring 10 x 50 feet of the whole property that was owned by Muniyamma, the plaintiff claimed 1/4^th share of what share that Muniswamappa had got in the property measuring

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10 x 50 feet. It is the case of the plaintiff that despite demanding his share of 1/4^th share in 1/5^th share of Munishamappa i.e., 10 x 50 feet property, there was no compliance by the other defendants, which necessitated the plaintiff to file the suit for partition and separate possession.

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Upon the service of suit summons, the suit was resisted by the contesting defendant, namely, Jayarama Reddy, who was 3^rd defendant in the court below, on the ground that there was a oral partition soon after the death of Munishamappa and all the children of Munishamappa divided the property of Muniswamappa, amicably amongst themselves and in said oral partition, property to the extent of 11 x 12 feet has fallen to the share of plaintiff and therefore, suit is to be dismissed.

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Based on the rival contentions of the parties, the trial court framed the following issues:

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NC: 2023:KHC:36064 RFA No. 336 of 2008

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1. Whether plaintiff proves that the parties herein constitute Joint Hindu Undivided Family?

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2. Whether plaintiff proves that the suit schedule property are the joint family properties of the parties to the suit?

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3. Whether plaintiff proves that entitled for 1/4^th share in the suit schedule property and separate possession of the same by metes and bounds?

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4. Whether defendants 2 and 3 prove that the suit schedule property was divided among the parties herein in 1974 and have taken possession of the separate shares by metes and bounds?

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5. Whether defendants 2 and 3 prove that defendants No.1, 2 and the plaintiff sold their share to defendant No.3 on 04.11.1989 for valuable consideration?

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6. To what reliefs are the parties entitled to?

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7. To what order or Decree?

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In order to prove the case of the plaintiff,

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the plaintiff got examined himself as PW1 and

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relied on 4 documents which were marked and exhibited as Ex.P1 to P4, i.e., Genealogical tree, certified copy of sale deed dated 06.06.1966, rough sketch and notice issued by the

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‘Nagarasabhe’, Mahadevapura.

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To counter the evidence of the plaintiff, wife of the 3^rd defendant Smt. Dhanamma examined as DW1 and she has relied on one document, namely, the Special Power of Attorney to depose for and on behalf of 3^rd defendant before the court as DW1.

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On conclusion of recording of the

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evidence, the learned trial judge heard the parties in detail and decreed the suit of the plaintiff disbelieving the theory of oral partition after the death of Muniswamappa set up by the 3^rd defendant by granting 1/4^th share in favour of the plaintiff.

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Being aggrieved by the same, the 3^rd defendant has preferred this appeal on the

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following grounds:

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That the judgment under appeal suffers from non consideration of the case of the appellant/third defendant. Infact the trial court do not consider the case of the appellant that the share which fell to the father Muniswamappa was divided orally by him in the year 1974 itself among his four sons. This aspect has not been considered by the trial court, even though a specific issue, issue No.4 is framed.

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The trial court failed to see that a partition of the father's property can be effected orally. Hence, the judgment is illegal.

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The trial court has wrongly understood the case of the second and third defendants by concluding that there is no documentary evidence of relinquishment by the father Muniswamappa. Hence, the judgment is illegal.

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The trial court did not allow the third defendant to mark the documents viz. agreements of sale produced by the third

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defendant/appellant for collateral purposes. Infact the trial court has not made any observations also while recording evidence of DW-1; even though the advocate of the third defendant wanted to mark the documents. Even an un-registered sale deed may be relied upon to prove part performance.

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The trial court has failed to consider all the issues framed and give its findings on each issue as required by law. The trial court has generally discussed the case and has decreed the suit which is highly illegal. By such a procedure the appellant has suffered harm and injury as his case has not been considered properly by the trial court.

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The third defendant/appellant also could not lead his whole evidence both oral and documentary as his advocate did not press for marking of the documents as well as did not take opportunity to lead oral evidence by making proper submissions to the trial court justifying the marking of the unregistered documents for collateral purposes. At that time, the third defendant was suffering from mental ailments from which he has not recovered even today. He

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had given a power of attorney in favour of his wife who is illiterate and could not conduct the case properly. As such all the evidence had not been placed on record. The appellant is making an application seeking permission to lead additional evidence before this Hon'ble court. Hence, the judgment of the trial court is liable to be set aside and the case remanded to the trial court for proper adjudication.

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The Plaintiff has applied for final decree now i.e. F.D.P.No.14/2008. The said case is posted on 28.03.2008 for first hearing. Infact the Plaintiff had on intervention of the elders of the family promised not to precipitate the matter and take further action. He had kept quite from 26.08.2006 till now. It is only now he has filed the application for final decree proceedings at the instigation of others. Hence, if the case is remanded for further trial no harm and injury will be caused to the plaintiff.

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The Plaintiff has not come with clean hands. He has sworn to false affidavit and has produced false documents. Hence, the judgment is liable to be set. aside.

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NC: 2023:KHC:36064 RFA No. 336 of 2008

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The trial court failed to see that the suit schedule land is an agricultural land. At no point of time it has been converted to nonagricultural purposes as per the provisions of the Land Revenue Act. As such the provision order XXVI Rule 13 and 14 of the Code of Civil Procedure, 1908 is not applicable. As such the judgment is illegal. It cannot be given effect to. It is liable to be set aside.

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The suit schedule land measures 10 x 50 feet. The trial court failed to see that it cannot be conveniently divided into four equal parts. The trial court has failed to take into account of the above fact.

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The trial court failed to see that the suit schedule land is not available for partition as it had already been divided and given away. This is amply proved by the conduct of the Plaintiff himself who has not raised any objections for the past more than fifteen years for the possession and enjoyment of the suit schedule land by third defendant/appellant on which the third defendant has constructed a small house. As such the Plaintiff is estopped from seeking partition of the suit land once again.

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Reiterating the grounds urged in the appeal memorandum, Sri Kiran Gowda, learned counsel representing the counsel for the appellant vehemently contended that the trial court has failed to note that the property measuring 11 x 12 feet was allotted in favour of the plaintiff as per the oral partition after the death of Muniswamappa and thereby nothing remains to be partitioned among the parties in respect of 1/5^th share of Muniswamappa possessed in the whole property owned by Smt. Muniyamma.

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He also contended that the parties are in possession and enjoyment of the respective portions of the property as per the oral partition which fact has been properly taken note of by the trial court and while passing the judgment and prays for allowing the appeal.

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Per contra, Sri S.G.Parthasarathy, learned counsel for respondents No.1 and 2,

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supporting the impugned judgment by opposing the appeal and vehemently contended that there is no oral partition as contended by the 3^rd defendant and the plaintiff is not in occupation of 11 x 12 feet of property left behind by Muniswamappa, measuring in all 10 x 50 feet and sought for dismissal of the appeal.

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The 3^rd respondent, namely, Pilla Reddy who is another son of Muniswamappa is served with the appeal notice, but he remained absent.

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In view of the rival contentions, this court perused the material on record meticulously. On such perusal, the following points would arise for consideration:

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1. Whether the appellant has successfully established that after the death of Muniswamappa, there was a oral partition among the sons of Muniswamappa, whereby property to the extent of 11 x 12 feet owned by Muniswamappa has been

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NC: 2023:KHC:36064 RFA No. 336 of 2008

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allotted in favour of the plaintiff and thus suit is not maintainable?

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2. Whether the impugned judgment is suffering from legal infirmity and perversity and thus calls for interference?

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3. What order?

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RE. POINTS NO.1 AND 2:

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In the case on hand, there is no dispute as to the relationship among the parties and so also the fact that Muniyamma was the original owner of the entire property bearing CMC No.177 carved out of Sy.No.7 of Munnekolala village.

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Further, Muniyamma died intestate in the year 1972 and thereafter there was a oral partition among the children of Muniyamma and her husband Muniswamappa, granting 1/5^th share in the entire property to each of the sons and her husband.

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NC: 2023:KHC:36064 RFA No. 336 of 2008

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Muniswamappa said to have died

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intestate, in the year 2005. Thereafter, according to the appellant/3^rd defendant, there was a oral partition. In order to substantiate the said oral partition, except the oral testimony of the wife of the 3^rd defendant, there is no other material on record. Revenue entries are not mutated as per the alleged oral partition in respect of the shares left behind by Muniswamappa.

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Taking note of these aspects of the matter, the plaintiff being one of the sons of Muniswamappa and defendants 1 to 3 being the other sons of Muniswamappa, the learned trial judge, while decreeing the suit, has granted 1/4^th share to the plaintiff in the suit property left behind by Muniswamappa measuring 10 x 50 feet.

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On re-appreciation of the material on record, this court is of the considered opinion that the material on record placed by the parties shows

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that except the oral testimony of the wife of 3^rd defendant Smt. Dhanamma, who is examined as DW1, there is no material on record, which would conclusively establish that there was a oral partition among the children of Muniswamappa, after the death of Muniswamappa in the year 2005 and there is no evidence to show that property measuring 11 x 12 feet has been allotted in favour of the plaintiff as per the oral partition. Admittedly Muniswamappa died intestate leaving behind plaintiff and three brothers as his only legal heirs. They have succeeded equally in respect of estate left behind by Muniswamappa.

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Resultantly the plaintiff being the one of the sons of Muniswamappa is entitled for 1/4^th share in the property left by Muniyamma i.e., 10 x 50 feet.

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In view of foregoing discussion, points No.1 and 2 are answered in the negative.

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NC: 2023:KHC:36064 RFA No. 336 of 2008

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RE. POINT NO.3:

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In view of the findings of this Court on

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points No.1 and 2 as above, the following:

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ORDER

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i. The appeal is merit-less and the same is hereby dismissed .

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ii. No order as to costs.

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Return the trial court records along with copy of this judgment, forthwith.

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Sd/JUDGE

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KMV List No.: 1 Sl No.: 38

Sri Jayarama Reddy S/O Late Muniswamappa v. Sri Venkataswamy Reddy S/O Late Muniswamappa

Case brief

What is this about?

What did the court decide?

Sri Jayarama Reddy S/O Late Muniswamappa v. Sri Venkataswamy Reddy S/O Late Muniswamappa

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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