Mallappa Vs Doopanna

THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 31.08.2024 PASSED IN RA NO.16/2023 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, SHIKARIPURA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 29.11.2022 PASSED IN OS NO.143/2016 ON THE FILE OF PRINCIPAL CIVIL JUDGE AND JMFC, SHIKARIPURA.

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

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CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI

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NC: 2025:KHC:9976 RSA No. 1659 of 2024

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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 31.08.2024 passed in R.A.No.16/2023 by the learned Senior Civil Judge and AMACT-15 at Shikaripura, confirming the judgment and decree passed in O.S.No.143/2016 dated 29.11.2022, by the learned Principal Civil Judge and JMFC, Shikaripura.

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For convenience, parties are referred to based on their rankings before the trial Court. The appellant was defendant No.2, respondent No.1 was plaintiff No.1, respondent No.2(a) to (d) were the legal representatives of deceased plaintiff No.2, respondents No.3 and 4 were defendants No.1 and 4.

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Brief facts leading rise to the filing of this appeal are as follows :

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Plaintiffs filed a suit against the defendants for partition and separate possession of the suit schedule properties, contending that all the suit schedule properties are the

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joint family and ancestral properties of the plaintiff and the defendants. It is the case of the plaintiff that defendant was managing the suit properties for the benefit of the family members. Since the defendants neglected the management, the defendants demanded for a partition, and accordingly an unregistered partition deed was executed in 2014. It is contended that the defendants never agreed to executed the partition deed. Hence, a cause of action arose for the plaintiffs to file a suit for partition and separate possession. Accordingly, prays to dismiss the suit.

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3.1. Defendant No.1 filed a written statement

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admitting the relationship between the parties and contended that the suit schedule properties are available for partition and prays to decree the suit of the plaintiffs by excluding the daughters because they have taken a share at the time of their marriage.

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3.2. Defendant No.2 filed a written statement contending that item Nos.3 and 8 of the plaint ‘A’ schedule properties and item No.3 of the plaint ‘B’ schedule

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properties are the self acquired properties of defendant No.2. Defendant No.2 constructed a house out of his

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earnings in item No.2 of the plaint ‘B’ schedule property. The said properties were not available for partition. Thus, the suit is bad for the non-inclusion of other family properties. Hence, prays to dismiss the suit.

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3.3. The trial Court, based on the pleadings of the parties, framed relevant issues.

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3.4. The plaintiffs, to substantiate their case, plaintiff

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No.1 was examined as PW.1 and marked 21 documents as

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Exhibits P.1 to P.21. On the other hand, the defendants have not examined any witnesses, but they have confronted 4 documents to PW.1 in his cross examination, and the said documents are marked as exhibits D.1. to D.4. The trial Court, after recording the evidence, hearing on both sides, and on assessment of oral and documentary evidence, decreed the suit of the plaintiffs vide judgment dated 29.11.2022.

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3.5. Defendant No.2 aggrieved by the judgment and

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decree dated 29.11.2022 passed in O.S.No.143/2016, filed

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NC: 2025:KHC:9976 RSA No. 1659 of 2024

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an appeal in R.A.No.16/2023 on the file of Senior Civil Judge and AMACT-15, Shikaripura. The First Appellate Court, on reassessment of oral and documentary evidence, dismissed the appeal with cost and confirmed the judgment and decree passed in O.S.No.143/2016, on the file of learned Principal Civil Judge and JMFC, Shikaripura. Defendant No.2 aggrieved by the impugned judgments, filed this regular second appeal.

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Heard the arguments of the learned counsel for defendant No.2.

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Learned counsel for defendant No.2 submits that

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defendant No.2 had raised a loan by mortgaging the landed properties to SDCC Bank and VSSNB Bank from the date of purchase. The said fact is not questioned by anyone because the said properties were purchased by defendant No.2, everyone knew this fact, and for the said reason no one challenged it. It is submitted that all other schedule properties stood in the name of the plaintiffs and the defendants’ father and mother. After demise of the

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parents of the parties, the khatas of the suit properties were changed in the name of the plaintiffs and the defendants. All the suit schedule properties are the joint family and ancestral properties except item Nos. 3 and 8 of ‘A’ schedule property and item No.3 of ‘B’ schedule property. He further submts that they are the self acquired properties of defendant No.2. Both Courts below, failed to properly consider the evidence on record. Hence, prayed to allow the appeal.

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Perused the records and considered the

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submissions of the learned counsel for defendant No.2.

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There is no dispute regarding the relationship

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between the parties to the suit and also the nature of suit schedule properties, except items No.3 and 8 of plaint ‘A’ schedule properties and of item No. 3 and a house in item No.2 of ‘B’ schedule properties. It is the case of defendant No.2 that said properties are the self acquired properties of defendant No.2. The plaintiffs, to establish that there was a family nucleus, for purchasing the aforesaid

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properties, produced the documents marked as Exs.P.1 to P.21. It is not in dispute that defendant No.2 took management of the joint family properties because defendant No.1 was illiterate and he had no knowledge about the family management.

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Though defendant No.2 has contended that items No.3 and 8 of plaint ‘A’ schedule properties, item No. 3 and a house in item No.2 of plaint ‘B’ schedule properties are the self acquired properties of defendant No.2, defendant No.2, to prove his defence has not entered the witness box, before the trial Court. Defendant No.2 had confronted four documents during the course of crossexamination of PW-1. They are marked as Exs.D.1 to D.4. The plaintiffs, pleaded and proved that defendant No.2 was managing the family properties, though defendant No.1 was the elder member of the family, since he was an illiterate.

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To establish that defendant No.2 had an independent sources of income for purchasing the

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aforesaid items of the suit schedule properties, defendant No.2 has not produced any records to establish that defendant No.2 had an independent source of income for purchasing items No.3 and 8 of ‘A’ schedule properties and items No.2 and 3 of ‘B’ schedule properties and further the defendant No.2 has filed a suit in O.S.No.87/2016 against the plaintiffs herein for the relief of injunction and in the said suit plaintiff No.1 was examined as PW-1 and during the cross-examination, he admitted that still there exists a joint family. There is no division of status among the joint family. The defendant No.2 has failed to prove that the suit properties are the self acquired properties of defendant No.2.

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The plaintiffs have produced the records to show that the joint family properties were generating sufficient nucleus to acquire items No.3 and 8 of plaint ‘A’ schedule properties and item No.3 of the ‘B’ schedule property. In a suit for partition and separate possession, the initial burden is always on the plaintiff to prove the relationship

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between the parties and the nature of the suit schedule properties. Admittedly, the plaintiffs have proved the relationship between the parties to the suit and the nature of suit schedule properties.

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As observed above, defendant No.2 has not entered the witness box to deny the case of the plaintiffs. The trial Court and the first appellate Court considering the material on record were justified in passing the impugned judgments.

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Hence, I do not find any error in the impugned judgments or any substantial questions of law that arise for consideration in this appeal.

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