K. Jayaramaiah Vs Nijalingaiah

THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 23.01.2024 PASSED IN R.A.NO.23/2022 ON THE FILE OF ADDITIONAL SENIOR CIVIL JUDGE AND CJM MANDYA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED 08.02.2022 PASSED IN O.S.NO.491/2012 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE AND JMFC, MANDYA.

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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 and I have heard learned counsel appearing for the appellant

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This second appeal is filed against the concurrent

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finding of the Trial Court in dismissing the suit filed for the relief of declaration, partition and permanent injunction and

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confirmation made by the First Appellate Court in dismissing the appeal filed by the appellant.

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The factual matrix of the case of plaintiff before the Trial Court is that suit schedule property is joint family and ancestral property of the plaintiff and defendants and the same is in their joint possession and enjoyment as on the date of filing of the suit. It is the contention that defendant No.4 is not having any absolute right over the suit schedule property and he illegally sold the suit property in favour of defendant No.1 with an intention to defraud the right of the plaintiff.

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The defendant Nos.2 to 5 took the contention that defendant No.4 for the family and legal necessity and in order to purchase the site, sold the suit schedule property with the consent of plaintiff and other family members. The defendant Nos.2 to 5 also took the contention that suit is bad for partial partition as contended in paragraph No.10 of the written statement. It is also contended that suit is barred by limitation.

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The Trial Court recasted the issues whether the suit schedule property is ancestral property of plaintiff and

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defendant No.2 to 7, whether they are entitled for the relief of declaration and partial partition and whether they are in joint possession and sale made by defendant No.4 in favour of defendant No.1 is for family necessity. The Trial Court having considered both oral and documentary evidence available on record, answered issue Nos.1 to 4 as ‘negative’ that suit schedule property is ancestral and joint family property and the said sale is not binding on the plaintiff and the plaintiff is not in possession of the suit schedule property. However, answered issue Nos.5 to 8 as ‘affirmative’, in coming to the conclusion that property was sold by defendant No.4 in favour of defendant No.1 for legal necessity and defendant No.1 is the bonafide purchaser and suit is bad for non-joinder of all the ancestral and joint family property and the suit is also barred by limitation, since sale is made in the year 2000 and dismissed the suit.

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The First Appellate Court also on re-appreciation of both oral and documentary evidence, having framed the points for consideration in detail discussed in paragraph No.10 of the judgment while answering points which have been framed

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whether the judgment of the Trial Court is perverse, capricious, whether the Trial Court comes to the wrong conclusion considering the admissions on the part of P.W.1 and whether the plaintiff and defendant Nos.2 to 5 have got share in the suit schedule property and the same are answered as ‘negative’. Being aggrieved by the said concurrent finding, present second appeal is filed before this Court.

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Learned counsel appearing for the appellant would vehemently contend that both the Courts were not justified in coming to the conclusion that suit filed by the appellant is barred by time on the ground that suit has been filed in 2012 and sale deed has been executed on 19.10.2000 in favour of respondent No.1, in the absence of evidence to show that appellant was having the knowledge about the same. The counsel would vehemently contend that when the property belong to the joint family and sought for the relief of declaration on the ground that property is the joint family property, the Trial Court committed an error in coming to the conclusion that the plaintiff is not in joint possession of the property and suit is also bad for partial partition, though there

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is an evidence on record that suit property belongs to Chennamma, the mother of the appellant and other respondents were also having right. Apart from that, mother died intestate and it does not require inclusion of all the ancestral and joint family property of the family. The counsel would vehemently contend that the First Appellate Court recognized the right of the appellant that he is entitled for 1/5^th share in the joint family property and the said share is not in respect of the suit schedule property when such finding is sustainable in the eye of law.

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Having heard learned counsel appearing for the appellant and also having considered the reasons assigned by the Trial Court, the suit is filed for the relief of declaration, partition and possession claiming that suit schedule property is the joint family and ancestral property and all of them are in joint possession. It has emerged during the course of evidence that already sale was made in the year 2000 itself and suit is filed in the year 2012. Apart from that, there is a clear admission on the part of P.W.1 that the present suit is filed only in respect of the properties which have been sold and not

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included all the joint family and ancestral property in the suit. It is also the specific contention of other defendants that defendant No.4 sold the property in favour of defendant No.1 for legal and family necessity and the First Appellate Court also in detail considered the case of the plaintiff, particularly in paragraph No.10.9 and extracted the admission on the part of P.W.1, wherein he categorically admitted that even though there was no division in the family, suit is filed in respect of the properties which have been sold and the said admission is not a stray admission and even voluntarily stated that suit is filed in respect of the properties which have been sold and comes to the conclusion that there is no need to spend money to file a suit in respect of all the properties and suit is filed only in respect of the properties which have been sold. The fact that after the death of the mother, khatha was changed in favour of the defendant No.4 with the consent of the plaintiff and the said defence was also taken during the course of the pleading as well as during the course of evidence. In paragraph No.10.10, the First Appellate Court also taken note of the fact that when the plaintiff himself unequivocally admitted that he

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has not included all the joint family property in the suit on hand, suit is bad for partial partition.

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Having considered the admissions, pleadings and also the material available on record, the Trial Court has not committed any error in dismissing the suit in coming to the conclusion that suit for partial partition is not maintainable, when unequivocal admission was given by the plaintiff during the course of cross-examination that except the properties which have been sold, other family properties were not included. Hence, the Trial Court arrived at the conclusion that the sale made by the brother is illegal does not arise. Therefore, no grounds are made out to admit the appeal and frame substantial question of law.

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However, in view of the observation made by the Trial Court as well as the First Appellate Court that suit for partial partition is not maintainable, liberty is given to the appellant to seek the comprehensive relief for inclusion of all the family properties claiming share before the appropriate forum.

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