Sri Chandregowda S/O Late Kavallagowda Vs Sri Jayakumar Gowda B K @ Kamanna

(BY SRI. RAVIKUMARA B R., ADV. FOR R1; SMT. SHARADA H V., ADV. FOR R2; R3 – DECEASED V/O DATED 24.06.2016, R1, R2, R4 AND R5 ARE THE LRS OF DECEASED R3; V/O DATED 29.05.2019 THE APPELLANT IS TREATED AS ONE OF THE LR OF DECEASED R3; R4 AND R5 ARE SERVED)

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THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DATED 05.07.2006 PASSED IN R.A.NO.268/2004 ON THE FILE OF THE FAST TRACK COURT-III, TUMKUR, ALLOWING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DTD 26.09.2000 PASSED IN O.S.NO.168/1993 ON THE FILE CIVIL JUDGE (JR. DN.) & JMFC, KORATAGERE.

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IN RSA NO. 1955/2008

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BETWEEN:

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SRI CHANDREGOWDA S/O LATE KAVALLAGOWDA AGED ABOUT 60 YEARS R/O BARAKA VILLAGE C.N.DURGA HOBLI KORATAGERE TALUK TUMKUR DISTRICT – 572 101

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...APPELLANT

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(BY SRI. K N NITISH, ADV. FOR SRI. K V NARASIMHAN., ADV. SRI. R PRAMOD, ADVOCATE)

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AND:

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SRI JAYAKUMAR GOWDA B K @ KAMANNA S/O LATE KAVALLAGOWDA MAJOR R/O BARAKA VILLAGE C.N. DURGA HOBLI KORATAGERE TALUK TUMKUR DISTRICT – 572 101

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SRI DODDAIAH S/O LATE KAVALLAGOWDA AGED ABOUT 65 YEARS R/O BARAKA VILLAGE C.N.DURGA HOBLI KORATAGERE TALUK TUMKUR DISTRICT - 572 101

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SMT GIRIYAMMA W/O LATE KAVALEGOWDA SINCE DEAD BY HER LRS I.E., APPELLANT, R1, R2, R4 AND R5

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SMT KAVALLAMMA W/O KODILINGAPPA

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R/A KITHAGALI VILLAGE MADHUGIRI TALUK NAGAMANGALA TALUK MANDYA DISTRICT

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SMT KAMAKSHI W/O DODDATHIMMAIAH AGED ABOUT 55 YEARS R/O AGRAHARA VILLAGE C.N.DURGA HOBLI KORATAGERE TALUK TUMKUR DISTRICT – 572 101

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...RESPONDENTS

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(BY SRI. RAVIKUMARA B R., ADV. FOR R1; SMT. SHARADA H V., ADV. FOR R2; R3 – DECEASED V/O DATED 24.06.2016, R1, R2, R4 AND R5 ARE THE LRS OF DECEASED R3; V/O DATED 29.05.2019 THE APPELLANT IS TREATED AS ONE OF THE LR OF DECEASED R3; R4 AND R5 ARE SERVED)

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THIS RSA IS FILED U/S 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED 05.07.2006 PASSED IN RA.NO.153/2006 (OLD NO.190/00) ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-III, TUMKUR, ALLOWING THE APPEAL WHICH IS FILED AGAINST THE JUDGEMENT AND DECREE DATED 26.09.1993 PASSED IN OS.NO.168/1993 ON THE FILE OF THE CIVIL JUDGE (JR.DN.) AND JMFC., KORATAGERE.

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THESE APPEALS, 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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These appeals arise out of a common judgment passed in R.A.No.153/2006 dated 05.07.2006, and R.A.No.268/2004 passed by the learned Fast Track Court-III, Tumkur.

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For convenience, the parties are referred to, based on their rankings before the trial Court. The appellant was defendant No.2, respondent No.1 was the plaintiff, and the other respondents were the other defendants.

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Brief facts, leading rise to the filing of these appeals are as follows:

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The plaintiff filed a suit against the defendants for partition and separate possession against the defendants claiming 1/4^th share in the suit schedule properties. It is contended that the suit schedule properties are the joint family properties, and the plaintiff and the defendants are the members of the Hindu Undivided Family and no partition is effected between the parties to the suit. The plaintiff demanded

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partition and separate possession. The defendants refused to effect a partition. Hence, a cause of action arose for the plaintiff to file a suit for partition and separate possession. Accordingly, prays to decree the suit.

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3.1. All the defendants appeared through counsel and

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defendant Nos.1 to 5 have filed their written statement. Defendant No.1 filed a written statement denying the cause of action shown in the plaint, and admitting that the suit schedule properties are the ancestral properties and they are enjoying the suit schedule properties jointly. It is contended that the plaintiff is maintaining the affairs of the family as a manager and he made the income secretly out of the joint family properties. It is stated that defendant No.1 never denied to give a share in the suit schedule properties. The plaintiff to harass this defendant has filed a suit.

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3.2. Defendant No.2 filed a written statement admitting the relationship between the parties to the suit, and denied that all the suit properties are joint family properties and are in joint possession and enjoyment of the properties and are having an

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equal share. It is contended that defendant No.1 and plaintiff have made secret profit and he taken all the income of the suit lands and there is no cause of action to file a suit. It is contended that defendant No.2 has not taken active part in the family affairs, except contributing his labour for agricultural operation, and he has paid sufficient amount to the family and he has also earned a sufficient money in goat and sheep wending business. It is contended that defendant No.2 has purchased item Nos.1 to 3 properties out of his own income which he has earned from Arcanut and other business. It is contended that defendant No.2 from the date of sale, he is in exclusive possession and enjoyment of the suit schedule item Nos.1 to 3 properties. Hence, prays to dismiss the suit against defendant No.2 regarding item Nos.1 to 3 property.

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3.3. Defendant No.3 filed a written statement contending

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that the suit schedule properties were charged for her maintenance amount. Defendant No.3 has consented to effect the partition and separate possession of the suit schedule properties without prejudice to the charge created on the suit schedule properties for her maintenance. It is contended that

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she is having a share in the suit schedule properties, and accordingly, prays to allot the share in the suit schedule properties in favour of defendant No.3 separately.

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3.4. Defendant Nos.4 and 5 filed a written statement admitting the relationship between the parties to the suit, and contended that, item Nos.1 to 3 properties are the joint family properties of the plaintiff and the defendants. It is also contended that item Nos.1 to 3 properties are not exclusive property of defendant No.2. Hence, prays to decree the suit.

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3.5. The Trial Court, on the basis of the above said

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pleadings, framed the following issues:

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“1. Whether the 2^nd defendant proves that suit item No.A1 to 3 properties (Sy.No.188/1, 188/3 and 188/2 of Baraka village) are his self-acquired properties and the same are not liable for partition?

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2. Whether the plaint schedule properties are liable for partition between parties?

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3. What order or decree?”

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3.6. The plaintiff in O.S.No.168/1993 was examined as

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PW.1, and marked 12 documents as Exs.P1 to P12. In rebuttal, defendant Nos.2, 3 and 1 were examined themselves as DW.1

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to DW.3, and marked 9 documents as Exs.D1 to D9. The trial Court, after recording the evidence, hearing on both sides and after assessing the verbal and documentary evidence of the parties, answered issue No.1 in the affirmative, issue No.2 partly in the affirmative and issue No.3, as per final order. The Trial Court decreed the suit in part vide judgment dated 26.09.2000. It is held in O.S.No.168/1993 that, the plaintiff, defendant Nos.1 and 2 are entitled to get the partition and separate possession of their 5/16^th share each, and defendant No.3 is entitled to get 1/16^th share from suit item Nos.4 to 17 properties, mentioned in ‘A’ schedule. The claim for partition and separate possession regarding item Nos.1 to 3 property mentioned in ‘A’ schedule properties and movable properties in ‘B’ schedule was dismissed. Defendant Nos.1 to 3 were directed to pay necessary Court fee with respect to their share within ten days. Being aggrieved by the same, the plaintiff filed an appeal in R.A.No.268/2004, and defendant Nos.1 and 5 also filed an appeal in R.A.No.153/2006 on the file of the FTC-III, Tumkur. The First Appellate Court after hearing the learned counsel for the parties framed the following points for consideration:

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“1) Whether the plaintiff has made out sufficient ground for permitting him to amend the plaint as proposed in I.A.?

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2) Whether the defendant-2 prove items 1 to 3 of plaint ‘A’ & ‘B’ schedule as his selfacquired properties?

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3) Whether the finding recorded by the Trial Court requires interference?

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4) What order?”

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3.7. The First Appellate Court, after re-assessing the verbal and documentary evidence, answered point Nos.1 and 2 in negative, point No.3 in the affirmative, and point No.4 as per the final order and allowed the appeal vide dated 05.07.2006 and it is held that item Nos.1 to 3 of plaint ‘A’ schedule properties are also joint family propertyies of the plaintiff and the defendants and available for partition. The finding recorded by the Trial Court regarding item Nos.1 to 3 of plaint ‘A’ schedule to that extent is set aside. The rest of the finding of the Trial Court as to the share of the plaintiff and defendants 1 to 3 in plaint schedule properties is confirmed. Defendant No.2 aggrieved by the impugned judgment, filed these regular second appeals.

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This Court, on 27.08.2013, admitted these appeals to

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consider the following substantial question of law:

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“When the plaintiff claims that the suit property at items 1 to 3 are joint family properties, in the absence of any evidence with regard to income of the joint family properties (nucleus), whether the First Appellate Court was justified in reversing the judgment and decree of the trial Court holding that items 1 to 3 are the joint family properties and whether in doing so, it did not assign cogent reasons to overcome the findings of the trial Court?”

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Heard the arguments of the learned counsel for

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defendant No.2 and the learned counsel for the plaintiff

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Learned counsel for defendant No.2 submits that,

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item Nos.1 to 3 properties are the self acquired properties of defendant No.2. The First Appellate Court has not considered Ex.D1, the sale deed which shows that he had purchased item Nos.1 to 3 properties. He submits that the First Appellate Court has not assigned any cogent reasons in reversing the judgment of the Trial Court and the judgment is not in compliance with Order 41 Rule 31 of CPC. Hence, he submits that the matter be

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remitted to the First Appellate Court and Accordingly, prays to allow the appeal.

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Learned counsel for the plaintiff submits that the First Appellate Court was justified in passing the impugned judgment. He submits that the First Appellate Court has rightly reappreciated the entire evidence on record, and has passed an impugned judgment. The judgment passed by the First Appellate Court is in compliance of Order 41 Rule 31 of CPC. Accordingly, prays to dismiss the appeal.

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8. Reg. Substantial question of law: The plaintiff,

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to substantiate his case, he examined himself as PW.1, and he deposed that the suit schedule properties are the joint family properties of the plaintiff, and the defendants and they are the members of the Hindu Undivided joint family and no partition is effected between the parties to the suit. The plaintiff to substantiate his case, produced the documents, marked as Exs.P1 to P12. Exs.P1 to P11 are the RTC extracts, and Ex.P12 is the demand register extract standing in the name of

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Doddayya. In rebuttal, defendant No.2 was examined as DW.1, and he reiterated the written statement averments in the examination-in-chief and defendant No.3 was examined as DW.2. Even she reiterated the written statement averments in the examination-in-chief and defendant No.1 was examined as DW.3. He has also reiterated the written statement averments in the examination in chief. To prove the defence of the defendants, they have produced the documents. Ex.D1 is the original registered sale deed, Exs.D2 to D7 are the RTC extracts, Exs.D8 and D9 are the kandayam paid receipts.

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The Trial Court held that item Nos.4 to 7 are the ancestral and joint family properties of the plaintiff and the defendants and granted a share in item Nos.4 to 17 of the suit schedule properties, but dismissed the suit regarding item Nos.1 to 3 of the suit schedule property on the ground that the said properties were acquired by defendant No.2 as he had purchased the said properties under Ex.D1. Further, the plaintiff has failed to prove that the family was having a nucleus for purchasing item Nos.1 to 3 of the suit schedule properties. The plaintiff, aggrieved by the dismissal of the suit

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regarding item Nos.1 to 3 and defendant Nos.1 and 3 being aggrieved by the same, filed an appeal challenging the judgment and preliminary decree regarding the dismissal of the suit in respect of item Nos.1 to 3. The First Appellate Court reversed the judgment and decree passed by the trial Court insofar as item Nos.1 to 3 of the suit schedule properties. While reversing the judgment and decree passed by the trial Court, the First appellate Court has not assigned any reasons for reversing the judgment and decree passed by the trial Court. Further, the First Appellate Court except recording the statements of the learned counsel for the parties has not assigned any reasons. From the perusal of the judgment passed by the First Appellate Court, it is evident that it is in the general expression. The First Appellate court has not considered Ex.D1, wherein defendant No.2 has produced Ex.D1 to show that he had purchased the suit schedule properties for a valuable consideration. Further, the First Appellate Court has not discussed whether the family was possessing a sufficient nucleus for purchasing item Nos.1 to 3 of the suit schedule properties. Without considering the said aspect, the First Appellate Court has reversed the judgment and decree passed

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by the trial Court. Further, the First Appellate Court has not properly framed the points for determination. The First Appellate Court has not answered each issues framed by the trial Court. The judgment passed by the First Appellate Court is contrary to the law laid down by the Hon'ble Apex Court in the case of H. SIDDIQUI (D) BY LR VS A. RAMALINGAM reported in AIR 2011 SC 1492. Thus, the common judgment and decree passed by the First Appellate Court is not in compliance with Order 41 Rule 31 of CPC. The First Appellate Court without assigning cogent reason to overcome the findings of the trial Court regarding item Nos.1 to 3 of the suit schedule property, reversed the judgment passed by the trial Court. Thus, the maters requires fresh consideration by the First Appellate Court.

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In view of the above discussion, I answer substantial question in the negative holding that the First Appellate Court did not assign cogent reasons to overcome the findings of the trial Court, in reserving its judgment.

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Accordingly, I proceed to pass the following:

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ORDER

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i. The regular seconds appeals are allowed .

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ii. The judgment and decree passed in R.A.No.268/2004 (Old No.184/2000), R.A.No.153/2006 (Old No.190/2000) is set aside.

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iii. The appeals in R.A.No.268/2004 and 153/2006 are restored to their original file.

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iv. The First Appellate Court is directed to consider the appeals afresh, and pass appropriate judgment in accordance with Order 41 Rule 31 of CPC after assigning reasons.

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