Chenganda Appacha @ Appachu Vs Chenganda Kalappa S/O Late Kunjappa

1(c) SMT.C.K.PONNAMMA W/O CHANGANADA KALAPPA AGED 66 YEARS (SINCE DECEASED REPRESENTED BY THE ABOVE MENTIONED LRs RESPONDENT NOS.1 (a)(i) and (ii) AND 1(b)

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RESIDING AT DOOR NO.99, GUDDE HOSUR VILLAGE KUSHALNAGAR HOBLI SOMVARPET TALUK KODAGU DISTRICT.

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SMT C SEETHAMMA BHEEMAIAH W/O LATE BHEEMAIAH, MAJOR

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C B UTHAPPA S/O LATE BHEEMAIAH MAJOR

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BOTH ARE RESIDING AT D.NO. 9-1148/2, II MAIN, 6^TH CROSS, VINOBANAGAR DAVANAGERE

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…RESPONDENTS

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(BY SRI VENKATESH R BHAGAT, ADVOCATE FOR R1(a) (i & ii), R1(b);

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VIDE ORDER DATED 02.01.2024, R1(c) IS DEAD AND R1(a)(i)(ii), R1(b) ARE LEGAL REPRESENTATIVES OF R1(c); VIDE ORDER DATED 02.01.2024, R2 AND R3 ARE ROUNDED OF AS DEAD)

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THIS RFA IS FILED UNDER SECTION 96 OF CIVIL PROCEDURE CODE AGAINST THE JUDGMENT AND DECREE DATED 17.10.2006 PASSED IN OS NO.37/1999 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) MADIKERE, DECREEING THE SUIT FOR PARTITION.

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

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CORAM: HON'BLE MR. JUSTICE V SRISHANANDA

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ORAL JUDGMENT

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Heard Sri I.S.Devaiah, learned counsel for the appellants

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and Sri Venkatesh R. Bhagat, learned counsel for the contesting respondents.

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Parties are referred to as plaintiff and defendant as per

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their ranking before the Trial Court.

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Facts of the case in brief which are utmost necessary for

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disposal of the present Appeal are as under:

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A suit in O.S.No.37/1999 came to be filed on the file of

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the Civil Judge (Senior Division), Kodagu, Madikeri, for the relief of partition and separate possession in respect of the following properties.

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(1) 03 Acres of wet land comprising in

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S.No.216/1 of 9.15 acres and S.No.218 of 2.20 acres. This 3 acres of wet land comprises of 4 flats

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called Anja Theva Kodanga, Yaka and Pali.

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(2) 0.80 cents of coffee land in S.No.135/2. (3) 0.62 cents of coffee land in S.No.222/3. (4) 0.67 cents of coffee land in S.No.215/2. (5) 1.00 acres of coffee land in S.No.135/1.

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(6) 4.80 acres of coffee land in S.No.222/6.

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(7) 0.60 acres of coffee land in S.No.222/4.

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Properties are situated at Balamuri village N. Coorg.”

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In the plaint, it is contented that about 140 years ago, three brothers called Mandanna, Appachu and Kuttappa in Chenganda family owned wetlands and bane lands at Balamuri Village. Those brothers were holding those properties by oral partition about 100 years ago. Among them one of the brothers viz., Appachu died about 80 years back leaving behind

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his five sons viz., Subbayya, Chengappa, Kunjappa, Kalappa and Machayya who succeeded to the properties left behind by Appachu.

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According to the plaint averments, these five brothers made a oral partition of the immovable properties about 60 years ago in which arrangement, the third brother viz., Kunjappa received his share which are the suit schedule properties. Kunjappa died about 56 years ago leaving behind his three sons who are the plaintiff and defendants.

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It is also contented in the plaint that plaintiff and defendants are thus joint owners of the suit properties and they are deemed to be in joint possession of the properties. Plaintiff demanded the first defendant for partitioning the schedule properties into three equal shares and also issued a notice in that regard on 17.04.1998.

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Defendants did not heed to the request of the plaintiff and therefore, suit for partition came to be filed.

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Pursuant to the suit summons, defendants entered appearance through their advocate and first defendant filed written statement.

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During pendency of the suit, second defendant died. Legal representatives of second defendant were brought on record. They appeared through an advocate and adopted the written statement filed by first defendant.

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However, at the first instance, they were not brought on record properly due to inadvertence which was cured by filing necessary application. In the written statement filed by the first defendant, relationship is disputed. The first defendant denied that the suit properties are the joint family properties of plaintiff and defendants. Defendants further denied that plaintiff is not entitled for any share in the suit properties.

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It is further contented that the suit is filed only to harass the defendants.

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Based on the rival contentions of the parties, learned Trial Judge raised the following issues.

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(i) Whether the plaintiff proves that, the suit properties are joint family properties?

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(ii) Whether the defendant No.1 proves that, oral partition took place long back, which has been suppressed by the plaintiff?

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(iii) Whether the plaintiff is entitled for 1/3^rd share in suit properties as prayed for?

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(iv) What order or decree?

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In order to prove the case of the plaintiff, plaintiff got examined himself as P.W-1 and placed on record three documents viz., Jamabandi Extract, Copy of the Notice dated 17.04.1998 and Postal Acknowledgment.

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Examination-in-chief of the plaintiff is nothing but the reiteration of the plaint averments in verbatim by way of an affidavit.

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In his cross- examination, it is elicited that Chenganda family is a big family and there are about 50 persons in Chenganda family. He admits that including his father, property owned by the Chenganda family was divided into 5

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portions. He has answered that Chenganda family might have possessed 25 to 30 acres of land.

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Plaintiff admits that in the property, coffee estate is in

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existence. He denied that he is also owning a coffee estate. He has specifically answered that no share was granted to him and he is not possessing any coffee estate. He admits that persons

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who are possessing the coffee estate have got the Coffee Registration Certificate (‘CRC’ for short). He has specifically answered that first defendant has got about 4 acres of coffee estate and son of the first defendant by name Rakesh has constructed a new house after demolishing the old house.

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He has stated that other members of the family have also obtained CRC from the concerned and first defendant is possessing about 2 ½ acres wetland, but he does not know the survey number of that wetland.

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He has stated that first defendant is in occupation of the coffee estate and the wetland for about 30 years and he is having a son and a daughter and daughter is married. He admits that for obtaining CRC, consent of the members is

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necessary and survey would be conducted. Thereafter, CRC would be issued.

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He has further answered that while obtaining the CRC, first defendant has not included the other members of the family and he is paying the taxes to the land which is in his occupation. He denies the suggestion that he is not in possession of the suit properties. He denies the specific suggestion that there was a previous oral partition. He also denies that he is in possession of the land which has fallen to his share in the said oral partition.

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As against the evidence that is placed on record, first defendant got examined himself as D.W-1 by filing an affidavit in lieu of his examination-in-chief wherein the contents of the written statement is reiterated in verbatim.

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In his cross-examination, he admits that his grandfather’s name is Appachu. He admits that Appachu had five children. He admits that Kunjappa is one among them who is the father of plaintiff and defendants.

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He has admitted that when Kunjappa was alive, entire suit property was in his possession and he has answered that during his lifetime he has effected the partition about 30 to 40 years earlier but he cannot give the specific date, time or the year.

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He has stated that it is a oral partition and no documents are available. He admits that the land possessed by Kunjappa was under the partition among his brothers. He further admits

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that when his father was alive, there was no jamabandi conducted in respect of the lands. He has admitted that said partition has taken place among himself, his father and other children of his father. He has answered that except the oral partition there are no other documents to establish that there was an oral partition.

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He has specifically answered that suit items were divided in the said oral partition and in respect of wetlands also specific items were given and that he cannot furnish the survey number of the land which is in his possession which may be to the extent of 5 acres. He further has answered that it is the ‘bane’ land and he has coffee estate in the said land. He has also

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answered that 5 acres of land is in possession of second defendant. He has specifically answered that he does not know what is the land in possession of the plaintiff. But the land was equally partitioned among the children. He denied the suggestion that there is no oral partition.

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On behalf of defendant, there were no documents placed on record.

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Learned Trial Judge based on the aforesaid material evidence on record heard the arguments of the parties and decreed the suit of the plaintiff inter alia holding in paragraph Nos.15 to 18 as under:

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“15. When the said property was allotted to the share of Kunjappa, other persons have no right in area of 3 acres. The remaining area belongs to them in the said survey number. Under such circumstances, I held that the plaintiff and defendants having only an area of 3 acres out of 11.35 acres in sy.no.216/01 and 218/01 of Balamuri village. If the entire land of the schedule property is taken into consideration, it will become 11.49 acres.

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16. According to the say of defendant No.1 as well as in pleadings and evidence, he is in possession of five acres and defendant no.2 is in possession of five acres. If the

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defendants are in possession of 10 acres, the area remains in schedule property is only 1.49 acres. Therefore, the claim of the defendant that the oral partition took place about long years ago' cannot be accepted and cannot be held that 5 acres have been allotted to the share of defendant no.1 and 5 acres allotted to defendant no.2. If there was any equal partition taken earlier, certainly there would have nearly equal shares among the parties i.e., approximately about 3 acres would have been holding by each. But herein, it reveals that the defendants by pleading that there was earlier partition want to grab the share of the plaintiff. Therefore, the claim of the defendants regarding oral partition cannot be accepted only on the sole testimony of defendant no.1.

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17. Under such circumstances, I held that the plaintiff having 1/3^rd share in the schedule properties and the schedule properties are joint family properties of plaintiff and defendants. Further, I held that the defendants have failed to prove the oral partition as pleaded in their written statement. Therefore, I answer Issue no.1 in the 'Affirmative' and Issue no.2 in the 'Negative'.

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18. ISSUE No.3: In the light of the discussions and findings on Issues nos.1 and 2, I held that the plaintiff having 1/3^rd share in the schedule properties and the defendants are also having 2/3^rd share in the schedule properties. But in spite of legal notice dated 17-4-98 as per Ex.P-2, the defendants did not given the legitimate share to the plaintiff as demanded. Therefore, the plaintiff

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is entitled for 1/3rd share by meets and bounds in the schedule property by way of preliminary decree. Hence, I answer Issue no.3 in the 'Affirmative'.”

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Being aggrieved by the same, it is the first defendant who has preferred the present appeal on the following grounds:

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“The judgment and decree passed by the trial court is not sustainable in law and thereby the judgment and decree is liable to be set aside.

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The trial court ought to have hold that there is a partition in between the brothers. originally in the presence of the Panchayathdars Thereby the trial court ought to have reasoned that the appellant has proved his defence.

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The trial court ought to have appreciated that the appellant and the respondents are not in joint possession of the property. Thereby the trial Court ought to have decided that the court fee paid is insufficient, às the subject matter do not come within the meaning of Section 35(2) of the Karnataka Court Fees & Suits Valuation Act, 1958.”

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Sri I.S.Devaiah, learned counsel for the appellants, reiterating the grounds urged in the appeal memorandum, vehemently contented that the judgment of the Trial Court has resulted in miscarriage of justice inasmuch as the land in

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question was partitioned during the lifetime of Kunjappa and therefore, second suit for partition is not maintainable.

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He would further contend that only on the ground that

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the revenue entries are not mutated, there cannot be a presumption that there was no oral partition at all. He would also contend that five acres of land is in possession of the first defendant and five acres of land is in the possession of the second defendant. Therefore oral partition needs to be accepted.

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He would further contend that only on the ground that D.W-1 could not answer as to the extent of the land that is in possession of the plaintiff, the theory of oral partition cannot be brushed aside by the Trial Court and thus, sought for allowing the appeal.

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Per contra, Sri Venkatesh R. Bhagat, learned counsel for the contesting respondent/plaintiff supports the impugned judgment.

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He would further contend that the theory of oral partition is not established by the defendants and in the written

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statement, first defendant went to the extent of denying the very relationship among the parties which has been made to accept by cross- examining the DW-1 which shows the intention of the first defendant in denying the share to the plaintiff.

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He also pointed out that as against Ex. P-1, no contra documents are placed on record by the defendants to establish the oral partition said to have taken place during the lifetime of Kunjappa.

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Therefore, the theory of oral partition set up by the first defendant which was adopted by the legal representative of second defendant is only to postpone the legitimate share of the plaintiff in the suit properties and sought for dismissal of the appeal.

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Having heard the arguments of both sides and on perusal

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of the material on record, following points would arise for consideration:

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(i) Whether the plaintiff has made out a case that he being one of the sons of Kunjappa, is entitled to 1/3^rd share in the suit properties?

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(ii) Whether the first defendant successfully establishes that there was an oral partition and therefore suit for successive partition is not maintainable?

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(iii) Whether the impugned judgment is suffering from legal infirmity or perversity and thus calls for interference?

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(iv) What Order?

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REGARDING POINT Nos.1 to 3: These points are taken up together for the sake of convenience and also to avoid the repetition of facts.

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In the case on hand, even though the first defendant has denied the relationship among the parties, by virtue of the cross-examination of D.W-1 wherein D.W-1 has categorically admitted that his grandfather's name is Appachu and he had five children and one among them is the father of the plaintiff and defendant No.2 by name Kunjappa. Therefore, relationship among the parties though denied in the written statement, stood established.

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Having said so, admittedly Kunjappa died and during the lifetime of Kunjappa, he possessed the suit properties at a

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partition among his brothers. After Kunjappa possessed the land, according to the plaintiff, there is no partition at all. It is the defendant Nos.1 and 2 who have denied the share to the plaintiff which necessitated him to issue legal notice vide Ex.P.2.

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Said legal notice is served on the first defendant vide Ex.P-3/postal acknowledgment. Pertinently, there is no reply to the legal notice. Therefore, suit came to be filed.

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Defendants took up the plea of the oral partition or previous partition. When such a plea is taken, it is for the defendants to establish by placing cogent evidence on record that there was a previous partition during the lifetime of Kunjappa himself.

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Pertinently, no such details with regard to the earlier partition which is said to have taken place during the lifetime of Kunjappa is forthcoming inasmuch as D.W-1 is unable to say at least in which year the said oral partition has taken place.

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Further, to establish the oral partition, revenue entries are necessary. No such revenue entries are forthcoming. In

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Ex. P-1, there are no details as to the shares that has been allotted to the plaintiff, defendant No.1 and defendant No.2.

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Crowning all these aspects of the matter, D.W-1 categorically admits in his cross-examination that he is unable to furnish the survey number of the land which is in his possession. However he has stated that he has got five acres of coffee estate and second defendant has also got five acres of coffee estate. What was the total extent of the land that the Kunjappa possessed is not even spelt out by the defendant to establish that there was an oral partition.

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Further, as per Ex.P-1, the land measures more than 11 acres 49 cents. If there is an equal partition, then, it should have been 3 acres and few cents for each of the sons of Kunjappa viz., plaintiff and defendant Nos.1 and 2. Therefore, very fact that defendant Nos.1 and 2 are possessing 5 acres each shows that there was no proper partition at all.

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Further, in respect of the wetlands also no details are forthcoming and what is the extent that the plaintiff is entitled to in the wetlands is not forthcoming. Except saying that the

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land is equally divided among the plaintiff, first defendant and second defendant, there is no other material on record to establish the previous partition.

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Under such circumstances, learned Trial Judge rejecting the theory of previous oral partition and decreeing the suit, granting 1/3^rd share to the plaintiff is just and proper.

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