Mr. Gangadhara Madivala Vs Mr. Nonayya Madivala

THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 04.04.2022 PASSED IN RA.NO.5016/2019 ON THE FILE OF THE V ADDL. DISTRICT AND SESSONS JUDGE, AT PUTTUR, D.K. DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 21.10.2019 PASSED IN O.S.NO.6/2013 ON THE FILE OF THE PR.SR. CIVIL JUDGE AND ACJM., AT PUTTUR TALUK, D K.

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THIS APPEAL, COMING ON FOR ADMISSION, 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.Prasanna V. R., learned counsel for the appellants and Sri.K.Shrihari, Learned counsel for the respondents.

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Defendant No.1 in O.S.No.6/2013 is the appellant. He suffered the decree whereby the suit ‘A’ schedule property was ordered to be partitioned granting 1/4^th share to the plaintiff and 1/4^th share each to defendant Nos.1 to 3.

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During the pendency of suit, defendant No.3

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died. Therefore, his legal representatives were brought on record. Suit was filed by brother of defendant No.1 by

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NC: 2025:KHC:30856 RSA No. 1030 of 2022

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HC-KAR

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contending that suit ‘A’ schedule property are the self acquired properties of his father namely Manjayya Madivala resident of Perabe village, Puttur Taluk, Dakshina Kannada District. Particulars of suit ‘A’ schedule property is culled out hereunder for ready reference:

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Immovable property situated in Perabe village, Puttur Taluk and comprised in.

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Sl.No.	RS.No.	Kissam	Extent A.C	Assessment
1.	67/2		0.31
2.	68/3P(P2)	Wet	1.77	6.55
3.	68/4	Dry	0.27	0.17
4.	68/8	Wet	0.62	2.30
5.	68/9	Wet	0.26	0.32
6.	197/3	Dry	0.74	0.23
			3.97	9.57

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Suit on contest came to be decreed as it is the

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defendant No.1 who alone contested the suit by contending that there was a prior partition; as such, second suit for partition is not maintainable.

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5. According to the written statement of defendant

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No.1, the prior partition was an oral partition; as per

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which parties enjoyed the property in their respective shares without any hindrance from other sharers.

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Learned Trial Judge after framing necessary issues, recorded the evidence of the parties. Thereafter, heard the arguments and on cumulative consideration of oral and documentary evidence on record, decreed the suit of the plaintiff disbelieving the theory put forward by defendant No.1 that there was a prior partition.

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Being aggrieved by the same, defendant No.1 filed an appeal before the First Appellate Court in R.A.No.5016/2019.

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Learned Judge in the First Appellate Court after securing the records, reappreciated the factual and legal aspects in the matter and dismissed the appeal of defendant No.1 and confirmed the order of the Trial Court.

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Being further aggrieved by the same, defendant No.1 is before this Court, in this appeal.

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During the pendency of the appeal, defendant No.1 died and his legal representatives are brought on record.

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In the appeal following grounds and substantial questions of law are raised:

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GROUNDS

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The Judgment and Decrees under challenge are opposed to law, facts and materials placed on record.

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The Judgment and Decrees under Appeal are perverse, capricious and illegal, which needs to be set-aside.

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The Trial Court and First Appellate Courts have failed to draw proper inferences from the pleading of the parties, materials placed on record and admitted and proved facts and those drawn are erroneous.

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The Trial Court has failed to frame proper issues arising out of the pleadings of the parties. When the 1st Defendant has specifically pleaded that the tenancy was the family tenancy being cultivated by Late Manjappa Madivala and other

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family members and occupancy rights were granted by the Land Tribunal in favour of the father being kartha of the family, and issue as to whether the Plaintiff has proved that the tenancy held by Late Manjappa Madivala was a joint family: tenancy or his individual tenancy excluding the family members ought to have been raised and burden should have been casted on the Plaintiff. In the absence of such an issue with respect to the tenancy of family or individual, the Judgement and Decree of the Trail Court rendered unsustainable.

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The Trial Court has failed to appreciate the admission of the PW-1 as to the survey and preparation of Sketch by the Surveyor effecting division of the properties during the life of his father as per the Oral Partition and Panchayath held during the month of November, 2003, which resulted in dismissal of Suit affecting the right accrued on the parties.

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The Trial Court has erred in ignoring the documents Ex.D-1 and D-2, Form No.11-E Sketch prepared for registration of Partition Deed between Plaintiffs and Defendants as per the will and wish of their father, showing allotment of Written Statement 'B' Schedule Properties to the 1st Defendant, which followed with payment of

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Tax, RTC Extracts vide Ex.D-3 to D-14 and similarly, Written Statement 'B', 'C', 'D' and 'E' Schedule Properties being divided and allotted among the Plaintiffs and Defendants and merely because there was no registration of Partition Deed pursuant to the Oral Partition which was given effect to by taking physical possession, payment entries and payment of tax individually to their respective shares will not render the Oral Partition in effective and therefore, the Trial Court has erred in decreeing the Suit of the Plaintiffs.

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Having accepted the Ex.D-1 and D-2, 11-E Sketches signed by Late Manjappa Madivala in proof of effecting Partition, followed with payment of property tax by the parties on their individual capacity subsequent to the aforesaid Oral Partition, the Trial Court ought not to have decreed the suit of the Plaintiff, as if, there was no partition by meets and bounds.

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When the jurisdiction as to whether the tenancy was the joint family tenancy or individual tenancy of the Applicant who conferred with occupancy right vested with the Civil Court, the Trial Court ought to have exercised its jurisdiction holding that it was the joint family tenancy of Late Manjappa Madivala and his children, as such, the division effected during the life time of Late

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Manjappa Madivala was a valid partition, which ought to have been accepted by the Trial Court by dismissing the Suit of the Plaintiff. In the absence of such a decision, the Judgment and Preliminary Decree of the Trial Court rendered erroneous and unsustainable.

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The First Appellate Court has erred in not reappreciating the evidence both oral and documentary produced by the parties before the Trial Court and on the other hand, the First Appellate Court has reiterated the Pleadings and Evidence and just accepted the finding of the Trial Court, thereby, failed to exercise the jurisdiction vested on the First Appellate Court under Order 41 r/w Section 96 of the Code of Civil Procedure, 1908.

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The First Appellate Court has erroneously assumed that the Plaintiff and Defendants No.1 and 2 have got 1/4th share each and LRs of the deceased 3rd Defendant have got remaining 1/4th share as the Plaintiff and Defendant No.1 to 3 are the children of Late Manjappa Madivala, ignoring the evidence of DW-1 and DW-2 who specifically pleaded and deposed that Late Manjappa Madivala being the senior member in the family, occupancy right conferred on him for and on behalf of the family and the oral partition effected

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in his presence since given effect to, there was no occasion for Trial Court to pass a Preliminary Decree for Partition, unless, a Declaration is sought for by the Plaintiff as the earlier partition as not binding on him or not acted upon.

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 The First Appellate Court has erred in rejecting the IA No.3 filed by the Appellant/1st Defendant under Order 26 Rule 9 r/w Order 41 Rule 27 of CPC seeking to appoint a Commissioner and to produce documents observing that similar Application filed by the 1 there is no bar for filing application for appointment of Commissioner Defendant was relected by the Trial Court, ignoring the fact that and production of document at the appellate stage and principles of resjudicata will not applicable in so far as appointment of Commissioner and production of document at the appellate stage is concerned, especially when there was an observation to the effect that the application was filed before the Trial Court being premature.

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No other proceedings or litigation relating to the subject matter or any part thereof either past or present is pending before this Hon'ble Court or any other Court of law.

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Substantial questions of law

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(1) Whether the Trial Court has justified in decreeing the Suit of the Plaintiff holding that the father of the Plaintiff was conferred with occupancy right on his individual capacity and upon his death, the Plaintiff and Defendants got equal right, Ignoring the admission of PW-1?

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(ii) Whether the Judgment and Decree of the Trial Court is sustainable in view of the documentary evidence Ex.D-1 and D-2 being 11-E Sketch showing division of properties and Ex.D-3 to D-8, D-10, D-13 and D-14 showing enjoyment of the properties in terms of Oral Partition?

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(iii) Whether the First Appellate Court has erred in law in confirming the Judgement and decree of the Trial Court without re-appreciating the entire pleading and evidence on record, except reproducing the findings of the Trial Court ?

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(iv) Whether the First Appellate Court has justified in rejecting the application filed by the 1st Defendant under Order 26 Rule 9 r/w Order 41 Rule 27 of CPC, 1908 ?

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v) Whether the Judgement and Decrees impugned suffer from misreading of pleading, evidence and materials placed on record?

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Learned counsel for the appellants reiterating the grounds urged in the appeal memorandum and pursuant to the substantial questions of law raised above, contended that prior partition though has been established, learned Trial Judge has not considered the material evidence and the admissions elicited in the crossexamination of P.W.1 and wrongly decreed the suit of the plaintiff which has been mechanically upheld by Learned Judge in the First Appellate Court resulting in miscarriage of justice.

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He would invite the attention of this Court to the cross-examination of P.W.1 wherein there is a clear admission that after the death of father of plaintiff and defendants, each one of them are separately residing and mutated the revenue entries.

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It is his further contention that the property

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having been partitioned, though orally, expecting written documents to prove the prior partition by the Learned Trial Judge and negating the contentions taken by the defendants has resulted in miscarriage of justice and sought for admitting the appeal.

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Per contra, learned counsel for the

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respondents, supports the impugned judgments.

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Having heard the parties in detail, this Court perused the material on record meticulously.

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On such perusal of the material on record, it is

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crystal clear that both the Courts have appreciated the material evidence placed on record in proper perspective.

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Learned Trial Judge has taken note of the admissions elicited in the cross-examination of D.W.1 wherein he has categorically stated that his father went to

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the office of ADLR and on a white paper, gave the details

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of the properties to be enjoyed by each of the sharers and

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based on that, revenue entries were mutated.

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It is also pertinent to note that no such white paper is forthcoming on record by summoning the same from concerned office; nor the names of the sharers are forthcoming.

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It is highly unimaginable that in respect of the self acquired property, during his lifetime why would he voluntarily visit the office of the ADLR and furnish out the details as to how the property is to be partitioned.

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Moreover, no share was reserved for himself in such a declaration even assuming that such a partition has taken place in his life time only with an intention to settle the properties peacefully.

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Taking note of these aspects of the matter, learned Trial Judge has rightly disbelieved the previous partition.

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A witness - D.W.2 is examined on behalf of the defendants to establish that there was a previous partition. In his cross-examination, the answers elicited on behalf of the plaintiff would support the case of the plaintiff rather than the case of the defendants in respect of previous partition.

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Taking note of these aspects of the matter, learned Judge holding that there is no previous partition and declaring that each of the parties are entitled to 1/4^th share in the suit property in view of the fact that the father of the parties was the owner of the suit ‘A’ schedule

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property as self acquired property and having died intestate is just and proper. Learned Judge in the First Appellate Court was also justified in dismissing the appeal and reappreciation of factual and legal aspects.

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In view of the foregoing discussion, none of the substantial questions of law raised in the appeal memorandum would merit for further consideration.

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Accordingly, the following:

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ORDER

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i. Appeal is meritless and hereby dismissed.

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ii. However, the appellants are at liberty to plead in the Final Decree Proceedings that property which is in their occupation may be allotted to them while considering the equitable partition and taking note of the alleged improvement of the property in their occupation.

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Sd/(V SRISHANANDA) JUDGE

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KAV List No.: 1 Sl No.: 48

Mr. Gangadhara Madivala v. Mr. Nonayya Madivala

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Mr. Gangadhara Madivala v. Mr. Nonayya Madivala

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