Sri. Ayatharappa Vs Sri. N. M. Obanna

THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 05.08.2025 PASSED IN R.A.NO.20/2021 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, PAVAGADA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 16.04.2021 PASSED IN O.S.NO.74/2015 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC, PAVAGADA.

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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 H.P.SANDESH

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ORAL JUDGMENT

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This matter is listed for admission. Heard the learned counsel for the appellant.

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This second appeal is filed against the concurrent

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finding.

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The factual matrix of the case of the plaintiffs before the Trial Court while seeking the relief of partition and separate possession, it is contended that the suit schedule properties belongs to the family and they are entitled for share

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in the suit schedule properties, since they belong to un-divided joint family and they are in joint possession of the suit schedule properties. The defendant No.10 appeared before the Court and contended that he had purchased 2/3^rd share in the suit schedule properties from Ramakrishna and Ningappa by virtue of sale deed dated 26.04.2006. The Trial Court considering the material available on record, comes to the conclusion that the plaintiffs are entitled for 1/6^th share in the suit schedule properties and while granting the relief made it clear that the land sold to defendant No.10 shall be allotted towards the share of defendant Nos.1, 3, 4, Neelamma and Ramakrishna.

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Being aggrieved by the same, an appeal is filed before the First Appellate Court and the First Appellate Court having re-assessed both oral and documentary evidence available on record, affirmed the judgment of the Trial Court that the Trial Court is justified in coming to the conclusion that the suit schedule properties are undivided joint family properties of the plaintiffs and defendant Nos.1 to 9 and they are in joint possession of those properties and the Trial Court is justified in holding that defendant No.10 has failed to establish

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that he had purchased 2/3^rd share of Ramakrishnappa and Ningappa under sale deed dated 26.04.2006. The First Appellate Court considering the material on record, answered point Nos.3, 4 and 5 in the negative in coming to the conclusion that the Trial Court has not committed any error.

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Being aggrieved by the concurrent finding, the

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present second appeal is filed before this Court.

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The main contention of the learned counsel for the appellant before this Court is that both the Courts have failed to consider the earlier partition taken place in between plaintiff No.1 and his brothers namely, Ningappa and Ramakrishna during the year 1995-96 in respect of the suit schedule properties. It is contended that both the Courts have not examined the facts that as per Ex.D.4 the agreement for sale dated 28.03.2005, plaintiff No.1 is also one of the party to the agreement and had the knowledge and consent of the sale of the portion of the suit schedule property in respect of item No.1 in favour of the appellant herein. The Trial Court committed an error in granting 1/6^th share in favour of the plaintiffs and holding that the land sold to defendant No.10 shall be allotted

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towards the share of defendant Nos.1, 3, 4 Neelamma and Ramakrishna, without having any basis and hence, this Court has to admit the appeal and frame substantial question of law.

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Having heard the learned counsel for the appellant and also considering the material available on record, it is the specific case of the plaintiffs that the suit schedule properties belongs to the family. The plaintiff No.1 examined himself as P.W.1 and reiterated the averments in his examination-in-chief and denied the specific contention that there was a partition effected between plaintiff No.1 and his brothers and in order to prove the factum of earlier partition, nothing is placed on record. In support of the case of the plaintiffs, one witness is examined as P.W.2 and P.W.2 also specifically deposed with regard to the joint possession. The fact is that already sale was made in favour of defendant No.10 and sale deed is also produced before the Court. The Trial Court while granting 1/6^th share in favour of the plaintiffs, taken note of the interest of defendant No.10, wherein it is observed that share of 2/3^rd ought to have been allotted in favour of the vendors of defendant No.10. When such equity is also taken note of by the

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Trial Court, though answered issue No.2 in the negative, but the plaintiffs are not the party to the said sale deed. Though it is contended that she was also a party to the sale agreement, but she was not the party to the sale deed and hence, the same is not binding on the plaintiffs.

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The First Appellate Court also having re-assessed both oral and documentary evidence available on record, comes to the conclusion that during the trial not found any material that there was an earlier partition and subsequent to the partition only vendors of the present appellant have sold the property and no material is placed before the Court with regard to the earlier partition is concerned and the same is not proved, hence, I do not find any error on the part of the Trial Court and the First Appellate Court in coming to the conclusion that suit schedule properties are the family property and the plaintiffs are also entitled for a share in the suit schedule property as claimed and the First Appellate Court concurred the judgment of the Trial Court protecting the interest of the appellant i.e., defendant No.10, who had purchased the property and not reversed the finding of the Trial Court with regard to the

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property, which was purchased by defendant No.10 would be allotted in favour of vendors of the appellant and when such interest of the appellant is also protected, I do not find any ground to admit the appeal and frame any substantial question of law.

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