Karnataka High Court
K Siddabasappa S/O Sannappa vs Kumbar Chandrashekhar S/O K Sannappa on 24 June, 2013
Author: B.Manohar
Bench: B.Manohar
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 24 T H DAY OF JUNE, 2013
BEFORE
THE HON'BLE MR. JUSTICE B.MANOHAR
R.S.A.NO.5005/2009(PAR)
BETWEEN:
K SIDDABASAPPA S/O SANNAPPA
Age:68 YEARS
OCC:RETIRED
R/O SANJAYAGANDHI NAGAR
BELLARY
TQ. & DIST. BELLARY
... APPELLANT
(By Sri : P.G.MOGALI, ADV)
AND
1. KUMBAR CHANDRASHEKHAR
S/O.K.SANNAPPA
SINCE DECEASED BY LRs
(a)SMT.K.LAXMIDEVI
W/O.K.CHANDRASEKHAR
AGE:55 YEARS
R/O.H.NO.13, KUMBAR STREET
BRUCE PET, BELLARY
TQ. & DIST.BELLARY
(b) SMT.GANGAMMA ALIAS VISHALAKSHI
W/O.SHRISHAIL, AGE:37 YEARS
2
R/O.H.NO.13, KUMBAR STREET
BRUCE PET, BELLARY
TQ. & DIST. BELLARY.
2. K MALLAMMA W/O K BASANNA
Age: 65 YEARS
R/O W NO 13, D NO 30, BRUCEPET KUMBAR
STREET BELLARY
TQ. & DIST. BELLARY.
3. K ERANNA S/O LATE BASANNA
Age: 26 YEARS
R/O W NO 13, D NO 30,
BRUCEPET KUMBAR
STREET BELLARY
TQ. & DIST. BELLARY.
4. K VEERESH S/O LATE K BASANNA
Age: 43 YEARS
WORKING IN POULTRY FARM AS DRIVER
GINIGERA NAGAR RAILWAY STATION
GINIGERA POST
TQ. & DIST.KOPPAL
5. UMADEVI W/O LATE BASAVESHWARA
Age: 44 YEARS
TEACHER GOVT PRIMARY SCHOOL
AT GOREKAL TQ MANVI
DIST. RAICHUR.
6. K PRAVEEN S/O LATE BASAVESHWARA
Age: 21 YEARS
MBA 2ND SEMISTER
OXFERD COLLEGE OF BUSINESS
MANAGEMENT, 6TH PHASE,
J P NAGAR, BANGALORE
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7. K SHANKRAMMA W/O K SIDDAPPA
Age: 50 YEARS
C/O KOLUR PARVATHAMMA
PARAVATHINAGAR
IST CROSS, BELLARY
TQ. & DIST.BELLARY ... RESPONDENTS
(By Sri.GODE NAGARAJ, ADV FOR R1A,R1B, SRI.ARAVIND
D.KULKARNI, ADV FOR R5, R2, R3, R6 & R7 SERVED
R4 NOTICE HELD SUFFICIENT)
THIS RSA FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DTD:30/8/2008 PASSED IN
R.A.NO.19/2007 ON THE FILE OF THE PRL.DISTRICT
JUDGE, BELLARY AT BELLARY, DISMISSING THE APPEAL,
CONFIRMING THE JUDGMENT AND DECREE
DTD:5/4/2007 PASSED IN OS.NO.248/2003 ON THE FILE
OF THE PRL.CIVIL JUDGE (SR.DN) BELLARY, FILED FOR
PARTITION AND POSSESSION.
THIS APPEAL COMING ON FOR ADMISSION
THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Appellant is the first defendant, being aggrieved by the judgment and decree dated 30-08-2008 passed in R.A.No.19/2007 by the Principal District Judge, Bellary confirming the judgment and decree dated 5-4-2007 passed in O.S.No.248/2003 by the Principal Civil Judge (Sr.Dn.) 4 Bellary, decreeing the suit filed by the deceased first respondent herein, has preferred this appeal.
2. The brief facts of the case are:
The first respondent herein had filed a suit seeking for partition and separate possession of 1/5th share in the suit schedule A & B properties. In the plaint, it was contended that the grand-father of the plaintiff one K.Siddappa was the original propositus of the properties. After his death, his son K.Sannappa succeeded the estate. He had five children namely, Chandrasekhar, Siddabasappa, Basanna, Basaveshwara and Siddappa. Defendant No.1 is the brother of the plaintiff. Defendant Nos. 2 to 4 are the wife and children of third son K.Basanna. Respondent Nos. 5 and 6 are the legal heirs of Basaveshwara, the 4th son and the 7th defendant is the legal heir of Siddappa who is the 5th son of Sannappa. The suit schedule properties are the joint family properties of the plaintiff and defendants. After the death of the original propositus Siddappa, the plaintiff's father 5 Sannappa continued to be in possession and enjoyment of the suit schedule properties. The plaintiff's father died in the 28.4.1991 leaving behind the aforesaid sons as his legal heirs. The mother of the plaintiff predeceased his father. The katha in respect of the suit schedule properties stand in the name of the original propositus K.Siddappa. The plaintiff and defendants are paying tax in the name of their grand-father Siddappa.
3. The case of the plaintiff is that there was no partition in the joint family properties by metes and bounds. The defendants in collusion with each other are trying to knock off the plaintiff's share and got created some city survey records. The plaintiff is in enjoyment of part of the suit schedule properties. In the year 2003, the plaintiff demanded for partition and separate possession of his 1/5th share in the suit schedule properties. However, the defendants denied the same and efforts were being made to alienate the suit 6 schedule properties. In view of that, the plaintiff filed the suit with the above prayer.
4. The defendants entered appearance. The first defendant filed the written statement, defendants 5, 6 and 7 adopted the said written statement. In the written statement, the first defendant admitted the relationship between the parties and the suit schedule properties, which belonged to the grandfather Siddappa and after his death they devolved on his son Sannappa. However, they have denied the contention of the plaintiff that there is no partition of the suit schedule properties by metes and bounds. The specific case of the defendants is that, after the death of Sannappa on 16-5-1991, there was an oral partition between the parties and in this regard all of them executed an affidavit and filed an application before the Assistant Director Land Records (for short 'the ADLR'), Bellary to make entries as per the partition. Accordingly, the entries were made in the city survey records and the parties are in exclusive possession and enjoyment of 7 their respective shares. Further, the defendants at their own cost constructed the residential premises after investing huge money. As the market value of the properties increased and the property value was appreciated due to the construction of residential house, in order to make wrongful gain, the plaintiff had filed the suit. They also contended that the suit filed by the plaintiff is barred by limitation. Further, all the family members are not included as parties to the proceedings and the suit is liable to be dismissed for non-joinder of necessary parties and on the ground of limitation.
5. The second defendant filed the written statement and defendants 3 and 4 adopted the same. In the written statement, the second defendant denied the entire averments made in the plaint except relationship between the parties and the nature of properties. He has admitted the death of Sannappa and the properties are still in the name of original propositus Siddappa. The case pleaded by the second defendant is that there was a partition in the joint family 8 properties immediately after the death of Sannappa in the year 28-04-1991 and thereafter, the parties are in possession of their respective shares. The ADLR, Bellary entered their names on the basis of the applications filed by the parties. The plaintiff is also in possession of the share allotted to him. Hence, he cannot file a suit seeking for partition. The suit filed by the plaintiff is barred by limitation. It is also contended that the second defendant had borrowed huge amount and constructed the building in the share allotted to him. Hence, the plaintiff is not entitled for any relief and sought for dismissal of the suit.
6. On the basis of the above pleadings, the Trial Court framed the following issues:
(i) Does the plaintiff prove that, he has got 1/5th share in the suit schedule properties?
(ii) Do defendants prove that, there was a partition in the year 1991 by metes and bounds and shares have been allotted to the respective sharers?9
(iii) Do they further prove that, the suit of the plaintiff is not properly valued and the court fee paid is insufficient?
(iv) Whether the suit of the plaintiff is barred by limitation?
(v) Whether the suit of the plaintiff is bad for non-
joinder of necessary parties?
(vi) Whether the plaintiff is entitled for the relief of partition and separate possession of his alleged share in the suit schedule properties?
(vii) What order or decree?
7. The plaintiff in order to prove his case, examined himself as P.W.1 and got marked the documents as Ex.P1 to Ex.P9. The 5th son Siddappa examined himself as D.W.1 and examined 3 other witnesses as D.W2 to D.W4 and got marked the documents as Ex.D1 to Ex.D11.
8. The Trial Court on considering the arguments addressed by the parties and on considering the oral and documentary evidence let by the parties held issue Nos.1 and 10 6 in the affirmative and issue Nos. 2 to 5 in the negative, consequently, by its judgment and decree dated 5-4-2007 decreed the suit filed by the plaintiff and held that the plaintiff and defendant No.1 are entitled for 1/5th share each, defendants 2 to 4 together and defendant Nos.5 and 6 together are entitled to 1/5th share and 7th defendant is entitled for 1/5th share.
9. Being aggrieved by the said judgment and decree, the first defendant in the suit preferred R.A.No.19/2007 on the file of the Principal District Judge, Bellary contending that the judgment and decree passed by the Trial Court is contrary to law. The Trial Court has failed to consider the earlier partition dated 16-5-1991 and the finding on the issues framed by the Trial Court is contrary to law and sought for allowing the appeal by setting aside the judgment and decree passed by the Trial Court.
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10. The Lower Appellate Court after considering the arguments addressed by the parties framed the following points for its consideration:
(i) Whether the finding of the Trial Court that the defendants have failed to prove the partition in the year 1991 as set up by them is sustainable in law?
(ii) Whether the finding of the Trial Court that the suit is filed within the prescribed time is sustainable in law?
(iii) Whether the finding of the Trial Court that the suit is properly valued and the Court fee paid is sufficient is sustainable in law?
(iv) Whether the finding of the Trial Court that the suit does not suffer non-joinder of necessary party is sustainable in law?
(v) If so, what order?
11. The Lower Appellate Court on re-appreciating the oral and documentary evidence adduced by the parties held that the appellant has not produced any document to show that 12 there was partition in the joint family properties. Ex.D11 relied upon by the appellant is only an application seeking for mutation of their names. On the basis of the said document, it is not possible to hold that there was partition in the joint family of the parties on 16-5-1991 and dismissed the appeal confirming the judgment and decree passed by the Trial Court. Being aggrieved by the judgment and decree passed by the courts below, the first defendant has preferred this second appeal.
12. Sri.P.G.Mogali, learned counsel appearing for the appellant contended that the judgment and decree passed by the Courts below is contrary to law and evidence on record. A large number of documents had been produced before the Court below to show that there was partition in the joint family properties. Those documents are not private documents but are public documents. On the basis of the affidavit filed by all the parties, the ADLR had made necessary entries in the city survey records on the basis of their 13 possession. Admittedly, the plaintiff was also in possession of his respective share. He relied upon the judgment reported in ILR 1997 KAR 2183 in the case of NINGE GWODA v/s LINGEGOWDA AND OTHERS and AIR 1995 SC 1728 in the case of DIGAMBAR ADHAR PATIL v/s DEVRAM GIRIDHAR PATIL to contend that under Hindu Law it is not necessary that partition should be effected by a registered partition deed. Even a family arrangement is enough to effectuate partition between the coparceners. The entries in the Record of Rights regarding the factum of partition is a relevant piece of documentary evidence in support of the oral evidence given by the parties to prove the factum of partition. The reasoning assigned by the Trial Court is contrary to law and sought for dismissal of the appeal.
13. On the other hand, learned counsel appearing for the respondents argued in support of the judgment and decree passed by the courts below and contended that the mutation entries are not the conclusive proof of partition of the joint 14 family properties unless it has been corroborated by the oral and documentary evidence. In the instant case, on the basis of Ex.D11, the ADLR had entered the names of the parties in the city survey records. Ex.D.11 is a got-up document and the signature of the plaintiff on the said document is a forged one. Further, the original Ex.D11 was also not produced before the Court. The affidavit alleged to have been filed by the parties to the partition was also not produced before the court. The Trial Court after considering all the documentary evidence came to the conclusion that there is no partition of the joint family properties. The Lower Appellate Court on re-
appreciating the documents produced by the parties concurred with the view expressed by the Trial Court. No document has been produced by the appellant to establish the partition of the joint family properties. Hence, the appellant is not entitled for any relief and sought for dismissal of the appeal.
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14. I have carefully considered the arguments addressed by the parties and perused the judgment and decree passed by the courts below.
15. On careful consideration of the arguments addressed by the parties, the only point that arise for consideration in this appeal -
Whether the appellant has made out a case to interfere with the concurrent finding recorded by the courts below with regard to the partition of the joint family.?
16. The relationship between the parties and also with regard to the nature of suit schedule properties is not in dispute. The case of the plaintiff is that there was no partition of the joint family properties after the death of his father. In spite of repeated requests and demand, the defendants were not ready to partition the joint family properties. On the other hand, steps have been taken to alienate the suit schedule properties after getting the entries in the city survey records.
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17. On the other hand, the defendants have contended that immediately after the death of Sannappa, father of the plaintiff and defendants on 28-4-1991, the joint family properties had been partitioned among the members of the joint family. On the basis of the said partition, an application was filed to the ADLR on 16.5.1991 to mutate their names as per the oral partition and as per their possession. The plaintiff has also signed the affidavit. Hence, the question of partitioning the joint family properties once again does not arise. Further, taking loan from a financial institution they have constructed the house in the property allotted to them. With a view to make unlawful gain, the plaintiff has filed the suit.
18. The plaintiff in his evidence deposed that the suit properties are the ancestral joint family properties. There was no partition of the said properties by metes and bounds. Instead of partitioning the joint family properties the defendants got created false mutation in survey records 17 without his knowledge and consent. He claims 1/5th share in the property. In the cross-examination he has admitted that he is residing in a portion of the building, however, there is no partition of the joint family properties by metes and bounds. He also admitted that some of the coparceners are residing in different portions of the suit schedule properties and got marked the documents as Ex.P1 to Ex.P8.
19. D.W.1 in his evidence reiterated the averments made in the written statement and deposed that there was an oral partition on 16-5-1991. As per the oral partition, mutation has been effected in the survey records and division has been done. However in the cross-examination he has admitted that till today, the katha in respect of the suit properties stands in the name of the grandfather in the corporation record and suit schedule properties are his ancestral properties. On the basis of the application at Ex.D11, mutation in the city survey records has been effected. Along with Ex.D11, an affidavit was also given to the competent 18 authority, but he could not produce the same before the court below. The other witnesses deposed in similar lines. However, no document has been produced to show that except Ex.D11 which is only an application for change of mutation, no other documents has been produced to show that there was partition in the joint family properties on 16-5- 1991. The Trial Court examined Ex.D.11, which is only a xerox copy of the application and found that in the said application, they had requested the competent authority to mutate the names of all the members in the suit schedule properties. In Ex.D.11, nowhere they have mentioned with regard to the partition of the joint family properties. The specific case of the plaintiff is that Ex.D.11 is a got-up document and his signature has been forged. Further he has not filed any affidavit for change of entries in the city survey records. However, the defendants have not produced the original Ex.D.11 for verification of signature of the plaintiff nor the affidavit said to have been filed by the plaintiff. At no stretch of imagination Ex.D.11 can be treated as partition 19 deed or the intimation of partition of the joint family properties. The duty is cast upon the defendants to prove that there was prior partition. Ex.D.11 is not a genuine document. The defendants have failed to produce the individual tax paid receipts in respect of the suit schedule properties after partition. The tax has been paid in the name of the grandfather. If there were to be any partition in the year 1991 itself, the question of payment of tax in the name of the grandfather does not arise. Hence, the appellant has failed to prove the oral partition of the joint family properties of the plaintiff and defendants.
20. Though some of the members are not included in the suit, the fact remains that one of the members of the branch has been impleaded in the proceedings and 1/5th share has been given to each brothers, heirs of the brothers are also entitled for 1/5th share even though they were not impleaded as parties. Hence, the suit cannot be dismissed on the ground of non-joinder of parties. The contention of the 20 appellant that there is inordinate delay in filing the suit cannot be acceptable since no limitation has been prescribed to file a suit seeking for partition of the joint family properties. If any members of the family do not want to live in the joint family, he/she can seek for partition of the joint family properties. In the instant case, both the courts concurrently held that the appellant has failed to prove the partition of the joint family properties. Hence, the plaintiff and other members of the family are entitled for 1/5th share each. The judgments relied upon by the appellant are not applicable to the facts of the present case. He has failed to prove the entries in the revenue records. The entries said to have been made on the basis of the got-up documents and no value can be attached to those entries, since it was not supported by any records.
21. The Lower Appellate Court on re-appreciating the oral and documentary evidence held that the appellant has failed to prove the factor of oral partition of the ancestral properties. 21 The finding record by the Lower Appellate Court is purely on question of fact. This court cannot once again re-appreciate the evidence of the parties and reverse the concurrent finding given by the courts below. Hence, the appeal filed by the appellant is liable to be dismissed. Accordingly, I pass the following:
ORDER The appeal is dismissed.
Sd/-
JUDGE mpk/-*