Karnataka High Court
A Nagaraj vs B Honnaiah on 21 December, 2023
Author: V. Srishananda
Bench: V. Srishananda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
R.F.A. NO.1276/2005 (PAR)
BETWEEN
1. A NAGARAJ
AGED ABOUT 61 YEARS
S/O LATE ANDANAPPA
2. A HANUMANTHAIAH
AGED ABOUT 58 YEARS
S/O LATE ANDANAPPA
3. A RANGANNA
AGED ABOUT 57 YEARS
S/O LATE ANDANAPPA
4. A KRISHNA MURTHY
AGED ABOUT 51 YEARS
S/O LATE ANDANAPPA
5. A B GOWDA
AGED ABOUT 48 YEARS
S/O LATE ANDANAPPA
6. SMT.A NARAYANASWAMY
AGED ABOUT 45 YEARS
S/O LATE ANDANAPPA
7. SMT A PARVATHAMMA
AGED ABOUT 86 YEARS
W/O.H.S.CHANNALINGE GOWDA
ALL ARE RESIDENTS OF
2
KAMAKSHIPALYA
MAGADI MAIN ROAD
BANGALORE - 560 079
8. SMT.A JAYALAKSHMI
SINCE DEAD BY HER LR.
8(a) SMT.H.M.PRAMEELA
AGED ABOUT 53 YEARS
W/O C.D.KUMAR
R/AT NO.644, 7TH MAIN
KAMAKSHIPALYA
MEENAKSHI NAGAR
BASAVESHWARA NAGAR
BENGALURU - 560 079
...APPELLANTS
(BY SRI C.M.NAGABHUSHANA, ADVOCATE FOR APPELLANTS
1, 2, 4 TO 8;
SRI H.C.SHIVARAMU, ADVOCATE FOR APPELLANT NO.3)
AND
1 B HONNAIAH
SINCE DEAD BY HIS LRS.,
1(a) SMT.JAYAMMA
W/O LATE B.HONNAIAH
AGED ABOUT 83 YEARS
R/A.NO.40,
AGRAHARADASARAHALLI
MAGADI MAIN ROAD
BANGALORE-560 400
1(b) H.JAGANATH
S/O LATE B.HONNAIAH
AGED ABOUT 64 YEARS
NO.411, 10TH CROSS, 6TH BLOCK
II STAGE, NAGARABHAVI
BANGALORE - 560 072
3
1(c) H.VENUGOPAL
S/O LATE B.HONNAIAH
AGED ABOUT 62 YEARS
NEAR MAYURA TEXTILES,
RANGANATHAPURA
KAMAKSHIPALYA
BANGALORE - 560 079
1(d) SMT.H.GOWRAMMA
S/O LATE VYADYANATH
AGED ABOUT 60 YEARS
NO.6, K.L.E.SCHOOL ROAD
3RD BLOCK, 2ND STAGE,
NAGARABAVI
BANGALORE - 560 072
1(e) H.NAGENDRA
S/O LATE B.HONNAIAH
AGED ABOUT 58 YEARS
NO.40, AGRAHARADASARAHALLI
MAGADI MAIN ROAD
BANGALORE - 560 400
1(f) SMT.INDIRA
W/O SRI GOPINATH
AGED ABOUT 56 YEARS
NO.3, SIRUR PARK ROAD
2ND CROSS, MALLESHWARAM
BANGALORE - 560 003
1(g) SMT.H.VIJAYA
W/O SRI GANGADHAR
AGED ABOUT 54 YEARS
NO.202/Y, 13TH MAIN ROAD
3RD BLOCK, RAJAJINAGAR
BANGALORE - 560 010
1(h) H.KUMAR
S/O LATE B.HONNAIAH
AGED ABOUT 58 YEARS
4
NO.40, AGRAHARADASARAHALLI
MAGADI MAIN ROAD
BANGALORE - 560 400
2. B.HANUMANTHAPPA
SINCE DEAD BY HIS LRS.,
2(a) SMT.SAROJAMMA
W/O LATE B.HANUMANTHAPPA
AGED ABOUT 80 YEARS
NO.71, 6TH CROSS, JAGAJOTHI LAYOUT
DODDA BASTI ROAD,
KENCHANAPURA CROSS
BANGALORE - 560 057.
2(b) SMT.SARASWATHAMMA
D/O LATE B.HANUMANTHAPPA
AGED ABOUT 60 YEARS
R/AT NO.245, KALAPPA BLOCK
12TH MAIN ROAD,
ANANTHAMURTHY LAYOUT
SRINAGARA, BANGALORE -560 057
2(c) SMT.LALITHA
D/O LATE B.HANUMANTHAPPA
AGED ABOUT 58 YEARS
NO.71, 6TH CROSS, JAGAJOTHI LAYOUT
DODDA BASTI ROAD,
KENCHANAPURA CROSS
BANGALORE - 560 057.
2(d) SMT.SUJATHA
D/O LATE B.HANUMANTHAPPA
AGED ABOUT 55 YEARS
R/AT K.R.ROAD, GARADI APARTMENTS
BASAVANAGUDI
BANGALORE - 560 004
2(e) MANJUNATHA
S/O LATE B.HANUMANTHAPPA
5
AGED ABOUT 55 YEARS
R/AT KAMAKSHIPALYA MAIN ROAD
NEAR GOVERNMENT SCHOOL
BANGALORE - 560 079
2(f) SUNDARARAJ
S/O LATE B.HANUMANTHAPPA
AGED ABOUT 51 YEARS
R/AT KAMAKSHIPALYA MAIN ROAD
NEAR GOVERNMENT SCHOOL
BANGALORE -560079
2(g) GANGADHAR
S/O LATE B.HANUMANTHAPPA
AGED ABOUT 49 YEARS
R/AT KAMKASHIPALAYA MAIN ROAD
NEAR GOVERNMENT SCHOOL
BANGALORE - 560 079
2(h) SMT.TEJASWANI
D/O LATE B.HANUMANTHAPPA
AGED ABOUT 45 YEARS
R/AT NO.1117/B, 8TH A MAIN ROAD
3RD STAGE, 3RD BLOCK
BASAVESHWARANAGAR
BANGALORE - 560 079
3. B.KALASAPPA
SINCE DEAD BY HIS LR'S
3(a) K.SHIVASHANKAR
S/O LATE KALASAPPA
AGED ABOUT 55 YEARS
3(b) K.VASU
S/O LATE KALASAPPA
SINCE DEAD BY HIS LR'S
3(i) SMT.GOWRAMMA
AGED ABOUT 52 YEARS
6
3(ii) VIJAYA KUMAR
AGED ABOUT 30 YEARS
3(iii) UMESH
AGED ABOUT 28 YEARS
ALL R/AT KAVERIPURA
KAMAKSHIPALAYA
MAGADI MAIN ROAD
BANGALORE - 560 079
3(c) SMT.JAYALAKSHMAMMA
MAJOR IN AGE
W/O HARINARAYANA
R/AT NO.69, GOKUL I STAGE
1ST PHASE, 2ND CROSS, MATHIKERE
BANGALORE - 560 054
4. B.KRISHNAPPA
AGED ABOUT 62 YEARS
S/O LATE BORAIAH
RESPONDENTS 2 TO 4 ARE
R/AT KAMAKSHIPALYA
MAGADI MAIN ROAD
BANGALORE - 560 079
5. SMT.BORAMMA
AGED ABOUT 61 YEARS
D/O LATE BORAIAH &
W/O.RANGAPPA
R/O.THAGGIKUPPE,
MAGADI TALUK
6. SMT.LAKSHMAMMA
AGED ABOUT 73 YEARS
R/A.NO.35/114
MES EXTN, T.B.ROAD,
MAGADI TOWN
7
7. SMT. A THUNGABHADRAMMA
AGED ABOUT 62 YEARS
W/O NARAYANASWAMY
R/O.SUNKADA KATTE
VISHWANEEDAM POST
BANGALORE-560 091
...RESPONDENTS
(SRI S.K.VENKATA REDDY, ADVOCATE FOR R1(A TO H);
R2(A), R2(B) AND R2(C) ARE SERVED BUT UNREPRESENTED;
VIDE ORDER DATED 06.03.2012, NOTICE TO R2 (D) AND
R(H) ARE HELD SUFFICIENT; SRI PATEL D.KAREGOWDA,
ADVOCATE FOR R2E(1 TO 3), R2(F AND G); SRI HARISHA
O.K., ADVOCATE FOR R3(A) AND R3(B)(I)(II)(III), R2(F)
AND R2(G); SRI K.L.SRINIVAS, ADVOCATE FOR R3(C); SRI
VENKATA REDDY, ADVOCATE FOR R4; SRI B.V.ACHAR,
ADVOCATE FOR R5; SRI C.N.BAYYA REDDY, ADVOCATE FOR
R6; R7 IS SERVED BUT UNREPRESENTED)
THIS RFA IS FILED U/S 96 CPC AGAINST THE
JUDGMENT AND DECREE DATED 31.5.2005 PASSED IN
O.S.NO. 8943/1980 BY THE VII ADDL. CITY CIVIL JUDGE,
BANGALORE IN SO FAR AS IT RELATES TO ITEMS NO.1(a)
1(b), 2(a), 2(b) AND 11 OF THE PLAINT 'A' SCHEDULE AND
ITEM NO.1 OF THE PLAINT B SCHEDULE PROPERTIES ONLY
BY ALLOWING THE APPEAL AND TO AWARD COSTS OF THE
APPEAL IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT, COMING ON FOR 'PRONOUNCEMENT OF
JUDGMENT' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:-
8
JUDGMENT
1. The present appeal is filed by the defendant Nos.14 to 22 challenging the judgment and decree passed in O.S.No.8943/1980 on the file of Additional City Civil Judge, Bengaluru (CCH-19) dated 31st May, 2005.
2. Parties are referred to as plaintiff and defendants as per their original ranking before the Trial Court for the sake of convenience.
3. Two more Appeals and Cross Objections came to be filed against the same Judgment in RFA No.1472/2005 and RFA No.1529/2005 by plaintiff and 4th defendant respectively. Fifth defendant filed one more cross objection in RFA Crob No.41/2006.
4. RFA No.1472/2005 and RFA No.1529/2005 and RFA Crob No.41/2066 were settled by way of a compromise and the same was also accepted by this court by order dated 28.01.2015. This Court while accepting the compromise petition, passed the following order:
9"The compromise Petition has been filed by the appellants, respondents of other branches except the branch of Andanappa. Therefore, the right of Andanappa's branch if any would be subject to the result of the Appeals pending in the connected RFA No.1276/2005 and RFA No.1529/2005. In view of the above, other parties are permitted to compromise the matter."
5. Therefore, the present appeal is now restricted only with regard to the grounds urged by the appellants who are additional defendant Nos.14 to 22 in respect of the following items of suit properties (hereinafter referred to as 'disputed properties' for short):
Item Extent As per Date of Sale Exhibit Sy.No. No. plaint deed Number 04 Acres 10 Ex.P10 guntas Ex.D.69-
1(a) 35/1 11.05.1929
[email protected] Original
[email protected] Ex.D70(a)
14 Guntas Ex.P10
1(b) 35/1 (10 Guntas 11.05.1929
Actual
Ex.D136
01.02.1932
2(a) 35 100x30 feet At pages
i.e., 100x60
1555
Ex.D73 At
2(b) 35 32 Guntas 31.10.1928 pages
1222
10
Ex.D145
10 70/30 17 Guntas At pages
31.10.1928 1615
11 70/14 22 Guntas Ex.D.145
01 Guntas Ex.D143
1 of 'B'
21/2 (01 Acre 23.04.1928 At pages
schedule
Actual) 1611
6. Brief facts which are utmost necessary for disposal of the appeal in view of the scope of appeal are as under:
The present suit was filed before the Civil Judge, Bengaluru City in O.S.No.1025/1979. Thereafter, the same was presented before Additional Civil Judge, Bengaluru Rural District and renumbered as O.S.No.265/1980 for want of territorial jurisdiction.
However, when once the City Civil Courts Act came into force in the year 1980, the said suit was retransferred to City Civil Court and renumbered as O.S.No.8943/1980.
7. In the plaint it is contended that the Plaintiff and the defendant Nos.2 to 4 are the sons of one Boraiah S/o Kalasappa. The first defendant is the wife of said 11 Boraiah. The defendants 5 and 6 are the daughters of Boraiah.
8. It is also contended that the Plaintiff's father Boraiah and his elder brother Chikka Huchaiah and their father Kalasappa constituted a Hindu Joint Family. The said Joint family owned and possessed agricultural lands and houses. After the death of their father Kalasappa, said Boraiah and his brother Chikka Huchaiah continued to be the members of the Hindu Joint Family. There was a partition about 40 years earlier and in the said partition, the Plaintiff's father got his share in Survey No.70/37, main House built thereon and also vacant land in Sy.No.70/14 and Sy.No.35, all situated in Kamakshipalya Saneguruvanahalli Dhakle, Bangalore North Taluk and Sy.No.5 of Sajjepalya and Sy.No.21/2 of Malagala village.
9. Boraiah was an agriculturist by profession. The properties acquired by Boraiah at the above partition were yielding good income and from the said income of ancestral properties and with the assistance of the joint 12 family funds, the plaintiff's father acquired many other properties. Further, the Plaintiff and his brothers assisted their father in acquiring those properties.
10. Boraiah purchased some properties benami in the name of his wife Smt.Hanumakka, the first defendant herein. The real and beneficial owners of the said properties being the joint family consisting of the Plaintiff, Defendants 2 to 4 and their father Boraiah. The properties purchased in the name of the first defendant as stated above have been treated as joint family properties in which the Plaintiff, his brothers and their father had equal shares.
It is further contended that on account of differences among the women folk of the family and also for the convenience, the Plaintiff started living separately.
Nevertheless all of them continued to be the members of Hindu Joint Family along with their father Boraiah.
11. It is the contention of the plaintiff that Boraiah died on 02-02-1972 leaving behind the Plaintiff and the defendants 1 to 6 as his heirs. All the properties described 13 in the Schedule are the joint family and ancestral properties in which the deceased Boraiah has 1/5th share and on his death, the Plaintiff and the defendant Nos.1 to 6 have acquired equal share in the suit properties.
12. The Plaintiff submits that the defendant Nos.1 to 4 have been colluding with each other to defeat the Plaintiff's legal right in the suit schedule properties and therefore, he made request to defendant Nos.1 to 4 to allot his share. Same was refused necessitating plaintiff to file the present suit.
13. Defendant Nos.7 and 8 are the purchasers of few items of the suit properties and therefore, they have been made as parties - defendants.
14. The suit properties are described in the plaint as under:
"'A' SCHEDULE Property situate in Kamakshipalya, Saneguruvanahalli Dakle, Bangalore North Taluk.1 (a) Sy.No. 35/1 measuring about 4.10
Guntas bounded on the 14 East by : Land of Nanjappa, Chennanarasimhiah and Puttiah.
West by : Land of Channanarasimhiah, Kale Gowda and Chikkapillappa and Puttaiah.
North by : Land of BEML's Employees Co-op Society.
South by : Anjaneyaswamy Temple Road and Annadanappa's land;
1(b) Sy.No. 35/1 measuring about 0.14 guntas bounded on the:
East by : Thimmakka's land;
West by : Andanappa'sland;
North by : Channa Narasimhiah's land
South by : Andanappa's land.
2. Sy. No. 35
A. Vacant land measuring about 100' x 30' (East to West and North to South) bounded on the East by : Puttaiah's house;
West by : Huchappa's land;
North by : K.Boraiah's land;
South by : Narasimhiah's house.
b) Land measuring about 0.32 guntas
bounded on the:
East by : Andanappa's land;
15
West by : Mariyappa's land;
North by : C.Huchaiah's land and
South by : Eramma's land.
c) Sy. No. 57 land measuring about 1.08 guntas bounded on the East by : Smt.Thimmakka's land West by : Huchappa's land;
North by : Smt. Eramma's land;
South by : smt.Lingamma's land;
3) Sy.No.32 measuring about 2 acres
bounded on the:
East by : Shivashankarappa's land;
West by : Channa Narasimhiah's land;
North by : Avalappa's land;
South by : B.E. M. L. Employees co-operative
society land;
4) Sy.No.33/4 measuring 2 guntas bounded on the:
East by : BEML Employees Co-op.Societies Land; West by : -do-
North by : -do-
South by : -do-
5) Sy.No.33/18 measuring about 0.05 guntas and bounded on the:
East by : BEMLEmployees Co-op.Society's lands; West by : Ayyanakere (Tent).16
North by : BEML Employee's Co-op.societies lands; South by : - do-
6. Sy.No. 33/28 measuring about 1.20 guntas and bounded on the:
East by : BEMLEmployees Co-Op.Society's land; West by: BEML.Employees' Co-Op.Society's land; North by: Channa Narasimha's land and South by: - do-
7. Sy.No. 70/37 (House)
a) Mangalore tiled roof house measuring about East to West 45 Feet towards South: East to West 22 Feet towards North and North South 92 feet bounded on the:
East by : Mariyappa's house; West by : Road; North by : Mariyappa's House and South by : S. Rudraiah's house.
b) House with Mangalore tiled and asbestos roofing measuring about East to West 43 Feet and North to South 92 Feet and bounded on:
East by : Andanappa's land; West by : Andanappa's House; North by : Mariyappa's land and South by : Houses of Hanumanthiah and Huchappa.
c) Vacant site about 55' x 55' bounded on the:17
East by : K. Channappa and Nanjappa's land West by : Portion of land in Sy.No.70/37 North by : Andanappa's land and South by : B. Rudraiah's land;
8. Sy.No. 70/3 measuring about 0.05 guntas bounded on the:
East by : Channapp's lands;
West by : Chikkapillappa's land
North by : Ankappa's land;
South by : K.Boraiah's house.
9. Sy.No. 70/26 measuring about 0.11
Guntas and bounded on the:
East by : Land bearing Sy. No. 70/30
West by : Channappa's land;
North by : Kengeri Ramaiah's land;
South by : Krishnapppas land;
10) Land bearing Sy. No.70/1 measuring about 0.17 guntas and bounded on the:
East by : Houses of Rangaswamy Krishnaiah;
West by : Land bearing Sy.No. 70/20
North by : Lakkanna's land and
South by : Andanappa's house and vacant site.
11) Land bearing Sy.No.70/14 measuring
about 0.22 guntas and bounded on the East by : Hanumanthiah's land West by : Lands of Mariyappa and Nanjappa 18 North by : Lands of Mariyappa and Channanarasimhiah South by : Lands of Andanappa and Mariyappa.
'B' SCHEDULE Property situated at Malagal village, Bangalore North Taluk;
1) Land bearing Sy.No.21/2 measuring about 1 gunta and bounded on the:
East by : Shivalingaiah's lands; West by : Road; North by : Shankarappa's land and South by : Kradimana katte (Tank).
2) Land measuring Sy. No. 22/1, measuring about 4 acres and bounded on the:
East by : Bommalingaiah's land; . West by : Shivalingappa's land; North by : Land bearing S.No. 22/2 South by : Patel Narasimhiah's land
3) Lands bearing Sy.No. 22/1 measuring 9.11 guntas and bounded on the:
East by : Beggar Colony land and
Bommaligappa's land
West by : Shivalingappa's land;
North by : Land bearing sy. No. 24 of Sajjepalya.
South by : Land bearing S.No. 22/1
19
'C' SCHEDULE
Property situate at Sajjepalya village.
Bangalore North Taluk:
(1)S. No. 3, measuring about 1.6 guntas bounded on the East by : Mariyappa's land, West by : Stream North by : Andanappa's land and south by : Mariyappa's land.
2) Land bearing Sy. No. 24, measuring about 2-01 guntas and bounded on the:
East by : Beggar Colony Land;
West by : Lands of Channappa's land;
North by : Channa Narasimhiah's land;
South by : Land bearing Sy.No. 22/2 of Malagal
village.
2)(a) Compensation amount of Rs.
4,45,207.00 Rs.2.15.135/- being drawn by
Defendant No. 2 and Rs. 2,15,135/- being amount deposited in L.A.C. 345/2001 on the file of the City Civil Court at Bangalore the amount being in deposit in the State Bank of India, Cauvery Bhavan, Branch, Bangalore, in .R.O No.0083213 dated 24-12-2001.
'D' SCHEDULE Property situate at Thimmanahalli, Kempapura Agrahara, Bangalore North Taluk:
20Sy. No. 203 consisting of four vacant sites measuring 35 Feet x 80 Feet and bounded on the East by : Site bearing Nos. 11 and 24;
West by : Narasimhiah's land;
North by : 25 Feet Road and
South by : - do -
'E' SCHEDULE
Property situated at SreegandhadaKavalu,
Saneguruvanahalli Panchayat, Bangalore North
Taluk in Sy.No. 74/2 the total extent of property 2 acres is standing in the name of smt.Sarojamma Wife of Defendant No. 2 and bounded on the:
East by : Land belonging to Channa-thimmiah;
West by : Land of Thimmappa
North by : Land of Ramanna and
South by : Land of Puttamma.
'F' SCHEDULE;
Property situated at Kamakshipalya, Sane-
guruvanahalli Panchayath, Bangalore North Taluk
Sy.No.65/4 stand in the name of the De fendant No. 2.
This property is bounded on the
East by : Road;
West by : Shankar appa's land
North by : Road and
South by : House of Nanjappa.
21
Extent of site is 60' x 30'.. A shed is constructed on the total extent of 60'x 30' and given for lease.
'G' SCHEDULE:
A house property measuring 60' x 39' at Kamakshipalya, standing in the name of the Defendant No. 2. The house property bounded on the East by : House of Anandanappar West by : Land of Huchappa North by : A Schedule Property:
South by : House of Bellappa.
'H' SCHEDULE
A house property measuring 150' x 50' in Kamakshipalya village, standing in the name of Smt. Sarojamma, wife of Defendant No. 2 property bounded on the:
East by : Road
West by : Jayalingaiah's land;
North by : School Building and
South by : House of Rudraiah.
'I' SCHEDULE
Property measuring 60' x 30' in sy. No. 65/4 of Kamakshipalya, village, standing in the name of B.Kalasappa, defendant No. 3 property is bounded on the:
East by : Road
22
West by : Site of Huchappa
North by : Krishnappa's shed and
South by : Site of Revannasiddiahon the sital
property a shed is constructed.
'J' SCHEDULE
Property measuring 60' x 20' in Sy.No.65/4 of Kamakshipalya village standing in the name of B.Kalasappa Defendant No. 3. Two sheds are constructed on the site and property is bounded on the:
East by : Site of Revanasiddiah
West by : Road
North by : Site of Huchappa and
South by : House of Chikkanna.
'K' SCHEDULE
A vacant site in Sy.No.65/4 measuring 60' x 30' in Kamakshipalya village, standing in the name of Puttamma, wife of Defendant No.3 presently bounded on the:
East by : Road
West by : House of Hanumaiah
North by : Road; and
South by : Other Site.
'L' SCHEDULE
In Sy.No.65/4 shed on the site measuring 60' x 30' standing in the name of Sri. S.Krishnappa, Defendant No.1 property bounded on the:23
East by : Road
West by : Land of Thimmappa.
North by : Road and
South by : B.Kalasappa's Shed.
'M' SCHEDULE
The following properties stand in the name of Sri B.Krishnappa. Defendant No. 4 in Kamakshipalya village.
Sl.No. Sy.No. Extent of land
a) 72/5 1-02
b) 75/2 1.00
c) 74/4 1.09
d) 73/3 0.345.5
e) 72/3 0.09.5
f) 71/8 0.37
g) 72/1 0.27'N'
'N' SCHEDULE
The shed on the site measuring 60' x 50' in Sy.No.53/7 of Kamakshipalya Village, standing in the name of Smt. Honnamma .Def.9 W/o Sri B.Krishnappa Defendant No.4.
'O' SCHEDULE Property situated at Sreegandhadakavalu, Saneguruvanahalli Panchayath, Bangalore North Taluk in Sy.No. 74/2 (Seventy Four/Two). The total extent of property is 4 acres and 20 guntas standing 24 in the name of Honnamma Defendant No.9 property is bounded on the:
East by : Land of Channanarasimhaiah
West by : Land of Thimmappa
North by : Land of Ramanna
South by : Land of Puttamma
'P' SCHEDULE
Sital Property in Sy. No. 53/6 in
Kamakshipalya village, measuring 50' x 30'
constructing a house at present belongs to Sri B.Krishnappa Defendant No. 4."
15. Since the appeal is now restricted to the disputed properties referred to supra, it is necessary for this Court to consider the gist of the written statement of defendants 13 to 22. It is not in dispute that defendant No.13 died during pendency of the proceedings and defendant Nos.14 to 22 are only representatives of defendant No.13.
16. It is also pertinent to note that these defendants got themselves impleaded in the suit though the plaintiff has not made them as parties in the suit, but included the disputed properties in the plaint schedule.
2517. Gist of the written statement of these defendants is that Chikka Huchaiah possessed the disputed properties as his self acquisition and therefore, disputed properties are not available for partition.
18. In the light of the rival contentions in the pleadings, trial Court raised several issues. But, in this appeal, only following issue would be necessary to be re-
considered having regard to the scope of the appeal and in view of order dated 28.01.2005 accepting the compromise in respect of other parties:
Issue No. 5: Whether Items 1(a), 1(b), 2(a), 2 (b), 10 & 11 of the Schedule 'A' & Item No. 1 of the Schedule 'B' are the properties exclusive held by the Defendants 13 to 22 and are not liable for partition?
19. In order to re-appreciate the above issues, it has become just and necessary for this Court to ponder over few of the admitted facts emerging out of the pleadings and the evidence on record.
2620. The family pedigree of the original parties to the suit barring the subsequent purchasers reads as under:
KALASAPPA KBoraiah (died in 1972) KChikka Hutchaiah =Hanumakka (D1 died on 28.09.1985) K1. Honnaiah (P) K2. Hanumanthappa K3. Sarojamma K4. Kalasappa, D3 = Puttamma D12
5. Krishnappa-D4 K6.Boramma D5 K7.Lakshmamma =Honnamma D9 KShivshankar Vasu Mariyappa (D35) Andanappa -D13 KC.Huchaiah -Gowramma, D43 16.02.1992
1. Hanumanthappa, D36
1. Nagaraj, D14
2. Boranna, D37
2. Hanumanthaiah, D15
3. Hutchanna, D38
3. Ranganna, D16
4. Rangaiah, D39
4. Krishnamurthy, D17
5. Rajkumar, D40 5. A.B.Gowda, D18
6. Shanthamma, D41 6. Narayanaswamy, D19
7. Gowramma, D42 7. Parvathamma, D20
8. Jayalakshmi D21
9. Thungabadramma, D22 27
21. During the pendency of the suit, first defendant died and her legal representatives were brought on record. Likewise, the legal representatives of respondent Nos.3 and 7 were also brought on record.
Defendant Nos.1 and 5 appeared and filed written statement. Defendant Nos.9, 10, 13 to 15 were impleaded subsequently. Defendant No.13 died during pendency of the suit and his Legal representatives are defendant Nos.14 to 22.
22. Defendant Nos.1, 4, 7 and 9 have filed their written statement on 20.04.1982 wherein the relationship among the original parties were admitted. They also admitted that Chikka Huchaiah and Boraiah have constituted joint family and thereafter they have partitioned the properties. It is further contended by them that in the said division land bearing Sy.No.70/1, 71/2, 70/3, Sy.No.35 fell to the share with Boraiah and one of the two houses situated in Sy.No.70/1, described as plaint schedule item No.7-B is part of that share that Boraiah 28 received in the said partition. The suit schedule 'A' at item No.1A, 1B, 2A, 7B, 10 and 11 and item No.1(b) of 'B' schedule property, measuring about 1 acre and item No.1 in 'C' schedule property are admitted to be the ancestral property and the parties have got share and sought for decreeing the suit to that extent. Defendants 13 to 22 were impleaded subsequently, so also other defendants.
They filed separate written statements.
23. Learned trial Judge after recording evidence of the parties, heard the parties in detail and decreed the suit of the plaintiff in toto as under:
"Suit of the plaintiff is partly decreed.
Plaintiff, defendant No.2, defendant No.4 are entitled for 49/210th share each and Defendant Nos.5 and 6 are entitled for 7/210th share each; and Defendant No.3's LRs i.e., defendant Nos.3 (a), 3(b) are entitled for 245/2520 share each; and Defendant No.3(c) and defendant No.12 are entitled for 49/2520th share for partition and possession by 29 metes and bounds and in respect of acquired property of compensation which is as follows:
'A' SCHEDULE
1) Item No.1(a): Sy.No.35 measuring 4 acres has been acquired. In this case Plaintiff, Defendant No.2, Defendant Nos.3(a), 3(b), 3(c), defendant Nos. 4, 5, 6 and 12 are entitled for a share in enhanced compensation amount interest solatium;
2) Item No. 1 (b): measures 10 guntas of Sy. No.35.
Plaintiff, Defendant Nos.2, 3(a), 3(b), 3(c), Defendant No. 4, 5, 6 and Defendant No.12 are entitled for a share in this property.
3) Item No.2: in respect of item No.2 of (a), (b) and (c) of plaint schedule, plaintiff, defendant Nos.2, 3 (a), (b),
(c), Defendant Nos. 4, 5, 6 and 12 are entitled for share.
4) In respect of Item No.3: Plaintiff, Defendant Nos. 5 and 6 and 12 are entitled for share.
5) In respect of Item Nos. 4, 5 & 6: Suit is decreed and plaintiff, Defendant Nos.2, 3(a), 3 (b), 3 (c), Defendant Nos. 4, 5, 6 and 12 are entitled for share.
6) In respect of Item No.7 of "A" schedule property consisting of A, B, C, plaintiff, Defendant Nos.2, 3(a), 3(b), 3(c), Defendant Nos. 4 to 6 and 12 are entitled for à share.
307) In respect of item Nos.8 to 10 suit of the Plaintiff is dismissed.
8) In respect of Item No.11 Plaintiff, Defendant No.2 3(a), 3 (b), 3 (c), Defendant Nos. 4 to 6 are entitled for a share.
'B' SCHEDULE In respect of Item No.1: Plaintiff, Defendant Nos.2, 3(a), 3 (b), 3 (c), Defendant Nos.4 to 6 and Defendant No. 12 are entitled for a share in enhanced compensation amount and solatium;
In respect of Item No.2: Plaintiff, Defendant Nos.2, 3(a), 3(b), 3 (c), Defendant Nos.4, 5 and 6 and Defendant No. 12 are entitled for a share in enhanced compensation solatium and interest etc., NOTE:
1. It has been observed that parties have withdrawn various amounts as stated in body of judgment while deciding Issue Nos.7, 10 and 11 (from page 239 onwards).
2. Suitable order can be passed in Final Decree Proceedings and provision for interest can also be made so as to settle equities.
ITEM No.3: In respect of this property, plaintiff, defendant Nos.2, 3(a), (b) and (c), defendant Nos. 4 to 31 6 and defendant No.12 are entitled for share as stated above.
(NOTE: There appears to be some controversy regarding exact measurement. In clarified.) Final Decree Proceedings same can be clarified.
'C' SCHEDULE In respect of Item No.1: Plaintiff, defendant Nos.2, 3
(a), (b), (c), defendant Nos. 4 to 6 and defendant No.12 are entitled for a share in this property.
In respect of Item No.2: defendant Plaintiff, Nos.2, 3(a),
(b), (c), defendant Nos. 4 to 6 and defendant No. 12 are entitled for share in enhanced compensation, solatium and interest etc., NOTE: Plaintiff has pleaded that defendant No.2 has withdrawn Rs.2,15,135/- being portion of amount of compensation from the court for which no evidence has been produced by plaintiff, However, if in Final Decree Proceedings plaintiff produces such evidence equities that may arise may accordingly be adjusted.
'D' SCHEDULE In respect of this item suit of the plaintiff is dismissed.
E, F, G, H, I, J, K, L, M, N, O, P SCHEDULE In respect of these schedule properties, suit of the plaintiff is dismissed.
32Defendants have made claim in respect of some of properties of the plaintiff being joint family property. Said pleas stand dismissed.
In respect of Sy.No.33/29 measuring one acre 20 guntas of Saneguruvanahalli and Sy. No.33/19 of Saneguruvanahalli measuring 5 guntas and Sy.No.33/5 measuring one acre 25 guntas, plaintiff, defendant Nos.2, 3 and 4 have received in all Rs.65,000/-. Said sale deed is held to be not binding on defendant Nos.5 and 6. Defendant Nos.5 and 6 are entitled for 7/210th share each out of total consideration amount of Rs.65,000/- with 10% per annum interest from date of the sale i.e., 28.2.1975 till date of realization.
Draw preliminary decree accordingly.
There is no order as to costs."
24. Being aggrieved by the said judgment and decree, present appeal and other appeals and counter claim were filed. Since two more appeals and a counter claim came to be compromised, the present appeal is now restricted to the disputed properties as referred to supra in respect of issues referred to supra.
3325. In support of the grounds urged in the appeal memorandum, learned counsel for the appellant has filed following written arguments.
"The Appellants- Defendants 14 to 21 humbly submit as follows
1. It is submitted that, the present Appeal arises out of the judgment and decree dated 31-03-2005 passed in O.S.No.8943/1980 by the learned VII Additional City Civil Judge, Bangalore. The appellants in this appeal are the defendants 14 to 21 before the Trail Court. The said suit is filed for partition and separate possession of suit schedule properties. Initially, these appellants were not made parties to the said suit. However, upon coming to know of the said suit wherein, some of the properties exclusively belonging to appellants were included, as such they were constrained to implead themselves as additional defendants 13 to 22 and subsequently defendant no.13 died and defendants 14 to 22 are his legal heirs.
2. It is submitted that, there were other appeals filed challenging the aforesaid judgment and decree which are detailed as under:
• R.F.A.No. 1472/2005 by Honnaiah the Plaintiff in the Trial Court.34
• R.F.A.No.1529/2005 by B. Krishnappa the Defendant No. 4 in the Trial Court.
• Cross Objections in No.41/2006 filed by Smt.Boramma, Defendant No. 5 in the Trial Court. • During the pendency of the Appeals, B. Honnaiah who filed an Appeal in R.F.A.No.1472/2005, B.Krishnappa i.e., Defendant No. 4 who filed R.F.A.No.1529/2005 and Smt. Boramma Defendant No. 5 who filed Cross Appeal in R.F.A.No.41/2006, have entered into a compromise. This Hon'ble Court on 28-01-2015 was pleased to record the compromise petition filed by the above said Appellants and others. The Appellants in R.F.A.No.1276/2005 (filed by Defendants 14 to 21) are not parties to the Compromise Petition, Order dated 28-01-2015 on the Compromise Petition reads as follows: "The compromise petition has been filed by the Appellants, Respondents of other branches except the branch of Andanappa. Therefore, the right of Andanappa's branch if any would be subject to the result of the Appeals pending in the connected R.F.A.No.1276/2005 and R.F.A.No.1529/2005. In view of the above other parties are permitted to compromise the matter."
The compromise petition filed by the Respondents and contesting parties be treated as part and parcel of this Appeal and cross objections. In so far as the rights of Andanappa's branch is concerned, 35 R.F.A.No.1276/2005 (Appeal filed by Defendants 14 to 21) and R.F.A.No.1529/2005 were kept pending for consideration on merits.
Thereafter, the appeal in R.F.A. No.1529/2005 filed by Krsihnappa, the defendant No.4 is also withdrawn now the only appeal before this Hon'ble Court for consideration is R.F.A. NO.1276/2005.
3. It is submitted that, the prepositus of plaintiff and the defendants 2 to 4 and Defendants 14 to 22 is one Kalasappa. The said Kalasappa had two sons by name Chikka Huchaiah and Boraiah. The Plaintiff and the Defendants 2 to 5 are the children of Boraiah. The Deceased Defendant No.13 Andanappa was the son of Chikka Huchaiah, who died during the pendency of the suit. Defendants 14 to 22 are the children of Andanappa i.e., Defendant No.13 and grandchildren of Chikka Huchaiah. The genealogical tree of the family of Kalasappa is at Page 1882 of the Judgment of Paper Book - 5.
4. It is submitted that, the Defendants 14 to 22 claim that, the properties bearing Sy.No.35 and 35/1, 70/30 and 70/14 of Saneguruvanahalli and Sy.no.21/1 of Malagal Village are their absolute properties same having been acquired by Chikka Huchaiah, the details of the properties of the purchased by Chikka Huchaiah under the various sale deeds are as follows:
36Item Sy.No Extent As Date of Ex.No.
No. per plaint Sale Deed
1(a) 35/1 04 Acres 10 11.05.1929 Ex.P.10
Guntas Ex.D.69-
RTC @ D.139 Original
M.R.@ D.137 Ex.D70(a)
2(a) 35 100X30 feet 01.02.1932 Ex.D.136 at
i.e., 100x60 pages 1555
2(b) 35 32 Guntas 31.10.1928 Ex.D.73 at
pages 1222
10 70/30 17 Guntas Ex.D.145 at
pages 1615
31.10.1928
11 70/14 22 Guntas Ex.D 145
1 of 21/2 01 Guntas 23.04.1928 Ex.D.143 at
'B' (01 Acre pages 1611
Schedule Actual)
It is the specific contention of Defendants 14 to 22 that the partition between Chikka Huchaiah and Boraiah took place only in respect of properties left behind by Kalasappa (Propositus). The pleading of Defendants 14 to 22 at Page 138, Paper Book - 1 and evidence of Dw18 at page 755, Paper Book - 2.
Either in the plaint or in the written statements of Defendants 2 to 4, filed before impleadment of the Defendants 14 to 22 in the suit there is no whisper about what are the properties allotted to the branch of Chikka Huchaiah in the partition between Chikka Huchaiah and Boraiah. It is only after the Defendants 14 to 22 coming on record and filing their written statement, it is only the 4th Defendant who filed a written statement denying disputing the written 37 statement filed by the Defendants 14 to 22 and made a statement regarding properties allotted to Chikka Huchaiah and Boraiah.
Neither the Plaintiff nor the Defendants 2 and 3 filed any rejoinder nor filed any pleadings, denying or disputing about the averments made in the written statement of the Defendants 14 to 22.
Admittedly, all the sale deeds and all the revenue records in respect of the aforesaid properties i.e., the properties purchased by Chikka Huchaiah referred above, continued to be in the names of Defendants 14 to 22 which is evident from the documents marked in the evidence of the parties, marked as Ex.D.25 at Page 1028 in respect of Sy.no.21/1 of Malagal, Ex.D62 at Page 1197, in respect of Sy. No.70/30, Ex.D63 at Page 1199, in respect of Sy. No.70/14, Ex.D66 at Page 1205, in respect of Sy.No.35/1, Ex.D67 at Page 1208 in respect of Sy.No.33/29, Ex.D68 at Page 1210, in respect of Sy.No.33/19 and in particular Ex.D51 Plaint copy in O.S.No.8259/1995 at Para 29, which is a suit filed by the Hanumanthappa Defendant No.2 herein at Page 1167 of Paper Book 3. Admittedly, there is no document evidencing the partition that took place between Chikka Huchaiah and Boraiah. Defendant No.4, who has been examined as Dw5, though produces Ex.D54 and D55 in his evidence as notes of 38 partition subsequently, in the written arguments of the Defendant No.4 filed on 30-11-2022 it is contended that the said Ex.D54 and Ex.D55 are not acted upon. From the evidence both documentary and oral it is crystal clear that there is no document evidencing the partition in respect of the properties purchased by Chikka Huchaiah amongst Chikka Huchaiah and Boraiah.
Lands bearing Sy.Nos.33/19, 33/29 and 33/3 situated at Saneguruvanahalli, were sold to BEML Society as per Ex.D78 and Ex.D79 (same are marked as Ex.P13 and Ex.P14). The said sale deeds were executed both by the legal heirs of Chikka Huchaiah and Boraiah. Admittedly, the said lands were purchased by Chikka Huchaiah. According to the Defendant No.4 examined as Dw5 these lands were allotted to the share of Boraiah, which was denied by the Defendants 14 to 22. It is a fact that, Boraiah i.e., the father of the Plaintiff and the Defendants 2 to 5 were grumbling about the share they had received and there was a panchayath in the year 1953 and as per the advice of panchayathdars Sy. No.33/29, Sy.no.33/19 and Sy.No.33/5 were released in favour of Boraiah. This is evident from the cross examination of Dw18, at page 770 & 776 of Book 2. And as the khatas of the said lands continued to stand in the name of Chikka Huchaiah, the purchaser BEML Co-operative Society Ltd., 39 insisted that these defendants should join as vendors along with Plaintiff and the defendants 2 to 4 for the execution of the sale deeds at Ex. D78 and Ex.D79. It is evident from the recitals of the sale deeds that the entire sale consideration was received by the Plaintiff and the Defendants 2 to 4 only. In the entire cross examination of Dw18 by the plaintiff, Defendants 2 to 4 there is no cross examination on this point and at no point Dw18 has admitted the plea of partition with respect of self-acquired properties of Chikka Huchaiah. The Dw18 has withstood for cross examination with regard to the alleged partition of the properties belonging to Chikka Huchaiah.
The burden of proof to show that the above said properties were allotted to the share of Boraiah in the partition is upon the Plaintiff and the Defendants 2 to 4 who are the legal heirs of Boralah. The Plaintiff and the Defendants 2 to 4 have failed to discharge the initial onus of burden of proof with regard to the partition. On the other hand the Defendants 14 to 22 in the pleading as well as in their evidence of Dw18 have clearly pleaded and proved that in the partition between Chikka Huchaiah and Boraiah the properties which were standing in the name of Chikka Huchaiah were not the subject matter of the said oral partition and the oral partition between Chikka Huchaiah and Boraiah only the 40 properties left by Kalasappa i.e., the father of Chikka Huchaiah and Boraiah were the subject matter of the partition.
The suit in respect of Items 8 to 10 of 'A' schedule was dismissed by the Trial Court and no appeal is preferred. The judgment and decree of the Trail Court in so far as said properties has attained finality. However, in the Compromise petition entered into between the Plaintiff and the Defendants 2 to 4 during the pendency of this Appeal, the said properties are also included as a share to the parties. Therefore, the compromise itself is illegal and void. (The respondents have included Item No. 10 i.e., land bearing Sy. No. 70/30 measuring 17 Guntas has been included by the parties at Item no.4 'A' Schedule i.e., at Page 13 of the Compromise, which is exclusively claimed by these appellants). The trial court however has not recorded finding that item no.10 of 'A' Schedule was purchased by Chikka Huchaiah as per Ex.D.145.
5. It is submitted that, defendants 4 & 9 filed written statements on six dates and in all the written statements the Defendants 4 & 9 sought for the dismissal of the suit. Though, the Defendants 1, 4, 7 & 9 in the written statement dated 14-09-1982, at Page 23, Paper Book - 1, mentions that, decree may follow in respect of schedule 'A' items 1(a), 1(b), 41 2(a), 2(b), 7(b), 10 & 11 and Item no.1 of 'B' schedule, but in the prayer column in the said written statement, the said defendants pray for their written statement seek for dismissal of the suit.
6. It is submitted that, B.Honnaiah the 1st Son of Boraiah, filed O.S.No.8943/1980 on the file of the City Civil Court, Bengaluru, seeking partition and possession of his share in the properties described as schedule A to P, in the plaint against his mother Smt.Hanumakka and brothers who are arrayed as Defendants 2 to 4, sister-Defendants 5 & 6. The defendants 7 & 8 are purchasers. 9th defendant is the wife of the defendant No.4, 10th Defendant is purchaser. The Defendant no.11 is wife of Defendant No.2, 12th defendant is the wife of Defendant No.3. The other defendants are the purchasers.
7. At paragraph 4 of the Plaint, the plaintiff pleaded that, after the death of Kalasappa, about 40 years ago Boraiah and Chikka Huchalah, divided the properties and in the partition Boraiah got the following properties.
i. Sy.No. 70/37, of Sanaeguravanahalli - Item No.7 - A schedule ii. Sy. No. 70/14, of Saneguravanahalli - Item No.11 - A schedule iii. Sy.No.35, of Sanaeguravanahalli - Item Nos.
1(a), (b) & 2(a), (b) A schedule 42 iv. Sy.No.5 of Sajjepalay - Item No.1- C schedule v. Sy.No.21/2 of Malagala Village. Item No. 1 of the B Schedule.
In a partition suit based on the allegation that, the schedule properties for which the relief is claimed by the plaintiff on the basis of ancestral joint family properties, in the plaint the Plaintiff must clearly plead and prove how the properties are H.U.F properties, which is required to be stated as a positive statement in the plaint. In the present case it is alleged that, Chikka Huchaiah and Boraiah father of the plaintiff, divided the properties about 40 years ago, but the plaintiff did not state which were the properties owned by the joint family consisting of Chikka Huchaiah and Boraiah, except stating that some properties as referred at para 4 of the plaint were allotted to the share of Boraiah. At para 6 of the plaint it is stated that, Boralah died on 02-02- 1972 leaving behind Plaintiff and the defendants 1 to 6 as his legal heirs. All properties described in the schedule are the joint family ancestral properties in which deceased Boraiah has 1/5th share and on his death the plaintiff and the defendants 1 to 6 have acquired equal shares in the said 1/5th share of Boraiah. Merely stating in the plaint that the schedule properties are H.U.F properties, without stating how they have become H.U.F the plaint is 43 liable for rejection, as it lacks material particulars as made under Order VI Rule 4 of C.P.C.
8. It is submitted that, as stated above there is no counter claim by the Defendants 1, 4, 7 & 9. In the absence of necessary pleadings in the plaint, with regard to the source of H.U.F, the parties to the suit are not entitled to seek for any relief.
9. It is submitted that, the Defendants 13 to 22 the legal heirs of Chikka Huchaiah, suo-moto impleaded themselves as parties to the suit as their properties were included in the plaint schedule. The properties belonging to Chikka Huchaiah i.e., Item Nos. 1(a),
(b) & 2(a), (b), 10 & 11-'A' schedule, item No.1 of the 'B' Schedule, belonging to them were included in the schedule. They have filed written statement pleading that, the above said properties were all the absolute properties of Chikka Huchaiah and all the sale deeds of the said properties were in the name of Chikka Huchaiah and consequent revenue entries are also registered in the names of Chikka Huchaiah and as such the Defendants 15 to 22 are the owners of the said property.
10. It is submitted that, the Trial Court framed the issues. The said Issues are found at page 194, part 1 of the paper book, only the relevant issues to this Appeal are extracted below:
44• Issue no.1: Whether the suit schedule properties are the joint family properties of the Plaintiffs and Defendants 1 to 5? • Issue No. 5: Whether Items 1(a), 1(b), 2(a), 2 (b), 10 & 11 of the Schedule 'A' & Item No.1 of the Schedule 'B' are the properties exclusive held by the Defendants 13 to 22 and are not liable for partition?
• Issue No. 6: Whether there was a partition of the family properties prior to the suit as contented by the Defendant No. 2?
Addl Issues framed on 14-10-2003:
• Issue No. 8: Whether the Defendants 13 to 22 prove that claim of the Defendants 35 to 42 is barred by law of limitation?
a. It is submitted that, the Plaintiff was examined as PW1-Exhibits P1 to P44 are marked in the evidence of PW1. PW2-Kalasappa. PW-3 Prakash.P, PW-4 Boraiah, were examined on behalf of Plaintiff.
b. It is submitted that, R.Thimme Gowda, the son of 5th Defendant (plaintiff's sister) has been examined as DW1 on 17-01-2002 GPA Executed by D5 is marked as Ex-D1, on 09-09-2002, DW1 was further examined and Ex-D232 to 235 are marked.
c. At page 484 to 559 of Part 2 of Paper Book, evidence of Hanumanthappa, defendant No2, is 45 examined as DW2 Ex-D2 to D47 were marked in his evidence. He was further examined on 30-06-2003. On behalf of the Defendants DW2(a), DW3 & DW4 were examined. DW 6 to DW17 were examined as Witnesses by the defendants 1 to 4, supporting their case.
d. At pages 581 to 655 of Part 2 of the Paper Book, B.Krishnappa, defendant No.4, was examined as DW5 for himself and on behalf of his Wife Defendant No.9 exhibits Ex.D53 to Ex.D127 are marked in his evidence.
At pages 755 to 833 of Part 2 of Paper Book, A. Ranganna, defendant No.16, was examined as DW18 for himself and on behalf of defendants 14, 15, 17 to 22. No documents were marked in the evidence, but reference is made to the sale deeds and other documents produced by the Plaintiff and the Defendant No. 4.
11. At the first instance it is submitted that, the judgment and decree of the Trial court is vitiated as the approach of the learned Trial judge is not in accordance with Order XX Rule 5 of C.P.C so also the settled principle of law laid down by the Hon'ble Apex Court. Issue No.1 under which plaintiff and defendants 1 to 5 claim suit schedule properties are the joint family properties. The learned judge ought to have examined whether the plaintiff and the 46 defendants 1 to 5 have placed a legal and cogent evidence to prove this issue and if said issue had been taken up for consideration at first instance and if the same was answered in the affirmative and then the onus would have shifted upon these Appellants, Section 101 of the Indian Evidence Act provides, that the burden of proving a fact always lies upon a person who asserts the fact. Until such burden is discharged, the other party is not required to be called upon to prove his case. The Court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden, until he arrives at such a conclusion it cannot proceed on the basis of weakness of the other party. The Hon'ble Trial Court has failed to consider this position of law, because when the Plaintiff asserts that the plaint schedule properties are joint family properties (the plaint schedule is from 'A' to 'P') and in fact Defendants 1 to 4 have denied and disputed the same. The trial court ought to have considered that, whether the plaintiff has discharged his burden as per the issue no.1 framed by the Hon'ble Trial Court.
The Trial Court erred in not examining whether the plaintiff has proved suit schedule properties are joint family properties and the Appellants claim as Defendants 14 to 22 is that, suit schedule 'A' properties i.e., items 1(a), 1(b), 2(a), 2(b), 10 and 47 11 and Item No.1 of the 'B' Schedule properties are the absolute properties of Chikka Huchaiah.
The trial court has erred in not considering and examining whether the plaintiff has proved or discharged his onus of burden that the properties claimed by these Appellants are joint family properties. As laid down by the Hon'ble Apex Court, the burden of proving those properties are the properties of Defendants 14 to 22 as per issue no.5 does not arise in law, unless issue no.1 is proved in the affirmative and in this regard the Hon'ble Trial Court has mis-placed the burden of proof.
The trail court in most strange way takes up for consideration issue no.5 for adjudication and on consideration of irrelevant facts records a finding that the Defendants 14 to 22 have not proved issue no.5 and on the basis of that finding, it has surmised that issue no.1 is proved. Therefore, the entire judgment and decree of the Trial Court is vitiated in so far as issue nos. 1 and 5 are concerned.
12. It is submitted that, the plaintiff alleges at para 4, at page 6 of Paper Book 1 that, about 40 years ago there was a division of the properties amongst Chikka Huchaiah and Boraiah. The Plaintiff who has approached the Court for a relief has not tendered proper legal evidence to prove the alleged partition and in the said partition, what are the properties 48 allotted to the shares of Chikka Huchaiah and Boralah. On the other hand Defendant No.4 Krishnappa examined himself as Dw5. At para 4 of the Dw5's evidence, it is pleaded that Boraiah and Chikka Huchaiah orally partitioned the joint family properties in the year 1932-33."(it is contrary to the averment made at para 4 of the plaint). In his evidence he deposes notes were prepared during the partition and his evidence Ex.D54 and rough phalu phatti is marked as Ex.D55. In the Ex.D55 the properties fallen to the share of Chikka Huchaiah and the properties fallen to the share of Boralah have been clearly mentioned. Though survey numbers have not been mentioned in Ex.D55 the properties by names were mentioned. As per the directions of this Hon'ble Court a memo dated 27-10-2022 was filed showing the lands described in Ex.D55 with corresponding survey numbers. Even according to Ex.D55, Northern portion in Sy.No.35/1 to the Road measuring to an extent of 04 Acres was allotted to the share of Chikka Huchaiah. In so far as Sy.No.35/1 is concerned admittedly all the revenue entries are standing in the name of Chikka Huchaiah. The said revenue entries were challenged by the DW5 and others before the Revenue Authorities and the Revenue authorities have rejected the claim of the Dw5 and others vide Ex.D140 and Ex.D141. Even till 49 today the khata and RTC entries stand in the names of Defendants 14 to 22, the said copy of the Mutation in the names of Defendants 14 to 22 is marked as Ex.D137 at pages 1557 to 1558 of Book - 4 and R.T.C extract in the name of the Defendants 14 to 22 is marked as Ex. D139, at page 1560 of Book 4. Further the B.D.A, deposited the compensation in respect of 04 Acres of land in Sy.No.35/1 in Court in L.A.C.No.9/1987 i.e., Ex.D9. In the said Land Acquisition Case the Defendants 14 to 22 are the claimants.
In the written submissions of Respondent No.4/Defendant No.4 - Krishnappa filed before this Hon'ble Court on 30-11-2022 at Page 44 (of the Written Submissions) it is stated that, Ex.D54 and Ex.D55 are rough notes prepared at the time of partition to show that there are 14 items of the properties, which are the subject matter of partition, but the partition was not effected as per the notes of phalu phatti as per Ex.D54 and Ex.D55. The said submission is untenable in view of the fact, that, Dw5 himself has stated in his examination-in-chief that there was a partition as per Ex.D54 at Ex.D55, at para 4, Pages 583 & 584 of Paper Book - 2. The Defendant No.4 is taking this stand in his written submissions because, even according to Ex.D55, Northern portion to the Road measuring to an extent of 04 Acres was allotted to the share of Chikka 50 Huchaiah. Therefore, it is futile to contend by the 4th Defendant in the written arguments that no partition was effected as per Ex.D54 and Ex.D55. Further 4th Defendant contends that they have filed writ petition filed before this Hon'ble Court challenging the acquisition proceedings in respect of Sy.no.35/1. No doubt the Defendants 14 to 22 did not choose to challenge the acquisition proceedings as they wanted to claim the compensation in respect of the said land, which was deposited in the Court and also the Defendants 14 to 22 by filing an application had sought for enhancement of compensation by way of filing application in L.A.C.No.234/1992 and same was suggested to Dw5 and he answers as follows: "I do not know whether the defendants 14 to 22 have filed any application for enhancement of compensation amount in L.A.C. No.234/1992" at Page 649 Paper Book 2 and this answer is vague and evasive. Merely filing a writ by the Defendant No.4 will not enure him to claim a title.
13. It is submitted that, after filing the written statement by the defendants 13 to 22, disputing the claim of the plaintiffs, Sri.B.Krishnappa the defendant No.4 alone filed Additional Written Statement, in the additional written statement and he has pleaded that the following 4 properties are the properties allotted to his father Boraiah in the 51 partition. i.e., Sy. No. 70/1, 70/2, 70/30 & Sy.No.35 of Saneguravanahalli Village. If the plaint and the written statement of the defendant No.4 are compared only Sy.No.35 of Saneguravanahalli Village is the common property claimed by the plaintiffs and defendants 1 to 4. Land bearing Sy.no.35/1 measuring 04 Acres, even according to the Plaintiff and the Defendants is the property allotted to Chikka Huchaiah, for the reason that:
a. Ex.D55 At Page 1183, paper book - 4, which is produced by Dw5 In his evidence notes prepared for partition is marked as Ex.D54 and rough phalu phatti is marked as Ex.D55. In the Ex.D55 the properties fallen to the share of Chikka Huchaiah and the properties fallen to the share of Boraiah have been clearly mentioned. Though survey numbers have not been mentioned in Ex.D55 the properties by names were mentioned, as per the directions of this Hon'ble Court a memo dated 27- 10-2022 was filed showing the lands with corresponding survey numbers.
b. It is submitted that, Hanumanthappa - Defendant No.2 in the suit, filed O.S.No.8259/1995 against Andanappa and others i.e., Defendants 14 to 22 herein for declaration and partition of his share. In his evidence, the copy of the plaint in O.S.No.8259/1995 is marked as Ex.D51. At para 29 52 of the said plaint at Page 1167 of Book 3, the said Hanumanthappa has pleaded as follows:
"para 29: Land bearing Sy.no.35/1 measuring 05 Acres 20 Guntas has been in possession and enjoyment of linenal decendants of Chikka Huchaiah. The arrangement of the family arrangement was to the effect that 04 Acres 10 Guntas is allotted to Chikka Huchaiah." Ex.D51 was marked in the cross examination of Dw2, vide Page 517 of Paper Book - 2.
c. Defendant No.4 who is examined as Dw5 admits in the cross examination at page 650 of Paper Book 2, which is as follows:
"I cannot say whether in Sy.No.35/1 leaving 32 Guntas in 38 guntas of land whether there exist a building belonging to the defendants 14 to 22 as under:
2. Scooter Garage,
3. Sheeba School,
4. Byraweshwara Estate Agency, "It is false to suggest that 38 Guntas of land is in possession of Defendant Nos. 14 to
22. Witness Volunteers that, 10 Guntas is in possession of the Witness and the remaining 53 land is in possession of the Defendants 14 to
22."
d. Plaintiff and Defendants 1 to 4 claiming that in Sy.No.35/1, land measuring 04 Acres was allotted to them in the oral partition during the year 1932-33, if so it is so strange that, till the year 1989 they did not attempt to get the khata made in their name. It is only in the year 1989 B.Hanumanthappa - Defendant No.2, B.Kalasappa Defendant No.3 and Krishnappa Defendant No.4 (as petitioners) initiated case no.RRT.CR.4/1989, before the Tahsildar, Bengaluru North Taluk against Andanappa Defendant No.13, Mariyappa - Defendant No.35 and Ranganna Defendant No.16 (as Respondents), contending that there was partition on 10-12-1974 by means of an un-registered partition deed and in that partition Sy.No.35/1 of Saneguruvanahalli was allotted to them and khata was required to be made in their name. In the said proceedings order passed by the Tahsildar is marked as Ex.D140 at pages 1561 to 1567 at Paper Book 4. The operative portion of the Tahsildar passes an order as follows:
"ORDER of the Tahsildar For the foregoing reasons the prayer of the petitioners for the change of khata to their names in respect of Sy.No.35/1 of 54 Saneguruvanahalli, Yeshwanthapura Hobli, Bengaluru is hereby rejected.
The Respondents are the legal heirs of Sri.Chikka Huchaiah, in whose name the khata of the property bearing Sy.no.35/1 now stands. Therefore, it is hereby ordered to change the khata to the name of Respondents 1 and 2 jointly in respect of Sy.No.35/1 of Saneguruvanahalli, Yeshwanthapura Hobli, Bengaluru."
It is submitted that, the admission made by the Plaintiff and the Defendants 1 to 4 in RRT proceedings before the quasi - judicial authority is an admission by pleading and it is settled principle of law that, evidentiary value of admission by pleadings stands on higher footing then the other evidence.
It is submitted that, the Plaintiff and the Defendants 1 to 4 as stated in the said RRT proceedings that, on 10-12-1974 by means of an un- registered partition deed there was a partition. The said un-registered partition deed was not produced before the Tahsildar and it is also not produced before the Hon'ble Trial Court. It is a settled principle of law if a litigant is having a document fails to produce the same an adverse inference is to be drawn.
55e. The Defendants 14 to 21/Appellants' contention is Sy.No.35/1 was purchased by Chikka Huchaiah vide sale deed dated 11-05-1929, Ex.P10=Ex.P69 and Ex.D70(a). At page 518, Paper Book - 2, it is admitted by Dw2 B.Hanumanthappa that his uncle Chikka Huchaiah: "it is true that my senior uncle Chikka Huchaiah was doing business was purchasing and sale of Ragi, Paddy and Soapnut and he was earning from the said business and Dw18 at Page 757, Paper Book - 2, has stated as follows: "para 5: I state my grandfather Chikka Huchaiah was doing a business of purchasing Ragi, Paddy and Soapnut. He used to purchase the same in and around Magadi Town, in wholesale and the same used to be sold at Bangalore. My grandfather had two cousins by name Jaderahalli Tholasappa & Mandi Narasimhaiah, who were financially sound. With their aid my grandfather was doing the business and from the business he purchased the above said properties." And this part of the evidence has not been challenged. In fact the said Chikka Huchaiah had borrowed loan to purchase Sy.No.35 of Saneguruvahalli, and the said loan was discharged by Chikka Huchaiah vide Ex.D70(a), page 1218 at paper book - 3.
56The Defendants 4 & 9 in the written statement filed on 21-12- 2001, at Para 5, Page 40, paper book 1, have stated as follows:
"Kalasappa the propositus and his two sons Chikkahuchaiah and Boraiah constituted the members of joint family: that joint family owned 0 Acres 18 Guntas in Sy.No. 70/37, 01 Acre 08 Guntas in Sy.No.37 of Saneguruvanahalli, 02 Acres 11 Guntas in Sy.No.5 of Sajjepalya and a house" The total extent of land possessed by the joint family is 03 Acres 37 Guntas, what is the income from these properties and all these properties are dry lands, whether there is any saving from the said lands, after deducting the family expenses, so as to acquire any other properties. No evidence to show that, joint family had savings, out of which Chikka Huchaiah purchased properties in his name. Plaintiff and the Defendants 2 to 4 have not discharged the primary onus of proving there was enough income from the joint family and there was a nucleus to acquire other properties. This onus has not been discharged by the Plaintiff or the Defendants 2 to 4. In sum and substance there is no evidence regarding, what was the income of the joint family.
14. It is submitted that, the Defendant No.4 in his written statement filed on 19-12-2001, at Page 33 57 of Paper Book - 1, rebutting the contention of the plaintiff that Defendants 1 to 4 have purchased the properties in their names and in their wives' names i.e., Defendants 9, 11 and 12 have specifically pleaded in the said written statement that, "the properties sought to be included through an amendment to the plaint at para 9(A) are not joint family properties. There was no nucleus of the joint family, with the help of which properties could have been acquired." It is submitted that, according to the written submissions of the Defendant No.4 filed on 30-11-2022, Boraiah had acquired 15 properties and income from those properties according to plaintiffs' brothers i.e., Defendants 2 to 4 had no nucleus out which the other properties are acquired. If it is so the joint family of Kalasappa and his two sons Chikka Huchaiah and Boraiah as pleaded in the written statement of Defendant No.4 stated supra was owning only 03 Acres 37 Guntas of land and the Income from the dry lands would have surplus, so as to enable Chikka Huchaiah to purchase other properties in his name. Therefore, the only conclusion that could be arrived at by pleadings the evidence and the admitted facts by the plaintiff and the defendants 1 to 4 is that Chikka Huchaiah had an independent business and income, from that income 58 he purchased the following properties which are now claimed by these Appellants.
Defendants 13 to 22 in their written statement, at page 138 of Book 1, have stated at para 5 as follows:
"The averments that, about 40 years ago late Boraiah and late Chikka Huchaiah partitioned the properties and severed the jointly family status is admitted as correct. The rest of the averments regarding the getting the share of Sy. No.70/1, Sy. No.71/2, Sy.No. 70/30 and Sy. No.35 all situated at Kamakshiplaya, Saneguruvanahalli Hobli, Bengaluru North Taluk and Sy.No.20/5 of Sajjepalya and Sy. No.21/2 of Malagal Village are not correct" and further at para 1 of the written statement it is clearly pleaded that, the above said properties are all absolute properties of Chikka Huchaiah.
The Hon'ble Trial Court has not taken in to consideration, the admissions regarding independent business / trade, carried on by Chikka Huchaiah and more important admission of Defendant No.2 who is examined as Dw2 admits that his senior uncle was carrying on a business of selling and purchase of Paddy, Ragi, Soapnut. Therefore, the entire judgment is vitiated. In view of what is submitted above, the contention of the 4th Defendant in the Written Argument filed on 30-11-2022, that in this 59 survey number (i.e., in Sy NO.35/1) 04 Acres 10 guntas was allotted to the share of Boraiah and 01 Acre 10 guntas was allotted to the share of Chikkahucchaiah. There is a road in this land, this is called Temple road. Towards the North of the Road, 04 Acres of the land allotted to the share of Boraiah, situated towards the South of the Road, 10 guntas of land was allotted to the share of Boraiah and 01 Acre 10 guntas of land was allotted to the share of Chikkahucchaiah is false and untenable and the said contention is contrary to Ex-D54 & D-55 and also to Ex-D51 (Ex-D51 which is the plaint at Page No.1167 of Book-III) & admission made by Defendant who is examined as DW-5.
15. It is submitted that, in the Written submission in para (e) at page No.10, it is stated that, the Defendant No.4 has produced the original sale deed dated 11-05-1929 and the other original sale deeds. In this regard, the evidence of DW-18 at Page No. 766 of Paper Book-II, it is deposed as follows:
"During the absence of my father, Andanappa, Boraiah used to manage our family as there were no elderly persons in my family, during that process he has taken all the original documents from our house which are now produced by the Defendant Nos. 2 & 3."
6016. It is submitted that, the contention taken by the Defendant No.4 In para 'D', at Page No.8, in the Written Arguments filed on 30-11- 2022 that in Sy No.70/30 & 70/14, Northern half was fallen to the share of Boralah and Southern half was fallen to the share of ChikkaHucchalah. The land purchased by Chikka Huchaiah being the Northern half has fallen to the share of Boraiah and Southern half which was purchased by Kalasappa under Ex-D3 was fallen to the share of Chikka Hucchaiah is contrary to the evidence on record, because in Ex-D3, land purchased by Kalasappa, propositor of the parties is described as Dinne Hola and DW-5 admits Dinne Hola means Sy No. 70/30 and the entire land was fallen to the share of Chikka Huchhalah as per Ex- D55. The land purchased by Chikka Huchhalah under Ex-D145 ie., the sale deed dated 31-10- 1928, Page No.1615-1617, i.e., two bits of lands purchased under Ex-D145 measures about 34 guntas and another bit about 15 guntas, later for these 2 bits of land, Sy No.70/30 and 70/14 were assigned and RTC of these two lands, Ex.D-146 and Ex.D-147, Page Nos. 1618 & 1619 of Book-IV bellies the contention of the Defendant No.4 advanced in the Written Submissions and as stated above, in respect of Sy No.70/14, as per Ex-D147 at page 1618, the khatha till today stands in the name of Kalappa, the Vendor Chikka Hucchalah of the sale Deed. The RTC as it 61 stands in the name of Chikka Huchhaih, a presumption under Section 133 of the Land Revenue Act is in favour of these Defendants 14 to 22 and it follows that land is in possession and enjoyment of the branch of Chikka Hucchaiah and therefore, what is stated in the Written submission of Defendant No.4 is false and contrary to evidence on record. The plaintiff and the defendant Nos. 1 to 4 have not placed any rebuttal evidence in this regard.
17. It is submitted that, the reasoning of the Trial Court at page no.2055 of Paper Book-5 and Page No.2056 of Paper Book-5 and also the findings recorded by the trial Court is erroneous for the reason that Ex-D46 is plaint in O.S. NO.1435/80, between Gangappa s/o Eeranna and others, Ex-D76, a registered sale deed dated 15-07-1963, executed by Chennigappa and his son Puttaiah in favour of Kempaiah in respect of Property bearing Sy No.70, for which neither the Defendants nor the plaintiffs are the parties nor attesting witnesses and therefore, relying on those extraneous documents to reach a conclusion is erroneous and basing his findings on those documents is erroneous for the reason, because it is settled principle of law that, if the document or oral evidence of a person is to be relied on, then the author of the document or the person who tenders that evidence should be made available for Cross-Examination. The admissions/averments 62 /pleadings made by the third parties can't be an evidence unless that person is examined in the Court of law subjecting him for Cross- Examination. The learned Judge of the Trial Court has relied upon D71- Atlas to come to a conclusion that, 04 Acres 10 Guntas of land fallen to the share of Boraiah in Sy No.35/1 has been marked in Blue colour is untenable and erroneous conclusion because the Hon'ble Judge has not considered ExD54 & 55, which are the notes of Palupatti during the year 1932-33 which are produced and marked by the Defendant No.4 in his evidence coupled with the averments made in the plaint i.e., Ex-D51, a plaint filed by the Defendant No.2 against his brothers i.e., the plaintiffs and Defendant Nos.1 to 4 in this case conclusively establishes that, even according to the plaintiff and the Defendants 1 to 4 that in Sy NO.35/1, 04 Acres was allotted to the share of Chikkahucchaiah.
18. It is submitted that, the respondents claim that, Boraiah, has paid land revenue and to evidence the same, have furnished several receipts at Ex. D93. This receipts do not pertain to the lands owned by Chikka Huchaiah. As such no evidentiary value can be attached to the said receipts to prove the title to the land has laid down by this Hon'ble Court as well as by the Hon'ble Apex Court in catena of decisions.
6319. With regard to Sy No.21/1 of Malagala ie., Item No.1 of the 'B' Schedule is concerned the contention of the 4th Defendant in the Written Submissions dated 30-11-2022, it is contended that, 01 Acre of land in Sy No.21/1of Malagala Village allotted to the share of Boraiah, which is item No.1 of the 'B' Shedule Property. The certified copy of the 01 Acre of land that has fallen to the share of Boraiah is marked as Ex-D5 is untenable and false allegations for the reason, Ex-D5 is the sale deed dated 23-04-1928, executed by Kempanna in favour of Chikka Huchhaiah in respect of 01 Acre of land in SY No.21 of Malagala which the 4th Defendant refers as Sy No.21/1. Ex-D143 at Page No.1611 of Book-IV and Ex-D5 are one and the same. Therefore, the contention in the Written Submissions of the 4th Defendant that in respect Sy No.21/1 of Malagala Village is untenable.
It is submitted that, regarding Item No.1 in the 'B' Schedule Property is described as land bearing Sy No.21/2 of Malagala Village, measuring about 01 gunta situated within the boundaries as mentioned in the Schedule. Actually, the said property bears Sy No.21/1 measuring 01 Acre and not 01 Gunta. The Plaintiffs and the Defendant Nos.2 to 4 claim that, 01 Acre of land in old Sy No.21 of Malagala Village, was purchased by Chikka Huchhaiah from Kempanna as per the Registered Sale Deed dated 23-04-1928. The 64 Certified copy is marked as Ex-D-143, at Page No. 1611 of Book-IV. The Plaintiffs and Defendant Nos. 1 to 4 also pleads another 01 Acre in old Sy No.21 by virtue of the sale deed dated 27-04-1938 which is not produced by any of the parties to the suit. According to the plaintiffs and Defendant Nos. 1 to 4, 01 Acre of land was allotted to the share of Chikka Hucchaiah and 01 Acre of land was allotted to the share of Boraiah. 01 Acre of land allotted to Chikka Huchhaiah came to be gifted to Smt. Giriyamma, the said Registered Gift Deed dated 22-02-1951, marked as Ex D-77 of Page No. 1230 of Book-III. The remaining extent of 01 Acre of land, alleged to be allotted to the share of Boraiah, came to be acquired by the B.D.A and the reference has been made to the Court in LAC No.281/1987 in respect of entire extent of Sy No.21/1 of Malagala Village. In the said reference, Plaintiffs, Defendant Nos. 2 to 4 made a claim for 01 Acre and also the Defendant Nos. 14 to 22 also made a claim for the said 01 Acre on the ground that, it was the absolute property of Chikka Huchhaiah. The Court passed Judgment on 25-09- 2000 in LAC NO.281/1987, awarding compensation of said 01 Acre to the Plaintiffs and Defendant Nos.2 to 4, but that Judgment has been challenged in MFA NO.3626/2001 which came to be decided on 03-08- 2004, remanding the matter to the Trial Court for fresh disposal and the said LAC NO.281/1987 is 65 pending adjudication. As submitted above, there is no evidence on record to show that, this Sy No.21/1 of Malagala Village, measuring 01 Acre was the subject matter of the Partition during the year 1932- 33 and 01 Acre of land was allotted to the share of Plaintiffs and Defendant Nos. 2 to 4.
20. Without prejudice to the above said contentions, these Defendants 14 to 21 Appellants herein in the alternatively submits that for the reasons stated in the supra the item nos.1(a), 1(b), 2(a) and 2(b) is the absolute property of Chikka Huchaiah and so also the items 10 and 11 of 'A' Schedule and item No.1 of the 'B' Schedule, as claimed by the Defendants 14 to 22 in their written statement. If for any reason if this Hon'ble Court comes to the conclusion that there is a partition amongst Chikka Huchaiah and Boraiah during the year 1932-33 on the basis of Ex.D54, Ex.D55 and the admissions of the 2nd Defendant -
B.Hanumanthappa in his pleadings at Ex.D51, read with the order of the Tahsildar at Ex.D140, an extent of land measuring 04 Acres in Sy.No.35/1 situated on the Northern side of Temple Road, is the absolute property of Chikka Huchaiah's i.e., Defendants 14 to
22. Because the Defendant NO.4-Krishnappa who has been examined as DWS, has produced a palupatti of the year 1932, between Chikka Huchaiah 66 and Boraiah, which is marked as Ex-D55, which is found at page 1183 of Paper Book III and this Hon'ble court was pleased to direct these Appellants to file a memo detailing the survey numbers in correspondence the lands described in Ex.D.55, which is as follows:
aPÀÌ ºÀÄZÀÑAiÀÄå£À ¨sÁUÀ ¨ÉÆÃgÀAiÀÄå£À ¨sÁUÀ Sy.No Plaint Items 1 ºÀ£ÀĪÀÄAvÀgÁAiÀÄ£ÀUÀÄr zÁj¬ÄAzÀ vÉÆgÉ 35/1 1(a) 1(b) ºÉÆ® ªÀÄvÀÄÛ CzÀPÉÌ PÀqÉUÉ ºÉÆÃUÀÄvÁÛ »A¨sÁUÀzÀ°ègÀĪÀ zÀQëtQÌgÀĪÀ and 2(b) ¥ÉÃmÉAiÀĪÀgÀ ¥ÉÊQ ¥ÉÃmÉAiÀĪÀgÀ ¥ÉÊQ ºÉÆ®ªÉ¯ÁèzÁjAiÀÄ ºÉÆ® ¥ÀÆvÁð GvÀÛgÀzÀ PÀqÉUÉ ¥ÀÆvÁð ¥ÀƪÀðzÀ PÀqÉUÉ ºÉÆÃUÀÄvÉÛ
2. ¢uÉÚ ºÉÆ® ¥ÀÆvÁð vÁPÀÄ ¥ÀÆvÁð 70/30 10
3. PÀtzÀ vÉÆgÉ PɼÀV£À PÀtzÀ ªÀoÁgÀ 70/14 11 vÁPÀÄ ªÉÄÃ®Ä vÁPÀÄ ¥ÀÆ-¥À : 29 Cr ¥ÀÆ-¥À :229 G-zÀ :¥ÀÆvÁð 71 Cr Cr G-zÀ : ¥ÀÆvÁð ¥ÀÆvÁð 124 Cr 70 Cr ¥ÀÆvÁð 70 Cr
4. vÉÆÃlzÀ d«ÄãÀÄ vÉÆÃlzÀ d«ÄãÀÄ 5 'C' item 1 GvÀÛgÀzÀ PÀqÉUÉ 338 zÀQët PÀqÉUÉ 247 Cr Cr
5. ªÀÄ£É »AzÀQÌgÀĪÀ ªÀÄ£É »AzÀt 70/37 'A' item 7 ªÉÄîÎqÉ ¥ÀÆ ¥À:30 PɼÀV£À vÁPÀÄ Cr G-zÀ 61 Cr ¥ÀÆ-¥À:30 Cr G-zÀ:61 Cr
6. zÀQëtzÀ PÀqÉ ºÀ®¹£À ªÀÄgÀ, vÉAV£À ªÀÄgÀ 70/37 'A' item 7 EgÀĪÀ d«ÄãÀÄ, ¥ÀÆ-¥À: 60 Cr G-zÀ:
22 Cr ¨sËvÀéªÁVgÀÄvÉÛ
7. PÀȵÀÚ¥Àà£À ªÀÄ£É PÀȵÀÚ¥Àà£ÀªÀgÀ 35 'A' item d«ÄãÀÄ zÀQët PÀqÉ ªÀÄ£É GvÀÛgÀzÀ GvÀÛgÀzÀ 30 Cr PÀqÉ ¥ÀƪÀð 100 2(a) ¥ÀÆ-¥À :100 Cr Cr, G-zÀ :30 Cr
8. PÀgÀrPÀ®Äè ºÉÆ® 2£Éà PÀgÀrPÀ®Äè ºÉÆ® 21/2 'A' item 1 67 vÁPÀÄ 1£Éà vÁPÀÄ
9. ºÀÄ®Äè »vÀÛ®Ä ºÀÄ®Äè »vÀÛ®Ä 70/37 'A' item 7 GvÀÛgÀzÀ PÀqÉ ¥ÀÆ- zÀQëtzÀ PÀqÉ ¥À:61 Cr G-zÀ :35 ¥ÀÆ-¥À:61 Cr Cr +2 Cr G-zÀ:48 Cr+2 Cr ¨ÉÆÃgÀAiÀÄå£À d«ÄäUÉ ºÉÆÃUÀ®Ä Cr zÁj With regard to Ex.D55 and names of the lands as mentioned therein is admitted by Dw5 in his cross examination at page 645, 646 and 648, of Paper Book No. 2.
21. It is submitted that, the learned judge refers Ex.D54 and Ex.D55 at page 2004, Paper Book 5, in his judgment. Except referring the said documents, in the judgment, the learned judge has not discussed the said documents. Therefore, the Dw5 -
Krishnappa has himself proved that there was a partition during the year 1932 - 33 and 04 Acres of land in Sy.No.35 of Saneguruvahalli which is now claimed by the Defendants 13 to 22 was undisputedly allotted to the share of Chikka Huchaiah, if it is considered as joint family property of Chikka Huchaiah and Boraiah.
22. It is submitted that, the defendants in the course of their arguments have dilated upon Ex. D82, it is the Affidavit of C. Huchaiah filed in R.A. NO.151/1991, before the Assistant Commissioner.
68The said C. Huchaiah is the uncle of appellants herein. The said document cannot to relied upon or cannot be considered as a legal evidence for the following reasons:
a) C. Huchaiah was not a party to the proceedings in R.A.NO.155/1991, before the Assistant Commissioner. The said appeal was filed by defendant No.35, i.e., the other uncle of appellant and A. Ranganna the defendant No.16, challenging the order of the Tahsildar directing to affect mutation in the name of plaintiff and defendants 2 to 4, based upon the alleged partition said to have taken place during the year 1972-74. C.Huchaiah who was inimical towards his brothers i.e., Andanappa and Mariyappa in order to cause trouble he joined hands with family members of Boraiah in particular Honnaiah i.e., the Plaintiff herein. At the instigation of Honnaiah he impleaded himself in the said R.A and has filed his affidavit at Ex.D82. The said affidavit is drafted by Honnaiah's counsel which is evident from the objections filed by Honnaiah to the R.A. marked as Ex.D84. The affidavit filed by C. Huchaiah is the replica of the objection filed by Honnaiah.
b) EX. D82 has come into existence subsequent to the statement of objections at Ex.D84 filed by plaintiff Honnaiah in R.A. NO.155/1991. Where 69 under, he has given the details of properties fallen to the share of Chikka Huchaiah and Boraiah. The very same list has been reiterated by C. Huchaiah in his Affidavit in two tabular columns. The said Affidavit is filed out of vengeance towards Andanappa and Mariyappa and to favour D. Honnaiah, the plaintiff.
c) Ex. D148 to 150 are the vakalaths filed by Honnaiah and C. Huchaiah jointly and separately by engaging same counsel in the same legal proceedings would indicate that the plaintiff and C.Huchaiah were hand in glove. The legal proceedings were much earlier to filing of the Affidavit at Ex.D82.
d) The evidence of DW18 Ranganna commencing at page 755 at para 14 and 15 has stated that, C. Huchaiah was always acting with vengeance towards the appellants herein. Nothing much is elicited during the course of cross-examination with regard to above said evidence.
e) Ex. D82 is marked through defendant No.4 who was examined as DW5. The very same witness relies upon notes of partition at Ex. D54 and D55, the said exhibits are contrary to the Ex.D82. On the contrary Ex. D51 is the plaint filed by Hanumanthappa, Hanumanthappa in O.S. NO. 8259/1995, wherein at para 29 it is stated that, the arrangement of family was to the effect that 4 Acre 10 Guntas 70 is allotted to Chikka Huchaiah. This is in consonance with D54 and D55 marked by DW5 Krishnappa.
f) In the Affidavit evidence the defendant No.4 states which are all the properties allotted to Chikka Huchaiah and Boraiah in the partition said to have been taken place in the year 1932-33. He cautiously produces the notes of partition which are marked as Ex.D54 and D55. Ex. D54 and D55 are to be presumed to be correct as the said Document is not disputed by any of the respondents.
g) Even assuming there is a partition as per Ex's D54 and D55, as admitted by DW5, item No's. 1A, 10, 11 being fallen to the share of Chikka Huchaiah. In this context it is also relevant to state that DW5 has admitted in his evidence at page 651 admits that, in Sy. No.35/1 expect 10 gunats remaining land is in possession of the appellants.
f. Judgment of the Trial Court is at page 2049 of Paper Book Part-V. At Paragraph 4, the finding recorded by the learned Judge that, DW18's father Andanappa is alive and the said witness says that he has got the knowledge regarding facts of the case. The learned Judge has further observed that, DW- 18's father Andanappa, though available for tendering evidence has been deliberately held back and had he deposed before the Court, truth would 71 have come out. Sri. Ranganna DW18 was examined on 09-09-2002. By the time DW18 was examined, Andanappa was dead which is clear from the Affidavit of DW18. Therefore, the finding recorded by the learned Judge is incorrect, which shows there is no proper application of mind by the learned Judge, regarding the appreciation of the evidence of DW18 i.e., to say without application of the mind, the learned Judge proceeded to pass the Judgment taking into consideration of the irrelevant facts.
In conclusion the Appellants in order to prove their contentions have relied upon the following documents:-
Extent Exhibit R.T.C
Item Date of
Sy.No. As per Number AND
No. Sale deed
plaint M.R.
04 Ex.P10
Acres Ex.D.69-
1(a) 35/1 11.05.1929
10 Original
guntas Ex.D70(a)
14 Ex.P10 R.T.C is
Guntas Ex.D.139
1(b) 35/1 (10 11.05.1929 at page
Guntas 1560
Actual) M.R. is
Ex.D 137
01.02.1932 Ex.D136 at page
100x30
2(a) 35 i.e., At pages 1557
feet
100x60 1555
Ex.D73 At
32
2(b) 35 31.10.1928 pages
Guntas
1222
72
Ex.D145 R.T.C is
At pages at Ex.D
1615 62 at
Page
17
10 70/30 31.10.1928 1197
Guntas
Ex.D.146
at page
1618
Ex.D.145 R.T.C is
at Ex.D
63 at
Page
22
11 70/14 1199
Guntas
Ex.D 147
at page
1619
01 Ex.D143
Guntas At pages
1 of 'B'
21/2 (01 23.04.1928 1611
schedule
Acre
Actual)
In addition to the above, the other documents relied upon by the Appellants are a. Ex.D-51:- Plaint in O.S.8259/1995 at Page Nos. 1144 Paper Book-III;
b. Ex.D140:- RRT Proceedings at Page 1561-PB- IV c. Evidence of the 4th Defendant who was examined as DW5, who admits that, only 10 guntas in Sy.NO.35 is in his possession and the remaining entire extent in the said land is in possession of the Defendants 14 to 22 i.e., the Appellant herein.
73From the aforesaid contentions and documents read with relevant evidence it is crystal clear that, the properties detailed above in the tabular column are the self-acquired properties of Chikka Huchaiah i.e., the Grandfather of the Appellants herein. The said properties are not subject matter of the oral partition set up by plaintiff and Defendants 2 to 4, there is no document or evidence to show the said properties are also subject matter of the partition now claimed by Plaintiff and Defendants to 4. As such neither the plaintiff nor the other defendants have any semblance of rights, title or interest over the said properties. Hence it is humbly prayed that, this Hon'ble Court be pleased to allow the above appeal, thereby dismissing the suit of the Plaintiff in so far as the items 1(a), 1(b), 2(a), 2(b), 10 & 11 of A Schedule Properties and item No.1 of the B schedule properties, in the interest of Justice and equity.
Without prejudice to the aforesaid contentions, if for any reasons, this Hon'ble Court comes to the conclusion that, the properties detailed above are the Joint family properties of Chikka Huchaiah and Boraiah. As there is no concrete or clinching evidence placed by any of the parties as to which are all the properties fell to the shares of Chikka Huchaiah and Boraiah, that apart considering the 74 ages of the parties, none of them were competent enough to speak about what happened in the year 1932- 33 or 1935, in view of the same the Appellants humbly pray that, this Hon'ble Court may mould the relief under Order 41 Rule 33 of CPC and pass a Judgment and Decree, effecting equitable partition amongst Legal heirs of Chikka Huchaiah and Boraiah, by moulding the relief in the interest of Justice and equity.
WHEREFORE, the Appellants humbly pray that this Hon'ble Court be pleased to allow the Appeal, setting aside the findings which are held against these Appellants, thereby dismissing the suit of the plaintiff in O.S.No.8943/1980, In the interest of justice and equity.
Sd/-
ADVOCATE FOR APPELLANTS"
26. The contesting respondents have filed following written arguments:
ARGUMENTS AGAINST DEFENDANTS 13 TO 22 AND DEFENDANTS 35 TO 42 BY DEFENDANT NO.4/RESPONDENT NO.4 IN R.F.A. NO.1276/2005 Confirmity & arguments addressed by S.K.Venkata Ready, Senior Advocate.75
a) The Defendant No.4 submits that he has filed counter under order 8 Rule 9 to the Written Statement filed by Defendants No.13 to 22 at Page-
37, Paper-book-I, clearly stated about the acquisition of properties by late Kalasappa and also acquisition of properties by Chikhuchaiah and Boraiah after death of Kalasappa, there was division of properties between Chikhuchaiah and Boraiah and division of properties among the sons of Chikhuchaiah in Paras 2 to 12 of the evidence of DW-
5. He contended that Kalasappa and his two sons Chikhuchaiah and Boraiah possessed joint family properties Kamakshipalya, Sajjepalya. Late Kalasappa acquired under a registered sale deed dated 01-04-1910 measuring 1 Acre 3 Guntas from Papanna S/o Kempanna as per Ex.D-3 at Page 923, Paper-book No.III (original Sale Deed), Ex.D-3(a) is the certified copy. The lands covered under this Sale Deed is Survey No.70/14, 0 Acre 22 Guntas, Survey No.70/30, about 17 Guntas and Sy.No.70/37, about 09 Guntas of Kamakshipalya. Shri Kalasappa purchased under a registered Sale Deed dated 05- 09-1912 land measuring East to West - 30 yards; North to South - 15 Yards out of Sy. No.70 of Kamakshipalya as per Ex.D-4 at Page-926, Paper- book-III. This land is later number as Sy.No.70/37. The said Kalasappa acquired another 1 Acre 8 Guntas of land in Sy.No.37 of Kamakshipalya in the 76 year 1940 from Panchangadaiah. Kalasappa acquired another 2 Acres 11 Guntas of land in Sy.No.5 of Sajjepalya Village. Kalasappa died in the year 1919 or 1920. The joint family after the death of Kalasappa was managed by Chikhuchaiah being the eldest member of the family. Out of the income derived from the joint family Chikhuchaiah and Boraiah acquired number of properties in the name of Chikhuchaiah. All the said acquisitions are for the benefit of the joint family constituting himself and Boraiah. Out of the Joint Family income the following properties were acquired in the name of Chikhuchaiah. In Sy.No.33/19, 5 Guntas, 33/29, 1 Acre 29 Guntas, Sy.No.33/3, 1 Acre 25 Guntas under
a registered single Sale Deed dated 16-05-1921 from Puttanna. In Sy.No.35/1, measuring 5 Acres 20 Guntas under a registered sale deed dated 11-05- 1929 from B.T.Ramaiah; in Sy. No.35, 100'X60' under a registered sale deed dated 01-02-1932 from B.T.Krishnappa, in Sy.No.38, 1 Acre 5 Guntas of land under a sale deed in the year 1915 from Gopalakrishna Gowda; in Sy. No.70 one bit measuring 30 Guntas and another bit measuring 15 Guntas was purchased under a registered Sale Deed dated 31-10-1928 as per Ex.D-246, at Page No.1847, Paper-book No.5 in Sy.No.71/2, 1 Acre 1 Gunta under a Registered Sale Deed dated 25-05- 1928 from Guddaiah; in Sy.No. 127/3, 1 Acre 4 77
Guntas under a registered sale deed dated 14-06- 1926 from Guddaiah; Sy. No.21/1, measuring 1 Acre under a registered sale deed dated 27-04- 1928/30- 04-1928 from Kempanna; Sy.No.21/1, measuring 1 Acre 10 Guntas under a registered Sale Deed dated 07-04-1928 from Chikkaveerappa. All these properties are the joint family properties of Chikhuchaiah and Boraiah. Chikhuchaiah and Boraiah had orally partitioned their joint family properties in the year 1932-33 or in the year 1935. It is referred to Ex.D10 and Ex.D-79, Page No.1241, Paper book No.III, In the said partition there were 14 items which were the subject matter of partition. A rough note made at the time of partition are marked as Ex.D-54 and D-55.
b) B.Krishnappa, Defendant No.4, was examined as DW-5, Page -581, Paper Book-
II. In the said oral partition the following properties were allotted to the share of Boraiah;
In Sy.No.33/19, 5 Guntas, Sy.No.33/29, 1 Acre 18 Guntas; Sy.No.33/3, 1 Acre 25 Guntas, Sy.No.35/1, (Old No.35), 4 Acres 10 Guntas, Sy.No.35/1, 3 Guntas (100' X 30'); Sy. No.70/14, 22 Guntas, Sy. No.70/30, 17 Guntas, Sy. No.70/37, 9 Guntas all situated at Kamakshipalya, Saneguruvanahalli Dhakale, Sy.No.21/1, measuring 1 Acre of Malagalu 78 Village, Sy.No.5, measuring 1 Acre 6 Guntas of Sajjepalya Village.
c) The following properties were allotted to the share of Chikhuchaiah in the said oral partition;
In Sy.No.35/1, (Old Sy. No.35), 1 Acre 10 Guntas, Sy. No.35/1, 3 Guntas (100'X30'); Sy. No.37, 1 Acre 8 Guntas Sy.No.38, 1 Acre 5 Guntas, Sy. No.70/14, 22 Guntas, Sy. No.70/30, 17 Guntas, Sy. No. 70/37, 9 Guntas, Sy. No.71/2, 1 Acre 1 Gunta; Sy. No.127/3, 1 Acre 10 Guntas all of Kamakshipalya Village, Sy. No.21/1, 1 Acre 10 Gunjtas of Malagalu Village, Sy. No.5, 1 Acre 5 Guntas of Sajjepalya Village. The land that fell to the share of late Boraiah are far away from Kamakshipalya Village and were not fertile lands. Hence about 1 Acre 19 Guntas of land is in excess given to the share of Boraiah. Accordingly there was partition by metes and bounds between Chikhuchaiah and Boraiah. From the date of partition they were personally cultivating the lands allotted to their respective shares and were exercising all acts of ownership over the said lands. The Defendants have produced R.T.C. extracts of the entire lands and the same is marked as Exs.D-56 to D-68, Page- 1182-83, Paper Book-III. The R.T.C. Extract shows Khatha Number of each properties. Late Boraiah was paying land revenue to 79 the lands allotted to his share. They are marked as Ex.D-93 series. Page No.1326, Paper Book-III.
d) Sy. No.70/14 totally measures 1 acre 4 Guntas. Out of this 14 Guntas was purchased as per Ex.D-3 and 30 Guntas was purchased as per Ex.D-246. Sy.No.70/30, measures 34 Guntas. Out of which 19 Guntas was purchased under Ex.D-3 and 15 Guntas was purchased under Ex.D-246. Sy.No.70/37, 9 Guntas was purchased under Ex.D-3 and another 9 Guntas was purchased under Ex.D4. So Sy. No.70/14, totally measures 1 Acre 4 Guntas, Sy. No. 70/30 measures 34 Guntas; Sy. No.70/37 measures 18 Guntas, totally 2 Acres 16 Guntas. Under Ex.D-3, 1 Acre 3 Guntas was purchased. Under Ex.D-4 about 9 Guntas was purchased. Under Ex.D-246, 30 Guntas, + 15 Guntas 1 Acre 5 Guntas was purchased. Totally it comes to about 2 Acres 17 Guntas. In Sy.No.70/30 and 70/14 Northern half were fallen to the share of Boraiah and Southern half were fallen to the share of Chikhuchaiah. The lands purchased by Chikhuchaiah being the Northern half has fallen to the share of Boraiah and Southern half which was purchased by late Kalasappa under Ex.D- 3 was fallen to the share of Chikhuchaiah. To show that Northern half portion of Sy.No.70/14, measuring 22 Guntas has fallen to the share of Boraiah, these Defendants have produced Exs.D-75, 76, Pages 80 1226, 1227, Paper Book-III, D-46 and 47. At Page 1088, Paper Book-III In D-46 and D-47 Item No.8 of the Plaint Schedule refers to this fact. In that Southern boundary is referred to as Boraiah's land. In Ex.D-76 Western boundary is shown as land of Boraiah and Mariyappa and Northern side is shown as Land of Veeranna and Ramaiah, Veeranna was father of Gangappa Plaintiff in O.S.No.1435/1980 in Ex.D-46. Originals of Ex.D-3 and D-4 are produced by Defendant No.2 in his evidence. This Defendant has produced RTC Extracts of Sy. No.70/30 at Ex.D- 62; Sy. No.70/14, at Ex.D-63. Khatha Number of Sy. No.70/14 is 98; Sy. No.70/30 is 12, late Boraiah has paid land revenue to the lands of those khatha Nos. These Defendants have produced Tax paid receipts are as per Ex.D-93 series.
e) Sy.No.35/1 was purchased from B.T. Ramaiah by Chikka Hutchaiah under a registered sale deed dated 11-05-1929. This Defendant has produced original Sale Deed. The same is marked as Ex.D-69. Page No.1212, Paper- book No.III. The certified copy is marked as D-70. Original registered payment receipt or is marked as D-70(a). In this Survey No.4, Acres 10 Guntas was allotted to the share of Boraiah 1 Acre 10 Guntas was allotted to the share of Chikhuchaiah. There is Road in this land. This is called Temple Road. Towards North of the Road 4 Acres of land allotted to the share of Boraiah situated 81 towards the South of the Road 10 Guntas of land allotted to the share of Boraiah and 1 Acre 10 Guntas of land allotted to the share of Chikhuchaiah is situated. Two show the location of Sy.No.35/1, Sy. No.37 and Sy. No.38 the Defendants have produced Village Map of Saneguruvanahalli which is marked as D-71. The enlarged portion of Sy. No.35/1, measuring 5 Acres 20 Guntas is marked as Ex.D-72. Pages-1220, Paper Book No.III. Ex.D-72 not in Paper-book. The Xerox copy of the enlarged portion was taken out of Ex.D.-71. The portion allotted to the share of Boraiah is marked in blue colour (Ex.D- 72(a)) and a portion allotted to the share of Chikhuchaiah marked in yellow colour (Ex.D-72(b)). Out of 1 Acre 10 Guntas of land in the partition among the sons of Chikhuchaiah 32 Guntas had fallen to the share of C.Huchaiah and 18 Guntas had fallen to the share of Andanappa. Late Boraiah purchased the said 32 Guntas of land allotted to the share of C. Huchaiah under Ex.D-73. Page No.1222, Paper-book-III. That portion is marked as Ex.D-72(d) in the Green ink. The Temple Road is marked in Black ink as Ex. D-72(c). To show 4 Acres of land situated on the Northern side of the Road allotted to the share of Boraiah, the Defendants have produced Ex.D-46 and 47 and also D-48, Page- 1088, Paper-Book-I. the registered Sale Deed in respect of Survey No.36. In Ex.D-46 the Western 82 boundary is mentioned as land of Boraiah and Southern boundary is mentioned as land of Andanappa and Mariyappa, the sons of Chikhuchaiah. The same is referred to in Exs.D-46 and 47 at Item of the Plaint Schedule, where it is stated on Eastern side Boraiah's land... Southern side Mariyappa and Andanappa land. In Ex.D-46 and 47 at Item No.6 while describing boundary to Sy. No.34, towards "West Borahaiah's land Towards "South land of Channappa and Boraiah". The Western boundary referred to is 4 Acres of land towards the North of the Road, towards Southern boundary the land of Boraiah referred to is 10 Guntas of land allotted to his share towards South of Temple Road. This Defendant has referred to these boundaries in his affidavit evidence. These documents clearly establishes that 4 Acres of land on the Northern side of the Road, 10 Guntas of land on the Southern side of the Road have fallen to the share of Boraiah at oral partition between Chikhuchaiah and Boraiah. In fact in respect of Sy. No.35/1, the Defendants have produced R.T.C., which is marked as D-66. The Khatha of this land is
28. Late Boraiah has paid land Revenue to Khatha No.28. The Defendant has produced Tax paid receipts as per Ex.D-93 series.
The Written Statement filed by Defendants 35 to 42 at Page ...........Paper Book..... Page 9 Item No.5 83 Sy.No.70/30, measuring bounded on.... South by:Land bearing same Survey Number. This Defendant submits this lands in the same number refers to balance of 19 Guntas purchased under Ex.D-3 and in total both measures 34 Guntas. The Southern portion 17 Guntas has fallen to the share of Chikhuchaiah, the Northern portion measuring 17 Guntas has fallen to the share of Boraiah. 15 Guntas referred to in the Schedule is the land fallen to the share of Boraiah. At Item No.6 of the Schedule land bearing Sy. No.70/14, measuring about 30 guntas bounded.... South by: Land remaining in the same Sy. Number. This remaining land is property purchased under Ex.D-3.
This 30 Guntas of land purchased under Ex.D-246 land covered under Ex.D-3 and Ex.D-246 totally measures 1 Acre 4 Guntas, out of this 22 Guntas being the Southern half fallen to the share of Chikhuchaiah, Northern half portion fallen to the share of Boraiah. So lands covered under Items 5 and 6 in the Written Statement plus counter claim by Defendants 35 to 42, at Page---- Paper-book---- the land being Northern portion allotted to the share of late Boraiah. They are portions of Items 10 and 11 of the Plaint-'A' Schedule.
In the said counter claim Item No.2 it is Sy.No.35/1, measuring 14 Guntas (actually 10 Guntas) bounded on;
84East by : Thimmakka's Land;
West by : Sy.No.35/1;
North by : Chennanarasimhaiah land
and Anjaneya Swamy Temple Road;
South by : Land in Sy. No.35/1.
It is actually Plaint 'A' Schedule 1(b) - 10 Guntas of land that fallen to the share of Boraiah on the South of Temple Road. This corroborates the evidence of DW-5. This is in respect to the boundaries. In fact Sheeba School is in Thimmakka's land situated on the East of this 10 Guntas of land. There is a clear admission by DW-18 and DW-21 that there is 7 Guntas of vacant land between the Sheeba School and the buildings situated to the Western side of the vacant land. But actually 10 Guntas of land is vacant which is Item No.1(b) of Plaint 'A' Schedule. Out of 100' X 60', Sy.No.35/1, purchased from B.T.Krishnappa under Exhibit D-136, Page-1255, Paper Book-IV. 100' X 30' situated on the Southern side has fallen to the share of Chikhuchaiah and 100' X 30', situated on the Northern side has fallen to the share of Boraiah. In the Counter claim filed by the Defendants No.35 to 42 in respect of this Survey No.100'X60', the Northern portion measuring 100'X30' feet referred to as land of Boraiah is the land that has fallen to the share of Boraiah. The portion allotted to Chikhu- chaiah was partitioned by 85 the three sons of Chikhuchaiah and they have alienated their respective shares. The Northern portion which is allotted to the share of Boraiah is admittedly vacant. There is evidence on record about this fact. CC OF AFFIDAVIT OF CHUCHAIAH IN 8943/1980, EX.D-158, DATED 06-11-1991 PAPER BOOK-1657.
In Sy. No.21/1 of Malgal Village 1 Acre 10Guntas was allotted to the share of Chikhuchaiah; 1 Acre of land in Sy.No.21/1, allotted to the share of Boraiah which is Item No.1 of the Plaint 'B' Schedule Property. The certified copy of 1 Acre of land that has fallen to the share of Boraiah is marked as Ex.D- 5, at Page No.928, Paper Book-III, in the evidence of DW-2 and the original of the same is produced by DW-2 in LAC No.281/1987. There is a reference to this fact at Page No.5 of deposition of DW-2. This land was acquired by B.D.A. In LAC No.281/1987 the Hon'ble Court Awarded compensation under 18, 30, 31 reference to the sons of late Boraiah i.e., Plaintiff and Defendants No.2 to 4 and rejected the claim of the Defendants 13 to 22 and 32 to 42. They had filed Miscellaneous First Appeal against the said order and the same was remanded back to the Trial Court with a direction that the title to the said property has to be established between the parties in this suit. In 86 respect of 1 Acre 10 Guntas land allotted to the share of Chikhuchaiah was gifted by his sons to their sister Girijamma under Ex.D-77, Page No.1230, Paper Book- III. In Sy. No.5 of Sajjepalya Boraha was allotted 1 Acre 6 Guntas and Chikka Huchaiah was allotted 1 Acre 5 Guntas in the oral partition between them. Regarding this property there is no dispute. In Survey No.70/37, 0-09 Guntas was allowed both share of Chikka Huchaiah and 0-09 guntas are allotted to the share of Boraiah there is no dispute regarding this property. Lands in Survey No.33/19, 33/29 and 33/3 were sold to B.E.M.L. Employees Society as per Ex.D-78 and 79. Page No.1233, Paper Book....... All the sons of Chikka Huchaiah, the sons of Andanappa, sons of Mariyappa, Plaintiff and his sons, second Defendant and his sons, third Defendant and his sons and fourth Defendant jointly executed Sale Deed in favour of the B.E.M.L. Society for total consideration of Rs.65,000/-. Out of this sale consideration Boraiah's sons have taken each Rs. 16,000/- and Andanappa has taken Rs.1,000/- to his share in respect of 2 Guntas of land out of Sy. No.33/29. DW- 21, at page-47 speaks to this fact.
As per the recitals on Ex.D-10, Page----- Paper Book---- there was oral partition between Boraiah and Chikka Huchaiah, about 30 years back. As per 87 Ex.D-78 and 79 there was oral partition between Chikka Huchaiah and Boraiah in the year 1935. So there may be a partition between 1932-33 or 1935 between Boraiah and Chikka Huchaiah. The contentions of Defendants 13 to 22 and 35 to 42 is that all the properties purchased by Chikkhuchaiah are the self acquired properties he acquired the same with the financial assistance given by his cousins Jedarahalli Tolasappa and Mandi Narasimhaiah who were financially sound. In the Ex.D-79, Page-1241, Paper Book-III there is recital as:
"Whereas one late Kalasappa of Kamakshipalya Village had two sons namely Chikhuchaiah and Boraiah and both of them are members of joint family of which Chikkhuchaiah was the Manager of the Family. The entire properties were in the name of Chikkhuchaiah and Boraiah who had acquired several properties as they were managing the family at Kamakshipalya, hamlet of Saneguruvanahalli, Bengaluru North Taluk. During their life time of the brothers had partitioned their joint family properties among themselves by means of an oral partition during the year 1935 and they were living separately. According to that land bearing 88 Sy.No.33/19, 5 Guntas, Sy.No.33/29, measuring 1 Acre 20 Guntas of Saneguruvanahalli was allotted to the share of Boraiah. Chikka Huchaiah and his wife Narasamma died about 35 years ago leaving behind vendors 1, 2, 3 as their legal heir and Boraiah died on 02-02-1972 leaving behind him the Vendors No.4, 5, 6 and 7 as his heirs to succeed to his estate and where as land bearing Survey No.33/29, measuring 1 Acre 20 Guntas and Sy.No.33/19, 0-05 guntas of Saneguruvanahalli belongs to one Puttaiah S/o Chennigappa. These lands are fully described in the Schedule-'A' and 'B' respectively hereinafter called as Schedule Lands.
Regarding this recital in Sale Deed Ex. D-79 what were the number of other properties acquired jointly by Chikka Huchaiah and Boraiah, in his cross- examination of DW-18 by Defendants No.4 and 9 he could not able to answer what were the other properties acquired. It is at Page-49 of deposition of DW-18. Similar question was put to DW-21, he was also unable to explain what were the properties jointly acquired by Boraiah and Chikka Huchaiah. It is at Page-44 and 45 of deposition of DW-21.
89Out of partition between Boraiah and Chikka Huchaiah, if Chikka Huchaiah has got any financial assistance from his cousins he would have acquired number of properties if he is capable enough. Admittedly Chikka Huchaiah died in the year 1945. Between the date of oral partition and his death i.e., between 1935 to 1945 Chikka Huchaiah has not acquired any properties. He has not acquired any properties because he was not capable enough to purchase the properties. After death of Kalasappa and before partition Chikka Huchaiah was managing the joint family properties and Boraiah was cultivating the joint family properties. Out of the income derived from the joint family properties number of properties were acquired in the name of Chikka Huchaiah because he was the eldest member and Manager and Kartha of the joint A family constituting Chikka Huchaiah and A Boraiah. After partition in the year 1932 or 1935 Chikka Huchaiah has not acquired any properties. DW-18 clearly admits this fact at Page-46 of Sub-para-2 of his depositions. At Page -755, Paperbook-2, deposition of DW-18 "It is true to suggest that after 1932-33 Chikka Huchaiah till death has not purchased any properties. It is false to suggest that after partition Boraiah has purchased 15 Acres of land from joint family funds. It is false to suggest since he has no 90 capacity he has no capacity and he has not purchased any property" DW-21 also admits this fact at Page-46 of deposition Sub-Para-2.
ON THE OTHER HAND LATE BORAIAH HAS ACQUIRED MORE THAN 15 ACRES OF LAND AFTER THE PARTITION BETWEEN BORAIAH AND CHIKKA HUCHAIAH. THE LAND OF BORAIAH WAS ACQUIRED IN LAC 538/1987, MEASURING 13 ACRES 11 GUNTAS OF MALAGALA VILLAGE. AS PER EX.D-130, PAPER BOOK-1518.
"Chikka Huchaiah died in the year 1945. From the 1935 year till his death Chikka Huchaiah has not acquired any assets. To the question that after separation Boraiah acquired 15 acres of land, witness state that he does not know anything regarding the same. (It is actually 15 acres not 50 acres). So Chikka Huchaiah has got his own income out of which he has acquired number of properties is totally false. All the properties acquired by Chikka Huchaiah are jointly acquired by Chikka Huchaiah and Boraiah out of the income derived from joint family nucleus properties for the benefit of joint family. In fact all the properties purchased by Chikka Huchaiah were before the oral partition that took place between them in the year 1932-33 or 1935. So 91 the contention of Defendants No.13 to 22 and 35 to 42 the properties acquired by Chikka Huchaiah are his self acquired properties is absolutely false. This version of the Defendants cannot be believed. The properties 1(a), 1(b), 2(a), 10 and 11 of 'A' Schedule and Item No.1 of 'B' Schedule are the properties that were fallen to the share of Boraiah at a oral partition that took place in the year 1935. These Defendants have no right, title or interest over the said lands.
After the partition the parties have acted upon. Late Boraiah has paid land revenue to the lands allotted to his share. They were marked as Ex.D-93 series. He was paying taxes from 1933-34 onwards. The tax paid receipts are available in Ex.D-93 series. Apart from that Ex.D- 10 refers to division of trees in the Petavara Jameenu i.e., in Sy. No.35/1, measuring 5 Acres 20 Guntas. Exs.D-78 and D-79 refers to joint acquisitions of number of properties by Boraiah and Chikka Huchaiah. This is also corroborated by Ex.D- 46 and D-47, plaint and decree in O.S. No.1435/1980, Ex.D-48 Sale Deed dated 21-10- 1972, Ex. D-76, Sale Deed dated 15-07-1963 followed by R.T.C. Extracts Ex.D-56 to D-68. The partition notes Ex.D-54 and D-55. The statement of C.Huchaiah Ex.D-82, at Page-1252, Book-III, Ex.D-89, Written Statement C.Hutchaiah, Page- 1301, Paper Book-III and Ex.D-158, at Page- 1658, Paper Book-IV, Ex.D-126, Objection of 92 C.Hutchaiah in O.S.No.6645/1997, Pages-1510, Book-IV all these documents corroborates the oral partition and allotment of Plaint Schedule- 1(a), 1(b), 2(a), 10 and 11 and Item-1 of 'B' Schedule to the share of Boraiah and the Boraiah was in possession of the said lands and he was paying land revenue to the said lands and he was exercising all acts of ownership over the said lands. This Defendant submits DW-7 to DW-17 speaks about possession and personal cultivation of lands which are claimed by Defendants No.14 to 22 and Defendants No.35 to 42, at Page No.670, paper Book-III.
This Defendant submits after death of Chikka Huchaiah his three sons Andanappa, Mariyappa and C.Huchaiah have partitioned the properties that had fallen to the share of Chikka Huchaiah. There is partition among three sons of Chikka Huchaiah in the year 1951 or 1952. Regarding the partition among the three sons this Defendant cross-examined DW- 18 at Pages-44 to 47 and DW-21 at Pages- 47 to 49. They have denied the partition s suggested by this Defendant. DW-5 refers to the partition of properties among the sons of Chikka Huchaiah at Pars-8 and 9 of the depositions. But in Sy. No.35/1- 1 Acre 10 Guntas of land on the Southern side of the Road has fallen to the share of Chikka Huchaiah. In the 93 partition among three sons of Chikka Huchaiah Western portion of 0-32 Guntas of land has fallen to the share of C.Huchaiah and Eastern portion of 0-18 guntas of land has fallen to the share of Andanappa. C. Huchaiah has alienated along with his wife 0-32 guntas of land allotted to his share to Boraiah under a registered Sale Deed dated 25-05-1959 for valuable consideration. The same is marked as Ex.D-
73. This 0-32 guntas of land is demarked in Green Ink in Ex.D-72 as Ex.D-72(d). This execution was admitted by C.Huchaiah as per Ex.D-89.
D-126 which are written statement and objections in O.S. No.6645/1997, Plaint copy in O.S. No.6645/1997 marked as Ex.D-90. At Page ..... paperbook..... From the date of purchase Boraiah and after his death his sons are in possession of the lands and are exercising all acts of ownership. But after vacating injunction in O.S. No.6645/1997 the Defendants No.14 to 22 have alienated individual sites to various persons. Defendants No.23 to 27 are some among them. Ex.D-175 to D-178 are the Sale Deeds in respect of the said lands. Page-1711, Paper- book-IV. The Defendants No.14 to 22 alienated the portions out of 0-32 guntas after vacating injunction in O.S. No.6645/1997 i.e., 1997 afterwards. The alienation made by the Defendants No. 14 to 22 to Defendants No.23 to 27 and others are not binding on L.Rs., of Boraiah. It is hit by 94 lispendens. This 32 of land is absolute property of L.Rs., of Late Boraiah. The allegations of Defendants No.13 to 22 and 35 to 42 that suit schedule Item No.2(b) of Plaint-'A' Schedule belongs to them and L.Rs., of Boraiah have no right, title or interest in the said properties is absolutely false. This property also belongs to the L.Rs., of Boraiah and they are absolute owners.
The three sons of Late Chikka Huchaiah have gifted land bearing Sy. No.21/1 measuring 1 Acre 10 Guntas of Malgalu Village to their sister Girijamma under a registered Gift Deed dated 17-02-1951. C.Huchaiah has sold Survey No.71/2, measuring 1 Acre 1 Gunta to Smt. Boramma under a Sale Deed dated 22-11-1956 as per Ex.D-80. Similarly Mariyappa sold Sy.No.127/3, (Sy. No.71/2) measuring 1 Acre 4 Guntas to Smt. Boramma under a registered Sale Deed dated 05-12-1956 as per Ex.D-81. The Defendants No.13 to 22, 35 to 42 admits the alienations made under Ex.D-77, D-80 and D-81. But they dispute alienation made under Ex.D-73 which is made about three years after sale under Ex.D-80 and D-81 only with ulterior motive to knock off this property that belongs to Plaintiff and his family. They have no right, title or interest in this property. They have trespassed upon this land by alienating to various persons after the year 1997 onwards. The allegation that they are in possession 95 of this land is absolutely false. They are tress- passers during the pendency of the suit.
These Defendants submit that Defendants No.14 to 22 have filed additional Written Statement on 22-08-2003, Page No.------ Paper-book--- to the Written Statement of Defendants No.35 to 42. DW-21, was examined on behalf of Defendants No.35 to 42, Page-850 Paper-book-II. In their additional Written Statement they gave table of items of properties that were partitioned among the three sons of late Chikka Huchaiah at Para-6 of their Written Statement. The same was also in the rebuttal evidence of DW-18 dated 23-10-2003 at Page-69 and 70 of his depositions DW-18. The Defendants No.35 to 42 have denied the fact of partition as per the table referred to above. According to them "there was family oral agreement during 1954 among late Chikka Huchaiah's sons, and some properties were sold by Andanappa, Mariyappa and C.Huchaiah for the benefit of joint family. This family agreement is unfair and in founded upon false hood and misrepresentation. It cannot bind the parties. The joint family properties continue to retain the joint family character so long as the joint family character so long as the joint family properties is in existence and it is not partitioned among the co- sharers and its character does not change with the 96 severance of status of joint family. It is at Pra-9 of the deposition of DW-21. This Defendant DW-21 claims half share in all the properties as per their counter claim.
As per the rebuttal evidence of DW-18 at Page-70, Para-3 according to him as per the list allotment to each share of the three sons of Chikka Huchaiah. Andanappa was allotted 5 Acrs 29 ½ guntas plus 35 X 30 ste and 100' X 30' Site, Mariyappa was allotted 5 Acres 27 Guntas plus 35' X 30' site and C. Huchaiah was allotted 2 Acres 1½ Guntas plus 35'X30' site. This partition was made by the Defendants No.14 to 22 to suit their convenience. There is no equity of division or equal division among the three sons of Chikka Huchaiah. According to these Defendants 5 Acres 29½ Guntas plus 30'X30' site plus 100'X30' site was allotted to the share of Andanappa but C.Huchaiah was allotted 2 Acres ½ guntas and 35'X30' Site. It is not an equal division. C. Huchaiah one of the co-parcener of the joint family consisting of Chikka Huchaiah and his three sons. After the death of Chikka Huchaiah, C. Huchaiah ought to have got equal share alongwith Andanappa and Mariyappa. Hence there is no equal division of joint family properties by metes and bounds. The defendants No.35 to 42 are also disputing division of the Joint Family Properties as 97 per the Partition List of DW-18. So, the version cannot be believed. C.Huchaiah as absolute owner has alienated under Ex.D-73, 0-32 guntas of land that has fallen to his share to late Boraiah and he was put in possession of the same. The LRs of Boraiah re in continuous possession and enjoyment of 0-32 guntas of land until the purchasers from Defendants No. 14 to 22 tress- passed on lands after 1997 onwards and put up unauthorized constructions.
In respect of Sy. No.70/14 out of 30 Guntas 15 Guntas of land is fallen to the share of Andnappa and 15 Guntas fallen to the share of Mariyappa. As per Ex.D-3 and Ex.D-246, Sy. No.70/14, measures 1 Acre 4 Guntas. DW-18 has not explained what has happened to the remaining 14 Guntas in the said Survey Number. He has not disputed the 3 Items of land purchased under Ex.D-3. Similarly in respect of Survey No.70/30 - 15 Guntas of land was allotted to the share of Andanappa. But land covered under Ex.D-3 and Ex.D.246 totally measures 34 Guntas. They have to explain what has happened to balance of 0-19 guntas. But he is not disputing the land purchased under Ex.D-3. Items 5 and 6 referred to by him in the partition list in respect of Sy. No.70/14 and 70/30 is only based on the Sale Deed Ex.D-246 but he has not explained what has happened to the 98 remaining land purchased under Ex.D-3 towards the Southern side. disputing in Survey No.70/37 They are not 9 Guntas fallen to the share of Chikka Huchaiah and another 9 Guntas fallen to the share of Boraiah. DW-18 has to answer what has happened to the balance of 33 Guntas after deducting 30 Guntas in Survey No.70/14, 15 Guntas in Survey No.70/30, and 18 Guntas in Survey No.70/37. So the version of the DW-18 regarding the partition list cannot be accepted at any stretch of imagination. This DW-18 has so arranged that no land was allotted to the share of C.Huchaiah in Survey No.35/1, measuring 5 Acres 20 Guntas. He has not produced any documents to show that there was partition between the three sons of Chikka Huchaiah as per the Partition List.
Similarly Defendants No.35 to 42 though they have accepted purchase of three items of lands by Kalasappa as per Ex.D-3 and two items of land under Ex.D-246 and also acquisitions of lands of 09 guntas in Survey No.70/37 as per Ex.D-4, DW-21 failed to explain what had happen to the balance of lands purchased under Ex.D3 in respect of Southern portion of land referred to in Ex. D-246. In the Counter claim filed by these Defendants in respect of Survey No.70/30 and Sy. No.70/14. The Southern boundaries is mentioned as balance of land in the same survey numbers. The balance of land referred 99 to by the Defendants on the Southern side is the land that was allotted to the share of Chikka Huchaiah and the land claimed by these Defendants being the Northern portion in the land allotted to the share of late Boraiah.
There was a partition suit filed in O.S.No.3561/1985 between Mariyappa and his sons. The Plaint copy is marked as Ex.D-237. At Page-1818, Paper Book- V. In that suit in respect of Survey No.70/14, the Northern boundaries mentioned as Land of K.Boraiah, the Land referred to K.Boraiah is Northern portion of land allotted to the share of K.Boraiah in the oral partition between him and his elder brother Chikka Huchaiah. In O.S. No.3561/1985 there was compromise petition entered into between the parties to the said Suit. In that Compromise Petition in respect of Survey No.70/14 Northern boundary is mentioned as land of Boraiah. So, these Defendants have proved that under Ex.D-3, D-4 and D-246 in Sy. No.70/14-1 Acre 4 Guntas; in Sy. No. 70/30 34 Guntas, Sy. No.70/37-18 Guntas of land was acquired by the joint family constituting Kalasappa, Chikka Huchaiah and Boraiah and in the said oral partition 1(a) and 1(b) both totally measuring 4 Acres 10 Guntas; 2(a), 10 and 11 of Plaint-'A' Schedule Item No.1 of 'B' Schedule along with other properties have fallen to the share of Boraiah. Item 100 No.2(b) properties was purchased by Boraiah under Ex.D-73. So, Plaintiff, Defendants No.1 to 6 are absolute owners of the above said properties. The Defendants No.13 to 22 and 35 to 42 have no right, title or interest over 1(a), 1(b), 2(a), 2(b), 10 and 11 of 'A' Schedule and Item No.1 of 'B' Schedule. The suit has to be decreed against these Defendants and the claim of the said Defendants over the said properties has to be rejected. The Defendants No.13 to 22 and 35 to 42 after alienating the properties allotted to their share by taking advantage of pendency of the suit and as legal representative of Late Chikka Huchaiah they themselves impleaded in this suit and are illegally claiming that the said properties are self acquired properties of late Chikkhuchaiah and LRs of Boraiah have no right, title or interest over the said property.
The Defendants No.23 to 27 have purchased sites out of 32 Guntas covered under Ex.D-73 after 1997 from Defendants No.14 to 22 under Exhibits D- 175 to D-178 during the pendency of the suit. The alienation made to them hit by lispendens. The said alienations are not binding on all the legal heirs of late Boraiah that is Plaintiff, Defendants No.1 to 6. The suit has to be decreed against the Defendants No.23 to 27.
101Regarding Revenue proceedings DW-18 referred to Ex.D-140 the Orders of the Tahsildar and Ex.D-141 the orders of the Assistant Commissioner. There is another set of Revenue proceedings as per Ex.D-83, Page- 1260, Paper-Book-III orders of the Assistant Commissioner, in R.A. No.155/1993 and orders of the Special Deputy Commissioner as per Ex.D-160, at Page-1666, Paper-Book-IV in the Revision Petition No.201/1999-2000 dated 09- 01-2003. It is clearly observed in Ex.D-160 as at Page-10 if at all parties are aggrieved they are at liberty to get their right, title settled before the Civil Court and not in the mutation proceedings. It is settled principles of law and rules that mere entries in revenue records do not confirm any conclusive right and title over the properties. They are always subject to the decision of the Civil Court. After decision of Civil Court the parties are at liberty to approach the revenue authorities for such action as may be warranted in accordance with law... "Further it is ordered to maintain the Revenue Records as ordered by the Tahsildar in RRT.CR.53/87-88 dated 11-10-1988 and continue the entries effected in M.R. No.25/1988-89 dated 28-12-1988."
To conclude arguments against D-13 to D-22 and D-35 to D-42 the Defendants have produced:
a. Ex.D-54 and D-55 Rough notes and rough Palupatti i.e., Partition notes;102
b. Ex.D-10 - Marada Palupatti;
c. Ex.D-78 And 79 Properties sold to B.E.M.L. Society;
d. Ex.D-46 and Ex.D-47-Plaint and Decree copy in O.S. No. 1435/1980;
e. Ex.D-48 and D-76 Sale Deeds of adjacent owners;
f. Ex.D-3, D-4, D-246 and D-5 - The Sale Deeds.
Ex.D-75 Attlas of Sy. No. 70/13, 14, 15, Page No.1226, Paper Book-III. Palupatti and statements of C. Huchaiah as per Ex.D-158, D-82, D-89, D-126 and Written Statement of Defendant No.43 clearly established that Plain Schedule-1(a), 1(b), 2(a), 10 and 11 of Plaint 'A Schedule, Item No.1 of 'B' Schedule fallen to the share of late Boraiah and Item No.2(b) of Plaint 'A' Schedule was acquired by Boraiah under Ex.D-73. Late Boraiah and his legal heirs are in possession of the above said items of land. And Defendants No.13 to 22 and 35 to 42 have no right, title or interest or in possession of the above said lands.
EX.D-54 AND EX.D-55 ARE ROUGH NOTE PREPARED AT THE TIME OF PARTITION TO SHOW THAT THERE WAS FOURTEEN ITEMS OF PROPERTIES WHICH ARE SUBJECT MATTER OF PARTITION. BUT, THE PARTITION WAS NOT 103 EFFECTED AS PER THE NOTES OF PALUPATTI AS PER EX.D-55 AND EX.D-56.
WHEREFORE, Defendants No.4 prays that the Hon'ble Court be pleased to reject the claim of the Defendants No.13 to 22 and Defendants No.35 to 42 in respect of Plaint Schedule 1(a), 1(b), 2(a), 2(b), 10 and 11 of the Plaint-'A' Schedule Properties; Item No.1 in 'B' Schedule Property and decree the suit in respect of the said properties in favour of the Plaintiff and Defendants No.1 to 6 in the interest of justice and equity.
Sd/-
ADVOCATE FOR RESPONDENT NO.4"
27. In the light of the material on record and written arguments filed by the parties, following points would arise for consideration:
1) Whether the appellants have made out a case that the disputed properties are the self acquired properties of Chikka Huchaiah and therefore, the suit needs to be dismissed as against the disputed properties as is contained in Issue No. 5?
2) Whether the impugned judgment is suffering from legal infirmity or perversity and thus calls for interference?104
3) What order?
Regarding point Nos.1 and 2:
28. This Court has considered the material evidence on record meticulously in the light of the arguments put forth on behalf of the parties. On such consideration, it is crystal clear that defendant Nos.13 to 22 who are the appellants are the only persons who are now pursuing the appeal and all other parties have settled the dispute inter se by filing compromise petition.
29. On re-appreciating the pleadings and evidence on record, it is pertinent to note that there is no proper pleading on behalf of defendant Nos.14 to 22 that Chikka Huchaiah had sufficient money to acquire disputed properties.
30. Presumption in law is available in favour of the plaintiff that all the properties earned by the respective parties when they are the members of the joint family are 105 to be treated as joint family properties. No doubt, such a presumption is a rebuttable presumption.
31. In respect of the disputed properties, how they have been acquired and what are the documents by which the properties are acquired is mentioned in the table supra.
On perusal of the documents mentioned in the table, all the sale deeds are prior to the partition between Chikka Huchaiah and Boraiah.
32. On perusal of plaint averments, it is observed that not only there is lack of pleadings, but also proper and cogent evidence placed on behalf of plaintiff as to how Chikka Huchaiah acquired disputed properties. However, since at the time of acquisition of disputed properties, Chikka Huchaiah was a member of joint family, it should be presumed that the disputed properties are also the joint family properties.
33. In order to rebut the presumption, defendant No.16 is examined as D.W.18 on behalf of defendant Nos.13 to 106
22. He filed affidavit in lieu of examination in chief practically reiterating the contents of written statement on 09.09.2002 at the first instance. In his examination in chief D.W.18 has specifically maintained that disputed properties are the self acquired properties of Chikka Huchaiah.
34. It is pertinent to note that D.W.18 is aged 42 years as on the date of deposition i.e., 09.09.2002. Therefore, his year of birth may be 1953 or 1954.
35. Admittedly, D.W.18 could not have any personal knowledge about how Chikka Huchaiah acquired the property. Therefore, he has deposed that he got the information about the self acquisition of the disputed property by Chikka Huchaiah based on the information received from his father (defendant No.13). No affidavit has been filed by defendant No.13 when he was alive in this regard.
10736. It is also pertinent to note that in the written statement the income for acquiring the disputed properties is not mentioned. In the affidavit for the first time, D.W.18 has stated that Chikka Huchaiah had income from sale of Ragi, Paddy and Soap nut. What was the income that was actually derived from such business is not forthcoming in the evidence of D.W.18. Was there sufficient income after meeting the day to day needs, whereby Chikka Huchaiah bought the disputed properties is also a question that needs to be explained by appellants.
37. D.W.18 has categorically admitted in his cross-
examination dated 29.11.2002 that from the income generated from cultivating properties in Sy.No.70/37 of Kamakshipalya, Sy.No.5 of Sajjepalya, Sy.No.37 of Saneguruvanahalli, other properties were purchased, but in the name of Chikka Huchaiah.
38. He also admits that in respect of Sy.No.35, there was a partition between Andanappa, Mariyappa and Huchaiah. It is pertinent to note that Andanappa is none 108 other than father of D.W.18. He admits that in the said partition, half portion measuring 100 feet x 30 feet is retained by his father Andanappa. D.W.18 also admits the suggestion that he has not seen any document in respect of the partition in the year 1933 between Boraiah and Chikka Huchaiah.
39. D.W.18 categorically admitted that Sy.Nos.33/5, 33/19 and 33/29 of Saneguruvanahalli village were sold to BEML society for a consideration of sum of Rs.65,000/-.
However, he denies having received the consideration, but he was only made to sign the said document. He admits that the said land was sold for meeting the marriage expenses of defendant No.4. He also admits that few of the lands were acquired by BDA and pendency of proceedings in respect of receiving the compensation. He has further admitted that he is claiming that the land in Sy.No.70/37 of Kamakshipalya is the self acquired property of Chikka Huchaiah on the basis of his possession.
10940. D.W.18 also admitted the suggestion that after the year 1932-33, Chikka Huchaiah till his death did not acquire any other property.
41. The trial Court no doubt considered the above evidence, especially the recitals found in Ex.P.13 which is the sale deed dated 28.02.1975 where under Sy.No.33/29 and Sy.No.33/19 of Saneguruvanahalli village was sold to BEML society. In paragraph No.42 of the impugned judgment, the trial Court has also extracted the relevant portion in Ex.P.13. In fact, similar recitals were also found in Ex.P.14.
42. These aspects of the matter has been taken note of by the learned trial Judge while holding that the disputed properties are also the joint family properties.
43. On cumulative consideration of oral and documentary evidence on record, especially the admissions given by D.W.18 it is crystal clear that in the impugned judgment, except mentioning in paragraph No.40 about 110 the documents, there is no discussion as to what is the probative value of those documents vis-à-vis claim of defendant Nos.14 to 22.
44. Learned trial Judge has come to the conclusion that there is no pleading with regard to income possessed by Chikka Huchaiah by selling Ragi, Pady and Soap nut purchased from Magadi Town and being sold at Bengaluru.
However, in the page No.46 at paragraph No.2 of his cross-examination, D.W.18 has admitted that after the year 1932-33 Chikka Huuchaiah did not purchase any properties. D.W.18 is cross-examined at length on different occasions running into more than 50 pages.
45. In the impugned judgment, the trial Court has only picked chosen few admissions and disbelieved the case of the appellants without there being a thorough discussion of the oral and documentary evidence on record placed on behalf of Appellant. For example, what is the effect of Ex.D.55 is not properly considered by the learned trial Judge. Much has been discussed about the contents of 111 Exs.P.13 and P.14. However, the explanation offered by D.W.18 in this regard is totally ignored by the learned trial Judge in the impugned judgment.
46. No doubt, the learned trial Judge has clearly recorded a finding that there is no pleading with regard to the independent income possessed by Sri Chikka Huchaiah. But, in the further examination in chief of D.W.18 by way of second affidavit which is filed on 22.10.2003, D.W.18 has deposed about the partition that has taken place between his father Andanappa, younger brother Mariyappa and C. Huchaiah, who are the sons of Chikka Huchaiah. In that regard, he has referred to a table where under the property possessed by Chikka Huchaiah is divided amongst Andanappa, Mariyappa and C. Huchaiah. The father and uncles of D.W.18 have also transacted as per the said table.
47. Yet again D.W.18 has been examined further by filing an affidavit on 29.01.2004. In the said affidavit, details has to how 43rd defendant Smt. Gowramma filed 112 written statement and how it is not acceptable. The cross-
examination with regard to those two affidavits are not even mentioned in the impugned judgment much less discussing the evidence in detail.
48. On 08.10.2004 again D.W.18 filed one more affidavit in lieu of further examination in chief where under he has brought to the notice of the Court about 35th defendant selling the site in Sy.No.38 to Smt. Sujatha. Mariyappa selling another site in Sy.No.38 to Kodandaramaiah. It is also brought to the notice of the Court that defendant Nos.36 to 40, who are the children of Mariyappa being the consenting witnesses. By placing those sale deeds on record D.W.18 wanted to establish that there was a partition as is stated by him in the affidavit dated 23.10.2003.
49. In respect of further examination in chief, there is no cross-examination by other defendants.
11350. Effect of the further examination in chief of D.W.18 is not discussed by the learned trial Judge in the impugned judgment. In other words, those affidavits styled themselves as rebuttal evidence.
51. In the impugned judgment, the learned trial Judge was duty bound to consider whether the examination-in-
chief, cross-examination placed by D.W.18 was sufficient enough to rebut the evidence placed by the plaintiff on record.
52. In the back drop of above discussion, there is sufficient force in the argument put forward on behalf of the appellants that the learned trial Judge ought not to have come to the conclusion that since the plaintiff has successfully established that the suit properties are joint family properties and therefore, issue with regard to the self acquisition of disputed properties are held against the appellants is incorrect.
11453. Further, even according to the plaintiff, Ex.D.55 is not acted upon. If it is so, how Boraiah enjoyed the properties as mentioned in Ex.D.55 is a question that remains unanswered. Further, there is no proper cross-
examination in respect of Ex.D.55 on behalf of the plaintiffs. Some of the documents produced and exhibited on record are not even adverted to in the impugned judgment by the learned trial Judge, let alone, considering its probative value and bearing on the rival claims.
54. Therefore, a case is made out by appellants for interference in this appeal. In the paper book and the memo dated 27.10.2022 though the typed copy of contents of Ex.D.55 has been provided, on comparison with original of Ex.D.55, this Court is of the opinion that the typed copy of the paper book and the typed copy provided on the memo by the counsel for the appellant do not tally exactly with the contents of Ex.D.55. When Ex.D.55 is not properly readable and no proper typed copy is provided before the trial Court, how the trial Court 115 appreciated Ex.D.55 is again a question, which needs consideration at the hands of this Court.
55. The material on record also discloses that it was not the plaintiff who has actively contested the suit, but it is the fourth defendant. Amendment to the written statement of fourth defendant more than once is a classic example in that regard.
56. Learned trial Judge failed to note the contentions raised on behalf of defendant Nos.14 to 22 in this regard.
The vakalaths filed and exhibited on behalf of the defendants trying to establish that there is active collusion between plaintiff and fourth defendant is not even considered by the learned trial Judge in the impugned judgment, let alone, appreciating the said aspect while deciding the rival claims.
57. The trial court was duty bound to consider the rebuttal evidence while answering issue No.5. In the impugned judgment, no such detailed discussion has been 116 made as to the rebuttal evidence placed on record by D.W.18 on 22.10.2003, 29.01.2004 and 08.10.2004.
58. Therefore, issue No.5 raised in the suit by the trial Court needs reconsideration in the light of the rebuttal evidence placed on record by D.W.18 on behalf of defendant No.14 to 22.
59. Non consideration of the material on record properly by the trial Court, therefore is to be held as legally impermissible and to that extent finding recorded by the trial Court on issue No.5 is to be termed as perverse, calling for interference from this Court in this appeal by exercising the powers vested in this Court under Section 96 of the Code of Civil Procedure.
60. In view of the foregoing discussion, this Court is of the considered opinion that the finding recorded by the learned trial Judge needs to be set aside.
61. Having said so, since there is no proper appreciation evidence on record especially while deciding the issue No.5 117 and answering issue No.1 in favour of the plaintiff and resultantly answering issue No.5 in the negative is not proper approach by the trial Court.
62. As such, need has arisen to remit the matter to the trial Court for answering issue No.5 by rehearing the parties on the evidence already placed on record. Such a limited remand would not only meet the ends of justice, but also serves the interest of the parties in its proper perspective.
63. This Court has also noticed few factual mistakes in the written arguments filed by both the parties. However, the same is not adverted to in detail, as embarking upon those mistakes and record a finding thereon would prejudice the rights of the parties when the fresh hearing taken place before the trial Court.
64. Since this court is remitting the matter to the trial Court for fresh consideration on issue No.5, detailed discussion on to the principles of law enunciated in the 118 decisions relied on by the parties are not necessary.
Therefore, no detailed discussion is made with regard to the same in this judgment.
Accordingly, point Nos.1 and 2 are answered partly in the affirmative.
Regarding Point No.3:
65. In view of findings of this Court on point Nos.1 and 2, following order is passed:
ORDER Appeal is allowed in part.
Impugned judgment and decree insofar as 'disputed properties' referred to supra is set aside.
Matter remitted to the trial Court for recording a fresh finding on the issue No.5 supra by affording sufficient opportunities for both the parties to address the arguments only.
It is made clear that this Court has not permitted to lead additional evidence on issue No.5.119
So also this Court has not expressed any opinion on the merits of the matter insofar on Issue No.5.
Parties are directed to appear before the trial Court without further notice on 16th January, 2024.
Taking note of the fact that suit is of the year 1980 (renumbered), trial Court may expedite the matter and conclude the same on or before 30th June, 2024.
Ordered accordingly.
Sd/-
JUDGE MR