Karnataka High Court
Sri.Kenchanaika vs Sri.Manchanaika on 14 February, 2023
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RSA No. 1344 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO. 1344 OF 2016 (PAR)
BETWEEN:
1. SRI.KENCHANAIKA
S/O. LATE. HUCHANAIKA,
AGED ABOUT 73 YEARS
2. SRI. MANCHANAIKA
S/O. LATE. JAVARANAIKA,
AGED ABOUT 52 YEARS
3. SRI. KENCHANAIKA
S/O. LATE. JAVARANAIKA,
AGED ABOUT 49 YEARS
APPELLANTS NO.1 TO 3 ARE R/AT NO. 68,
I-BLOCK, UDBUR VILLAGE,
Digitally
signed by JAYAPURA, MYSURU TALUK-570008
ALBHAGYA
4. SMT. KEMPACHOWDAMMA
Location:
High Court W/O. LATE. JAVARANAIKA,
of AGED ABOUT 74 YEARS
Karnataka
5. SMT. MANIYAMMA
W/O. MARIDANDANAIKA,
D/O LATE. JAVARANAIKA,
AGED ABOUT 55 YEARS
6. SMT. KEMPAMMA
W/O. PRAKASH,
D/O LATE. JAVARANAIKA,
AGED ABOUT 41 YEARS,
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RSA No. 1344 of 2016
APPELLANTS NO.4 TO 6 ARE R/AT UDBUR VILLAGE,
JAYAPURA, MYSURU TALUK-570008
7. SMT. MANCHAMMA
W/O. NINGANNA,
D/O. LATE. JAVARANAIKA,
AGED ABOUT 34 YEARS,
R/AT NO. GODDANAPURADA HUNDI VILLAGE,
KASABA HOBLI,
NANJANAGUD TALUK-571301
...APPELLANTS
(BY SRI. NANJUNDA SWAMY N, ADVOCATE)
AND:
1. SRI.MANCHANAIKA
S/O. LATE. MANCHANAIKA,
AGED ABOUT 59 YEARS,
R/AT UDBUR VILLAGE, JAYAPURA HOBLI,
MYSURU TALUK-570008
SINCE DECEASED REPRESENTED BY HIS LRs
1A. SMT.LAKSHMAMMA,
W/O LATE MANCHANAIKA,
AGED ABOUT 65 YEARS
1B. SMT. SIDDHAMMA,
D/O LATE MANCHANAIKA,
AGED ABOUT 40 YEARS
1C. KUMAR GOWRAMMA,
D/O LATE MANCHANAIKA,
AGED ABOUT 38 YEARS
1D. SRI.GOVINDA
S/O LATE MANCHANAIKA,
AGED ABOUT 36 YEARS
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RSA No. 1344 of 2016
1E. SRI.GANESH,
S/O LATE MANCHANAIKA,
AGED ABOUT 34 YEARS
ALL ARE R/AT UDBUR VILLAGE & POST,
I BLOCK, DOOR NO.70, JAYAPURA HOBLI,
MYSURU TALUK - 570008.
...RESPONDENTS
(BY SRI.LOKESH.D.K, ADVOCATE FOR SRI. P NATARAJU,
ADVOCATE FOR R1(A-E))
THIS RSA IS FILED UNDER SEC.100 OF CPC., R/W
ORDER XLI RULE 1 OF CPC., AGAINST THE JUDGMENT AND
DECREE DATED 12.04.2016 PASSED IN RA.NO.160/2013 ON
THE FILE OF THE VII ADDITIONAL DISTRICT JUDGE, MYSURU,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 23.02.2013 PASSED IN OS.NO.842/2007
ON THE FILE OF THE I ADDL. SENIOR CIVIL JUDGE, MYSURU.
THIS APPEAL, COMING ON FOR AMDISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by unsuccessful plaintiffs who have questioned the concurrent findings of the Courts below wherein the plaintiffs' suit for partial partition is dismissed by the trial Court on the ground that plaintiffs have not included all the properties and therefore, the suit for partial partition is not maintainable while the appellate Court having independently assessed -4- RSA No. 1344 of 2016 the entire evidence on record has dismissed the suit on the ground the registered sale deeds executed by plaintiff No.1 and father of plaintiffs 2 and 3 vide Exs.D4, D6 and D7 clearly establish that there is a partition in the family.
2. For the sake of convenience the parties are referred to as per their rank before the trial Court.
3. The family tree is as under:
Hucha Naika Maridandamma Both died long back |
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| | | |
Mancha Naika Jayara Naika Kencha Naika Doddathayamma
(died) (died) (Plaintiff 1) (Died)
20 Yrs back 34 yrs back
| |
Mancha Naika |
(defendant) |
|
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| | | | | Mancha Kencha Maniyamma Kempamma Manchamma Naika Naika P5 P6 P7 P2 P3
4. Father of plaintiffs 2 to 7 and father of defendant are full brothers. The present suit is filed by two branches contending that the suit schedule properties -5- RSA No. 1344 of 2016 are joint family ancestral properties and that there is no partition by metes and bounds.
5. The defendant on receipt of summons tendered appearance and filed written statement. In the additional written statement, the defendant contended that plaintiffs have sold the properties allotted to them in a family partition under registered sale deeds dated 15.4.1971 and 30.5.1973 pursuant to the oral partition in the family and hence sought for dismissal of the suit.
6. The plaintiffs and defendant to substantiate their respective claims have let in oral and documentary evidence.
7. The trial Court though held that there is no partition in the family, however, proceeded to dismiss the suit on the ground that the suit for partial partition is not maintainable. The trial Court was of the view that plaintiffs have consciously not included Survey No.527/2 and that the suit for partial partition is not maintainable. -6- RSA No. 1344 of 2016
8. The plaintiffs feeling aggrieved by the judgment and decree of the trial Court preferred an appeal before the appellate Court. The appellate Court being final fact finding authority has on independent assessment of oral and documentary evidence declined to concur with the findings recorded by the trial Court on all issues. The appellate Court on re-appreciation of the evidence on record has taken cognizance of the sale deeds executed by first plaintiff and father of plaintiffs 2 and 3 vide Exs.D4, 6 and 7. The appellate Court referring to these title documents which are admittedly registered sale deeds executed by plaintiffs found that there are clearly recitals in the registered sale deeds indicating partition in the family. The plaintiffs while selling ancestral lands more particularly Survey No.527/1 and 527/2 have clearly stated in the sale deeds that these properties were allotted to them in a family partition. The appellate Court taking cognizance of these recitals in the registered sale deeds has come to conclusion that there is severance in the -7- RSA No. 1344 of 2016 family and therefore, the present suit for partial partition is not maintainable.
9. The appellate Court has proceeded to dismiss the appeal not on the ground that the suit for partial partition is not maintainable but on the ground that the rebuttal evidence let in by the defendant vide Exs.D4, D6 and D7 which are registered sale deeds coupled with the mutation vide Ex.D5 clearly establish that there is a partition and in the said partition, the plaintiffs who were allotted item No.2 have sold their respective shares.
These concurrent findings are under challenge at the instance of the plaintiffs.
10. Heard the learned counsel for plaintiffs and learned counsel for the defendant.
11. Before I advert to the facts of the case, I deem it fit to refer to the pleadings in the plaint as well as the defence set up by the defendant in the additional written statement. The plaintiff at the first instance sought for partition only in respect of item No.1 property bearing -8- RSA No. 1344 of 2016 Survey No.525/2. On receipt of summons, when defendant filed additional written statement, the plaintiffs sought to include item Nos.2 to 5. It would be useful for this Court to cull out the entire averments made in the additional written statement, which reads as under:
1. The suit of the plaintiff is not maintainable either on law or on facts and same needs to be dismissed at the threshold of this Hon'ble Court.
2. The additional properties which are inserted at the later stage by the plaintiffs are the properties which are divided long back between the father of the plaintiffs No 2 and 3, 1st plaintiff and the defendants father. And the sy no.527/1 measuring 2 acres 04 guntas out of it 0.24 guntas was fallen to the share of the defendant and in sy. No. 527/2 measuring 0.3 guntas has also fallen into the share of this defendant by way of oral partition and further 0.30 guntas in sy.
No. 527/1 and 0.5 guntas in sy.no. 527/2 has fallen into the share of one javaranaika who is the father of the plaintiff no.2 &3 and further 0.30guntas in sy. No. 527/1 and 0.5 guntas in sy.no.527/2 has been fallen into the share of kempakenchaiah who is none other than the plaintiff No 1. The plaintiff no 1 was called as kempakenchaiah @ kenchanaika, the said kempakenchaiah is the son of kulakaiahna huchanaika.
3. It is further submitted that the father of the plaintiff no 2 & 3 have sold the property which was fallen to their share in sy. No.527/2 through a registered sale deed dated 15/04/1971 infavor of chikkakallidandaiya s/o chikkakallidandayana maraiya for the valuable consideration and further the first plaintiff sold the sy. No. 527 of udboor village under registered sale deed dated 30/05/1973 in favour of -9- RSA No. 1344 of 2016 chikkakallidandaiah s/o kalli dandaiahna maraiya for the valuable consideration and he is put into possession of the same. And further the plaintiff no.1 along with his 2nd wife chinnamma and 1st wife manchamma's son narayana sold the other properties through the registered sale deed dated 10/12/1997 in favour of one. Chinnaswamy s/o karinayaka, which had come to their share in the oral partition. Hence the plaintiffs and their fathers have sold the ancestral properties which had fallen to their share and have filed the above suit to make a wrongful gain with the malafide intention. The plaintiffs have no right to seek partition in the suit schedule properties.
4. It is further submitted that all the suit schedule properties are fallen to the share of the father of the defendant after his death the defendant become the absolute owner in possession of all the suit schedule properties And further this defendant has sold the land bearing sy. No.527/1 to an extent of 0.24 guntas to an developer.
5. The suit schedule properties are the properties which exclusively belongs to this defendant and no others had right to seek partition in the same as all the properties were divided orally very long back, Hence the plaintiff are put to strict proof the same.
6. The suit of the plaintiff is barred by limitation and moreover has no right to claim, nor question the property. The suit is bad for Non-Joinder of necessary parties and further suit is also bad for partial partition.
7. The plaintiff with an intention to harass these defendants has filed the above suit.
8. The plaintiff has intentionally filed the present suit cause grave injustice to the defendants. The plaintiff has not come up with the clean hands and has suppressed material facts, Hence, the suit needs to be dismissed.
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RSA No. 1344 of 2016
9. The averments which are not specifically traversed are here by deemed denied.
Wherefore, the defendant humbly prays that the Hon'ble court be pleased to dismiss the suit of the plaintiffs with cost and thereby render justice in terms of equity."
12. It would be also useful for this Court to cull out the affidavit filed in support of the application filed under Order VI Rule 17 of CPC. The entire averments reads as under:
"I, Manchanaika, the second plaintiff in the above case do hereby solemnly affirm and state on oath as follows:-
1. We have filed the above said suit against the defendants for partition and separate possession of our 2/3rd share and the averments made in the plaint may be kindly read as part and parcel of this affidavit.
2. The defendant has almost all admitted our claim in his written statement and now the case is set down for our evidence and infact I have filed my evidence by way of examination in chief.
3. I swear that recently we noticed that the land bearing survey No.527/1 measuring 0.24 guntas and 527/2 measuring 0.03 guntas are also our ancestral joint family property andhence we are entitled to claim 2/3rd share in the said property also. But however RTC is standing in the name of the defendant. The defendant secretly and illegally changed the katha in his favour and thereby the said properties are also not at all the self acquired property of him. Hence under law we are also entitle for our 2/3rd share. But by
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mistake and inadvertence and not aware of the particulars etc., the same has been not incorporated in the schedule to claim the share. Only recently we noticed the same through well wishers and village accountant and accordingly filed the above said application. Hence if the application is allowed it will not change the cause of action nor introduces a new case nor take away the right of the defendant. On the other hand in order to adjudicate the matter once for all fairly and finally the proposed amendment is absolutely necessary. If the application is not allowed it leads the multipliticity of proceedings. Hence no injustice caused to other side.
Hence I pray to allow the accompanying application as prayed for.
I do swear in the name of God that this is my name and signature and the contents of this affidavit are true and correct."
13. If these averments made in the affidavit filed in support of the application is meticulously examined, this Court would find that though plaintiffs were notified by defendant in regard to the alienations made by plaintiffs and particulars were furnished, plaintiffs consciously included only a portion of the land in Survey No.527/1 and 527/2 i.e. the portions which were not the subject matter of alienations under Exs.D4, 6 and 7. On plain reading of para 3 of the affidavit, the plaintiffs have stated that
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RSA No. 1344 of 2016recently they noticed that land bearing Survey No.527/1 measuring 0.24 guntas, 527/2 measuring 0.03 guntas are also ancestral properties. The conduct of the plaintiffs at this juncture is found to be grossly unfair. In spite of defence setup by defendant that all the properties were not included, the plaintiffs have deliberately not included those properties which were sold by them under registered sale deeds dated 15.4.1971 and 30.5.1973 in favour of one Chikkakallidandaiah. There is also reference to the alienations made by first plaintiff along with his second wife Chinnamma and first wife Manchamma's son Narayana under registered sale deed dated 10.12.1997.
14. In the light of the pleadings found in the additional written statement, pleadings found in the affidavit filed in support of the application filed under Order VI Rule 17, what can be gathered is that the plaintiffs have not come to the Court with clean hands. The first plaintiff has sold 30 guntas in Survey No.527/1 and 5 guntas in Survey No.527/2 while plaintiffs 2 and 3
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RSA No. 1344 of 2016have sold 30 guntas in Survey No.527/1 and 5 guntas in Survey No.527/2. Excluding these portions, the plaintiffs have included item No.2 as well as item Nos.3 to 5. The description of Item No.2 property furnished in the schedule is also found to be quite mischievous. Only to over come the suppressed alienations, the plaintiffs have deliberately given same boundaries to both the survey numbers 527/1 and 527/2. It would useful for this Court to cull out the details of item No.2 reflected in the schedule:
"2) The land bearing survey no. 527/1, measuring 0.24 guntas out of 1 acre 20 guntas and land bearing Survey no. 527/2 measuring 0.03 guntas out of 2 acres 18 guntas also the ancestral joint family properties for which the plaintiffs are entitled 1/3rd share. The property situated at Udbur village, Jayapura Hobli, Mysore taluke."
15. The learned counsel appearing for plaintiffs very skillfully argued and contended that both the lands were in fact included and therefore, he would vehemently argue and contend that the trial Court erred in dismissing the
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RSA No. 1344 of 2016suit for partial partition as not maintainable. This statement made by the learned counsel on record is deliberately misconceived. This Court only after hearing the matter at length was in a position to notice that plaintiffs have cleverly excluded the portions which were alienated by them and they are found to be quite adamant in the stand taken by them that the question of including the alienated portions may not arise for consideration and if at all defendant has any grievance about non-inclusion of alienated properties, he could have very well sought for inclusion in the written statement by seeking appropriate amendment.
16. If these significant details are taken into consideration, then the suit filed by plaintiffs is liable to be dismissed on two counts. Firstly, there is complete suppression of alienations made by plaintiffs in the plaint. No reasons are forthcoming as to why the suit was filed only in respect of item No.1. Even when the defendant raised a plea in the written statement that plaintiffs have
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RSA No. 1344 of 2016indulged in alienating the properties allotted to their legitimate share, plaintiffs consciously did not include the alienated portions. Therefore, as rightly held by the trial Court, the present suit for partition is not maintainable. If plaintiffs were notified and if they choose not to include all the properties in one hotchpotch, then it is a trite law that suit for partial partition cannot be entertained. The plaintiffs' suit is also liable to be dismissed in the light of the alienations made by them vide Ex.D4, 6 and 7 . Under these three registered sale deeds, at an undisputed point of time, the first plaintiff as well as plaintiffs 2 and 3 have sold Survey No.527/1 and 527/2 by contending that these properties were allotted to them in a family partition. The recitals in the registered sale deeds would bind the plaintiffs. Any evidence contrary to the recitals in the registered sale deeds is inadmissible in evidence under Section 91 of the Indian Evidence Act. Therefore the appellate Court was justified in dismissing the suit by holding that there was already severance in the family. Though the learned counsel for the plaintiffs would
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RSA No. 1344 of 2016vehemently argue and contend that that there is absolutely no material indicating as to what happened to items 3 to 5 and therefore plaintiffs are entitled for a share in items 3 to 5 is also found to be equally misconceived. We are not holding an enquiry to find out the mode of partition. If appellate Court on re-appreciation of the entire evidence on record, as a final fact finding authority, has come to the conclusion that there is already partition in the light of what is stated in the registered sale deeds, this Court is of the view that no rowing enquiry is required to find out as to how the lands were distributed among the defendant and plaintiffs. All that is required to be looked into is whether there is severance in the family or not. If their own registered sale deeds which were deliberately suppressed by the plaintiffs indicate that the plaintiffs who are asserting exclusive right and title and exclusive possession have meddled with the properties which were admittedly ancestral properties at some point of time, the plaintiffs cannot retract and come with a new narrative contending that there is no partition in the family.
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RSA No. 1344 of 2016Therefore, on this count also the plaintiffs suit is liable to be dismissed. The plaintiffs have been litigating this case on frivolous grounds since 2007. The defendant is dragged in this litigation and is made to spend his valuable time and money since 2007. This captioned appeal is pending for admission for the last six years. This is nothing but a clear abuse of process.
In that view of the matter, the second appeal is dismissed by imposing costs of Rs.10,000/-.
Sd/-
JUDGE ALB List No.: 1 Sl No.: 16