Shivaprakash Vs Smt. Pooja T C

THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 3.12.2024 PASSED IN R.A.NO.76/2023 ON THE FILE OF III ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, TUMAKURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 27.02.2023 PASSED IN O.S.NO.486/2018 ON THE FILE OF V ADDITIONAL CIVIL JUDGE AND JMFC, TUMAKURU.

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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 this concurrent finding. The factual matrix of case of plaintiff before the Trial Court that one late H.N.Chandrashekhar, father of 1^st plaintiff and husband of 2^nd plaintiff and defendant were brothers. The suit schedule property i.e., house bearing Municipal Khata No.994, thereafter 1093/1277/1346 and new No.1492/258, PID No.17951 consisting of old house, measuring East-West 33 feet and North-South 23 feet originally belongs to one late K.S.Jayadevappa i.e., the father of late

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H.N.Chandrasekhar and defendant. After the death of the

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K.S.Jayadevappa, his two sons namely late H.N.Chandrasekhar and J.Shivaprakash have partitioned their joint family property under registered partition deed dated 11.06.2000. In the said partition, the above said house property had fallen to the share of late H.N.Chandrasekhar. The defendant has got acquired his share in the form of cash Rs.50,000/- and license of fair price depot to his share. Further, it is contended that room measuring 8x8 feet facing towards west i.e., towards road i.e., suit schedule property has been given to the defendant by the husband of 2^nd plaintiff as permissive user for the purpose of running fair price depot and accordingly, when husband of 2^nd plaintiff desired to vacate, the defendant agreed for that condition. Hence, defendant is in possession of the scheduled property. It is stated that said late Chandrasekhar died on 29.12.2004 leaving behind the plaintiffs as his legal heirs. After his death, the Katha of the above property, including suit

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schedule property was transferred in the name of the 2^nd plaintiff. Accordingly, the 2^nd plaintiff is in possession of both the properties therein. Whereas the 2^nd plaintiff requested the defendant to vacate the suit property. But the defendant did not vacate the same and hence, legal notice was issued.

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It is stated that on 20.07.2013, the 2^nd plaintiff has gifted the house property including the suit schedule property in favour of her daughter i.e., 1^st plaintiff through registered gift deed. Subsequent to the gift deed, Katha was also transferred and 1^st plaintiff intends to demolish the existing old structure and put up new construction in the said property. Accordingly, permission was taken from the Mahanagara Palike, Tumkur for demolition of the old structure. The defendant fails to vacate the premises and hence, the suit is filed. The defendant appeared and filed the written statement contending that the relationship is admitted and house property existence total area is also admitted and belongs to the Jayadevappa is also admitted.

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The suit schedule property is an ancestral property of the defendant which was acquired by him through his father Jayadevappa who had acquired the same from his father under a registered release deed dated 12.11.1969. The defendant's father was allotted a government fair price shop and the same is being run in one of the room in suit schedule property since last 35 years. After the death of defendant's father, the license of fair shop changed in the name of the defendant's mother namely Shankaramma. The defendant's mother died on 16.10.1998 and thereafter license of the fair price depot has been transferred in the name of the defendant.

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It is contended that defendant, his brother and

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sisters have raised loan from Tumkuru Veerashaiva Co-operative Bank as a security of suit schedule property. The defendant's brother namely late Chandrasekhar asked defendant to come near Sub-Registrar Office, Tumkuru to sign on loan paper. The defendant believing words of his brother has signed on loan paper. Defendant's brother

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died in the year 2004. It is stated that defendant continued to do business in the portion of the suit schedule property and during lifetime of his brother, he never stated about alleged deed of partition and denied the very partition.

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The Trial Court having considered the pleadings of the parties, framed the issues and allowed the parties to lead evidence. Having considered both oral and documentary evidence, comes to the conclusion that there was a partition as per Ex.P.1 and in defence of the defendant that document was created by playing fraud was not accepted by taking into note of admission on the part of P.W.1 and the P.W.1 in his cross-examination has admitted about the partition has been taken place between himself and his brother late Chandrasekhar on 11.06.2001. He also admitted that he has put his signature on Ex.P.1 and also admitted that 2^nd plaintiff is residing in the house property. However, it is denied the very execution of gift deed in favour of the 1^st plaintiff and

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also admitted that he is running the society in suit schedule property. Having taken note of all these admission comes to the conclusion that defendant is in possession of the property as permissive user and not as owner and hence, answered the issues accordingly and granted the relief by declaring that 1^st plaintiff is the absolute owner of the property in terms of the Gift deed executed by 2^nd plaintiff and also directed to deliver the vacant possession.

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Being aggrieved by the said judgment and decree, present second appeal is filed before this Court. The First Appellate Court also having considered the grounds which have been urged in the appeal, formulated the point whether the judgment and decree of the Trial Court is perverse and particularly the Appellate Court considering the admission on the part of D.W.1 and comes to the conclusion that moreover in the said partition deed, it was clearly mentioned about cash of Rs.50,000/- and license for fair price shop towards the share of this

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defendant. When such being the case, if the property is divided among the brothers and the respective sharers will get absolute right towards their share to enjoy the same and also taken note of the very contention that gift deed was executed and though defendant denies the very document of partition and the document was registered document and the same also taken note of and confirmed the judgment of the Trial Court.

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Having heard the appellant’s counsel and also on perusal of the grounds which have been urged before this Court, the main contention raised before this Court is both the Courts fail to consider the material available on record and not examined the fact that as per Ex.D.17 the appellant has shown that the appellants are in possession and enjoyment of the property and even inspite of their admission regarding possession is concerned, but erroneously accepted the case of the plaintiff regarding partition. It is not in dispute that the partition was taken place in the year 2000. Subsequently, documents are also

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changed. The very contention that Ex.P.1 is forged and fabricated and created document. In order to substantiate the same, not placed any material. Apart from that the Trial Court while considering the material on record taken note of admission on the part of D.W.1 in paragraph No.21 wherein he categorically admitted that partition was taken place between himself and his brother late Chandrasekhar on 11.06.2001. He has admitted that he has put his signature on Ex.P.1 and also admitted that the 2^nd plaintiff is residing in the house property. Having taken note of all these admissions, the very contention of defendant that fraudulently obtained his signature cannot be accepted. Apart from that in the document, the very recital is clear with regard to the payment of Rs.50,000/- and also the license with regard to the fair price shop is concerned. When such material is available on record, both the Trial Court as well as the First Appellate Court considered both oral and documentary evidence and not found any perversity and also with regard to the question of fact and

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question of law also considered by both the Courts since there is a registered document of partition between the brothers. Hence, rightly passed an order and hence not a case to invoke Section 100 of CPC.

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