Karnataka High Court
Karibasappa vs Dyamakka on 6 September, 2018
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 06TH DAY OF SEPTEMBER, 2018
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
REGULAR SECOND APPEAL NO. 753/2010
BETWEEN:
KARIBASAPPA
S/O NINGAPPA
AGED ABOUT 24 YEARS
R/AT PARAMENAHALLY VILLAGE
HIRIYUR TALUK
PIN-572 143.
...APPELLANT
(BY SRI.SUNDAR RAJ, ADVOCATE)
AND:
1. DYAMAKKA
W/O LATE KARIYAPPA
AGED ABOUT 81 YEARS
2. P.K. RUDRAPPA
S/O LATE KARIYAPPA
AGED ABOUT 56 YEARS
3. SRI. BASAPPA
DELETED VIDE ORDER
22.01.2013
3(a) SMT. BASAMMA
W/O LATE BASAPPA
AGED ABOUT 71 YEARS
R/AT PARAMENAHALLI VILLAGE
HIRIYUR TALUK-572143.
2
4. NINGAPPA
S/O BASAPPA
AGED ABOUT 49 YEARS
5. KARIAPPA
S/O BASAPPA
AGED ABOUT 43 YEARS
6. NANJAPPA
S/O BASAPPA
AGED ABOUT 41 YEARS
7. LATHA
D/O NINGAPPA
AGED ABOUT 23 YEARS
8. GEETHA
D/O NINGAPPA
AGED ABOUT 11 YEARS
9. PADMA
D/O NINGAPPA
AGED ABOUT 19 YEARS
ALL THE RESPONDENTS 1 TO 10
ARE RESIDING AT
PARAMENAHALLI VILLAGE
HIRIYUR TALUK-572143.
...RESPONDENTS
(BY SRI.I.G.GACHCHINAMATH, ADVOCATE
FOR R-1 & R-2;
R-3(A) IS SERVED BUT UNREPRESENTED;
V/O DATED 07.11.2015 NOTICE TO R4 TO R9 IS
DISPENSED WITH)
THIS APPEAL IS FILED UNDER SECTION 100 OF
C.P.C. PRAYING AGAINST THE JUDGMENT & DECREE
DATED 18.11.2009 PASSED IN R.A.NO.110/2006 ON THE
FILE OF THE CIVIL JUDGE (SR.DN) HIRIYUR, ALLOWING
THE APPEAL AND SETTING ASIDE THE JUDGMENT AND
3
DECREE DATED 21.08.2006 PASSED IN O.S.NO.244/2003
ON THE FILE OF THE CIVIL JUDGE (JR.DN) & JMFC,
HIRIYUR.
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This is a plaintiff's second appeal assailing the correctness and legality of judgment and decree dated 18.11.2009 passed by Civil Judge (Sr. Dn.), Hiriyur, in R.A.No.110/2006 whereunder appeal filed by defendants 1 and 2 in O.S.No.244/2003 came to be allowed by setting aside the partial decree passed by the trial Court in decreeing suit for partition, insofar as, item No.4 of suit schedule property is concerned by declaring that partition effected between defendants 1 to 3 on 25.03.1988 is not binding on the plaintiff having been set aside by the appellate Court.
2. Facts in brief which has led to filing of this second appeal can be crystalised as under:
(i) It is the specific case of the plaintiff that original propositus of the family - Sri.Lingappa had two 4 (2) sons namely, Sri.Kariyappa and Sri.Basappa (third defendant) and he died intestate by virtue of which his sons succeeded to his estate and said Sri.Kariyappa and Sri.Basappa along with Sri.P.K.Rudrappa (second defendant) during the period of minority of plaintiff partitioned the joint family properties under partition deed dated 25.03.1988 (Ex.P-2) and said partition is void, illegal and not binding on him. Hence, claiming partition and separate possession of suit schedule properties, suit in question came to be filed.
(ii) On suit being so instituted summons came to be served on defendants. However, defendants 3 to 9 though appeared through their counsel, did not file their written statement and as such learned trial Judge has taken note that there is no written statement filed on behalf of defendants 3 to 9. Second defendant filed written statement admitting relationship and denied the averments made in the plaint except to the extent expressly admitted thereunder. First defendant filed a 5 memo adopting the written statement filed by second defendant. On the basis of pleadings of parties trial Court framed issues and parties went for trial. Plaintiff himself got examined as P.W.1 and no witnesses were examined on behalf of defendants and on behalf of plaintiff 14 documents were produced and they were got marked as Exs.P-1 to P-14. Though defendants did not lead any oral evidence they got marked 5 documents as Exs.D-1 to D-5.
3. After evaluating entire evidence tendered by parties both oral and documentary, learned trial Judge decreed the suit in part and held that insofar as partition dated 25.03.1988 effected between husband of first defendant and father of second defendant and grandfather of plaintiff i.e., third defendant, is not binding on plaintiff insofar as item No.4 of the suit schedule property by arriving at a conclusion that said property was allotted to the share of son of Sri.Kariyappa i.e., Sri.P.K.Rudrappa (second defendant). 6 Plaintiff though suffered a dismissal of suit insofar as item Nos.1 to 3 of suit schedule properties are concerned, did not challenge the same for reasons best known. However, suit having been decreed in respect of item No.4 of the property is concerned, defendants 1 and 2 preferred an appeal in R.A.No.110/2006. Learned appellate judge after considering the rival contentions raised formulated following points for determination:
(1) Whether the trial court has committed error in holding that the partition deed dated 25-3-1988 executed between husband of defendant No.1, defendant No.2 and defendant No.3 in respect of suit item No.4 property is not binding on the plaintiffs?
(2) Whether the trial court has committed any error in not considering the value of the properties allotted to the share of grand father of the plaintiff and value of the properties allotted to husband of defendant No.1 and defendant No.2 in the partition dated 25-3-1988?7
(3) Whether trial court has committed any error in not considering the fact that in the partition dated 25-3-1988 garden lands and properties worth Rs.30,000/- came to be allotted to defendant No.3 and properties allotted to the share of defendant No.3 in the said partition are equal to the ½ share in the family properties available for partition at that time?
(4) Whether the impugned Judgment and Decree call for interference in this appeal?
(5) What order?
4. On re-appreciation of evidence learned appellate Judge noticed that learned trial Judge had committed a serious error in arriving at a conclusion that insofar as item No.4 of suit schedule properties is concerned partition was required to be reopened as it is inequitable, is an erroneous finding inasmuch as learned trial Judge had not taken into consideration the 8 value of properties allotted to both the branches of the families, which depicted their value and the fact that signatory to said partition deed had not entered the witness box and had not contested the suit nor had filed the written statement, would clearly go to establish that he had accepted the said partition. Hence, for the reasons assigned under the judgment under challenge decreeing the suit by trial Court insofar as item No.4 of suit schedule property is concerned, came to be set aside and thereby suit filed by the plaintiff came to be dismissed. Hence, this second appeal.
5. I have heard the arguments of Sri. Sundar Raj, learned counsel appearing for appellant-plaintiff and Sri.Gachinamath, learned counsel appearing for the respondents 1 and 2. Respondent No.3 is deceased and his legal representative - respondent No.3(a) is served and unrepresented. Notice to respondent Nos.3 and 4 has been dispensed with by this Court vide order dated 07.11.2015.
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6. It is the contention of Sri.Sundar Raj, learned counsel appearing for appellant that learned appellate Judge committed a serious error in reversing the finding recorded by the trial Court, which is a finding of fact and there was no need or necessity for allotting a share under the partition dated 25.03.1988 in favour of Sri.P.K.Rudrappa S/o. Sri.Kariyappa and this itself was sufficient to arrive at a conclusion that it was an inequitable partition or in other words, there was inequitable partition amongst the members of the joint family. Hence, he has prayed for framing the substantial question of law as framed in the appeal memorandum for being answered in favour of appellant and appeal being allowed.
7. Per contra, Sri. Gachinamath, learned counsel appearing for respondents has supported the judgment and decree passed by the lower appellate court and prays for dismissal of the appeal. 10
8. The parameters for consideration of second appeal under Section 100 of CPC, general rule is that High Court will not interfere with the concurrent findings of the Courts below but it is not an absolute rule as held by the Apex Court in the case of KASHMIR SINGH vs HARNAM SINGH & ANR reported in AIR 2008 SC 1749. At the same time, concurrent findings would not be interfered in the normal course until and unless it is established that finding recorded by the Courts below is being either on misconstruction of documents, wrong application of principle of law, non construing of a document or there has been erroneous appreciation of evidence or evidence available on record has been ignored by the Courts below and thereby giving raise to substantial question of law as between parties in the case involved. If the decision turns one way or other on particular view taken in respect of law, a question of law is substantial between parties. The correct construction of a document which is the foundation or basis of right sought to be enforced in a 11 suit will be a substantial question of law between parties. Likewise, if a finding of fact has been arrived at by the Courts below ignoring the material evidence, then such finding is bad in law and thereby giving raise to formulate substantial question of law interse between the parties.
9. Keeping these sound principles in mind when the material on record are perused it would clearly disclose that entire issue revolves around Ex.P-2 namely, partition deed entered into between grandfather of plaintiff i.e., third defendant and his elder brother Sri.Kariyappa i.e., father of defendants 1 and 2. It is an undisputed fact that on the demise of Lingappa - original propositus, properties delved upon his legal heirs namely, his two sons since wife of original propositus had predeceased him and in order to settle the properties delved upon them, they have entered into a partition on 25.03.1988 i.e., third defendant - Basappa born to second wife of Lingappa and first son 12 Kariyappa. Under the said partition son of Sri.Kariyappa i.e., son of first defendant-Sri.P.K.Rudrappa (second defendant) was also arraigned as party and under the said partition deed, items 1 to 3 had been partitioned between defendants Nos.1 and 3 and item No.4 has been allotted to the share of second defendant i.e., Sri.P.K.Rudrappa, since plaintiff alleged that said partition is not binding on him on the ground that there has been inequitable partition or inequitable allotment of shares. Said ground of attack was considered by the learned trial Judge and accepted partially namely, it came to be held that during the lifetime of defendants 1 and 2 if the property has been allotted equally there was no need or necessity for allotment of several items in favour of second defendant i.e., Sri.P.K.Rudrappa and as such it found fault with said partition deed. However, material evidence which was available on record namely, reasons for which one portion of the property allotted to second defendant along with remaining share allotted to his father i.e., 1/3rd share as 13 against the share of 1/3rd share allotted to Sri.Basappa was not considered.
10. It is in this background, lower appellate court has re-appreciated the evidence in its entirety and held that undisputedly third defendant i.e., grandfather of plaintiff had not challenged the allotment of shares or properties allotted under the partition dated 25.03.1988-Ex.P-2 being inequitable and he having been arraigned as third defendant and had been duly served with the suit summons, but never contested the suit as also in the appeal was a ground on which lower appellate court has disagreed with said finding and rightly so. In fact, undisputedly amongst family members of Sri.Basappa i.e., third respondent there was a further partition and in the said partition property bearing Sy.No.20/2, which was allotted to the share of Sri.Basappa - third defendant came to be allotted to plaintiff's father. If the allotment of share relating to property bearing Sy.No.20/3 was to be accepted for a 14 moment that it is inequitable partition under the partition dated 25.03.1988 and suit was already pending in that regard filed by the grandson of third defendant, there was no occasion for plaintiff's father to have entered into a partition amongst his brothers and father in respect of very same land. In fact, plaintiff and his brothers have effected partition on 08.02.2000 and in the said partition land bearing Sy.No.20/2 measuring 1 acre 32 guntas and land bearing No.43/P measuring 1 acre came to be allotted to the father of plaintiff and it is the said land bearing Sy.No.20/2, which is item No.3 of suit schedule properties, which was also the subject matter of partition under the partition dated 25.03.1988-Ex.P-2. The burden cast very heavily on respondent to prove that it is inequitable partition, had not been discharged by plaintiff. In fact, said contention came to be rejected by both the Courts or in other words, it has been held that plaintiff has utterly failed to prove there was inequitable partition or inequitable distribution of shares in the joint family 15 properties. Merely because son of the plaintiff grandfather's brother i.e., second defendant had been allotted a share in the joint family properties, cannot be a ground on which the partition, which had taken place long back i.e., in the year 1988 and acted upon not only by the defendants but also by the plaintiffs' father without raising his little finger with regard to said partition dated 25.03.1988, the grandson of original propositus namely, plaintiff cannot be heard to contend that said partition effected on 25.03.1988-Ex.P-2 is to be reopened.
11. For the reasons above stated in addition to the reasons assigned by the lower appellate court and reasons assigned hereinabove, this Court is of the considered view that findings recorded by the lower appellate court is based on facts and it does not give raise for any substantial question of law to be formulated, adjudicated and answered.
Hence, I proceed to pass the following:
16
JUDGMENT
(i) Appeal is hereby dismissed.
(ii) Judgment and decree dated 18.11.2009
passed in R.A.No.110/2006 by Civil
Judge (Sr.Dn.), Hiriyur, is hereby
affirmed.
(iii) Parties to bear their respective costs.
(iv) Registry to draw the decree accordingly.
SD/-
JUDGE DR