Smt. Archanamma Vs Smt. Subbamma

SRI. M.S VENKATACHALAPATHI S/O LATE SANJEEVAPPA AGED ABOUT 60 YEARS OLD R/AT MARASANAHALLI VILLAGE KASABA HOBLI CHIKKABALLAPUR TALUK AND DISTRICT - 562 102.

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SMT. RUKKAMMA W/O PUTTAPPA AGED ABOUT 58 YEARS OLD R/AT MACHAVALAHALLI VILLAGE IDRAHALLI POST, GUDIDBANDE TALUK CHIKKABALLAPURA DIST.

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SRI. M.V. MANOHAR S/O VENKATESH BABU AGED ABOUT 33 YEARS OLD R/AT MARASANAHALLI VILLAGE KASABA HOBLI CHIKKABALLAPUR TALUK AND DISTRICT - 562 102.

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SRI. M.V. VINAY KUMAR S/O VENKATESH BABU AGED ABOUT 30 YEARS R/AT MARASANAHALLI VILLAGE KASABA HOBLI CHIKKABALLAPUR TALUK AND DISTRICT - 562 102.

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SMT. CHANDRAKALA W/O NAGARAJU AGED ABOUT 53 YEARS R/AT BEHIND GANGAMMANAGUDI SADUMUTT ROAD PERIKAL MUNIYAPPA'S HOUSE CHIKKABALLAPUR CITY - 562 101.

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SMT. M.S. SUJATHA ADVOCATE W/O SUNIL KUMAR AGED ABOUT 50 YEARS COURT COMPLEX

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DODDABALLAPURA BANGALORE RURAL DISTRICT.

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SRI. H.N. MANJUNATH S/O DODDA NARASIMHAREDDY AGED ABOUT 49 YEARS RESIDING AT HALE GUDIBANDE KASABA HOBLI GUDIBANDE TALUK CHIKKABALLAPUR DISTRICT.

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SRI. M.Y. PUTTAPPA S/O LATE PATEL M. YARRAPPA AGED ABOUT 62 YEARS RESIDING AT MACHAVALAHALLI VILLAGE KASABA HOBLI GUDIBANDE TALUK CHIKKABALLAPUR DISTRICT.

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…RESPONDENTS

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(BY SRI: LOKESH S.G., ADVOCATE FOR R1 TO R7; R8 AND R9 ARE SERVED AND UNREPRESENTED)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 06.12.2022 PASSED IN RA NO.173/2019 ON THE FILE OF THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHIKKABALAPURA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 23.09.2019 PASSED IN OS NO.9/2016 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, CHIKKABALLAPURA.

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THIS RSA, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE V SRISHANANDA

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ORAL JUDGMENT

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Heard Sri G V Narasimhamurthy, learned counsel for the appellants and Sri S G Lokesh, learned counsel for respondent Nos.1 to7.

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The unsuccessful plaintiffs are the appellants who sued for partition in OS No.9/2016 which came to be dismissed and confirmed in RA No.173 of 2019.

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Facts in nutshell for the disposal of the present appeal are as under:

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3.1 In respect of the following immovable properties, a suit for partition and separate possession was filed by the plaintiffs contending that common prepositus by name Sanjeevappa had six children. One among them is Raghunath, who is the husband of plaintiff No.1 and father of plaintiff Nos.2 and 3. Defendant Nos.2, 3, 6, 7 and Padmavathi are other children of Sanjeevappa. Defendant Nos.4 and 5 are the children of Padmavathi, daughter of Sanjeevappa.

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3.2 The suit schedule properties are joint family properties and no partition has taken place in respect of the suit properties.

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3.3 Pursuant to the suit summons, defendant Nos.1 to 7 appeared through their respective advocates and it is only defendant Nos.3 to 7 who have filed written statement and defendant Nos.1 and 2 did not file any written statement.

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In the written statement filed by defendant Nos.3 to 7, they have taken a specific contention that there was a family partition on 02.12.2002 and properties were divided and shares were allotted to the plaintiffs. In such partition, 'B' suit schedule property fell to the share of plaintiffs and after the partition, the plaintiffs are residing separately as divided members of the family and hence, the suit is not maintainable.

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Based on the rival contentions of the parties, learned Trial Judge raised necessary issues and after noting the fact that defendant Nos.3 to 7 were successful in establishing the partition that took place on 02.12.2002 and revenue entries

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were mutated pursuant to such earlier partition, dismissed the suit of the plaintiffs.

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Being aggrieved by the same, the plaintiffs filed an

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appeal before the District Court in Chikkaballapura in RA No.173 of 2019.

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Learned Judge at First Appellate Court after

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securing the records, re-appreciated the materials evidence placed on record and dismissed the appeal inter alia holding in paragraphs 23 to 25 as under:

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"23. The learned advocate appearing for the appellants relies upon the judgment reported in 1966

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AIR 411 in betweer Achutan Nair V/so Chinnamu

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Amma and others argues that the members of the joint family are entitled for share in the join family. It is for the person who asserts that the said properties are his self acquired property, to prove the same. On perusal of the said judgment it can be seen that their lordships have held that the it is for the person who asserts that any property is his self acquired property to prove that the said property is his self acquired property, otherwise the joint family members are entitled for share in the said properties. But in this case there is no such assertion of either of the parties that they are owners of the suit schedule properties and they are self acquired

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properties. Therefore, this ruling is not applicable to this case on hand.

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24. It is for the plaintiffs to prove that the suit schedule properties belongs to Sanjeevappa and it was intentionally not included in the earlier partition dated 02.12.2002 and now they are entitled for share in the suit schedule properties. But the plaintiffs failed to prove that the suit schedule property belongs to Sanjeevappa and they were intentionally left out in the registered partition deed dated 02.12.2002. Therefore, the plaintiffs are not entitled for any share in the suit schedule properties.

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25. The learned advocate appearing for the appellants argues that the defendants have not adduced any evidence and the plaintiffs have produced the documents to show that the suit schedule properties belongs to Sanjeevappa and therefore, the plaintiffs are entitled for share in the suit schedule property. But the trial court has not considered the claim of the plaintiffs and dismissed the suit. On perusal of the records it can be seen that the plaintiffs have produced the RTC for item No.1 of the suit schedule property which is marked as Ex.Pl which shows, that property is Karab land but it is not mentioned that the said property stands in the name of Sanjeevappa. This clearly goes to show that the item No.1 of the suit schedule property does not belongs to Sanjeevappa. Therefore, the plaintiffs are not entitled for any share in item No.1 of the suit schedule. As far as item No. 2 to 4 is concerned the plaintiffs have produced

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only house list documents marked as Ex.P2 to 4 to show that their ownership over the said properties. Though the said documents stands in the name of Sanjeevappa, the plaintiffs have not produced any documents to show how those properties came to into their names in revenue documents. Therefore, only based on house list marked as Ex.P2 to 4, it cannot be said that the plaintiffs are the absolute owners of item no.2 to 4 of the suit schedule properties."

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Being further aggrieved by the same, the plaintiffs are before this Court in this appeal on the following grounds and substantial questions of law:

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GROUNDS:

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The first appellate court has erred in confirming the judgment of the trial court.

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The First appellate court has grossly erred in dismissal the suit of the plaintiff for Partition and separate possession of suit schedule properties and the first appellate court without going on merits and dismissal the appeal. Hence the dismissal of the suit of the trail court has resulted in mis-carriage of justice.

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The first appellate court failed to appreciate the evidence and records of the plaintiffs.

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The first appellate court without considering on real facts, the first appellate court without considering on real facts of the case and prayer of appellant's and simply dismissed the Regular appeal on 06/12/2022, it is bad under law and

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procedure. Hence the dismissal the suit and appeal of the trial court as well as first appellate court is without application of mind.

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That, in any view of the matter, the impugned judgment and decree of the first appellate court is very much bad and not sustainable in law and liable to be set aside.

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That, the appellants may be permitted to urge any other legal ground at the time of hearing the above appeal on merits.

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SUBSTANTIAL QUESTIONS OF LAW:

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1) The first appellate court failed to appreciate the facts of the case, the Plaintiffs/appellants one Sanjeevappa the prepositus, the sanjeevappa and Subbamma/1^st defendant got six children namely, late Raghunath husband of plaintiff No.1 and father of the plaintiffs No.2 & No.3, the defendant No.2, 3, 6 & 7 and Padmavathi. The defendants No.4 & 5 are the children of one Padmavathi D/o Sanjeevappa. The suit schedule properties are the joint family properties and no partition was affected between the family members till the filing of the suit. The plaintiff and defendants is equal share over the suit schedule properties. There was the registered partition dated.02/12/2002 in respect of the other properties of the family for several reasons the plaint schedule property was not included in the registered partition deed and reserved for

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some other reasons. After the partition, the 2^nd defendant/respondent had filed a suit in O.S.No.135/2009 before the Junior Civil Judge, Chikkaballapura in respect of Item No.1 of plaint schedule property for declaration and for permanent injunction. In that suit, the 2^nd defendant has clearly stated about how the property has come to the hands of plaintiffs and defendants family. As on the date of registered partition deed, no documents were standing in the name of Sanjeevappa, as per item No.2 to 4 were not included in the registered partition deed, during that, time also there were no sufficient documents. Basing on that, the items No.2 to 4 were kept pending and not included in the registered partition deed.

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2) The lower court has not discussed about the properties to whom it has to go as it is admitted by the parties that the plaint schedule properties belonged to one Sanjeevappa. When the properties are admitted that, the plaint schedule properties belonged to Sanjeevappa and the relationship admitted means automatically the plaintiff and the defendants are having legitimate share in the plaint schedule properties.

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3) The lower court has not discussed in regarding the evidence it is almost cut and paste of the deposition. In the suit for partition, both the

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plaintiffs and defendants are having equal burden to prove their pleadings. In O.S. No.09/2016 the plaintiffs have proved their defence. When they have not proved automatically the lower court would have decreed the suit and issues to be held in affirmative. That the lower court has not done so.

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4) There is no any evidence lead by the defendant's side. The trial court has taken the finding and dismissal the suit, which is a one sided order.

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5) Whether the First appellate court and trial court are dismissal of the same without going on merits of case, it is one side judgments in spite of the respondents not denying the case of the appellants.

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Learned counsel for the appellants Sri G V Narasimhamurthy, re-iterating the grounds urged in the appeal memorandum vehemently contended that both the Courts have not properly appreciated the materials placed on record and even in the absence of written statement by defendant Nos.1 and 2, the Court came to the conclusion that the previous partition has been established, which is against the materials on record.

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He also contended that in respect of one granted property, since the litigation is pending, the question of disruption of the joint family would not arise. Therefore, the alleged family partition ought not to have been believed by the learned Trial Judge resulting in miscarriage of justice and sought for admitting the appeal on the aforesaid substantial questions of law.

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Per contra, learned counsel for the contesting respondents Sri S G Lokesh, contended that the previous partition which took place on 02.12.2002 have been proved by placing cogent evidence on record.

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He would further contend that the revenue entries were mutated pursuant to the said partition and 'B' schedule property to the suit has fallen to the share of the plaintiffs and in the teeth of such material facts, the allegations made in the plaint averments that there is no partition has rightly not been countenanced by the both the Courts and therefore, sought for dismissal of the appeal.

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Having heard the arguments of both sides, this Court perused the materials on record meticulously.

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On such perusal of material on record, it is crystal clear that defendants No.3 to 7 not only pleaded the previous partition which is a family partition took place on 02.12.2002, but also placed cogent material in this regard.

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Learned Trial Judge took into consideration the revenue records that has been placed on behalf of the parties and RTC Extracts marked as Exs.D2 to 5 would depict clearly that 'B' schedule property has fallen to the share of the plaintiffs.

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Further, the learned Judge in the First Appellate Court after re-appreciating the material evidence on record in paragraphs Nos.23 to 25 referred to supra has clearly recorded the categorical finding that the defendants No.3 to 7 were successful in establishing the previous partition.

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Lastly, the attempt made by the appellant for the first time before this Court that there is a granted land which is not yet partitioned and therefore joint family is held to be in

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existence cannot also be countenanced in law inasmuch as there was is no leave obtained by the plaintiffs in the suit reserving their rights to seek partition in respect of the granted land for which there is already litigation pending.

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18 Under such circumstances, grounds urged and substantial questions of law raised in the second appeal are not fit for further consideration for want of merits:

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