Karnataka High Court
Sri B Rangappa Since Dead By His Lrs vs Smt Marakka on 16 June, 2014
Author: Jawad Rahim
Bench: Jawad Rahim
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 16TH DAY OF JUNE 2014
BEFORE
THE HON'BLE DR.JUSTICE JAWAD RAHIM
R.S.A.NO.1625/2012
BETWEEN:
1. SRI B.RANGAPPA
S/O.DODDARANGAPPA
AGED ABOUT 69 YEARS
SINCE DEAD BY HIS L.Rs.
a) JAYAMMA
W/O.LATE B.RANGAPPA
AGED ABOUT 67 YEARS
R/O.BASAVANAHALLY
HULIKUNTE HOBLI
SIRA TALUK - 572 137.
b) B.R.BHANUMATHI
D/O.B.RANGAPPA
W/O.R.KAMARAJU
AGED ABOUT 42 YEARS
R/O.BHOVANAHALLI
SIRA TALUK - 572 137.
c) B.R.VARALAKSHMI
D/O.B.RANGAPPA
W/O.CHANDRAKANTH
AGED ABOUT 40 YEARS
R/O.K.R.EXTENSION
MADHUGIRI TOWN - 572 135.
2. B.R.RAVISHANKAR
S/O.B.RANGAPPA
AGED ABOUT 44 YEARS.
3. B.R.THIPPESWAMY
S/O.B.RANGAPPA
AGED ABPIT 44 YEARS.
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4. B.R.SREENIVAS
S/O.B.RANGAPPA
AGED ABOUT 30 YEARS.
ALL ARE R/O.BASAVANAHALLY VILLAGE
HULIKUNTE HOBLI
SIRA TALUK - 572 137.
...APPELLANTS
(BY SRI K.HANUMANTHARAYAPPA, ADV.)
AND:
AND:
1. SMT.MARAKKA
W/O.LATE DODDAPPA
AGED ABOUT 74 YEARS.
2. LAKSHMIDEVI
W/O.K.CHANDRAPPA
AGED ABPUT 29 YEARS.
3. PARVATHAMMA
W/O.HALAPPA
AGED ABOUT 39 YEARS.
ALL ARE R/O.BASAVANAHALLY VILLAGE
HULIKUNTE HOBLI
SIRA TALUK - 572 137.
...RESPONDENTS
[BY SRI B.KUMARA, ADV. FOR C/R (ABSENT)]
THIS R.S.A IS FILED U/S.100 OF CPC AGAINST THE
JUDGMENT & DECREE DATED 13.6.2012 PASSED IN
R.A.NO.39/2010 ON THE FILE OF SENIOR CIVIL JUDGE
AND JMFC., SIRA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED
6.4.2010 PASSED IN O.S.109/2007 ON THE FILE OF CIVIL
JUDGE & JMFC, SIRA.
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-
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JUDGMENT
The defendants are in appeal against the concurrent judgment and decree of the trial court and appellate court in O.S.No.109/2007 dated 6.4.2010 and the judgment in R.A.No.39/2010 dated 13.6.2012 respectively.
2. The appeal has come up for admission.
3. Heard the learned counsel and perused the records available in supplementation thereto from which the following contextual facts manifest and needs reference:
Marakka, respondent-plaintiff filed a suit in O.S.No.109/2007 seeking a decree to divide schedule properties by metes and bounds to assign and allocate to them 1/3rd share therein. In support of the relief so sought, the plaintiffs averred one Ramanahalli Rangappa was the owner of the property described in the schedule. His lineal descendants constituted co-parcenary and lived in Hindu Undivided Joint family. Ramanahalli Rangappa, the propositus had three sons Doddappa, Doddarangappa and Sannarangappa. The first plaintiff claimed to be the wife of Doddappa and other plaintiffs as his children. She 4 claimed that they lived in joint family with the defendants who are the children of Doddarangappa and Sannarangappa, the two sons of the propositus. Relying on the revenue records, she alleges that co-parcenery continued but one of them viz., Doddarangappa manipulated the records in his name. The application filed by the first defendant to get his name transferred, is described as a malafide attempt to usurp properties. She further alleged that the defendants have executed Partition Deed thereby, excluding them. On the strength of partition, they have mutated the revenue records. When she and plaintiffs demanded share, they refused. On this ground, the plaintiffs sought division of properties by metes and bounds to allot and allocate them their respective shares.
4. On issuance of summons, defendants entered contest and filed a statement. Defendant No.1 has filed a written statement denying all assertions in the plaint, disputing co-parcenary and allegation of malafides attributed to them. However, they urged inconsistent defence to claim the joint family status was severed by division of properties amongst the co-parcenaries, which 5 according to them was several years ago and in the partition, the plaintiffs' forefathers were given share and ousted.
5. The third inconsistent plea is there is no joint family relationship between plaintiffs and defendants and they have been living as separate individuals with their family sharing no mess or shelter. They further averred, more than three generations ago, the joint family status was severed and thereafter, no joint family existed.
6. Lastly, they urged the Court to take note of several properties in the name of plaintiffs which according to them was acquired through their ancestors and that satisfies their claim, if any. Against all such pleas, they pleaded further that the first plaintiff had obtained valuable jewellary from the joint family and thus her claim was satisfied. The pleas advanced by the defendants were inconsistent and no clear defence emerges.
7. However, the learned trial judge framed following issues for consideration:
a) Whether the plaintiffs prove that suit schedule properties are the ancestral and 6 joint family properties of them and defendants and they are in joint possession of the said properties?
b) Whether the plaintiffs prove that defendant himself refused to give their share?
c) Whether the defendants prove that partition was effected between plaintiffs and themselves about 25 years back as alleged in the written statement?
d) Whether the defendants prove that the plaintiffs have not included the entire properties standing in the name of the plaintiffs in the suit?
e) Whether the cause of action arise to file this suit?
f) Whether the defendants prove that the court fee paid by the plaintiffs is not correct?
g) Whether the plaintiffs are entitled for
partition and separate possession of
1/3rd share in the suit schedule
properties by metes and bounds?
h) What order decree?
8. In the enquiry that ensued, Parvathamma,
plaintiff No.3 deposed for and on behalf of other plaintiffs supported by the ocular testimony of Pandurangaiah, PW-2 and Maradi Rangappa, PW-3. They placed reliance on 39 7 documents, while, defendant No.4 B.R.Sreenivas deposed as DW-1 and summoned two witnesses Pandurangaiah and Jayamma, DWs.2 and 3. They relied on 30 documents, apart from relying on certain revenue records. The trial judge analyzing the material propositions in the pleadings on record, held plaintiffs had proved existence of Hindu Undivided Joint Family and also established properties described in the scheduled form, joint family properties amenable to division amongst co-parceners in the ratio of share they are entitled to. By a detailed analysis of evidence and reasons acceptable in law, learned trial judge decreed the suit. Assailing which the defendants were in R.A.No.39/2010. They reiterated their plea which found no favour and the appeal is rejected. Against the concurrent findings, they are in second appeal.
9. The learned counsel has formulated the following questions of law to be considered in this appeal and thus heard regarding admission.
i) Whether the First Appellate Court was justified in dismissing the suit even though the same was not maintainable for partial partition?8
ii) Whether the First Appellate Court was justified in dismissing the suit even though suit was bad for non joinder of necessary parties and the contention in this regard had been taken?
iii) Whether the 1st Appellate Court was justified in dismissing the appeal without considering the material evidence?
10. The narration of facts found in the judgment of the trial court and the Appellate Court needs no reiteration in this order. What is required to be considered is, whether the grounds urged in the appeal supporting the question of law is raised. Learned counsel for the appellant could not dispute that the defendants though had filed written statement, the assertion in the written statement were inconsistent. At one time they disputed the existence of the joint family and contended three generations ago, it is severed. But the 2nd defence was, the plaintiff -Marakka had obtained share in the from of jewels and cash and went out side. The third and last defence was there was oral partition among co-parceners and the schedule properties were divided amongst them, since then they are living separately and enjoying the 9 share allotted to them under oral partition. Learned counsel could not dispute the defendants led no defence in the trial court to establish that oral partition had took place and mode and manner of division of the schedule property. The learned counsel could not dispute the defendants have admitted the properties described in the schedule were joint family properties. Therefore, the point to consider is whether there was oral partition and division of properties? Even if they had succeeded in doing so, all that it would show is they are entitled to a particular share out of the schedule property. But such a defence could not negate the claim of the plaintiffs that the schedule property was divisible amongst three sons of Ramanahalli Rangappa viz., Doddappa, Doddarangappa and Sannarangappa. Upon the death of propositus, three sons continued to live together in a common mess and shelter. Therefore,PW1 also became member of the undivided family. Three generations joined together and had became co-parceners.
11. In the result, the property was divisible amongst co-parceners. The plaintiff and the defendants did not dispute the ratio in which the property is to be divided, 10 though it was contended, under oral partition division had took place. In the circumstances, virtually no issues had arisen to be decided about the entitlement of the plaintiff in view of the defence admitting genetic relationship between the parties. Learned Appellate court reappraised the evidence on record and concurred with the finding of the trial court as reasonable, just and proper.
12. The reasons assigned and by the learned trial Judge is based on the evidence on record and affirmation of the finding of the appellate Court is fully justified. I do not find any substantial question of law arise for consideration as pointed out by the learned counsel. Hence, the appeal is dismissed at the stage of admission.
No costs.
Sd/-
JUDGE nas.