Dismissed

Sri. Pujari Channabasappa v. Sri. Pujari Basavalingappa

Karnataka HC7 Sept 2023RSA/367/2016

Case brief

AI extract

What is this about?

Second appeal challenging a lower appellate court's decree confirming joint ownership between brothers. The High Court held that the lower court correctly applied cross-objection rules barring challenge to unobjected findings. The property was deemed ancestral joint family property, and the trial court's finding of brotherhood was upheld as evidence-based.

What did the court decide?

The appeal was dismissed and the judgment and decree of the First Appellate Court were confirmed.

Sri. Pujari Channabasappa Vs Sri. Pujari Basavalingappa — Partition | Karnataka HC (2023)

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1 - NC: 2023:KHC:32228 RSA No. 367 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 7^TH DAY OF SEPTEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE ASHOK S.KINAGI

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REGULAR SECOND APPEAL NO. 367 OF 2016 (PAR)

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BETWEEN:

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SRI. PUJARI CHANNABASAPPA SINCE DEAD BY HIS LEGAL REPRESENTATIVES,

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SRI. M.C. BASAVARAJU, S/O LATE PUJARI CHANABASAPPA, AGED ABOUT 65 YEARS, SINCE DEAD REP BY HIS LR'S

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1(A) SMT. SANNARAJAMMA W/O LATE M.C. BASAVARAJU @ M.C.P. BASAVARAJAPPA AGED ABOUT 48 YEARS

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Digitally signed by R DEEPA Location: High Court of Karnataka

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1(B) KUM. NIRANJINI B D/O LATE M.C. BASAVARAJU @ M.C.P. BASAVARAJAPPA AGED ABOUT 20 YEARS

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1(C) SRI. NIJAGUNA B D/O LATE M.C. BASAVARAJU @ M.C.P. BASAVARAJAPPA AGED ABOUT 18 YEARS

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1(A) TO 1(C) ARE R/AT MANIKYAPURAM VILLAGE DMG HALLI, ELAWALA HOBLI MYSURU TALUK AND DISTRICT – 570 026

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1(D) SMT. GURUMALLAMMA D/O LATE M.C. BASAVARAJU @ M.C.P. BASAVARAJAPPA AGED ABOUT 41 YEARS R/AT No.88 SHETTANAYAKANAHALLI VILLAGE ELAWALA HOBLI MYSURU TALUK AND DISTRICT – 570 026

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SRI. KADABASAPPA S/O LATE PUJARI CHANNABASAPPA, AGED ABOUT 62 YEARS,

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SRI. MAHADEVAPPA S/O LATE PUJARI CHANNABASAPPA, AGED ABOUT 52 YEARS,

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APPELLANTS No.1 TO 3 ARE R/AT MANIKYAPURA VILLAGE, ILAWALA HOBLI, MYSORE TALUK-571130

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SMT.BASAMMANNI W/O YADALLI MALLAPPA, AGED ABOUT 52 YEARS, YEDAHALLI VILLAGE, JAYAPURA HOBLI, MYSORE TALUK-570 001.

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SMT.GOWRAMMA W/O SIDDARAJU, AGED ABOUT 47 YEARS, PADUVARAHALLI MYSORE-570 001.

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SMT. KEMPAMMA AGED ABOUT 38 YEARS, MARRAYYAINA HUNDI, ILWALA HOBLI, MYSORE TALUK-571 130

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…APPELLANTS

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[BY SRI. G BALAKRISHNA SHASTRY, ADVOCATE]

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3 - NC: 2023:KHC:32228 RSA No. 367 of 2016

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AND:

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SRI. PUJARI BASAVALINGAPPA S/O POOJARI MADAPPA, SINCE DECEASED REPRESENTED BY HIS LEGAL REPRESENTATIVE

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SMT. MAHADEVAMMA, W/O LATE PUJARI BASAVALINGAPPA, AGED ABOUT 88 YEARS,

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SRI. BASAVARAJU S/O LATE PUJARI BASAVALINGAPPA, AGED ABOUT 60 YEARS,

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SMT. NANJAMANAMMA D/O LATE PUJARI BASAVALINGAPPA, AGED ABOUT 55 YEARS,

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SMT. SHIVAMMA D/O LATE PUJARI BASAVALINGAPPA, AGED ABOUT 52 YEARS,

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SIR. NAGARAJU S/O LATE PUJARI BASAVALINGAPPA AGED ABOUT 47 YEARS,

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RESPONDENT 1 TO 5 ARE R/AT MANIKYAPURA VILLAGE, D.M.G. HALLI POST, YELAWALA HOBLI, MYSURU TALUK-570 026

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…RESPONDENTS

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[BY SRI. K. MURTHY, ADVOCATE FOR R1(A TO D) SRI. RAVISHANKAR S. ADVOCATE FOR R1 TO R5]

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THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 27.11.2015 PASSED IN RA.NO.571/2011 ON THE FILE OF THE VII ADDL. DISTRICT JUDGE, MYSURU, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED

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18.07.2011 PASSED IN O.S.NO.1386/2006 ON THE FILE OF IV ADDL. SENIOR CIVIL JUDGE, MYSURU.

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

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JUDGMENT

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This second appeal is filed by the appellants challenging the judgment and decree dated 27.11.2015, passed in R.A.No.571/2011 by the VII Addl. District Judge, Mysuru, reversing the judgment and decree dated 18.07.2011 passed in O.S.No.1386/2006 by the IV Addl. Senior Civil Judge, Mysuru.

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Parties are referred to as per their ranking before the trial Court. The appellants are the legal representatives of the defendant and respondents are the legal representatives of the plaintiff.

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The brief facts leading rise to filing of this appeal are as under:

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The deceased plaintiff filed a suit for partition and separate possession against the deceased defendant. It is

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the case of the plaintiff that the plaintiff and defendant are

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the sons of one Pujari Madappa and they had two brothers. They constituted joint Hindu family. Subsequently, two brothers namely Nanjappa and Madappa died before their marriage and later Pujari Madappa also died. The mother of plaintiff and defendant also died long back. The plaintiff and defendant are surviving members of their family and they are the legal heirs of Pujari Madappa. The joint family possessed agricultural lands and house properties. The suit schedule property is one among them. After the death of their father and their brothers, the plaintiff and defendant got orally partitioned their joint family properties except the suit schedule property which was in joint possession and enjoyment of the plaintiff and defendant. The defendant being the elder brother of the plaintiff, khatha of the suit schedule property stood in his name. Taking undue

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advantage of the entries in the khatha, the defendant was making arrangement to sell the suit schedule property without the knowledge of the plaintiff. The plaintiff came

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to know of the fraudulent act of the defendant and

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demanded for partition of the suit schedule property. But the defendant refused to effect partition of the suit schedule property. The plaintiff got issued a legal notice to the defendant demanding partition of the suit schedule property. The defendant even after receiving the legal notice, has not effected partition. Hence, cause of action arose for the plaintiff to file the suit.

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Defendant filed written statement denying the relationship of the plaintiff with the defendant and contended that the plaintiff is not the brother of the defendant. He is a stranger to the family and he is not the son of Pujari Madappa, but he is the son of one Yadalli Madappa. He has nothing to do with the family of the defendant. The suit schedule property is the self-acquired property of the defendant and not the ancestral joint family property as claimed by the plaintiff in the plaint. It is denied that the plaintiff is in joint possession and enjoyment of the suit schedule property along with the

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defendant. It is contended that the defendant had purchased the suit schedule property from one Gowramma on 29.11.1990. Ever since the date of purchase, he is in exclusive possession and enjoyment of the suit schedule property. Hence the plaintiff has no right to claim share in the suit schedule property. It is contended that the defendant replied to the legal notice and that there is no cause of action to file the suit and prayed to dismiss the suit.

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The Trial Court, on the basis of the above said pleadings, framed the following issues:

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1. Whether the plaintiff proves that suit schedule properties are ancestral and joint family properties of plaintiff and defendant?

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1. Whether the plaintiff proves that himself and defendant are in joint possession of the suit schedule property?

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1. Whether the defendant proves that it is his self acquired property?

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1. Whether the plaintiff is entitled for ½ share in the suit property?

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1. What order or decree ?

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Plaintiff examined himself as PW-1 and two

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witnesses as PW-2 & PW-3 and got marked 15 documents as Exs.P1 to P15. Defendant examined one witness as DW-1 and got marked 16 documents as Exs.D1 to D16. The trial Court considering the oral and documentary evidence of the parties, answered issue Nos.1, 2 and 4 in negative, issue No.3 in affirmative and consequently dismissed the suit of the plaintiff vide judgment dated 18.07.2011.

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The plaintiff aggrieved by the judgment and decree passed in the above said suit, filed an appeal in R.A.No.571/2011. During the pendency of the appeal, the plaintiff filed an application in I.A.No.2 for production of additional evidence under Order 41 Rule 27 r/w Section 151 CPC. The legal representative No.2 of deceased defendant also filed an application in I.A.No.3 for production of additional evidence under Order 41 Rule 27 r/w Section 151 CPC. During the pendency of the appeal,

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the plaintiff died and his legal representatives came on record.

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The First Appellate Court, after hearing the

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parties, has framed the following points for consideration:

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1) Whether the appellant has urged valid grounds in I.A.No.2 filed under Order XLI Rule 27 r/w Section 151 CPC for this Court to permit him to adduce further evidence ?

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2) Whether the respondent has urged valid grounds in I.A.No.3 filed under Order XLI Rule 27 r/w Section 151 CPC for this Court to permit him to adduce further evidence?

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3) Whether the impugned judgment and decree of the lower Court is opposed to law, facts and circumstances of the case and interference of this Court is necessary?

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4) What order?

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The First Appellate Court, after re-appreciating the oral and documentary evidence, answered point Nos.1 and 2 in negative and point No.3 in affirmative and consequently allowed the appeal and set aside the judgment and decree passed by the trial Court and

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consequently decreed the suit of the plaintiff. It is ordered and decreed that the plaintiff is entitled for partition and separate possession of his ½ share in the suit schedule property by metes and bounds and the legal representatives of deceased defendant are together entitled for the remaining ½ share in the suit schedule property. The legal representatives of defendant, aggrieved by the judgment and decree passed by the First Appellate Court, have filed this second appeal.

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This court admitted the appeal on the following substantial question of law :

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1) Whether lower appellate court has erred in law holding that the appellants in this appeal are not entitled to challenge the finding recorded by the trial Court as regards the relationship of the plaintiffs and defendants as brothers as it is opposed to the provisions of Order XLI Rule 22 of CPC?

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2) Whether the lower appellate court is justified in concluding that the suit schedule property is not self acquired property of the defendants and by holding that it is a joint family property has committed an error opposed to the oral and documentary evidence on record?

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3) Whether the finding of the trial Court is justified in coming to a conclusion with regard to the relationship of plaintiffs and defendants as brothers, as the same is arbitrary and perverse and opposed to oral and documentary evidence on record?

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Heard learned counsel for the parties.

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Learned counsel for the legal representatives of the defendant submits that the First Appellate Court has committed an error in recording a finding that there exist a relationship of plaintiff and defendant as brothers and he further submits that the suit schedule property is not the joint family property of the plaintiff and defendant. He submits that the defendant has purchased the suit schedule property under registered sale deed dated 29.11.1990, as per Ex.D8. He submits that it is the selfacquired property of defendant. Hence, the plaintiff has no right to claim a share in the suit schedule property. He submits that the plaintiff has failed to establish the relationship with the defendant as brothers. Hence, on these grounds, prays to allow the appeal.

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Learned counsel for the legal representatives of plaintiff submits that the plaintiff has proved the relationship with the defendant as brother by producing Ex.P4 and P5. Ex.P4 is the certified copy of the registered mortgage deed wherein the father's name of plaintiff is shown as Pujari Madappa and Ex.P5 is the certified copy of the registered sale deed jointly executed by the plaintiff and defendant on 23.09.1996, wherein the father's name of plaintiff is shown as Pujari Madappa. He submits that the defendant is also a signatory to Ex.P4 and P5. Hence

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the defendant has admitted that plaintiff is the son of Pujari Madappa and brother of the defendant. Hence, the fact admitted need not be proved as per Section 58 of the Indian Evidence Act, 1872. He further submits that the defendant filed a suit in O.S.No.34/1999 against the plaintiff for the relief of permanent injunction. The said suit came to be dismissed and in the said judgment, the

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trial Court has recorded a finding that the plaintiff and defendant are close relatives. He submits that the said finding has not been challenged by the defendant and the

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same has attained finality and the said finding is binding on the defendant. Hence, on these grounds, prays to dismiss the appeal.

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Perused the records and considered the

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submissions of learned counsel for the parties.

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SUBSTANTIAL QUESTION OF LAW NO.1 : It is the

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case of the plaintiff that plaintiff and defendant are the sons of Pujari Madappa and partition was effected in between the plaintiff and defendant in respect of agricultural lands and house properties, except the suit schedule property. The plaintiff demanded for partition and separate possession, but the defendant refused to effect partition. The plaintiff in order to prove his case, examined himself as PW-1 and reiterated the plaint averments in the examination-in-chief and produced Ex.P1, the RTC extract in respect of suit schedule property

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for the year 2005-06 which stands in the name of the defendant. Ex.P2 is the copy of reply notice issued by defendant to the plaintiff. Ex.P3 is the RTC extract in

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respect of suit land which stands in the name of one of the brother of plaintiff and defendant. Ex.P4 is the copy of the mortgage deed executed by plaintiff and defendant jointly mortgaging the suit schedule property. Ex.P5 is the registered sale deed dated 23.09.1996, which discloses that the plaintiff and defendant have jointly sold the land bearing Sy.No.40/3. Ex.P6 is the mutation extract. Ex.P7 is the RTC extract in respect of suit schedule property which stands in the name of defendant and Ex.P8 & P9 are the RTC extracts in respect of Sy.No.35 which stands in

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the joint names of plaintiff and defendant. Ex.P10 is the judgment passed in O.S.No.34/1999, filed by the defendant and son of the defendant against the plaintiff for permanent injunction and said suit came to be dismissed vide judgment dated 20.02.2006. Ex.P11 is the election identity card of the plaintiff which discloses that his father's name is Pujari Madappa. Ex.P12 is the ration card of the plaintiff, Ex.P13 is the pension certificate of the plaintiff and Ex.P14 is the certified copy of the voter's list issued by the Tahsildar which discloses the name of

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plaintiff's father as Pujari Madappa. Ex.P15 is the certified copy of the plaint in O.S.No.572/2010, filed by one Gurumallamma against the plaintiff and defendant, wherein in the cause-title, the father's name of the plaintiff is shown as Pujari Madappa. From the perusal of Ex.P4, the plaintiff and defendant jointly executed the mortgage deed on 11.10.1961 and Ex.P5 is the registered sale deed jointly executed by plaintiff and defendant on 23.09.1966, wherein the father's name of plaintiff is shown as Pujari Madappa in both the documents. Defendant and his son

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filed a suit against the plaintiff in O.S.No.34/1999 on the file of II Addl. Civil Judge (Jr.Dn.) & JMFC, Mysore. The trial Court after recording the evidence of the parties, has recorded a finding that "further it is clear that plaintiff No.1 and defendant have partitioned the properties being nearest relatives".

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Though the defendant has denied the

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relationship of plaintiff with the defendant, but the plaintiff has produced the document Ex.P15, copy of plaint in

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O.S.No.572/2010 wherein one Smt. Gurulingamma, the family member of the plaintiff and defendant filed a suit for partition and separate possession. In the said suit, the plaintiff was arrayed as defendant No.6 wherein his father's name has been shown as Late Pujari Madappa. The defendant in rebuttal has not produced any records to show that the plaintiff is not the son of Late Pujari Madappa. The trial Court dismissed the suit of the plaintiff on the ground that the suit schedule properties are not the joint family properties of plaintiff and defendant and originally the name of the defendant appears as per MR No.2/1991 and further recorded a finding that the plaintiff has not disclosed about the properties fallen to his share

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in the oral partition. The plaintiff aggrieved by the judgment and decree passed by the trial Court, preferred an appeal in R.A.No.571/2011. Though the defendant did not file any cross-appeal or objections challenging the finding in regard to the plaintiff is the son of Late Pujari Madappa. In order to consider the said aspect, it is

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necessary to consider Order 41 Rule 22 of CPC which reads as under:

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" 22. Upon hearing respondent may object to decree as if he had preferred a separate appeal .

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(1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection to the decree which he could have taken by way of appeal provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.

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(2) Form of objection and provisions applicable thereto.—Such cross-objection shall be in the form of a memorandum, and the provisions of rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.

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(3) *****

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(4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for

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default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit.

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(5) The provisions relating to appeals by indigent persons shall, so far as they can be made applicable, apply to an objection under this rule."

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Rule 22 provides that though respondent has not

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filed appeal or cross-objections to the decree which he could have taken by way of appeal, may object to the decree as if he has preferred a separate appeal. The respondent may support a decree in the appeal without filing cross-objection, but cannot have the portion of the decree reversed which had been denied him and the relief claimed by him in the suit without preferring crossobjections or an independent appeal. The defendant accepted the findings of the trial Court and acted upon on the part of the impugned judgment. The defendant cannot be permitted to challenge the findings recorded by the trial

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Court in the absence of cross-objection. In view of the

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above discussion, I answer substantial question of law

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No.1 in the negative.

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SUBSTANTIAL QUESTION OF LAW NO.2 : It is the

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case of the plaintiff that the defendant being the elder brother and got khatha in his name and started claiming to be the absolute owner of the suit schedule property. It is the case of the plaintiff that the suit schedule property is the ancestral and joint family property of plaintiff and defendant. In order to prove that the suit schedule property is the ancestral and joint family property, produced Ex.P4, the mortgage deed dated 11.10.1961 wherein the suit schedule property was mortgaged in favour of one Basavaiah for Rs.400/- and both plaintiff and

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defendant have received the mortgage money. From the recital of Ex.P4, it is clear that the suit schedule property is the ancestral and joint family property of plaintiff and

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defendant. When parties have produced the document, the Court is required to give much weightage to the documentary evidence rather than the oral evidence.

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Ex.P5 is the registered sale deed executed by the plaintiff and defendant in favour of Sakamma for consideration of

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Rs.1,000/- in respect of land bearing Sy.No.40/3 and vacant site which was the ancestral property. In Ex.P5 there is a clear recital that the property was sold in order to redeem the earlier mortgage in respect of suit schedule property executed in favour of Basavaiah. The defendant has produced Ex.D9, certified copy of the registered sale deed dated 29.05.1980, executed by the defendant, his son Basavarajappa and also his children from second wife,

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namely, Kadabasappa and Madappa, for having sold 22 guntas out of the entire extent of 1 acre 2 guntas in favour of one Gowramma. The remaining extent was retained.

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Later on, both plaintiff and defendant had redeemed the usufructuary mortgage which they jointly executed under Ex.P4. Later on, said Gowramma re-conveyed the said land in favour of the defendant under registered sale deed dated 29.11.1990. The defendant taking undue advantage as the elder member of the family, executed a registered sale deed as per Ex.D9 depriving the legitimate right of

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the plaintiff in the suit schedule property. The First Appellate Court considering Ex.P4 & P5 and Ex.D8 & D9 has rightly held that the suit schedule property is not the self acquired property of the defendant and it is the joint family property of the plaintiff and defendant. The defendant has not produced any record to show that the property under Ex.D9 was purchased out of his own income. On the contrary, the plaintiff has established that there was a nucleus for purchasing the portion of suit land under Ex.D8. In view of the above discussion, I answer substantial question of law No.2 in the affirmative.

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19. SUBSTANTIAL QUESTION OF LAW NO.3 : The trial

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Court recorded a finding that father name of the plaintiff is Pujari Madappa and not Yeddhalli Madappa. The trial Court placing reliance on the evidence of PW-2 and PW-3 who are acquainted with the family of the plaintiff and defendant and Ex.P4 & P5 which are the documents executed about 30 years back, and the documents executed about 30 years back, presumption has to be

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drawn under Section 90 of the Indian Evidence Act, 1872. Further, as per Section 50 of the Indian Evidence Act, 1872, the Court has to form a opinion as to the relationship of one person to another, the opinion, expressed by conduct or a person who as a member of the family or otherwise, has a special means of knowledge on the subject is a relevant fact. PW-2 and PW-3 who are acquainted with the family of the plaintiff and defendant have deposed about the relationship of plaintiff with deceased Pujari Madappa. The trial Court was justified in

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placing reliance on the document Ex.P4, P5 and the evidence of PW-2 and PW-3 and come to a conclusion with regard to relationship of plaintiff and defendant as brothers. The findings recorded by the trial Court is based on the material placed on record. In view of the above discussion, I answer substantial question of law No.3 partly in affirmative and partly in negative.

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In view of the above discussion, I proceed to pass the following:

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ORDER

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The appeal is dismissed.

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The judgment and decree dated 27.11.2015, passed in R.A.No.571/2011 by the VII Addl. District Judge, Mysuru, is confirmed.

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No order as to the costs.

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SD/JUDGE

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Sri. Pujari Channabasappa v. Sri. Pujari Basavalingappa

Case brief

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What did the court decide?

Sri. Pujari Channabasappa v. Sri. Pujari Basavalingappa

Case brief

What is this about?

What did the court decide?

What the court decided

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