Smt Kalakamma Vs Mallappa S/O Shivappa

1C. SMT. SHILPA D/O. MALLAPPA PATTANASHETTI @ SUDI, W/O. SIDRAMAPPA, AGE: 28 YEARS, OCC: AGRICULTURE, R/O. B. B. NAGAR, KUSHTAGI, TQ: KUSHTAGI, DT. KOPPAL.

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1D. SMT. ERAMMA D/O. MALLAPPA PATTANASHETTI @ SUDI, W/O. SURESH ANGADI, AGE 25 YEARS, OCC: AGRICULTURE, R/O. B. B. NAGAR, KUSHTAGI, TQ: KUSHTAGI, DT. KOPPAL.

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KALAKAPPA S/O. SHIVAPPA PATTANASHETTI @ SUDI, AGE: 50 YEARS, OCC: AGRI. & BUSINESS, R/O B. B. NAGAR, TQ: KUSHTAGI DT: KOPPAL.

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SMT. BASAMMA W/O. SHIVAPPA ULLAGADDI, R/O. OLD BAZAR,, KUSHTAGI TQ: KUSHTAGI, DT: KOPPAL.

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…RESPONDENTS

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(BY SRI. S. H. MITTALKOD AND

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SRI. VINAY S. KOUJALAGI, ADV. FOR R1(A) TO R1(D), R2 & R3)

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THIS RFA IS FILED UNDER SEC. 96 OF CPC., PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED IN O.S. NO.916/2015 DT. 01-02-2020 BY THE LEARNED SENIOR CIVIL JUDGE AND JMFC, AT: KUSHTAGI AND DECREE THE SUIT IN O.S. NO.916/2015 ALONG WITH COST IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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THE HON'BLE MR. JUSTICE ASHOK S. KINAGI CORAM: AND THE HON'BLE MR. JUSTICE UMESH M ADIGA

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI)

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This Regular First Appeal is filed by the appellants challenging the judgment and decree dated 01.02.2020, passed in O.S.No.916/2015 by the learned Senior Civil Judge and JMFC, Kushtagi.

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For convenience, the parties are referred to based on their ranking before the trial Court. The appellants were the plaintiffs, and the respondents were the defendants.

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Brief facts leading rise to the filing of this appeal are as follows:

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The plaintiffs filed a suit against the defendants for partition and separate possession. It is the case of the plaintiffs that one Shivappa was the original propositus; he had a wife, Smt. Veeramma @ Ieramma. The plaintiffs and defendant Nos.1 to 3 are the children of Shivappa, i.e., original propositus. Shivappa was the absolute owner and possessor of the suit schedule properties. He died

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intestate about 17 years back. His wife, Smt. Veeramma @ Ieramma died about 27 years back. They left the plaintiffs and the defendants as their legal heirs. The plaintiffs and the defendants have inherited their properties. The plaintiffs, being the daughters of deceased Shivappa, became the joint owners and possessors of the properties as per the law of succession. Even today, the plaintiffs and the defendants are in joint possession and enjoyment of the suit properties as joint owners. The plaintiffs and the defendants are members of the Hindu joint family. There is no partition effected between the plaintiffs and the defendants by metes and bounds. It is contended that the plaintiffs are entitled to 1/5^th share each in all the suit schedule properties. The plaintiffs demanded for partition and separate possession, but the defendants refused to effect the partition. Hence, a cause of action arose for the plaintiffs to file a suit for specific performance of a contract. Accordingly, prays to decree the suit.

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4. The defendants filed a written statement

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denying the averments made in the plaint. It is contended that the plaintiffs filed a suit in O.S.No.34/2012 against the defendants on the file of learned Civil Judge, Kushtagi, claiming partition regarding the properties of the father of the plaintiff's and claimed partition regarding the agricultural lands. It is contended that they did not claim partition in the suit properties, which are the house properties. Further, it is contended that, insofar as claiming the partition the plaintiffs ought to have included the present suit properties in O.S.No.34/2012, but neither these properties were included nor the plaintiffs got leave from the Court, receiving their right to file separate suit on the same cause of action. Hence, a suit is barred under order II Rule 2 of CPC. It is contended that before the death of Shivappa, plaintiff Nos.1, 2 and defendant No.3 were married, and they were permanently residing in their matrimonial houses. They are not the members of a joint family consisting of their father and brothers, defendant Nos.1 and 2. It is contended that the properties

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mentioned in serial Nos.6 to 8 of the plaint schedule properties, are not at all the properties of either the father or the mother of the plaintiffs. The same is the selfacquired properties of defendant No.1. Defendant No.1 had purchased the land bearing Sy.No.103/A belonging to one Ullappa S/o Mundkappa under a registered sale deed. After purchase, he got converted the said land into nonagricultural land and formed a layout for residential purpose, sold plots to different persons and retained some plots for himself and constructed the buildings. It is contended that defendant Nos.1 and 2 are residing in the said constructed buildings. It is contended that defendant Nos.2 and 3 are entitled to claim any share or interest. In the three properties, even the plaintiffs, defendant Nos.2 and 3 are entitled to claim any share or interest. Hence, there is no cause of action to file a suit. Therefore, prays to dismiss the suit.

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The trial Court, based on the pleadings of the parties, framed the following issues:

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Whether the plaintiffs proves that the suit schedule properties are the joint family properties of himself and defendants as on the date of the suit?

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Whether the suit is in time?

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Whether the plaintiffs are entitle to relief as prayed for in the plaint?

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Whether the defendants are entitle to counter claim reliefs as prayed for in the written statement?

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What order or decree?

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Additional Issue:

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Whether the present suit is barred in view of the partition not claimed in O.S.No.34/12 of the Civil Judge, Kushtagi filed by the plaintiff against the defendants in respect of the properties of this suit?

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To prove their case, Plaintiff No.1 was examined

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as PW.1 and marked 11 documents as Exs.P1 to 11. Defendant No.1 was examined as DW.1, examined two witnesses as DWs.2 and 3 and marked 25 documents as Exs.D1 to 25. The trial court, after recording the evidence, hearing on both sides and on assessing the oral and documentary evidence, answered issue Nos.1, 3 and 4 in the negative, issue No.2 in the affirmative, additional issue No.1 not necessary to answer, issue No.5 as per the final order. The suit of the plaintiffs was dismissed

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vide judgment dated 01.02.2020. The plaintiffs, aggrieved by the judgment and decree passed in O.S.No.916/2015, filed this Regular First Appeal.

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Heard the learned counsel for the plaintiffs and

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learned counsel for the defendants.

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Learned counsel for the plaintiffs submits that the plaintiffs and the defendants are the children of late Shivappa, and the suit schedule properties were left by their father and the plaintiffs being the coparceners entitled to share in the suit schedule properties. He submits that the possession of one co-sharer would amount to possession of other co-sharers. He submits that the trial court has dismissed the suit on the ground that the plaintiffs are not in possession of the suit schedule properties. He submits that the records are standing in the name of defendant Nos.1 and 2, as they are male members of the family. He submits that defendant Nos.1 and 2 have no right over the suit schedule properties. He submits that O.S.No.879/2015 (old O.S.No.34/2012) was

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filed in respect of landed properties and the present suit is filed in respect of the house properties. The cause of action shown in both suits are different. Hence, the suit filed by the plaintiffs is maintainable. He submits that item Nos.6 to 8 of the suit schedule properties are purchased out of the joint nucleus in the name of defendant No.1 under the registered sale deed, and they are the joint family properties of the plaintiffs and the defendants. The plaintiffs are entitled to shares in item Nos.6 to 8 of the suit schedule properties. He submits that the trial court has committed an error in dismissing the suit. Hence, on these grounds, he submits that the impugned judgment passed by the trial court is arbitrary and erroneous, and the same is liable to be set aside. Hence, prays to allow the appeal.

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Per contra, learned counsel for the defendants

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submits that item Nos.6 to 8 of the suit schedule properties are the self-acquired properties of defendant No.1. He had purchased the said properties under a

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registered sale deed. He submits that plaintiffs have filed a suit in O.S.No.879/2015 for the relief of partition and separate possession regarding the landed properties, and the defendants have filed a written statement in the said suit, denying the claim of the plaintiffs. He submits that the present suit filed by the plaintiffs, is barred under Order II Rule 2 of CPC. Further, he submits that if this court comes to a conclusion that the plaintiffs are entitle to shares, the suit be decreed insofar as item Nos.1 to 5 are concerned, and dismiss the suit regarding item Nos.6 to 8. 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 the learned counsel for the parties.

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The points that arise for our consideration are

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as follows :

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1. Whether the plaintiffs prove that the suit schedule properties are the joint family properties of the plaintiffs and the defendants?

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1. Whether the defendants proves that item Nos.6 to 8 are the self-acquired properties of defendant No.1?

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1. Whether the plaintiffs prove that the trial court committed an error in passing the impugned judgment?

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1. What order or decree?

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Re-Point No.1: The plaintiffs, to substantiate their case, plaintiff No.1 was examined as PW.1. She has deposed that, the late Shivappa was the original propositus to the family of the plaintiffs and the defendants. He was the owner and possessor of the suit schedule properties. He and his wife died, leaving behind the plaintiffs and the defendants as their legal heirs. The plaintiffs and the defendants, jointly succeeded to the suit schedule properties. The plaintiffs and the defendants are the members of the Hindu joint family and no partition is effected. To substantiate their case, the plaintiffs have produced the documents. Exs.P1 to 5 are the house extracts, disclose the name of Mallappa Pattanashettar as

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the owner and possessor of the properties mentioned in Exs.P1 to P5, Ex.P6 and 7 are the information rights applications, Ex.P8 is the Himbaraha (endorsement), Ex.P9 is the certified copy of the plaint in O.S.No.879/2015, which discloses that the present plaintiffs filed a suit against the defendants for partition and separate possession in respect of landed properties. The present suit schedule properties are not the subject matter of O.S.No.879/2015. Ex.P10 is the written statement filed in O.S.No.879/2015, which discloses that the defendants have denied that the plaintiffs have right to claim shares in the agricultural lands. Ex.P11 is the chief affidavit filed in O.S.No.879/2015.

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During the cross-examination, it was elicited that PW.1 gave instructions for the counsel for drafting the plaint and the name of the grandfather of PW.1 is one Mallappa, and he had a son by the name of Shivappa, i.e., the father of plaintiffs and the defendants, and she has filed a suit in respect of the house properties. It is

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suggested to PW.1 that item Nos.6 to 8 are the selfacquired properties of the defendants. The plaintiffs have no right to claim shares in item Nos.6 to 8. The said suggestion was denied by PW.1, and it is also elicited that the plaintiffs filed a suit in O.S.No.879/2015 for partition and separate possession, regarding the agricultural lands.

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In rebuttal, defendant No.1 was examined as DW.1. He has deposed that the plaintiffs and defendant No.3 are real sisters. Their mother, Veeramma @ Ieramma, had three agricultural lands in her name. She died on 03.04.1988, and their father died on 18.11.1995. After the demise of their mother, the lands in her name were put into one of their family properties, including their father's property. He has deposed that the plaintiffs and defendant No.3 were married and they are residing with the family of their husband, and they are well-to-do. He has deposed that the plaintiffs have no intention to claim partition, but their husbands were forcing them to claim. He has deposed that the defendants had acquired the title

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in all the suit properties by way of adverse possession against the plaintiffs. Further, it was deposed that the suit filed by the plaintiffs is not maintainable and that the same is barred under Order II Rule 2 of CPC.

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The defendants, in order to prove their defense, produced the documents. Ex.D1 is the invitation of Shivaganaradhane, Exs.D2 to 6 are the 5 house extracts, Exs.D7 to 8 are the Right to Information Act form No.(A), Ex.D9 is the Himbaraha of Purasabhe, Ex.D10 is the certified copy of Thithi card. Ex.D11 is the certified copy of the judgment passed in O.S.No.72/2007, wherein, Mallappa i.e., defendant No.1 filed a suit against Town Panchayat, Kushtagi, for the relief of perpetual injunction in respect of item Nos.6 to 8. The said suit was decreed vide judgment dated 31.07.2013. Ex.D12 is the copy of the decree passed in O.S.No.72/2007. Exs.D13 and D14 are the water tax paid receipts. Ex.D15 is the KEB letter, Exs.D16 to 18 are 3 KEB bills, Ex.D19 is the copy of the judgment, passed in O.S.No.81/2011, filed by defendant

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No.1 against one Chandrappa and another in respect of plot No.1/A/7795A formed in NA land bearing Sy.No.103/A/G of Kushtagi. Ex.D20 is the copy of the decree passed in O.S.No.81/2011, Ex.D21 is the copy of the layout plan in Sy.No.103/1, Ex.D22 is the original, registered sale deed, which discloses that the defendants have purchased the deed schedule property i.e., the property bearing Sy.No.103/A measuring 9 acres 26 guntas. Ex.D23 is the tax paid receipt, Exs.D24 and 25 are the two house tax receipts.

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It is elicited in the cross-examination that the family possess 8 acres of land, and he did not know the survey numbers. He deposed that Sy.No.133/3 measures 3 acres 30 guntas, and it stands in the name of his younger brother. Again, he contends that it stands in the name of his brother and his father, and there are no documents. It is suggested to DW.1 that item Nos.6 to 8 are purchased out of the joint family nucleus. The said suggestion was denied by DW.1, and it is elicited that

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O.S.No.879/2015 is pending for consideration, and the defendants have filed the written statement in the said suit. It is elicited that he has filed a copy of the plaint and written statement of O.S.No.879/2015, and are marked as Exs.P9 and P10. It was suggested to DW.1 that the suit schedule properties are the joint family properties of the plaintiffs and the defendants.

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Further, the defendants also examined one Nariyappa as DW.2. He deposed that the shop of defendant No.1 and his brother, situated at APMC Yard, at Kustagi and APMC allotted plot about 22-23 years back, on which the defendants constructed the shop and running their commercial business and the plaintiffs have no right, interest in the shop of the defendants.

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The defendants also examined one Mallappa as DW.3. He deposed that the suit schedule properties are the defendants' joint family properties. The defendants are residing in the suit properties along with their family members, and the plaintiffs, after their marriage, are

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permanently residing in the house of their husbands.

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From the perusal of the evidence on record, it

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discloses that item Nos.1 to 5 of the suit schedule properties were standing in the name of defendant No.1. Learned counsel for the defendants submits that the defendants have no objection to decree the suit insofar as the item Nos.1 to 5 are concerned. Insofar as item Nos.6 to 8 are concerned, the said properties are the self-acquired properties of the defendants, and they have purchased item Nos.6 to 8. The defendants have no objection to decreeing the suit in respect of items Nos.1 to 5 of the suit schedule properties. Admittedly, the plaintiffs and the defendants are the children of late Shivappa, and no partition is effected between the plaintiffs and the defendants. As such, the suit schedule properties item Nos.1 to 5 are the joint family properties of the plaintiffs and the defendants, and item Nos.6 to 8 are the selfacquired properties of the defendants. Therefore, the plaintiffs are entitled to the shares in item Nos.1 to 5 of

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the suit schedule properties. In view of the above

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discussion, we answer point No.1, partly in the affirmative.

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Re-Point No.2: It is the case of the plaintiffs that item Nos.6 to 8 are the joint family properties of the plaintiffs and the defendants, and the same are purchased in the name of defendant No.1 out of the joint family nucleus. In a suit for partition and separate possession, the initial burden is on the plaintiffs to establish that the suit schedule properties are the joint family properties; once the plaintiffs establish the nature of the suit schedule property, the burden shifts upon the defendants to establish that it is a self-acquired property. Admittedly, in the instant case, the plaintiffs have not produced any records to establish that the family was possessing the sufficient nucleus for purchasing the item Nos.6 to 8 of the suit schedule properties. The plaintiffs have failed to establish that said suit schedule properties are purchased out of a joint family nucleus. Though the plaintiffs have filed a suit in O.S.No.34/12 (new O.S No.879/2015) for

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partition and separate possession in respect of the landed properties, filed the present suit in respect of the house properties. A cause of action shown in the suit in O.S.No.879/2015 is on 08.01.2012 and the cause of action shown in the present suit is on 01.07.2015. The cause of action shown in the plaints are different. In the absence of material on record that the suit schedule properties are purchased out of the joint family nucleus, we held that item Nos.6 to 8 are the self-acquired properties of the defendants. Hence, in view of the above discussion, we answer point No.2 in the affirmative.

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Re-Point No.3: As the defendants did not contest the suit, insofar as item Nos.1 to 5 of the suit properties are concerned, the trial Court, without properly considering the material on record, committed an error by dismissing the entire suit, for partition and separate possession. As the defendants have submitted no objection to decree the suit with respect to item Nos.1 to 5, we answer point No.3 partly in the affirmative.

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Re-Point No.4: In view of the above

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discussion, we proceed to pass the following:

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ORDER

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The appeal is allowed in part. The judgment and decree in O.S No.916/2015 passed by the trial Court is set aside. The suit of the plaintiffs is partly decreed. The plaintiffs and defendant Nos.1 to 3 are entitled to 1/5^th share each in item Nos.1 to 5 of the suit schedule properties.

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Insofar as item Nos.6 to 8 are concerned, judgment and decree passed in O.S.No.916/2015, is maintained.

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Office is directed to draw preliminary decree.

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No order as to the costs.

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Sd/(ASHOK S. KINAGI) JUDGE

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Sd/(UMESH M ADIGA) JUDGE

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SKS CT-AN List No.: 1 Sl No.: 14

Smt Kalakamma v. Mallappa S/O Shivappa

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Smt Kalakamma v. Mallappa S/O Shivappa

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