Partly allowed

Sri M Pampapathy @ Pampanna v. Sri M Sanna Pampapathy

Karnataka HC13 Sept 2024RSA/656/2008

Case brief

AI extract

What is this about?

In this second appeal regarding a suit for declaration of title and injunction, the High Court of Karnataka affirmed the concurrent findings of lower courts. The court held that the defendants successfully proved a reunion of the joint family and an oral partition in 1967-68, allotting the suit property to them. However, the trial court's specific finding on limitation was erroneous and set aside,

What did the court decide?

The appeal is dismissed; the judgments and decrees of the trial and first appellate courts are affirmed, except that the undue finding on limitation is set aside.

Sri M Pampapathy @ Pampanna Vs Sri M Sanna Pampapathy — Partition | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH

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DATED THIS THE 13^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON’BLE MR. JUSTICE C.M. POONACHA

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REGULAR SECOND APPEAL No.656 OF 2008 (DEC/INJ)

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BETWEEN

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SRI. M.PAMPAPATHY @ PAMPANNA AGED ABOUT 75 YEARS OCC: AGRIL R/O PAPINAYAKANAHALLI TQ: HOSPET DIST: BELLARY. DEAD BY HIS LRS.

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1A. SMT. M. LAKSHMIDEVAMMA W/O LATE M. PAMPAPATHY AGED ABOUT 61 YEARS OCC: HOUSE WIFE

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DIED ON 8.6.2022 BY HER LRS.

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1B. SRI. M. CHOLA RAJENDRA S/O LATE M. PAMPAPATHY AGED ABOUT 38 YEARS OCC: EMPLOYEE

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1C. M. RAKESH KUMAR S/O LATE M. PAMPAPATHY AGED ABOUT 33 YEARS OCC: PRIVATE EMPLOYEE.

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1D. KUMARI. CHANDRA KALA D/O LATE M. PAMPAPATHY AGED ABOUT 34 YEARS OCC: PRIVATE EMPLOYEE.

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1E. SMT. M. BHARATI W/O VENKATESH DESAI

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AGED ABOUT 31 YEARS OCC: HOUSE WIFE

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ALL ARE R/O PAPINAYAKANAHALLI TQ: HOSPET DIST, BELLARY

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1F. SMT. M. JAMUNA RANI W/O NAGENDRA KUMAR AGE: 29 YEARS OCC: HOUSE WIFE

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SINCE DIED ON 9.1.2020 BY HER LRS.

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ALL ARE R/O PAPINAYAKANAHALLI TQ: HOSPET DIST; BELLARY

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IF I. SRI. NAGENDRAKUMAR S/O LATE SHIVASHARANAPPA AGED ABOUT 50 YEARS OCC: MEDICAL REPRESENTATIVE

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1F II. SRI. SHIVASHARANA S/O NAGENDRAKUMAR AGED ABOUT 13 YEARS OCC: STUDENT

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1F III. KUMARI. SKINDU D/O NAGENDRAKUMAR AGED ABOUT 11 YEARS OCC: STUDENT APPELLANTS NO.1F(II) AND 1F(III) ARE MINOR REPRESENTED BY THEIR NATURAL GUARDIAN FATHER APPELLANT NO. 1F(I) SRI. NAGENDRA KUMAR S/O LATE SHIVASHARANAPPA AGED ABOUT 50 YEARS OCC: MEDICAL REPRESENTATIVE

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R/O NAVABGAD, GANJ RAICHUR.

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…APPELLANTS

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(BY SRI N P VIVEK MEHTA, ADVOCATE FOR A1(B TO E) AND A(F)(I)

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A1(B TO F) ARE LRS OF DECEASED A1(A A1(F)(II) AND III ARE MINORS R/BY A1(F)(I))

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AND

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SRI. M. SANNA PAMPAPATHY S/O LATE DODDA VEERAPPA AGED ABOUT 52 YEARS OCC: AGRIL R/O PAPINAYAKANAHALLI TQ: HOSPET DIST: BELLARY PIN CODE 583201.

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SINCE DECEASED BY HIS LRS

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1A. SMT. SAROJAMMA W/O M. SANNA PAMPAPATHY AGED ABOUT 58 YEARS OCC: HOME MAKER

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1B. SRI. SURESH METI S/O M. SANNA PAMPAPATHY AGED ABOUT 42 YEARS OCC: AGRICULTURE

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1C. SMT. NIRMALA W/O SHIVAMURTHY D/O M. SANNA PAMPAPATHY AGED ABOUT 45 YEARS OCC: HOME MAKER

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1D. SMT. SARSWATHI W/O VIRUPAХАРРА D/O M. SANNA PAMPAPATHY AGED ABOUT 40 YEARS OCC: HOME MAKER

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ALL ARE R/O PAPINAYAKANAHALLI TQ: HOSAPETE DIST: BALLARI

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SRI. M. PARMESHWARAPPA S/O LATE DODDA VEERAPPA AGED ABOUT 50 YEARS

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OCC: AGRIL R/O PAPINAYAKANAHALLI TQ: HOSPET DIST: BELLARY DEAD BY HIS LRS.

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2A. SMT. METI PARVATAMMA W/O LATE M. PARAMESHWARAPPA AGED ABOUT 62 YEARS OCC: HOUSE WIFE R/O PAPINAYAKANAHALLI TQ: HOPSET DIST; BELLARY.

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2B. SRI. METI. VEERESH S/O LATE M. PARAMESHWARAPPA AGED ABOUT 44 YEARS OCC: EMPLOYEE C/O RURAL POLYTECHNIC COLLEGE POST HULIKOTI DIST: GADAG.

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2C. SRI. METI VIJAY S/O LATE M. PARAMESHWARAPPA AGED ABOUT 41 YEARS OCC: PRIVATE EMPLOYEE R/O PAPINAYAKANAHALLI TQ: HOSPET DIST; BELLARY.

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2D. SRI. METI ASHOK S/O LATE M. PARAMESHWARAPPA AGED ABOUT 38 YEARS OCC: HOUSE WIFE R/O PAPINAYAKANAHALLI TQ: HOPSET DIST; BELLARY.

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2E. SRI. METI ANAND S/O LATE M. PARAMESHWARAPPA AGED ABOUT 34 YEARS OCC: PRIVATE EMPLOYEE R/O PAPINAYAKANAHALLI TQ: HOPSET DIST; BELLARY.

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…RESPONDENTS

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(BY SRI K RAGHAVENDRA RAO AND V VIDYA IYER, ADVOCATES FOR R1(A AND B) EXCEPT VK OF R1(C) AND R1(D) AND R2(A-E))

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THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 27.8.07 PASSED IN R.A.NO 123/06 ON THE FILE OF THE ADDL. CIVIL JUDGE, (SR.DN), HOSPET, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 19.8.06 PASSED IN OS 228/01 ON THE FILE OF THE PRL. CIVIL JUDGE, (JR.DN), & JMFC., HOSPET AND ETC.

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THIS APPEAL HAVING BEEN RESERVED FOR JUDGMENT ON 25.07.2024 COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:-

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CORAM: HON'BLE MR JUSTICE C.M. POONACHA

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CAV JUDGMENT

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The present second appeal is filed under Section 100 of Code of Civil Procedure, 1908¹ by the plaintiff challenging the judgment and decree dated 27.08.2007 passed in R.A. No.123/2006 by the Addl. Civil Judge (Sr.Dn.), Hospet² and the judgment and decree dated 19.08.2006 passed in O.S No.228/2001 by the Prl.Civil Judge (Jr.Dn.) & JMFC., Hospet³ , whereunder, the suit for declaration and injunction filed by the plaintiff has been dismissed by the Trial Court and affirmed by the first Appellate Court.

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The parties will be referred to as per their ranking before the Trial Court, for the sake of convenience.

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1 Hereinafter referred to as ‘CPC’

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2 Hereinafter referred to as the ‘first appellate Court’

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3 Hereinafter referred to as the ‘trial Court’

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It is the case of the plaintiff that he is the absolute owner in possession and enjoyment of the property bearing Sy.No.63A/1, measuring 4.61 acres situated at Papinayakanahalli village, Hospet Taluk⁴ since the date of purchase. That the father of the plaintiff, Pakkirappa had five sons, out of whom, two are alive i.e., the plaintiff and one M.Kumareppa. The defendant Nos.1 and 2 are the sons of late Dodda Veerappa, who is the eldest son of late M.Pakkirappa.

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It is the case of the plaintiff that during the lifetime of M.Pakkirappa i.e., father of the plaintiff, a division took place, whereunder he divided all the family properties and a registered Partition Deed was entered into amongst the sons of said M.Pakkirappa in the year 1961 and since then, the sons of M.Pakkirappa are living separately having their own avocation and the plaintiff and defendants were also living separately.

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That since there were certain moneys due to the father of the plaintiff namely, Pakkirappa he had filed a suit for recovery of money in OS No.7/1962, which was decreed. Thereafter, the said

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4 Hereinafter referred to as the ‘suit property’

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Pakkirappa filed EP No.52/63 to execute the decree passed in the said suit. During the pendency of the execution proceedings, M.Pakkirappa died and his children came on record as his legal representatives and prosecuted the said proceedings. That in the auction that was conducted in EP No.52/63, since there were no purchasers for the properties, the plaintiff purchased the properties that were brought to auction. That in the Court auction, the plaintiff purchased three properties i.e., Sy.No.59/A measuring 0.34 acres, Sy.No.61/A measuring 1.94 acres and Sy.No.63A measuring 5.78 acres and one building situated at Papinayakanahalli. That the total extent of the properties purchased in the auction by the plaintiff was 8.60 acres. 6. Further, out of the said 8.60 acres, the Railway Department acquired 0.34 acres in Sy.No.59A, 0.58 acres in Sy.No.61A and 0.17 acres in Sy.No.63 and after deducting the same i.e., a total extent of 1.09 acres, a balance of 6.97 acres was left. It is further averred by the plaintiff that he made some layouts and sold plots to a few people and he was left with a balance of 4.61 acres, which is the suit property.

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It is the further case of the plaintiff that he filed an application dated 16.3.1999 with the Tahsildar, Hospet requesting him to effect mutation and that after a detailed enquiry, vide order dated 19.3.2001 passed in ME No.27/2000, the application filed by the plaintiff was allowed. Being aggrieved, the defendant Nos.1 and 2 preferred an appeal before the Assistant Commissioner, wherein it was ordered that the plaintiff was to establish his rights in a Civil Court. That since the defendant Nos.1 and 2 were denying the title of the plaintiff and in view of the denial, a cloud was cast on the title of the plaintiff, the suit was filed seeking for declaration of title and the consequential relief of injunction to restrain the defendants from disturbing the lawful possession of the plaintiff over the suit property.

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The defendants entered appearance in the suit and filed written statement denying the case of the plaintiff. It is contended by defendant No.1 that the suit property was jointly purchased by the plaintiff and defendants in the Court action. That the plaintiff being the Manager of the family, purchased the

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properties on behalf of the joint family consisting of the plaintiff and defendant Nos.1 and 2.

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The defendants admit the family partition in the year 1961. However, it is their specific contention that though there was a partition in the family in the year 1961, the plaintiff and defendants along with their mother Laxmamma continued to live jointly up to 1967-68 and that after attaining majority, the defendants started livingly separately and while separating from the family there was an oral division of the properties which were purchased under the execution proceedings and the suit property measuring an extent of 4.61 acres and the house situated in it fell to the share of defendant Nos.1 and 2. That on the basis of the oral partition/division effected in the family in the year 1967-68, the defendants continued to cultivate the said land as owners from the date of partition i.e., 1967-68. That the respective properties purchased under the execution case fell to the share of the plaintiff. That the portion acquired by the Railway Department fell to the share of the plaintiff and he received the entire compensation for the same. That a portion of the property that fell to the share of the plaintiff was sold by making plots. Hence, it is

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contended that the plaintiff has no right or title over the suit property after the division in the year 1967-68 and in fact, it is the defendant Nos.1 and 2 who are the absolute owners of the suit property and in lawful possession of the same. It is further contended that the record of rights of the said property stands in the name of defendant Nos.1 and 2 since 1967-68 till date. Defendant No.1 denied the assertion of the plaintiff that defendant Nos.1 and 2 attempted to disturb the possession and enjoyment of the plaintiff in the suit property. Hence, defendant No.1 sought for dismissal of the suit.

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Defendant No.2 filed a memo adopting the written statement filed by defendant No.1. The plaintiff amended the plaint vide order dated 2.4.2004 passed on IA.9 and defendant No.1 has filed additional written statement consequent to the amendment, which has also been adopted by defendant No.2.

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Consequent to the pleading of the parties, the Trial Court framed the following issues and additional issues:

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“ 1. Whether the plaintiff proves lawful possession over the suit property?

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2. Whether the plaintiff proves threatened interference by the Defendants as alleged in the plaint?

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3. What decree or order?

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Additional Issues

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1. Whether the Plaintiff proves that he is the absolute owner of the suit property?

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2. Whether the Defendants prove that, he had purchased the suit schedule property on behalf of the joint family?”

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The plaintiff examined himself as PW.1. Exs.P1 to P28 have

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been marked in evidence. The defendant examined himself as DW.1. Two witnesses were examined as DWs.2 and 3. Exs.D1 to D21 have been marked in evidence.

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The Trial Court by its judgment and decree dated 19.08.2006 dismissed the suit. Being aggrieved, the plaintiff preferred RA No. 123/2006. The defendants entered appearance before the first appellate Court and contested the same. The first appellate Court framed the following points for consideration:

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“1. Whether the trial Court has committed an error in dismissing the suit of the plaintiff?

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2. Whether the interference of this court is required in the impugned judgment and decree of the trial Court?

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3. Whether the plaintiff/appellant is entitled for the reliefs as sought for?

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4. What Order or Decree?”

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The first appellate Court, by its judgment and decree dated

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27.08.2007 dismissed the appeal and affirmed the judgment and decree passed by the Trial Court. Being aggrieved, the present second appeal is filed.

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This Court admitted the appeal and framed the following substantial question of law on 2.9.2009:

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“Whether the trial Court was justified in raising the issue with regard to the limitation at the point of hearing of the appeal for answering thereafter.

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In that context whether in the facts of the present case whether the same is pure question of law as to whether in the instant case the evidence is required to be adduced by the parties. Hence in that context whether the Courts below erred (are heard) .”

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15.a. Vide order dated 18.7.2024 this Court also framed the following substantial question of law, in addition to the substantial question of law framed on 2.9.2009:

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“Whether the finding of the Trial Court as affirmed by the First Appellate court that the suit properties are the joint family properties, and not the self acquired properties of the plaintiff, is just and proper?”

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Learned counsel for the appellant/plaintiff Sri Vivek Mehta assailing the concurrent findings recorded by both the Courts contends that admittedly, the partition had taken place by the father of the plaintiff in the year 1961, consequent to which all the brothers have been separated. It is further contended that in the execution proceedings the plaintiff purchased the property in his name and it was by no stretch of imagination a purchase made as a Manager of the joint family and hence, the property has been purchased in the name of the plaintiff as the absolute owner of the suit properties. It is also contended that there was no oral partition in the year 1967-68 and regarding the contention of the defendants regarding re-union, there is no material to demonstrate the same.

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That both the Courts have erred in dismissing the suit as being barred by time. Hence, he seeks for allowing of the above appeal and granting of the reliefs sought for.

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In support of his submissions, he relies upon the following judgments:

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1.Bhagavati Prasad Shah and Others v. Dulhin Rameshwari Koul and another⁵ ;

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2. Bhagavan Dayal by his Lrs v. Mrs. Reotidevi by her LRs.⁶

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Per contra, learned counsel Smt. V. Vidya Iyer appearing for the respondents/defendants submits the defendants have specifically pleaded the fact that after the partition in the year 1961, the plaintiff and defendants constituted a joint family and that since defendants were minors they along with their mother lived along with the plaintiff and only upon the defendants attaining majority, they started living separately from the year 1967-68. That when the defendants started living separately, the plaintiff and the defendants orally agreed to partition the properties and that as per the said oral partition, some extent of the property purchased in the auction i.e., the suit property fell to the share of the defendants and in respect of the share of the plaintiff, he has already received compensation from the Railway

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5 AIR 1952 SC 72

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6 AIR 1962 SC 287

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Department in respect of the acquisition made by it as well as developed and sold plots to the other parties. It is further contended that all the revenue records in respect of the suit property, stood in the name of the defendants and only consequent to the application made by the plaintiff, his name was entered in the revenue records in the year 2001-02 on the basis of the Sale Certificate. That the said order to enter the name of the plaintiff has been set aside by the Assistant Commissioner. That right from the year 1967-68 up to 1999-2000, the suit property was standing in the names of the defendants. That both the Courts have rightly appreciated and re-appreciated the matter and have recorded the concurrent findings which ought not to be interfered with by this Court. She further contends that the defendants are in possession of the property and no material has been produced by the plaintiff to demonstrate that he is in possession of the property. Hence, she seeks for dismissal of the above appeal.

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The submissions of both the learned counsel have been considered and the material available on record has been perused

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including the records of the Trial Court and the first appellate Court.

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Before noticing the contentions put forth by both the parties, it is relevant to notice the findings recorded by both the Courts.

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The Trial Court, while considering additional issue Nos.1 and 2 has recorded the following findings:

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i. It is an admitted fact that Ex.P4 - the Sale Certificate is issued by the Court in favour of the plaintiff;

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ii. It is admitted by both the parties that the partition took place pertaining to the other properties between them through registered Partition Deed (Ex.P3) during the lifetime of Pakkirappa;

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iii. Though in Ex.P4 it has not specifically mentioned that the plaintiff purchased the suit property on behalf of the other decree holders, when the legal representatives of Pakkirappa were on record, it can be presumed that the

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properties which were purchased in the public auction as per Ex.P4 are the joint family properties;

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iv. Except the Sale Certificate (Ex.P4), no iota of document is produced by the plaintiff to show that he is in actual possession and enjoyment of the suit property.

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v. The only document relied on by the plaintiff is Ex.P20 –Record of rights pertaining to the suit property which is standing in his name on the basis of ME No.27/2000. The mutation entry has been challenged by the defendants before the Assistant Commissioner, wherein the said order passed by the Tahsildar has been set aside;

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vi. On perusal of Ex.P27 which is a proceeding of the Tahsildar, Hospet dated 28.2.2001, the Tahsildar on the basis of the application of the plaintiff has mutated the immovable property in the name of the plaintiff on the basis of the Sale Certificate (Ex.P4). The order of the Tahsildar (Ex.P27) has been set aside by

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the order of the Assistant Commissioner (Ex.D1) and the Assistant Commissioner has directed both the parties to approach the Civil Court and adjudicate their rights;

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vii. It is admitted fact that OS No.7/1962 was filed by the father of the plaintiff. It is also admitted fact that by order dated 22.11.1962 passed on an IA, the plaintiff and defendant Nos.1 and 2 who were the legal heirs of Pakkirappa have been brought on record. If they were not living together after 1961 as alleged by the plaintiff, there is no explanation as to how the plaintiff and defendants came on record in EP No.52/63 as legal heirs of deceased Pakkirappa;

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viii. On perusal of the evidence of defendants, they established that they being the minors in the year 1961, though partition took place during the lifetime of Pakkirappa, they lived together jointly with their mother Laxmamma till 1967-68;

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ix. The defendants have established the contention about the existence of undivided Hindu joint family till 1967- 68;

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x. On perusal of record of rights which are marked as Exs.D15 to D17 pertaining to the suit property from 1967-68 to 2000-01, the same clearly goes to show that the name of the defendants has appeared in column Nos. 9 and 12 and nowhere in the said document the name of the plaintiff is entered that he is also the owner of the suit properties along with the defendants;

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xi. On perusal of the evidence of the defendants, they have established that there was an undivided Hindu joint family and the suit property has been allotted to the share of defendants and therefore, their names are found in column Nos.9 and 12 in Exs.D15 to D20. It further goes to show that the plaintiff has kept quite since 1964 to 1999. That and in the year 1999, the plaintiff abruptly approached the Tahsildar and filed an application for effecting change of katha pertaining to

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the suit property on the basis of the Sale Certificate.

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xii. PW.1 in his cross- examination admitted that the father of the defendants died even prior to the death of his father and his father died in the year 1963. He further admitted the partition in the year 1961 during the lifetime of his father and at that time, all the children of his father had acquired share in the properties. He also admitted that as the father of the defendants was not alive at the time of partition and his share was apportioned amongst the defendants and the guardian of their mother Laxmavva. He admitted that after the decree passed in OS No.71/1962 his father died and himself and other children of his father including the defendants jointly filed EP No.52/63;

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xiii. The defendants have established that they lived jointly with the plaintiff from 1967-68 though partition took place pertaining to the suit property in the year 1961. The defendants have established that the suit properties have been

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purchased on behalf of the joint family and it is not the self acquired property of the plaintiff;

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xiv. In support of their contention regarding the oral partition in the year 1967-68, defendant No.1 examined himself as DW.1, the mother of the plaintiff has been examined as DW.2 and son of the brother of the plaintiff has been examined as DW.3;

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xv. The son of the plaintiff though examined as PW.2 he has not supported the version of the plaintiff. DWs.2 and 3 have deposed that at the time of division of the properties in the year 1961 father of defendant Nos.1 and 2 was not alive and therefore, defendant Nos.1 and 2 together were allotted share by making their mother as natural guardian. Further, they deposed that after the partition in the year 1961, they started living separately and since defendant No.1 had just attained majority and defendant No.2 was minor, the plaintiff and defendants continued to live jointly up to 1967-68. That during the time of joint family, the

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suit property and other properties were in joint cultivation of the plaintiff and defendants and in the year 1967-68, defendant Nos.1 and 2 and plaintiff have divided. In the said oral partition the properties which have been purchased in the Court auction had been included in the oral partition. DWs.1 and 2 have deposed that on the basis of oral partition the name of defendant Nos.1 and 2 have been entered in the record of rights and the defendants alone have been cultivating the suit land even till date;

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xvi. The defendants have established that there was an oral partition in the year 1967-68 pertaining to the properties purchased in the Court auction though registered partition took place in the year 1961. Even in the cross-examination of Dws.2 and 3 they maintained their evidence and nothing is elicited to discard their evidence;

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xvii. DW.1 has specifically deposed that in the year 1967-68, oral partition took place and as per the said oral partition he has got house and the suit property

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towards his share and accordingly, he has got mutated his name in the record of rights since 1967-68 till date. Even in the cross-examination DW.1 has maintained the same evidence and nothing is elicited to discard the same;

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xviii. Though DW.1 in his crossexamination admitted that he has not produced any document to show that he was residing along with the plaintiff and their mother Laxmavva, but this is not sufficient to decree the suit;

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xix. Further it is the version of the defendants that in the year 1972, he has sold portion of the property to one Smt. Mabavva out of RS No.63A of P.K.Halli through registered Sale Deed Ex.D21/P9 and the plaintiff has subscribed his signature as an attesting witness admitting the ownership of the defendant in RS No.63 P.K.Halli;

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xx. It is not the case of the plaintiff that the defendants are playing fraud and had got effected the change of katha. Even otherwise, he had no explanation why the

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names of defendant Nos.1 and 2 have appeared in RTC since 1967-68 till 1999;

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xxi. The additional issue regarding the suit being barred by limitation, is answered in the affirmative since in the year 1972 itself, the defendant has executed the Sale Deed in respect of a portion of the suit property in favour of Mabavva under a registered Deed. Therefore, the plaintiff ought to have filed a suit for declaration within three years from the date of execution of the Sale Deed by defendants in favour of Mabavva;

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xxii. The plaintiff has produced Tax paid receipts (Ex.P1) pertaining to the year 2004. He has not at all produced any document to show that he is paying taxes to the suit property since 1963;

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xxiii. The plaintiff has not produced any document to show that he is in possession of the suit property since 1963;

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xxiv. The defendants have admitted that the Railway Department has acquired 0.34 acres in Sy.No.59B, 0.58 acres in Sy.No.61A and 0.17 acres in Sy.No.63. The defendants have also admitted that out of 6.90 acres, the plaintiff has made some layout and sold plots to few people and the remaining portion i.e., 4.61 acres in Sy.No.63 has fallen to their share;

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xxv. The plaintiff has produced Ex.P6 – Rasidi Patta, but it is not issued in favour of the plaintiff;

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xxvi. On perusal of Ex.P7, Krishi pass pusthaka issued by the Finance Department on 2.11.2004 mentions as the plaintiff is the owner of RS No.274A measuring 6.95 acres and Sy.No.63A measuring 4.61 acres. However, this document has been issued on the basis of the order passed by the Tahsildar (Ex.P27);

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While considering issue Nos.1 and 2, the Trial Court has answered the same in the negative that the plaintiff has failed to prove lawful possession to the suit property.

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The first appellate Court upon a re-appreciation of the oral and documentary evidence on record, has affirmed the findings of the Trial Court. Further, the first appellate Court has noticed that if at all the plaintiff alone purchased the property in the Court auction, there was no necessity for the plaintiff to permit the defendants to cultivate the land and there is no explanation as to how the names of the defendants have been entered in the revenue records and that the same clearly shows that the property has fallen to the share of the defendants and they are cultivating separately.

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Having regard to the findings recorded by both the Courts and noticing the contentions put forth by both the Counsels, it is relevant to note that there is no dispute about the fact that by a registered Partition Deed dated 25.10.1961 which was entered into during the lifetime of the father of the plaintiff namely, Pakkirappa, his properties were divided amongst his children. It is

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further not in dispute that said Pakkirappa filed OS No.7/62, which was decreed and thereafter, EP No.52/63 was filed to execute the said decree. That upon the death of Pakkirappa his legal heirs have come on record in the said execution proceedings. It is also not in dispute that the Sale Certificate (Ex.P4) issued in respect of the property sold in the public auction is standing solely in the name of the plaintiff.

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It is relevant to note that under Ex.P4 three items of properties have been purchased i.e., an extent of 0.34 acres in Sy.No.59/A, an extent of 1.94 acres in Sy.No.63/A and an extent of 5.78 acres and one building situated in Papinayakanahalli in Sy.No.63. The total extent of property purchased was 8.06 acres. The suit property is an extent of 4.61 acres in Sy.No.63A/1.

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It is the case of the plaintiff that the property purchased vide Ex.P4 is his absolute property. However, the defendants have specifically pleaded that there was a family partition in the year 1961. That the plaintiff and defendants along with their mother Lakshmamma were continued to live together upto the year 1967-68 and after the defendants attained the age of

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majority they started living separately from the plaintiff and while separating, there was an oral division of the properties which were purchased in the execution proceedings. That the suit property measuring an extent of 4.61 acres and the house situated in it fell to the share of the defendants. That on the basis of the oral partition effected in the year 1967-68, the defendants continued to cultivate the suit property as its owners from the said date till date.

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The plaintiff examined himself as PW.1 and he has deposed as per the case putforth in the plaint. He is also been cross examined. The plaintiff examined his son from his first wife as PW.2. However, PW.2 has not supported the case of the plaintiff. The defendant No.1 examined himself as DW.1. The brother of the plaintiff has been examined as DW.2 and the son of the elder brother of the plaintiff has been examined as DW.3. The Trial Court has recorded a finding that having regard to the testimony of DWs.2 and 3 as well as the other material on record, the defendants have established that there was an oral partition in the year 1967-68 pertaining to the property purchased in the Court auction though registered partition took place in the year 1961.

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Learned counsel for the appellant vehemently contends that

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oral partition is required to be strictly proved. In support of his contention, he relies on the following judgments:

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29.1. The Hon’ble Supreme Court in the case of Bhagavati Prasad Shah⁵ held as follows:

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“10. Before we discuss the evidence on the record, we desire to point out that on the admitted facts of this case neither party has any presumption on his side either as regards the jointness or separation of the family. The general principle undoubtedly is that a Hindu family is presumed to be joint unless the contrary is proved, but where it is admitted that one of the coparceners did separate himself from the other members of the joint family and had his share in the joint property partitioned off for him, there is no presumption that the rest of the coparceners continued to be joint. There is no presumption on the other side too that because one member of the family separated himself, there has been separation with regard to all. It would be a question of fact to be determined in each case upon the evidence relating to the intention of the parties whether there was a separation amongst the other coparceners or that they remained united. The burden would undoubtedly lie on the party who asserts the existence of a particular state of things on the basis of which he claims relief. These principles which have been laid down in several pronouncements of the Judicial Committee seem to us to be perfectly sound (vide Bal Krishna v. Ram Krishna [Bal Krishna v. Ram Krishna, (1930-31) 58 IA 220 : 1931 SCC OnLine PC 31] and Palani Ammal v. Muthuvenkatachala Moniagar [Palani Ammal v. Muthuvenkatachala Moniagar, (1924-25) 52 IA 83 : 1924 SCC OnLine PC 61] and Balabux Ladhuram v. Rukhmabai [Balabux Ladhuram v. Rukhmabai, (1902-03) 30 IA 130 : 1903 SCC OnLine PC 10] ). Another thing to be noted in this connection is that it is not the case of the defendants made either in the pleadings or in the evidence that even if there was a separation between Ram Narain and Ram

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Saran at any anterior time they subsequently reunited. The controversy, therefore, narrows down to the short point as to whether at any time before the death of Ram Narain there was a separation between him and Ram Saran. If, as the plaintiff avers, there was a disruption of the joint status in regard to all the three brothers, it would really be immaterial if, subsequent to separation, Ram Narain and Ram Saran lived together in commensality or dealt with their properties in such manner as is ordinarily done by members of a joint Hindu family which is not set up in the present case. Except in the case of reunion, the mere fact that separated coparceners chose to live together or act jointly for purposes of business or trade or in their dealings with properties, would not give them the status of coparceners under the Mitakshara law. It is in the light of these principles that we propose to examine the evidence before us.”

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(emphasis supplied)

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29.2. The Hon’ble Supreme Court in the case of Bhagavan Dayal⁶ has held as follows:

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“21. The next question is whether there was a reunion between Kashi Ram, Raghubar Dayal and Bhagwan Dayal. The learned Attorney-General contends that on the assumption that there was a partition of the family, the consistent conduct of the parties for a period of 50 years unambiguously establishes that there was a reunion between Kashi Ram, Raghubar Dayal and Bhagwan Dayal during the lifetime of Kashi Ram, or at any rate there was a reunion after the death of Kashi Ram between Raghubar Dayal and Bhagwan Dayal. Mr Viswanatha Sastri, on the other hand, argues that when there was a partition in the family, the members of the family who allege a reunion must strictly prove the same, and that the documentary evidence filed in this case spread over a long period of time is destructive of any such claim .

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22. For the correct approach to this question, it would be convenient to quote at the outset the observations of the

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Judicial Committee in Palani Ammal v. Muthuvenkatacharla Moniagar [(1924) LR 52 IA 83, 86] :

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“It is also quite clear that if a joint Hindu family separates, the family or any members of it may agree to reunite as a joint Hindu family, but such a reuniting is for obvious reasons, which would apply in many cases under the law of the Mitakshara, of very rare occurrence, and when it happens it must be strictly proved as any other disputed fact is proved. The leading authority for that last proposition is Baldbux Ladhuram v. Rukhmabai [(1903) LR 30 IA 190] .”

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It is also well settled that to constitute a reunion there must be an intention of the parties to reunite in estate and interest. It is implicit in the concept of a reunion that there shall be an agreement between the parties to reunite in estate with an intention to revert to their former status of members of a joint Hindu family. Such an agreement need not be express, but may be implied from the conduct of the parties alleged to have reunited. But the conduct must be of such an incontrovertible character that an agreement of reunion must be necessarily implied therefrom. As the burden is heavy on a party asserting reunion, ambiguous pieces of conduct equally consistent with a reunion or ordinary joint enjoyment cannot sustain a plea of reunion. The legal position has been neatly summarized in Mayne's Hindu law, 11th Edn., thus at p. 569:

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“As the presumption is in favour of union until a partition is made out, so after a partition the presumption would be against a reunion. To establish it, it is necessary to show, not only that the parties already divided, lived or traded together, but that they did so with the intention of thereby altering their status and of forming a joint estate with all its usual incidents. It requires very cogent evidence to satisfy the burden of establishing that by agreement between them, the divided members of a joint Hindu family have succeeded in so altering their status as to bring themselves within all the rights and obligations that follow from the fresh formation of a joint undivided Hindu family.”

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As we give our full assent to these observations, we need not pursue the matter with further citations except to consider two decisions strongly relied upon by the learned Attorney-General. Venkataramayya v. Tatayya [AIR 1943 Mad 538] is a decision of a Division Bench of the Madras High Court. It was pointed out there that “mere jointness in residence, food or worship or a mere trading together cannot bring about the conversion of the divided status into a joint one with all the usual incidents of jointness in estate and interest unless an intention to become reunited in the sense of the Hindu law is clearly established”. The said proposition is unexceptionable, and indeed that is the well settled law. But on the facts of that case, the learned Judges came to the conclusion that there was a reunion. The partition there was effected between a father and his sons by the first wife. One of the sons was a minor. The question was whether there was a reunion between the brothers soon after the alleged partition. The learned Judges held that as between the sons there was never any reason for separation inter se, and that the evidence disclosed that on their conduct no explanation other than reunion was possible. They also pointed out that though at the time of partition one of the brothers was a minor, after he attained majority, he accepted the position of reunion. The observations relied upon by the learned AttorneyGeneral read thus:

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“In our view, it is not necessary that there should be a formal and express agreement to reunite. Such an agreement can be established by clear evidence of conduct incapable of explanation on any other footing.”

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This principle also is unexceptionable. But the facts of that case are entirely different from those in the present case, and the conclusion arrived at by the learned Judges cannot help us in arriving at a finding in the instant case.”

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(emphasis supplied)

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The defendants in the present case have specifically pleaded reunion inasmuch as, they have specifically pleaded that despite the registered partition dated 25.10.1961, since the father of the defendants had died and since defendant No.1 had just attained majority and defendant No.2 was still a minor, they along with their mother continued to live along with the plaintiff. That after the defendants attained majority in the year 1967-68, they started residing separately and at that time there was an oral partition of the property purchased under Ex.P4. Consistent with the case putforth by the defendants, it is forthcoming from the material on record that from the property purchased under Ex.P4, an extent of 1.90 cents of land acquired by Railways, which compensation has been paid to the plaintiff and that in a certain portion of the properties acquired under Ex.P4, the plaintiff has formed sites and sold the same. Hence, it is the case of the defendants that the suit property is the remaining property from the property purchased under Ex.P4 was allotted to the share of the defendants. It is the further case of the defendants that they have been cultivating the suit property from the year 1967-68. The revenue entries i.e., Exs.D15 to D20 – RORs pertaining to the

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suit property are also standing in the name of the defendants. Both the courts have recorded concurrent findings holding that the defendants have proved their case.

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Although, it is the vehement contention of the learned counsel for the appellant-plaintiff that mere entries in the revenue entries do not demonstrate the ownership and that the partition alleged on behalf of the defendants is not registered, it is relevant to note that the defendants have specifically pleaded reunion with the plaintiff after the registered partition dated 25.10.1961 and have also specifically pleaded the subsequent oral partition in the year 1967-68 as well as the circumstances surrounding such an occurrence. The oral and documentary evidence has also been adduced in support of the same as noticed above. Further, both the Courts have recorded concurrent findings of fact that the suit property has been allotted to the share of the defendants. It is relevant to note that having regard to the position of law as held in the cases of Bhagavati Prasad Shah and others⁵ and Bhagavan Dayal⁶ , the defendants have specifically pleaded reunion and they have also adduced sufficient evidence to prove the same.

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Although it is the vehement contention of the learned counsel for the appellant/plaintiff that the suit property is the absolute property of the plaintiff having regard to the specific plea of the defendants as noticed above as also in view of the oral and documentary evidence on record as well as the concurrent findings recorded by both the Courts, the plaintiff has failed to demonstrate that the said concurrent findings are in any manner erroneous and liable to be interfered with.

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With regard to the substantial question of law framed vide order dated 02.09.2009, it is relevant to note that the Trial Court has recorded a finding that the suit is barred by limitation merely on the basis that the plaintiff has signed as a witness to the Sale Deed in the year 1972. It is forthcoming that the Sale Deed dated 28.03.1972 (Ex.P9) has merely been referred to in the examination-in-chief of PW.1 that he is not bound by the said document. There is no pleading of either of the parties with regard to the said Sale Deed (Ex.P9). The first appellate Court has also not considered the aspect regarding the finding of the trial Court that the suit is barred by limitation. In view of the

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same, the finding of the Trial Court on limitation is erroneous and liable to be set aside.

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In view of the discussion made above, the substantial questions of law framed on 02.09.2009 and on 18.7.2024 are answered in the negative. Accordingly, the following:

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ORDER

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i) The above appeal is dismissed.

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ii) the judgment and decree dated 19.08.2006 passed in O.S No.228/2001 by the Prl.Civil Judge (Jr.Dn.) & JMFC., Hospet and the judgment and decree dated 27.08.2007 passed in R.A. No.123/2006 by the Addl. Civil Judge (Sr.Dn.), Hospet are affirmed.

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Sd/(C.M.POONACHA) JUDGE

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Sri M Pampapathy @ Pampanna v. Sri M Sanna Pampapathy

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Sri M Pampapathy @ Pampanna v. Sri M Sanna Pampapathy

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