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Karnataka High Court

Gadri Palaiah vs Sri C P Thippeswamy on 28 March, 2023

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                                                          RSA No. 385 of 2011




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 28TH DAY OF MARCH, 2023

                                              BEFORE

                            THE HON'BLE MR JUSTICE ASHOK S.KINAGI

                    REGULAR SECOND APPEAL NO. 385 OF 2011 (DEC)

                   BETWEEN:

                   1.    GADRI PALAIAH
                         S/O C. PALAIAH,
                         AGED ABOUT 61 YEARS,
                         OCC: COOLIE,
                         R/O 5TH CROSS, NEAR MARAMMA TEMPLE,
                         C.K. PURA EXTENSION,
                         CHITRADURGA
                         SINCE DEAD BY HIS LR'S APPELLANT No.2

                   2.    SRI. G. GURUMURTHY,
                         S/O C. GADRI PALAIAH,
                         AGED ABOUT 28 YEARS,
                         ATTENDER IN KARNATAKA BANK,
                         R/O 5TH BLOCK, C.K. PURA EXTENSION
Digitally signed
by R DEEPA               CHITRADURGA - 577 501.
Location: High                                                   ...APPELLANTS
Court of           (BY SRI. M.G. KANTHARAJAPPA, ADVOCATE)
Karnataka

                   AND:

                   1.    SRI C P THIPPESWAMY
                         S/O C. PALAIAH,
                         AGED 57 YEARS,
                         COOLIE, R/O AJJAPPANAHATTY,
                         C.K.PURA EXTENSION,
                         CHITRADURGA CITY - 577 501

                   2.    SMT. C.P. JAYAMMA,
                         W/O LATE JAYANNA,
                               -2-
                                     RSA No. 385 of 2011




     AGED 64 YEARS,
     HOUSE WIFE,
     R/O AJJAPPANAHATTY, C.K.PURA EXTENSION,
     CHITRADURGA CITY - 577 501

3.   C.P. LOKAMATHA,
     W/O THIPPESWAMY,
     AGED 61 YEARS,
     R/O CHANNABASAYYANAHATTI
     C.K. PURA EXTENSION
     CHITRADURGA - 577 501

4.   SMT. C.P. KOMALA,
     W/O SURAPPA,
     AGED 62 YEARS,
     R/O KUNABEVU VILLAGE,
     CHITRADURGA TALUK & DISTRICT.

5.   SMT. C.P. THIPPAMMA,
     W/O LATE NAGARAJAPPA,
     AGED 62 YEARS,
     ATTENDER
     GOVERNMENT JUNIOR BOYS COLLEGE
     CHITRADURGA TOWN.

6.   SMT. C.P. SHANTHAMMA,
     W/O CHANDRAPPA,
     AGED 60 YEARS,
     FRUIT MERCHANT
     COURT ROAD, JAGALUR,
     DAVANAGERE DISTRICT.

7.   SMT. VIJAYALAKSHMI,
     W/O P. NAGESHA,
     AGED 57 YEARS,
     R/O 5TH CROSS, C.K.PURA EXTN,
     NEAR MARAMMA TEMPLE,
     CHITRADURGA - 577 501

8.   SMT. C.P. VISHALAKSHI,
     W/O B. SUGANDHA,
     AGED 55 YEARS,
                              -3-
                                         RSA No. 385 of 2011




    R/O 5TH CROSS, C.K.PURA EXTN,
    NEAR MARAMMA TEMPLE,
    CHITRADURGA - 577 501
                                             ...RESPONDENTS

(BY SRI. A. NAGARAJAPPA, ADVOCATE FOR R1.
    R2 TO R8 SERVED)

     THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 06.12.2010 PASSED IN
R.A.NO.19/2009 ON THE FILE OF THE ADDL. DISTRICT JUDGE,
FAST TRACK COURT, CHITRADURGA, ALLOWING THE APPEAL
FILED AGAINST     THE JUDGMENT AND DECREE DATED
09.12.2009 PASSED IN O.S.NO.134/2004 ON THE FILE OF THE
IIND ADDITIONAL CIVIL JUDGE (SR.DN), CHITRADURGA.

     THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:


                        JUDGMENT

This second appeal is filed challenging the judgment and decree dated 06.12.2010 passed in R.A No.19/2009 on the file of the Additional District and Fast Track Court at Chitradurga.

2. The parties are referred to as per their ranking before the trial Court. The appellant is defendant No.2 and respondent No.1 is the plaintiff and other respondents were defendants.

RSA No. 385 of 2011

3. Brief facts of the case are as under:

The plaintiff filed the suit in O.S No.134/2004 for declaration, partition and separate possession, declaring that partition deed dated 15.01.1990 is created and not binding on the share of the plaintiff and gift deed dated 12.09.2004 is not binding on the share of the plaintiff.

It is the case of the plaintiff that defendant No.1 is the father of defendant No.2 and the plaintiff, defendant No.2 is the elder brother of plaintiff. Plaintiff and defendants are the members of Hindu Undivided joint family. They are bound by the principles of Mitakshara school of Hindu law. The plaintiff's daughter is married, had come out of the joint family without taking any share in joint family property and ancestral property. The house bearing khata No.426 was acquired by defendant No.1 under IHC and land bearing survey No.89/5 which was the ancestral property of the plaintiff was acquired by then City Municipality, Chitradurga. As such, the CMC Chitradurga had permitted the plaintiff and defendants to -5- RSA No. 385 of 2011 erect two buildings which are measuring (1) east to west:

20 ft and north to south: 25 ft and (2) east to west: 20 ft and north to south: 30 ft of C.K.Pura village, Chitradurga City in the space belonging to the CMC Chitradurga. The said two houses were built out of the sale proceeds of land bearing survey No.89/5 to CMC and the said properties are the suit schedule properties. The suit schedule properties are the ancestral and joint family properties of plaintiff and defendants. As such, the plaintiff is entitled to 1/3 share in the suit schedule property. The plaintiff's family consists of five members including sons and daughters. The defendants have not given the share and the plaintiff's demanded for partition. The defendants refused to give a share in the suit schedule properties.

It is contended that the plaintiff is being a coolie and living in a rented house. When the plaintiff has demanded the defendants for partition and separate possession of his 1/3 share in the month of first week of July 2004, the defendants agreed to part with the share of the suit -6- RSA No. 385 of 2011 property and later they have denied the same. The plaintiff has convened the Panchayath of elderly persons of the vicinity wherein the defendants have shown some documents partition deed dated 15.01.1990 and denied the share of the plaintiff. Hence, cause of action arose for the plaintiff to file the suit for relief of declaration and partition and separate possession.

4. Defendant No.2 filed the written statement admitting that the plaintiff is the son of defendant No.1 and brother of defendant No.2. It is denied that the plaintiff and defendants are the members of Hindu Undivided joint family and are governed by the principles of Mitakshara school of Hindu law and it is denied that the plaintiff after his marriage came out of the suit joint family without taking a share in the joint family and ancestral properties. It is admitted that the house bearing khata No.426, measuring 33 ft X 25 feet is the ancestral property. It is also admitted that land bearing survey No.89/5 measuring 3 acres 27 guntas of Kelagote village -7- RSA No. 385 of 2011 was the ancestral property of the plaintiff and defendants, same was acquired by the CMC Chitradurga. The CMC Chitradurga had permitted the plaintiff and defendants to erect two buildings as mentioned in para No.3 of the plaint.

It is also admitted that suit schedule item No.1 and another item of the property shown in the schedule are the ancestral property, but suit schedule item Nos.2 and 3 are not the ancestral properties. It is denied that the plaintiff is entitled to 1/3 share and it is contended that though the partition was effected and same was reduced into writing on 15.01.1990 and the suit was filed in the year 2009. Suit filed by the plaintiff is not maintainable either in law or also on the facts and it is contended that there are two items of the ancestral properties belonging to the family of defendants. It is contended that there was a partition among defendant No.1, plaintiff and defendant No.2 on 15.01.1990 and item No.1 was allotted to the share of defendant No.1 and 2 and item No.2 was -8- RSA No. 385 of 2011 allotted to the share of plaintiff. Ever since, from the date of partition, the respective parties are in possession of the respective shares. Defendant No.1 before partition of the above said property provided 'D' group appointment to the plaintiff in Karnataka Bank at Chitradurga branch by spending the huge amount. The plaintiff took out his share in the movable and immovable necessary properties, he has parted from the joint family and residing separately. After acquisition of land in survey No.89/5, by the municipal authority and housing board authority, some vacant site measuring east to west 20 feet and north to south 35 feet was allotted to the share of defendant No.1 and defendant No.1 constructed the house on the said site by spending huge amount.

It is contended that the plaintiff has sold the said house for valuable consideration even without the knowledge of defendant No.1, He alone had driven the entire sale consideration of the said amount. It is contended that the plaintiff has filed the suit by -9- RSA No. 385 of 2011 suppressing the real facts and he has not come to the Court with clean hands . Hence, there is no cause of action to file the suit. Hence, prayed to dismiss the suit.

5. The Trial Court, on the basis of the above said pleadings, framed the following issues and additional issues:

Issues

1. Whether the plaintiff proves that he and defendants constitute Hindu undivided joint family?

2. Whether the plaintiff further proves that suit schedule item No.2 and 3 properties are also the joint family property acquired out of nucleus of ancestral properties?

3. Whether the defendant No.2 proves that the family properties were partitioned on 15.01.1990 and plaintiff was allotted share i.e. item No.2 of plaint schedule?

4. Whether the plaintiff is entitled for 1/3rd share in suit schedule properties by metes and bounds?

5. What decree or order ?

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Additional issues

1. Whether L.Rs. of deceased 1st defendant proves that they are having share in the suit properties? If so a what quantum?

2. Whether L.Rs. of 1st defendants are entitled to counter claim?

6. The plaintiff in order to prove his case, examined himself as PW.1 and got marked the documents at Exs.P.1 to 5 and closed his side. On the other hand, defendant No.2 examined himself as DW.1 and examined 7 witnesses as DWs.2 to 8 and got marked documents at Ex.D.1 to 10 and closed their side. The Court Commissioner was appointed and got marked the documents Ex.C.1 and Ex.C.2.

7. The trial Court after recording the evidence of the parties and after hearing the parties, held that the plaintiff has failed to prove that the plaintiff and defendants constitute a Hindu Undivided joint family and further held that the plaintiff has failed to prove that the suit schedule item Nos.2 and 3 properties are also the joint family properties acquired out of nucleus of the ancestral

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property. Hence, held that the defendant No.2 has proved that the family properties were partitioned on 15.01.1990 and the plaintiff was allotted to share i.e., item No.2 of the plaint schedule and held that the plaintiff is not entitled for share in the suit schedule properties by metes and bounds and further held that the legal representatives of the deceased defendant No.1 failed to prove that they have share in the suit properties and further held that the legal representatives of the defendants are not entitled to counter claim. The trial Court held dismissed the suit of the plaintiffs as well as counter claim made by defendant No.1 vide judgment dated 09.12.2009.

8. The plaintiff aggrieved by the judgment and preliminary decree passed by the trial Court preferred the appeal in R.A No.19/2009 on the file of Additional District Judge and Fast track Court at Chitradurga, allowed the appeal vide judgment and decree dated 06.12.2010.

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The defendant aggrieved by the judgment and decree passed in R.A No.19/2009 has filed this second appeal.

9. The Appellate Court, after hearing the parties, has framed the following points for consideration:

1. zÁªÁzÀ D¹ÛUÀ¼ÀÄ ªÁ¢AiÀÄ ºÁUÀÆ ¥ÀæwªÁ¢AiÀÄ KPÀvÀæ PÀÄlÄA§zÀ D¹ÛUÀ¼ÁVzÀÄÝ CªÀÅUÀ¼À°è 1/3 CAvÀ ¥Á®Ä EzÉ CAvÁ ªÁ¢AiÀÄÄ ¸Á©ÃvÀÄ¥Àr¹zÁÝ£ÉAiÉÄÃ?.

2. ¢£ÁAPÀ 5-1-1990 gÀAzÀÄ zÁªÁzÀ D¹ÛUÀ¼À°è ªÁ¢AiÀÄÄ ºÁUÀÆ ¥ÀæwªÁ¢AiÀÄgÀÄ ¥Á®Ä «¨sÁUÀ ªÀiÁrPÉÆArzÀÄÝ D ¥ÀæPÁgÀ zÁªÀzÀ 2£Éà ¸ÀévÀÄÛ ªÁ¢AiÀÄ ¥Á°UÉ ºÉÆÃVzÉ CAvÁ 2£Éà ¥ÀæwªÁ¢AiÀÄÄ ¸Á©ÃvÀÄ¥Àr¹zÁÝ£ÉAiÉÄÃ?.

3. zÁªÁzÀ ¸ÀévÀÄÛUÀ¼À°è 1J ¢AzÀ 1f ¥ÀæwªÁ¢AiÀÄgÀÄ ¸ÀºÀ vÀªÀÄä ¥Á®Ä EzÉ CAvÁ ºÁUÀÆ vÀªÀÄä ¥Á®£ÀÄß ¥ÀqÉAiÀÄ®Ä CºÀðgÀÄ CAvÁ D ¥ÀæwªÁ¢AiÀÄgÀÄ ¸Á©ÃvÀÄ¥Àr¹zÁÝgÉAiÉÄÃ?

4. ªÀiÁ£Àå PɼÀ £ÁåAiÀiÁ®AiÀÄzÀ wÃ¥ÀÄð KPÁ©ü¥ÁæAiÀÄ¢AzÀ ZÀAZÀ®avÀÛ¢AzÀ zÀÄgÀÄzÉÝñÀ¢zÀAzÀ ºÁUÀÆ «¢ü§zsÀÝ vÀvÀéUÀ½UÉ «gÀÄzÀݪÁVzÉAiÉÄÃ?

5. PɼÀ £ÁåAiÀiÁ®AiÀÄzÀ wæð£À°è ªÀÄzsÀå¹ÜPÉ ªÀ»¸À§ºÀÄzÁzÀ ¸ÀPÁgÀtUÀ¼ÀÄ EªÉAiÉÄÃ?

6. CAwªÀÄ DzÉñÀ CxÀªÁ wÃ¥ÀÄð K£ÀÄ?

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The Appellate Court, after re-appreciating the oral and documentary evidence, allowed the appeal and set aside the judgment and decree passed by the trial Court. The appellant aggrieved by the judgment and decree passed by the Appellate Court, has filed this second appeal.

10. Heard learned counsel for the parties.

11. Learned counsel for defendant No.2 submitted that though there was a prior partition in the family of plaintiff and defendants and same was reduced into writing while partition deed dated 15.01.1990. Further, gift deed was executed on 12.09.2004 and the suit was filed in the year 2009. The suit filed by the plaintiff is barred by limitation. He submits that defendant No.2 has taken specific defence in the written statement that suit is barred by limitation. The suit filed by the plaintiff is barred by limitation. Said aspect was not considered by the appellate Court and proceeded to pass the impugned judgment.

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Hence, he submits that appeal may be allowed and matter may be remitted to first appellate Court to reconsider the issue regarding limitation. Hence, on these grounds he prays to allow the appeal.

12. Per contra, learned counsel for the respondents supports the impugned judgment and decree and submits that the appellate Court on re-appreciation of the material on record was justified in passing the impugned judgment. Hence, on these grounds he prays to dismiss the appeal.

13. This court vide order dated 28.08.2013 framed the following substantial question of law for consideration:

"Whether the judgment of 1st appellate Court is sustainable without deciding issue as to whether in the suit seeking declaration, the partition deed dated 15.01.990 and gif deed dated 12.09.2004 are not binding on the plaintiff and was within the period of limitation prescribed by Article 58 or Article 65 of the Limitation Act?"

14. Perused the records and considered the submissions of learned counsel for the parties.

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15. It is the case of the plaintiff that the plaintiff and defendants are the members of Hindu Undivided family and suit schedule properties are the ancestral properties of plaintiff and defendants and no partition was effected between the plaintiff and defendant. Hence, the plaintiff demanded the partition. The defendant declined to effect the partition. Hence, the plaintiff filed the suit for partition and separate possession.

16. Defendant No.2 filed the written statement contending that suit schedule properties were partitioned among defendant No.1, plaintiff and defendant No.2. On 15.01.1990, item No.1 was allotted to the share of defendant Nos.1 and 2 and item No.2 was allotted to the share of plaintiff. Ever since, the partition, the respective persons are in peaceful possession and enjoyment of the respective share. The suit filed by the plaintiff is not maintainable. Though partition was effected in the year 1990, the gift deed was executed in the year 2004 and suit was filed in the year 2009. The plaintiff has sought for

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the relief of declaration that the partition deed be declared as not binding on the share of the plaintiff and it was not acted upon and the suit filed in the year 2009. Hence, the suit filed by the plaintiff is barred by limitation.

17. The suit was filed in the year 2004 and the defendant has taken specific defence in the written statement that the suit is barred by limitation. In order to prove the case of the plaintiff, the plaintiff examined as PW.1 and got marked documents at Ex.P.1 to 5. Defendant No.2 was examined as DW.1 and got examined 7 witnesses as DW.2 to DW.8 and got marked documents Ex.D.1 to 10. The commissioner was appointed and he has submitted the report and the said documents are marked as Ex.C.1 to C.2.

The plaintiff has reiterated the plaint averments in the examination-in-chief affidavit. But in the course of cross examination shows the ignorance regarding the factum of prior partition. But he has admitted that his wife, father-in-law, have sold the suit properties. He also

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admitted in the cross examination that 3 portion house has been allotted to his share in partition. As observed above, the plaintiff has sold the property fallen to his share. The registered sale deed executed by plaintiff i.e., Ex.D.10 proves that the parties have upon the partition held on 15.01.1990, the defendants in order to prove prior partition the defendants have produced partition deed marked as Ex.D.7. The plaintiff has signed on Ex.D.7 and his signature is marked as Ex.D.7(d). Further, in order to prove that plaintiff has sold the property to DW.5, defendants examined DW.5, he has deposed that he has purchased the properties from the plaintiff for consideration of Rs.50,000/- and he has identified the signature of plaintiff on Ex.D.10. Plaintiff's signature is marked at Ex.D.10(b). The oral and documentary evidence proves that there was a partition in the year 1990. The plaintiff filed a suit for declaration, partition and separate possession on 03.11.2004, after lapse of 14 years from the year of partition. The defendants have

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taken specific defence in the written statement that suit filed by the plaintiff is barred by limitation.

18. The appellate court while passing impugned judgment failed to consider the issue regarding limitation, regarding declaration that the partition deed dated 15.01.1990 and gift deed dated 12.09.2004 are not binding on the plaintiff and was within the period of limitation prescribed under Articles 58 and 65 of the Limitation Act. The appellate court has committed an error in passing the impugned judgment without examining the point of limitation. Hence, on these grounds itself, the impugned judgment is liable to be set aside. In view of the above discussions, I answer the substantial question of law in the affirmative.

19. In view of the aforesaid facts and circumstances, I proceed to pass the following:

ORDER

1) The appeal is allowed.

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2) The judgment and decree dated 06.12.2010 passed in R.A No.19/2009 on the file of Additional District Judge and Fast Track Court, Chitradurga, is set aside.

3) The matter is remitted to the first appellate court.

4) The first appellate court is directed to decide the appeal afresh, by considering the issue regarding whether the relief of declaration sought by the plaintiff is within the period of limitation prescribed under Articles 58 and 65 of Limitation Act and also other issues.

5) All the contentions of the parties are kept open.

6) The parties are directed to appear before the first appellate Court on 19.06.2023, without awaiting any further notice. The appellate Court shall dispose of the appeal independently without being influenced by any observation made in this judgment.

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7) Registry is directed to transmit the records to the first appellate court. The first appellate Court shall dispose of the appeal as expeditiously as possible within six months from the date of receipt of copy of this order.

Sd/-

JUDGE SKS