Karnataka High Court
U F M Prabhakar S/O Yeshwant Marathe vs Sri. Ananth Babu Marathe on 28 September, 2012
Author: Ashok B.Hinchigeri
Bench: Ashok B. Hinchigeri
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 28 T H DAY OF SEPTEMBER, 2012
BEFORE
THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI
Regular Second Appeal No.1089/2003 (Dec.& Inj.)
BETWEEN:
U.F.M. Prabhakar
S/o.Yeshwant Marathe
Aged about 45 years,
R/o.Ulga, Ghadsai,
Post: Ulga, At: Satgeri,
Tq: Karwar,
Dist: Uttara Kannada.
... Appellant.
(By Shri Sachin S. Magadum, for Shri Vighneshwar S.
Shastri, Advocate.)
AND:
1. Sri Ananth Babu Marathe
Since deceased by his L.Rs.
a) Baburay S/o.Ananth Marathe
Aged about 59 years,
b) Ratnakar S/o.Ananth Marathe
Aged about 56 years,
2
c) Shantaram S/o.Ananth Marathe
Aged about 41 years,
d) Purushottam S/o.Ananth Marathe
Aged about 39 years,
e) Gopika W/o.Ananth Marathe
Aged about 81 years,
f) Saku W/o.Apa Marathe
Aged about 42 years,
g) Vanita D/o.Ananth Marathe
Aged about 38 years,
h) Shobha D/o.Ananth Marathe
Aged about 37 years,
i) Sundare D/o.Ananth Marathe
Aged about 36 years,
All r/at: Ulga, Ghadsai
At and Post: Satgeri,
Ulga in Karwar Taluk,
Uttara Kannada District.
2. Smt.Laxmi @ Indu
W/o.Bhavani Marathe
Aged about 66 years,
R/o: Ulga, Ghadsai
At and Post: Satgeri,
Ulga in Karwar Taluk,
Uttara Kannada District.
... Respondents.
(By Shri V.P.Kulkarni, Advocate, for R.1A to R.1F,
Shri R.D.Kulkarni, Advocate, for R.2,
R.1G, R.1H, R.1I - Notice served.)
3
This Regular Second Appeal is filed under Section
100 of the Code of Civil Procedure, against the
judgment and decree, dated 30.8.2003, passed in
R.A.No.42/1992, on the file of the Prl. Civil Judge
(Sr.Dn.), Karwar, dismissing the appeal and confirming
the judgment and decree, dated 4.7.1992, passed in
O.S.No.18/1986, on the file of the Civil Judge (Jr.Dn.),
Karwar.
This Appeal coming on for final hearing this day,
the Court delivered the following:
JUDGMENT
This is the plaintiff's appeal against the concurrent judgments - the judgment and decree, dated 4.7.1992 passed by the Court of the Civil Judge (Jr.Dn.), Karwar, in O.S.No.18/1986 and the judgment and decree, dated 30.8.2003 passed by the First Appellate Court (Court of the Prl. Civil Judge (Sr.Dn.), Karwar) in R.A.No.42/1992.
2. The parties are referred to as per their ranks in the Trial Court.
3. The case of the plaintiff in brief is that the name of the propositus is Babu Marathe. He had three 4 sons (i) Thamma (ii) Anant and (iii) Yeshwant. On the death of Babu his sons effected the oral partition in 1958. Based on the said oral partition, the wardi was given to the revenue authorities. As per the wardi, mutation entries were effected showing the name of the plaintiff's father Yeshwant in the revenue records in respect of the suit schedule properties. The plaintiff also claims that his father was a protected tenant in respect of the three items of the suit schedule properties. It is the further case of the plaintiff that his sister-in-law Ayodhya (wife of his eldest brother Thamma) deserted Thamma immediately after the marriage and thereafter she was leading adulterous life. Ayodhya was arraigned as the defendant No.2 to the suit proceedings. Her daughter Laxmi was arraigned as the defendant No.3 to the said suit proceedings. According to the plaintiff, the defendant No.3 is illegitimate daughter, as she was not born in the wedlock between Thamma and Ayodhya. 5
4. On the death of the plaintiff's father Yeshwant in 1978, the plaintiff became the absolute owner of the suit schedule properties. The Deputy Commissioner cancelled the mutation entries standing in favour of the plaintiff, by his order, dated 24.9.1985. Feeling aggrieved, he filed the suit seeking the relief of declaration that he is the full and absolute owner of the properties. He also sought the consequential relief of perpetual injunction for restraining the defendants from interfering in the suit schedule properties. He also sought the order for the rectification of the entries in the revenue records for the purpose of restoring his name in the revenue entries.
5. The 1 s t defendant-Anant, the brother of the plaintiff filed the written statement. He admitted the relationship, but disputed that there was oral partition in 1958. He contended that he was in possession of the portion of the suit schedule property by way of family arrangement in of 1958. After the death of Thamma, 6 the plaintiff's father got his name entered in the record of rights. The case of the 1 s t defendant is that, he (Anant) and Yeshwant (plaintiff's father) were cultivating the suit schedule lands. The family arrangement of 1958 is not equitable. There is no fixation of boundaries. There is no partition by metes and bounds. As the defendant No.2 is dead and the defendant No.3 is illegitimate child of Thamma and Ayodhya, the suit schedule properties have to be bifurcated and half share has to be given to him. He filed the counter claim accordingly.
6. The 2 n d and 3 r d defendants have filed the written statement denying the oral partition of 1958. They denied that there is severance of status. The defendant No.2 denied the allegations of her deserting Thamma and leading adulterous life. They claimed that the defendant No.2 continues to be the legally wedded wife of Thamma and the defendant No.3 to be the daughter born in the wedlock between the two. 7
7. Based on the rival pleadings, the Trial Court formulated the following issues and the additional issues.
ISSUES
1) Whether plaintiff proves previous oral partition of 1958?
2) Whether he proves exclusive title and possession of suit properties?
3) Whether he proves acquisition of right by Yashawant in his individual capacity over suit land, Sy.No.113, 123 and 162/3, of Ulaga village?
4) Whether there is any cause of action for the suit?
5) Whether plaintiff entitled for declaration as prayed for?
6) Whether he is entitled for injunction as prayed for?
7) Whether defendants 2 and 3 prove they are entitled for partition and separate 8 possession of properties mentioned at para-6 of W.S.?
8) If so, what is their share in these
properties?
9) Whether plaintiff proves relinquishment
or surrender of her right by the
defendant over the proportion of her husband Thama Marathe?
10) Whether there is any cause of action for the defendant 2 and defendant 3 for the counter claim?
11) What decree or order?
ADDITIONAL ISSUES
1) Whether the defendant 1 proves that the
suit schedule properties are the
ancestral, joint family properties of
himself and plaintiff?
2) Whether defendant 1 is entitle for
partition and separate possession of his half share in the suit properties?
3) Whether the plaintiff proves that the counter claim is barred by limitation? 9
4) Whether the plaintiff proves that defendant 2 after deserting her husband was leading an adulterous life?
5) Whether the plaintiff proves that defendant 3 is not the legitimate child of deceased Thama?
8. The plaintiff got himself examined as PW.1. He adduced evidence of three more witnesses marking the documents at Ex.P.1 to P.160. During the pendency of the suit the defendant No.2 died. The 1 s t defendant's son Purushottam Anant Marathe was examined as DW.1. The 3 r d defendant was examined as DW.2 and her husband as DW.3. The documents at Ex.D.1 to D.10 were marked for the defendants.
9. Based on the pleadings, oral and documentary evidence placed on record, the Trial Court dismissed the plaintiff's suit and allowed the counter claim for partition and separate possession by granting 1/3 r d share each to the branch of the plaintiff, of the 10 defendant No.1 and of Thamma (his LRs.: defendant Nos.2 and 3).
10. The aforesaid judgment of the Trial Court was challenged by the plaintiff by filing Regular Appeal No.42/1992. During the pendency of the appeal, the 1 s t defendant died. The legal representatives (1(a) to 1(i) were brought on record. The First Appellate Court dismissed the said appeal by confirming the judgment of the Trial Court.
11. On suffering the said concurrent judgments, this appeal is filed.
12. Shri Sachin S.Magadum, the learned counsel appearing for Shri Vigneshwar Shastry for the appellant submits that the counter claim raised by the defendants was not at all maintainable. He submits that as the defendant No.3 herself has admitted that there was oral partition in 1958, both the Courts have erred in delivering the finding contrary to what she has 11 deposed. He would contend that as the plaintiff's claim of oral partition was admitted by the defendant No.3, the suit ought to have been decreed and the counter claim ought to have been dismissed. As the severance of status has preceded the granting of the occupancy rights, it has to be taken that the occupancy rights are granted in the individual capacity of the plaintiff's father.
13. Shri V.P.Kulkarni, the learned counsel appearing for the legal representatives of the 1st defendant submits that there is no substantial question of law involved. He would pray for the dismissal of this appeal. Shri R.D.Kulkarni, the learned counsel for the 3 r d defendant would also pray for the dismissal of this appeal, as the two judgments under appeal do not suffer from any perversity or illegality.
14. I have browsed through the LCRs. There is no admission on behalf of the defendant No.1 that the oral partition has taken place in 1958. What has 12 happened in 1958 appears to be only an ad-hoc family arrangement. The holdings of the lands for the purpose of cultivation were not even demarcated. That is why the Courts below have observed that there is no definiteness of the boundaries shown in the suit schedule properties. The entire case of the plaintiff is based only on the mutation entries, which itself is cancelled by the Deputy Commissioner, by his order, dated 24.9.1985 (Ex.P.15). The cancelled mutation entry cannot be taken as constituting the basis for the partition.
15. The plain reading of the plaint itself makes it clear that the plaintiff's father was cultivating the tenanted holdings of Thamma. The relevant portions in para 3 of the plaint read as follows:
"Thamma Yeshwan t Mar athe was staying alone and cultivating his lands and he died on 18.11.1964 at Ulga. Af ter his death, Yeshwant Babu Mar athe star ted cultivating the tenancy holdings of Thamma 13 and they were in f act tr ansf erred in revenue records in the name of Yeshwan t, as he star ted cultivating the lands in Sy.No.113, 123/2 and 162/3 of Ulga village. Accord ingly the M.E.No.2622 was cer tif ied."
16. In view of these plaint averments, it cannot but be taken that the mutation entries were based only on the possession and cultivation of the lands by the plaintiff's father. They cannot be stretched to mean that partition has taken place.
17. The defendant No.3 (DW.2) has deposed that her mother (defendant No.2) has objected to the giving of the wardi in 1958. She has stated that her parents had harmonious relationship. Because of the straining of the relationship between the 2 n d defendant and the 1 s t defendant's wife, 'watni' had to be made. Based on the stray admission that 'watni' has taken place, it cannot be held that partition has taken place. The Courts below have observed that she is a rustic villager. Perhaps by 'watni' she must have only meant 14 that the 'family arrangement' and not the 'partition' in the strict sense of the term.
18. Yet another aspect of the matter required to be taken into account is that the defendant No.3 cannot be expected to have the first stand account of what transpired in 1958. She was a child of eight years at that time. As her age is shown as 40 years on 21.1.1992, the date of recording her evidence, it can be presumed that she was born in or around 1950 and that she was aged eight years at the time of making the watni in 1958. Her evidence therefore may be based only on hearsay.
19. The allegations of the defendant No.2 leading an adulterous life and the defendant No.3 not being born in the wedlock of the defendant No.2 and her husband are not believable. It has come on record that the marriage invitation card of the third respondent is in the name of the plaintiff's father only. If the defendant No.2 was living with some other man and as 15 a result of the unethical cohabitation, the defendant No.3 were born, the plaintiff's father would not have got the invitation card printed in his name.
20. DW.3 has deposed that the plaintiff's father took part in the matrimonial negotiations on behalf of the defendant No.3. Considering all these aspects of the matter, the Courts below have rightly refused to accept the version of the plaintiff. They have held that the defendant No.3 is the legitimate daughter born in the wedlock between the defendant No.2 and her husband Thamma. As the analysis of oral and documentary evidence reveals that the suit schedule properties are the joint family properties and that the three branches of (i) Thamma, (ii) Anant and (iii) Yeshwant are entitled to claim equal share therein, the Courts below are justified in holding that they are entitled to partition and separate possession and allotting 1/3 r d share to each of the three branches. 16
21. I do not find any question of law, much less substantial question of law involved in this appeal. The appeal is dismissed. No order as to costs.
Sd/-
JUDGE Mrk/-