Sri. Venkoba Rao Vs Sri Narayan Rao Since Dead by His Lrs

1(C) SMT. LAKSHMI BAI V AGED ABOUT 26 YEARS D/O LATE VENKOBA RAO W/O RAGHUNATHA R/AT GOLLAHALLI GRAMA MATTAKANNASANDRA POST SRINIVASAPURA TALUK MATAKANSANDRA KOLAR – 563 131

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…APPELLANTS

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(BY SRI. MURTHY K., ADVOCATE)

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AND:

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SRI NARAYAN RAO SINCE DEAD BY HIS LRS

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1(A) SMT. RADHA BAI W/O LATE NARAYANA RAO, AGED ABOUT 70 YEARS,

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1(B) SMT. LAKSHMI BAI D/OF LATE NARAYANA RAO, AGED ABOUT 53 YEARS,

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BOTH ARE

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R/AT SANTHEHALLI MAJARA, NIDAGATTA VILLAGE, KASABA HOBLI, MALUR TALUK

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SRI D.V. SRINIVASAIAH SINCE DEAD BY HIS LRS

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2(A) SMT. KAMALAMMA, W/O LATE D.V. SRINIVASAIAH, AGED ABOUT 49 YEARS

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2(B) JANARDHAN

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D/O LATE D.V SRINIVASAIAH, AGED ABOUT 30 YEARS,

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2(C) KRISHNAMURTHY S/O LATE D.V SRINIVASAIAH, AGED ABOUT 29 YEARS,

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2(D) SANTHOSH KUMAR S/O LATE D.V SRINIVASAIAH, AGED ABOUT 25 YEARS,

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2(A) TO 2(D) ARE R/O DINNERI VILLAGE, MASTHI HOBLI, MALUR TALUK – 563 130

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2(E) D.S. VASUNDHARA D/O LATE SRINIVASARAO, WIFE OF PADMANABHACHAR, AGED ABOUT 34 YEARS

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R/O. VENKATESHWARANILAYA, SRINIVASAPUR TOWN, SRINIVASPUR TALUK – 563 135

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…RESPONDENTS

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[BY SRI. RAMAIAH GOWDA L M., ADVOCATE FOR R2(A-E) R1(B) IS SERVED

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V/O DATED 25.02.2019 APPEAL AGAINST

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R1(A) IS DISMISSED AS ABATED)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST

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THE JUDGMENT AND DECREE DATED 20.12.2013 PASSED IN R.A.NO.103/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, MALUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 18.07.2007 PASSED IN O.S.NO.146/1991 ON THE FILE OF ADDL. CIVIL JUDGE(JR.DN), MYSORE.

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

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CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI

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ORAL JUDGMENT

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This Regular Second Appeal is filed by the appellant challenging the judgment and decree dated 20.12.2013 passed in R.A. No.103 of 2011 (old R.A. No.290 of 2007) on the file of the Senior Civil Judge and JMFC, Malur and the judgment and decree dated 18.07.2007 passed in O.S. No.146 of 1991 on the file of the Additional Civil Judge (Jr.Dn.), Malur.

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For convenience, the parties are referred based on their rankings before the Trial Court, i.e., the appellant was the plaintiff 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 plaintiff—Venkoba Rao filed a suit O.S. No.146 of 1991 against the defendants for partition and separate possession. It is the case of the plaintiff that one Ramjirao was the original propositus, who

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had two sons by the name of Narayan Rao i.e., defendant No.1 and Munioji Rao, i.e., the plaintiff’s father. Ramji Rao and his two sons constituted a Hindu joint family and the said Ramji Rao was very much aged and as such, his son Narayan Rao was looking after all the suit schedule properties and all the joint family properties stood in his name.

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Ramji Rao and his sons continued to enjoy the suit schedule properties jointly and about 15 years back, Munioji Rao died and after one year, Ramji Rao also died.

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According to the plaintiff, in 1951, there was a misunderstanding between Ramji Rao and his two sons and they got divided the properties. In the said partition, the first portion of item No.1 of suit schedule “A” properties fell to the share of Ramji Rao and his wife; and after their demise, their shares were to be divided equally between the plaintiff's

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father and defendant No.1; even though they were separated, after the reconcilement, both were enjoying the family properties jointly. About ten years back, the plaintiff's mother died and even then also, the family stood joint and all the properties were jointly being enjoyed by both of them.

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When things stood thus, defendant No.1 sold item No.1 of suit schedule ‘A’ properties to defendant No.2 under the registered sale deed despite having no independent right or interest over the said property.

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The plaintiff demanded for his share and to effect a partition and separate possession of the properties, but the defendants refused to effect partition. Hence, a cause of action for partition arose, allowing the plaintiff to file a suit for partition and separate possession and accordingly, he prays to decree the suit.

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9. Defendant No.1 filed a written statement contending

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that item No.1 of suit schedule “A” properties was self-acquired property of defendant No.1, which was granted by the Government about 40 years ago. Since he is the absolute owner of Item No.1 of “A” schedule properties, he sold the same in favour of defendant No.2. Defendant No.2 is cultivating item No.1 of suit schedule ‘A’ properties and contended that the plaintiff has no right to claim a share in the self-acquired property of defendant No.1 i.e., Item No. 1 of suit schedule ‘A’ properties. Hence, he prays to dismiss the suit.

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The legal representatives of defendant No.2 filed a written statement denying the averments made in the plaint and contended that 1^st defendant’s daughter by name Lakshmi Bai has filed the suit in O.S. No.7 of 2004 against defendant No.2 and admitted the fact that the suit item No.1 of the suit schedule was the

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self-acquired property of Narayan Rao (defendant

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No.1).

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According to the legal representatives of defendant No.2, they are the absolute owners of item No.1 of suit schedule ‘A’ properties and they are in possession of said property. Hence, they pray for the dismissal of the suit against defendant No.2.

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Defendant No.2 had also filed a suit in O.S. No.223 of 1991 for the relief of permanent injunction against the plaintiff.

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The Trial Court, clubbed both suits and based on the pleadings of the parties, framed the following issues in O.S. No.146 of 1991:

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�ಾ�ಾ ಆ��ಗಳ� ಅ�ಭಕ� ಕುಟುಂಬದ ಆ��ಗಳ� �ಾ� ಮತು� ಪ��ಾ�ಯರು ಜಂ� �ಾ��ೕನದ"#ರುವ%�ಾ& �'ೕ �ಾ�(ೆ �ಾ�ಾ ಆ��ಗಳ� ಅಧ+ ,ಾಗ ಇರುವ%�ಾ& �ಾ� �ಾ.ೕತು ಪ/ಸುವ1ೇ?

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2 . ಒಂದ5ೇ ಪ��ಾದ 25ೇ ಪ��ಾ�(ೆ 6ಾ1ಾಟ 6ಾಡಲು ಹಕು: ಇರುವ%�ಲ# ಸದ; �ಾ<ವ=ಾರ �ಾ�(ೆ ಅನ�>ಸುವ%�ಲ# ఎంబ�� ಾ� ರುಜು�ಾತು ಪ/ಸುವ1ೇ?

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?ದಲ5ೇ ಪ��ಾ� ಕುಟುಂಬದ ಕತ+5ಾ&�ಾ@ರು ಅದAಾ:& �ಾ�ಾ ಆ��ಗಳ� �ಾಖCೆಗಳ� ಅವರ =ೆಸ;(ೆ ಬgÉ¬ÄಸCಾ&Dೆ�ಂದು �ಾ� ರುಜು�ಾತು ಪ/ಸುವ1ೇ?

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�ಾ� Dಾವ% ಪ��ಾ�ಯನುE �ಾ�ಾ ಆ��ಯ"# ಅಧ+ ,ಾಗ AೇF�ಾ& 15ೇ ಪ��ಾ� ಒಂದಲ# ಒಂದು AಾರಣAೆ: ಮುಂದೂ/ದರು ಎಂದು ರುಜು�ಾತು ಪ/ಸುವ1ೇ?

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ಪ��ಾ� Dಾವ% �ಾ�ಾ�� ಐಟಂ ನಂ.1 ನುE ಸ�KಾL+ತ�ಾ& ಸಂ¥Á��ರುವ%�ಾ& =ಾಗೂ ಐಟಂ ನಂ.2 ನುE ಸತತ�ಾ& 3040 ವಷ+ಗFಂದ Dಾ�ೇ ಅನುಭ��ದು@ �ా��య ಹN:ನ ಪ��ಕೂಲ �ರುದO =ೊಂ�ರುವ%�ಾ& �ಾ.ೕತು ಪ/ಸುವ1ೇ?

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�ಾ� �ಾ�ೆಯ"# AೇFರುವಂDೆ ,ಾ(ಾಂಶ ಪQೆಯಲು ಅಹ+1ೇ?

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ಆ�ೇಶ ಮತು� /N� ಏನು ?

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The plaintiff in O.S. No.146 of 1991 was examined as PW-1 and also examined two other witnesses as PWs-2 and 3; and marked thirteen documents as Exhibits P1 to P13. On the other hand, the defendants examined six witnesses as DW-1 to DW-6 and marked forty-four documents as Exhibits D-1 to D-44.

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15. The Trial Court, after recording the evidence adduced

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by both sides and after assessing the verbal and documentary evidence, answered issue Nos.1 to 4 and 6 in negative and issue No.5 in affirmative and issue No.7, as per the final order. The suit filed by the plaintiff in O.S. No.146 of 1991 was dismissed and the suit in O.S. No.223 of 1999 was decreed and a decree of permanent injunction was granted.

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The plaintiff, aggrieved by the common judgment and decree passed in O.S. Nos.146 of 1991 and 223 of 1991, on 18.07.2007, preferred the appeals in Regular Appeal No.103 of 2011 (old Regular Appeal No.290 of 2007) and Regular Appeal No.104 of 2011 (old Regular Appeal No.292 of 2007).

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The First Appellate Court clubbed both these appeals and after hearing the learned counsel appearing for the parties, framed the following points for consideration:

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1. Whether the legal heirs of respondent no.2 proves that, I.A.3 filed u/o 41 rule 27 r/w sec.151 of CPC is deserves to be allowed at this stage?

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1. Whether the appellant proves that, the trial court erred in non-considering the suit schedule properties are joint family properties of plaintiff and defendant no.1 and entitlement of equal half share by the plaintiff. in the suit schedule properties as contended in the plaint of OS 146/1991?

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1. Whether the appellant proves that, the trial court erred in granting permanent injunction against him in respect of suit schedule property of OS 223/1991?

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1. Whether the judgment and decree of the trial court is opposed to law, facts and circumstances to the case and liable to interfere by this court?

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1. What order?

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The First Appellate Court, after re-assessing the oral and documentary evidence, answered point Nos.1 to

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4 in negative and point No.5 as per final order.

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The appeals filed by the plaintiff—Venkoba Rao in, R.A. Nos.103 of 2011 and 104 of 2011, were dismissed by judgment dated 20.12.2013. The common judgment and decree dated 18.07.2007 passed in O.S. No.146 of 1991 and O.S. No.223 of 1991, was confirmed.

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The plaintiff in O.S. No. 146 of 1991, aggrieved by the impugned judgment passed by the Courts below, filed this regular second appeal.

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Heard the arguments of learned counsel for the plaintiff and the learned counsel for the defendants.

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Learned counsel for the plaintiff submits that the plaintiff has restricted his claim only to the extent of item No.2 of ‘A’ schedule and ‘B’ schedule properties. He submits that the Trial Court, as well as the First Appellate Court, have not recorded any finding for declining to grant a share in Item No.2 of ‘A’ schedule and ‘B’ schedule properties. He submitted that

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admittedly, item No.2 of ‘A’ schedule and ‘B’ schedule properties are ancestral properties of the plaintiff and defendants and no partition is effected between them. Therefore, he submits that the Courts below have committed an error in decreeing the suit in respect of item No.2 of ‘A’ schedule and ‘B’ schedule properties. Hence, on these grounds, he prays to allow the appeal.

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Per contra , learned counsel for the defendants supported the impugned judgments passed by Courts below and prays to dismiss the appeal.

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This Court, vide order dated 08.08.2024, framed the following substantial question of law:

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“Whether the Trial Court and the First Appellate Court have committed an error in passing the impugned judgments without discussing whether the plaintiff is entitled for share in item Nos.2 and 3 of the suit schedule property?”

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Regarding Substantial Question of Law:

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The plaintiff, to substantiate his case, examined himself as PW-1, who has reiterated the plaint averments in the examination-in-chief, and to prove that item No.2 of ‘A’ schedule and ‘B’ schedule properties are the joint and ancestral properties of the plaintiff, and defendants, he produced 13 documents.

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Exhibit P-1 is the RTC extract of item No.1 of the suit schedule ‘A’ property for the year 1985-86 and ends with 1990-91; Ex.P-2 is the demand register extract of item No.2, which stands in the name of defendant No.1, from the name of his father Ramji Rao; Exs.P-3 and 4 are the tax paid receipt for having paid the tax to the authority; Ex.P-5 is the genealogical tree which discloses Ramji Rao and Venkubhyayamma issued on the self-sworn statement of plaintiff;

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Ex.P-6 is the certified copy of the registered sale deed executed by defendant No.1 in favour of defendant

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No.2 in respect of item No.1 of the suit ‘A’ schedule; Ex.P-7 is the office copy of the legal notice issued by the plaintiff to the Tahasildar, Revenue Inspector and defendant No.2, with a request not to effect the khata in the name of defendant No.2; Exs.P-8 to 10 are the postal acknowledgements which disclose that the legal notices were served on the Tahasildar, Revenue Inspector and defendant No.2.

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Ex.P-11 is the copy of the legal notice issued by the plaintiff to defendant No.1; Ex.P-12 is the unregistered paalupatti dated 03.06.1951 whereby a partition was effected between Ramji Rao, Munoji Rao and Narayana Rao; Ex.P-13 is the voters’ list.

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Defendant No.2 has cross-examined the plaintiff in regard to item No.1 of the suit schedule ‘A’ properties. There is no cross-examination in regard to item No.2 of ‘A’ schedule and ‘B’ schedule

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properties. The defendants have contested the suit only on item No.1 of the suit schedule ‘A’ properties.

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The plaintiff has produced the records to show that item No.2 of ‘A’ schedule and ‘B’ schedule properties are the joint family properties of the plaintiff and defendant No.1. Defendant No.1 has also not disputed that item No.2 of ‘A’ schedule and ‘B’ schedule properties are the joint family properties.

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The plaintiff has also examined one more witness as PW-2, who has deposed that the plaintiff and defendant No.1 are the members of the Hindu joint family and the suit schedule properties are the joint family properties of the plaintiff and defendant No.1 and even this witness has deposed about item No.1 of the suit schedule property.

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The plaintiff has also examined another witness as PW-3, viz ., defendant No.1 and in his deposition, there is a clear admission that item No.1 of suit

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schedule ‘A’ property was a darkhast land and was granted in his favour. He has taken a hostile stand against the case of the defendants. It is pertinent to note that defendant No.1 has not taken his own defence by contesting the suit and has not filed his separate written statement.

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Defendant No.2 examined himself as DW-1 and he has stated that he has purchased item No.1 of the suit schedule ‘A’ properties from defendant No.1, as the plaintiff has given up his claim in respect of item No.1 of the suit schedule ‘A’ properties.

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So far as item No.2 of ‘A’ schedule and ‘B’ schedule properties are concerned, neither the Trial Court nor the First Appellate Court has recorded any findings regarding item No.2 of ‘A’ schedule and ‘B’ schedule properties. There is no dispute in regard to the nature of item No.2 of ‘A’ schedule and ‘B’ schedule properties. The Trial Court ought to have decreed the

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suit in respect of item No.2 of ‘A’ schedule and ‘B’ schedule properties, on the contrary without assigning any reasons regarding said properties, proceeded to dismiss the suit in its entirety.

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The Trial Court committed an error in dismissing the suit in its entirety. The First Appellate Court has also not assigned any reasons regarding item No.2 of ‘A’ schedule and ‘B’ schedule properties.

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Both Courts below have not applied their mind while passing the impugned judgments regarding item No.2 of ‘A’ schedule and ‘B’ schedule properties.

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As observed above, the suit schedule item No.2 of ‘A’ schedule and ‘B’ schedule properties are the joint family properties of the plaintiff and defendant No.1 and they are entitled to a share in the said suit schedule properties. The plaintiff is entitled to half share in item No.2 of ‘A’ schedule and ‘B’ schedule properties and defendant No.1 is entitled to half

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