Sri. Huche Gowda Vs Nagendra

THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 05.04.2021 PASSED IN R.A.NO.205/2020 ON THE FILE OF THE IV ADDITIONAL DISTRICT AND SESSION JUDGE, MYSURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 18.11.2019 PASSED IN O.S.NO.265/2005 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE AND JMFC, MYSURU.

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THIS APPEAL COMING ON FOR FINAL HEARING 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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Heard learned counsel for the appellant and learned

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counsel for respondent Nos.1(a) and 1(b).

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The present second appeal is filed against the concurrent finding.

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The factual matrix of case of the plaintiff before the Trial Court is that suit schedule property belongs to the plaintiff’s father and the same was granted in the year 1981. At the first instance, the suit is filed for the relief of only injunction

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HC-KAR

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stating that plaintiff is in possession of the property and also an averment is made that defendants are interfering with possession of the plaintiff.

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Immediately, the defendants appeared and filed suit stating that already there was sale in their favour and suit is not maintainable and in view of the objection raised in the written statement, suit was also converted for declaration and then additional issue was framed whether the plaintiff is the absolute owner of the suit schedule property, whether the plaintiff proves that sale deed dated 15.01.2001 executed by Ankegowda in favour of the defendant is null and void and not pending on him and also whether change of khatha in favour of brother of the defendant referring the earlier partition in terms of M.R.No.14/2005-06 is not binding on him.

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The Trial Court having considered both oral and documentary evidence available on record, having taken note of sale deed dated 15.01.2001 and prior to that there was sale by Ningegowda, comes to the conclusion that plaintiff is not the owner of the property and also comes to the conclusion that there is an admission on the part of P.W.1 during the course of

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cross-examination that there was an oral partition between brothers Ningegowda and Basave Gowdaa and in paragraph No.20 in detail discussion was made with regard to the same and comes to the conclusion that plaintiff has not proved the additional issue that he is the owner in possession of the property and dismissed the suit.

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The same is challenged before the First appellate Court. The First Appellate Court also having considered the grounds urged in the appeal memo, formulated the points whether the Trial Court committed an error in dismissing the suit and whether it requires interference of this Court. The First Appellate Court also having taken note of the pleadings of the parties and also both oral and documentary evidence, in detail discussed in paragraph No.37, wherein relevant portion of cross-examination of appellant and admissions thereunder makes it very clear with regard to family partition and separate possession of respective properties of the joint family during 1986 and the admissions of the appellant goes against his contention and though the property is a joint family property and the same has been divided and taking advantage of grant

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made in favour of the father of the plaintiff in the year 1981, suit is filed. In paragraph No.38, the First Appellate Court also observed that material available on record is clear that there was a partition in the year 1986 and property was allotted in favour of Ningegowda and he in turn, sold the property in favour of Ankegowda, in turn, he sold the property in favour of respondent No.1. Having taken note of both oral and documentary evidence, confirmed the judgment of the Trial Court.

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Now, learned counsel appearing for the appellant would vehemently contend that both the Courts committed an error in coming to the conclusion that plaintiff has not made out any case to grant the relief of declaration and injunction. The counsel would contend that property was granted by Land Tribunal vide order dated 28.12.1981 to the plaintiff’s father and the same exclusively belongs to him and Ningegowda was not having any right to sell the property in favour of Ankegowda and Ankegowda in turn sold the property in favour of respondent No.1. Hence, the very findings of the Trial Court and the First Appellate Court is not correct.

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Having heard the learned counsel for the appellant

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and learned counsel for respondent Nos.1(a) and 1(b) and also on perusal of material available on record, no dispute that property was granted in favour of the plaintiff’s father in the year 1981 and subsequent to 1981, there was partition between the father of the plaintiff and his uncle Ningegowda in the year 1986 and all the documents and also the admission on the part of the appellant clearly discloses that there was oral partition between the brothers and property for which the declaration is sought is allotted in favour of Ningegowda and Ningegowda in turn sold the property in favour of Ankegowda and Ankegowda sold the property in favour of respondent No.1. When such material is available on record, the same is appreciated by Trial Court and the First Appellate Court and the very contention that Ningegowda was not having any right cannot be accepted and the appellant/plaintiff has suppressed the fact that said Ningegowda was his brother and there was partition in the year 1986 and subject matter of the property was allotted in favour of Ningegowda and the said Ningegowda in turn sold the property in favour of Ankegowda and Ankegowda sold the same in favour of respondent No.1 and

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suppressing the same, the appellant/plaintiff has approached the Court. Hence, the Trial Court made an observation that appellant has not approached the Court with clean hands and therefore, he is not entitled for the relief and the First Appellate Court also taken note of the reasoning given by the Trial Court in paragraph No.19 as well as in paragraph Nos.36, 37 and 38 the First Appellate Court also in detail taken note of both oral and documentary evidence available on record and in paragraph No.38 comes to the conclusion that the plaintiff has suppressed the partition which had taken place in the year 1986 and subsequent to the partition, uncle Ningegowda has sold the same in favour of another uncle Ankegowda and he in turn sold the property in favour of respondent No.1 and respondent No.1 has continued to be in possession and enjoyment of the property, till acquisition by the respondent No.2. When such material is appreciated by the Trial Court as well as the First Appellate Court, I do not find any error on the part of the Trial Court and the First Appellate Court and both the Courts have considered question of fact and question of law. Hence, no grounds to admit the second appeal and frame any substantial question of law.

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