Karnataka High Court
Timma Beera Gowda vs Manja Beera Gowda on 5 November, 2020
Author: V.Srishananda
Bench: V. Srishananda
-1-
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 5TH DAY OF NOVEMBER 2020
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
RSA NO.5907/2012(PERM INJ)
BETWEEN
TIMMA BEERA GOWDA,
AGED ABOUT: 65 YEARS,
OCC: AGRICULTURIST,
R/O: GOPUR VILLAGE,
TQ: SIRSI, DIST: KARWAR-581401.
..APPELLANT
(BY SRI. VIJAYKUMAR B. HARATTI, ADV.)
AND
1. MANJA BEERA GOWDA,
AGE: 59 YEARS, OCC: AGRICULTURIST,
R/O: GOPUR VILLAGE, TQ: SIRSI,
DIST: KARWAR-581401.
2. ISHWAR BEERA GOWDA,
AGE: 57 YEARS, OCC: AGRICULTURIST,
R/O: GOPUR VILLAGE, TQ: SIRSI,
DIST: KARWAR-581401.
...RESPONDENTS
(BY SRI. GIRISH YADWAD, ADV FOR
SRI.V.P.KULKARNI, ADV FOR R1 AND R2)
THIS RSA FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGEMENT AND DECREE DATED
18.03.2011 PASSED IN R.A.NO.86/2006 ON THE FILE OF
THE SENIOR CIVIL JUDGE, SIRSI DISMISSING THE
APPEAL FILED AGAINST THE JUDGMENT DATED
-2-
11.08.2006 AND THE DECREE PASSED IN
OS.NO.112/1999 ON THE FILE OF THE CIVIL JUDGE
(JR.DN), SIRSI DISMISSING THE SUIT FILED FOR
PERMANENT INJUNCTION.
THIS RSA IS COMING ON FOR ADMISSION, THIS
DAY, COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though this appeal is listed for admission, with the consent of learned counsel for the parties, is taken up for final disposal.
2. Plaintiff is in second appeal questioning the judgment and decree dated 11.08.2006 passed in O.S.No.112/1999 by the Civil Judge (Jr.Dn) Sirsi dismissing the suit of the plaintiff which was confirmed in R.A.No.86/2006 by the judgment and decree dated 18.03.2011 passed by the Senior Civil Judge, Sirsi.
3. The brief facts, which are necessary for disposal of the appeal are as under:
Plaintiff filed O.S.No.112/1999 with a prayer that suit schedule property bearing Sy.No.338+1+2+3 fallen -3- to the share of the plaintiff in the registered memorandum of partition dated 23.11.1993 and sought for order of injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit property.
4. It is the specific case of the plaintiff that the suit schedule properties are joint family properties and for the purpose of carrying out the religious activities, there was registered partition between the father of the plaintiff in the year 1985 and defendants have no right whatsoever in respect of suit properties and despite the same, defendants interfered with suit schedule properties and therefore necessity arose to file suit seeking the prayer of declaration and injunction.
5. In the suit, in pursuance of the summons issued, defendants appeared and denied the plaint averments in toto.
-4-
6. The trial Court raised the following issues.
1)Whether the plaintiff proves that he is the owner of the suit property as per the Registered partition deed dated 23.11.1993?
2) Whether the plaintiff proves his possession and enjoyment of the suit property on the date of suit?
3) Whether the suit is barred by Limitation ?
4) Whether the suit is bad for non-
joinder of necessary parties?
5) Whether the plaintiff is entitled for the relief claimed in the suit?
6) What order or decree?
7. In order to prove the case of the plaintiff, plaintiff got examined himself as PW1 and relied on documentary evidence, which were exhibited and marked as Ex.P1 to P4. On behalf of plaintiff, one Lohit Rama Naik got examined as PW2.
-5-
8. To counter the evidence of plaintiff, first defendant got examined himself as DW1 and one Gunavant Rama Gouda got examined as DW2. On behalf of defendants, record of right extracts were exhibited and marked as Ex.D1 and D2.
9. Learned trial Judge after considering the oral and documentary evidence on record, dismissed the suit of the plaintiff on the ground that the family arrangement said to have taken place in the year 1985 between the father of the plaintiff and plaintiff is not produced and therefore, the plaintiff was failed to establish title to the suit property.
10. Being aggrieved by the judgement of the trial court, plaintiff filed an appeal before the Civil Judge Senior Division in R.A. No.86/2006.
11. In the appeal, learned First Appellate Court secured the trial court records and after providing ample opportunity to the parties to address their -6- arguments, passed the judgment on 18.03.2011 confirming the decree of the trial court, whereby the suit of the plaintiff came to be dismissed.
12. It is that judgment which is under challenge in this appeal.
13. In the memorandum of appeal, following substantial questions of law are raised:
1. Whether the courts below have completely missed the scope and ambit of the suit?
2. Whether the judgment and decree passed by the lower appellate court is vitiated for non-consideration of evidence on record?
3. Whether the court below are justified in disbelieving partition deed produced at Ex.P-4 and further in drawing adverse inference against the appellant for not producing the deed of 1985?-7-
4. Whether the courts below are justified in misconstruing the documents and in holding that Appellant/plaintiff is not in possession of the suit property?
14. Heard Sri. Vijaykumar, learned counsel for the appellant and Sri. Girish Yadwad, learned counsel appearing on behalf of Sri. V.P. Kulkarni for respondent Nos.1 and 2.
15. It is an admitted fact that the suit came to be filed by the plaintiff basing his title on the memorandum of partition which took place between himself and his father in the year 1985. However, another partition deed came to be registered on 23.11.1993.
16. In the registered memorandum of partition deed dated 23.11.1993 which is produced and marked as Ex.P4, there is no mention as to the earlier arrangement made in the year 1985 between the father -8- of the plaintiff and plaintiff. In fact, in para No.4 of the plaint itself, plaintiff has stated about such a registered family arrangement that has been taken place in the year 1985 between him and his father.
17. Even the defendants' claim is also based on the family arrangement for the religious purpose that has taken place in the year 1985. When such being the situation, what prevented the plaintiff to produce the family arrangement that has taken place in the year 1985 and what prompted the father of the plaintiff and plaintiff to execute one more memorandum of partition deed in the year 1993 vide Ex.P4, excluding the defendants, is a question that remains unanswered by the plaintiff before the trial court.
18. Plaintiff should have produced the document-memorandum of partition, which is said to have been taken place in the year 1985 at least before the First Appellate Court especially after the judgment -9- came to be passed in the trial court clearly opining that the right to seek for the relief as to the earlier family arrangement as is pleaded in para No.4 of the plaint itself, no explanation is forthcoming as to what steps have been taken by the plaintiffs to cure the deficiency.
19. When the plaintiff failed to establish as to what is the share that has been allotted to him in the memorandum of partition in the year 1985 and deriving from the arrangement that has taken place in the year 1985, father of the plaintiff registering one more document in the year 1993 excluding the defendants who are none other than the brothers of the plaintiff in respect of the suit property is question which also remained unanswered before both the courts.
20. Further, the defendants are not parties to Ex.P4 and it is an admitted fact that the property involved in Ex.P4 is not the individual property of the -10- father of the plaintiff. Therefore, in Ex.P4, plaintiff did not derive any exclusive title to the suit property.
In view of the foregoing discussion, this court do not find merit in the substantial questions raised in the appeal memorandum as such, they do not require further consideration. Hence, following order is passed :
ORDER Appeal is meritless and is hereby dismissed.
No order as to costs.
Sd/-
JUDGE VB/Para Nos.1 to 6 MNS/Para Nos.7 to till end.