Srikant S/O Hanamantappa Solanke Vs Raju S/O Hanamantappa Solanke

(BY SRI. PRANAV BADAGI, ADVOCAE FOR SRI. R.H.ANGADI, ADVOCATE FOR R6; NOTICE TO R2 TO R5, R7, R8, R10 ARE SERVED; NOTICE TO R1 AND R9 ARE HELD SUFFICIENT; NOTICE TO R11 IS DISPENSED WITH)

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THIS RSA IS FILED UNDER SECTION 100 OF CODE CIVIL PROCEDURE CODE PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE LEARNED I ADDITIONAL DISTRICT AND SESSIONS JUDGE, DHARWAD SITTING AT HUBBALLI IN R.A.NO.110/2014 DATED 15.10.2015 AND CONFIRM THE JUDGMENT AND DECREE PASSED BY THE LEARNED II ADDITIONAL SENIOR CIVIL JUDGE, HUBBALLI IN O.S.NO.156/2009 DATED 30.08.2014 AND ETC.,

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

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NC: 2025:KHC-D:7577 RSA No. 100018 of 2016

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HC-KAR

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL)

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This appeal is filed by plaintiff No.1, being

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aggrieved by the judgment and decree dated 15^th October 2015 passed in R.A. No.110 of 2014 on the file of the I- Addl. District and Sessions Judge, Dharwad Sitting at Hubballi (for short “the First Appellate Court”). By the said judgment, the First Appellate Court, while allowing the appeal filed by defendant No.6, set aside the judgment and decree dated 30^th August 2014 passed in O.S. No.156 of 2009 on the file of the II-Addl. Senior Civil Judge, Hubballi (for short “the trial Court”), in respect of item Nos.1, 2, 4, 10 and 13, by holding that the said properties are selfacquired properties of defendant No.6, and confirmed the said judgment with respect to the remaining suit properties.

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Brief facts of the case are that: the plaintiffs, defendant Nos.3 to 6, defendant Nos.1(a) and 1(b) and one

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late Ganapati Solanke are the children of the deceased defendant No.1. Defendant No.7 is the wife and defendant Nos. 2, 8 to 10 are the children of the aforesaid late

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Ganapati Solanke. That plaintiffs and defendants constituted a Hindu Undivided Joint Family and the suit properties are their joint family properties. Defendant No.1 was the Karta of the family and he purchased the suit properties out of the income derived from the joint family properties in the names of the members of the joint family, for and on behalf of the joint family. No one has exclusive ownership or right over the suit properties. Defendant Nos.2 to 6 are trying to alienate the suit properties by taking undue advantage of their names being reflected in the revenue records, thereby constraining the plaintiffs to file above suit seeking partition and separate possession of their share.

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Defendant No.1, the father of the plaintiffs and defendant Nos.3 to 6, filed written statement admitting the averments made in the plaint. Defendant Nos.3 to 5 adopted the written statement filed by defendant No.1.

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Defendant No.6 filed a separate written statement, which was adopted by defendant Nos.2 and 4.

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In his written statement, defendant No.6 contended that the properties bearing Block Nos.106/1, 44/1B, 123/3 and VPC Nos.7 and 64, which are suit item Nos.1, 2, 4, 10 and 13 respectively are not the joint family properties, but are his self acquired properties. He claimed to have purchased these properties out of his own income derived from the transport business and that the plaintiffs and other defendants have no manner of rights in these properties. Hence, he sought dismissal of the suit to the extent of the said items of suit properties.

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Based on the pleadings, the trial Court framed

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the following issues for its consideration:

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1) Whether the plaintiffs prove that they and defendants are in joint activity of the family i.e., looking after the agriculture and business of the family and residing as a joint family as contended in para 4 of their plaint?

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2) Whether they further prove that suit properties were purchased by defendant No.1 in the name of different persons of the family out of joint family income earned by all the members of the family?

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3) Whether defendant No.4 proves that the plaintiffs have not paid proper court fee?

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4) Whether defendant No.6 proves that suit properties bearing block No.106/2 measuring 1 acre 29 guntas, block No.44/1B 1 acre 21 guntas, survey No.123/3 2 acres 37 guntas VPC No.7 and 64 are his self acquired properties?

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5) Whether the plaintiffs are entitled for the relief claimed in the suit?

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6) What order or decree?

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Plaintiff No.2 examined himself as PW1 and got 15 documents marked as Exs.P1 to P15. Defendant No.6 examined himself as DW1 and got 4 documents marked as Exs.D1 to D4.

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The trial Court, upon appreciation of the evidence, answered issue Nos.1, 2 & 5 in the affirmative, and issue Nos.3 & 4 in the negative and consequently decreed the suit, allotting a 1/8^th share to plaintiff as sought, and a 1/8^th share to each of the other defendants, being the descendents of defendant No.1.

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Defendant No.6 being aggrieved by the judgment

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and decree passed by the trial Court to the extent of division of the properties in respect of Item Nos.1, 2, 4, 10

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& 13, preferred an appeal in R.A. No.110/2014 before the First Appellate Court.

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The First Appellate Court, based on the pleadings and evidence, framed the following points for its

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consideration:

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1. Whether I.A.No.3 is fit to be allowed?

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2. Whether the plaintiffs prove that all the suit properties are the joint family properties earned from the income of the joint family nucleus?

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3. Whether the sixth defendant proves that Item No.1, 2, 4, 10 and 13 are his self-acquired properties?

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4. Whether the judgment and decree of the trial Court require to be interfered?

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5. What order?

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On re-appreciation of the evidence, the First Appellate Court answered point No.1 in the negative, point Nos.2 and 4 partly in the affirmative and point No.3 in affirmative and consequently partly allowed the appeal as noted above, excluding suit item Nos.1, 2, 4, 10 and 13 from partition, holding them to be the self-acquired properties of defendant No.6.

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Aggrieved by the same, plaintiff No.1 preferred this regular second appeal.

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This appeal is admitted for consideration of following substantial question of law;

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“Whether the First Appellate Court is justified in holding that the item Nos. 1, 2, 4, 10 and 13 of the suit properties are the self acquired properties of the Defendant No.6 even in the absence of he leading any evidence in that regard, merely on the premise of PW1 not tendering himself for cross-examination and also on the premise of Defendant No.1 not leading any evidence during his life time?”

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Learned counsel Shri Dinesh M. Kulkarni, appearing for the appellant – plaintiff No.1 took this Court through the finding and conclusions arrived at by the trial Court in paragraph No.18 of its judgment, wherein the trial Court while adverting to the claim of defendant No.6, has observed that except claiming that he purchased the said items of suit properties out of income from his transport business, defendant No.6 did not produce any evidence in this regard. Referring to this he submitted that the trial

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Court decreed the suit and reject the claim of defendant No.6 for want evidence.

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He further submits that the First Appellate Court on the other hand accepted the contention of Defendant No.6, by erroneously holding that there was no evidence on behalf of the plaintiff at all, merely because PW1 did not tender himself for cross-examination. This according to him, is contrary to the settled principles of law. He submits that the First Appellate Court ought to have considered that plaintiff No.2 had initially adduced his evidence and marked 15 exhibits, and he had also tendered himself for crossexamination, which was taken as NIL. He submits that an application subsequently made to recall the said witness was allowed and PW1 was recalled. But in the meanwhile the witness had passed away. He contends that this factual aspect of the matter was not taken into consideration by the First Appellate Court.

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He further submits that defendant No.1, who is the father of the parties herein, had unequivocally admitted

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in his written statement that all the properties were joint family properties, although they were purchased in the names of some of the members of the joint family, including defendant No.6. That, since defendant No.6 took specific plea of aforesaid items of the suit properties are his self-acquired properties, he ought to have discharged his burden notwithstanding the plaintiff not examining himself in this regard. Hence seeks for allowing of the appeal

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Heard. Perused the records.

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The claim of the plaintiffs is that, the suit

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properties are the joint family properties, though some of them were purchased in the names of the members of the joint family, this fact is not denied by defendant No.1, the father of plaintiffs and defendants. Defendants 3 and 5, agreed and concurred with the stand taken by the plaintiffs and defendant No.1.

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Defendant No.6 in his written statement, specifically contended that Item Nos.1, 2, 4, 10 and 13 are

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his self acquired properties, purchased out of the income from his transport business.

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Totally there are 9 items of landed properties and 6 items of house properties, which the plaintiffs claim to be joint family properties. Even according to defendant No.6, apart from Item Nos.1, 2, 4, 10 and 13, the remaining properties are joint family properties. In other words, the existence of joint family and joint family properties is not denied even by defendant No.6.

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As rightly taken note by the trial Court at paragraph No.18 of its judgment, as on the date of filing of the suit, the age of the defendant No.6 was shown as 40 years. Though he claimed to have purchased the aforesaid items of properties through the income from his purported transport business, he has neither produced any documents to substantiate his claim of he having such transport business nor has he produced any evidence of his independent income from the said transport business.

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The trial Court has also taken note of the fact that in his evidence, defendant No.6 deposed that he was earning the income from driving a vehicle, but he did not even produce his driving licence.

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On the appreciation of the material evidence, negating the claim of the Defendant No.6, trial Court held and concluded that all the suit properties are the joint family properties.

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However, the First Appellate Court without considering these aspects of the matter held that since PW1 did not tender himself for cross-examination, there was no evidence on behalf of the plaintiffs at all, and in the absence

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of such evidence, the case of the defendant No.6 must be accepted in its entirety. Accordingly proceeded to the pass impugned judgement and decree.

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As rightly pointed out by the learned counsel for the appellant, this approach of the First Appellate Court runs contrary to the settled principles of law governing the appreciation of evidence in a suit for partition, wherein all

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plaintiffs are the defendants and all the defendants are the plaintiffs. Once the initial burden of proving existence of joint family properties is discharged, the burden shifts on to the person, who claims otherwise. In the present case, the plaintiffs have claimed that all the suit properties are joint family properties. Defendant No.1, the father of plaintiffs and defendants, admitted that the suit properties are the joint family properties. Even defendant No.6 has admitted that except Item Nos.1, 2, 4, 10 and 13, which are his selfacquired priorities, rest of the suit properties are the joint family property. Therefore, it was incumbent upon defendant No.6 to have led independent evidence in support of his claim of Item Nos.1, 2, 4, 10 and 13, being his self-acquired priorities, which he has failed to do.

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Plaintiff No.2 had been examined as PW1 and marked 15 exhibits. He had also tendered himself for crossexamination. Since he was not cross examined, the same was taken as NIL, by order dated 17.02.2011. It appears an application subsequently made to recall the said witness

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was allowed. But in the meanwhile he passed away. Thus the said witness could not be tendered for cross examination. Even Defendant No.1 passed away. These circumstances would never absolve defendant No.6 from proving his claim over item Nos.1, 2, 4, 10 and 13 of the suit property. This crucial aspect of the matter has not been properly considered by the First Appellate Court. Accordingly, the substantial question of law raised above is answered in the negative and in favour of the appellants.

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Consequently, the appeal is allowed . The

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judgment and decree passed by the First Appellate Court, excluding Item Nos.1, 2, 4, 10 and 13 from partition, is set aside. The judgment and decree passed by the trial Court is confirmed.

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Sd/(M.G.S. KAMAL) JUDGE

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VNP/CT-ASC List No.: 1 Sl No.: 21

Srikant S/O Hanamantappa Solanke v. Raju S/O Hanamantappa Solanke

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Srikant S/O Hanamantappa Solanke v. Raju S/O Hanamantappa Solanke

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