Karnataka High Court
T P Mangala vs Papashetty on 28 February, 2014
Bench: K.L.Manjunath, Ravi Malimath
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 28TH DAY OF FEBRUARY 2014
PRESENT
THE HON'BLE MR.JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR.JUSTICE RAVI MALIMATH
REGULAR FIRST APPEAL NO.165 OF 2012
BETWEEN:
1. T.P.Mangala
W/o Srinivasa
Aged about 29 years
Advocate
Mysore - 570 001.
2. T.P.Latha
W/o Raghavendra
Aged about 27 years
R/o No.100, 1st Cross,
Raghava Nagar,
N.T.V.Extension,
Bangalore - 560 010.
2
3. T.P.Geetha
D/o Papashetty
Aged about 25 years
4. T.P.Shashidhara
S/o Papashetty
Aged about 22 years
Appellants 3 and 4 are
R/o Thirumalapura Village,
Kasaba Hobli,
Pandavapura Taluk,
Mandya District - 571 401. ...APPELLANTS
(By Sri P.Prasanna Kumar, Advocate for M/s.HBC
Associates, Advocates)
AND:
1. Papashetty
S/o Muttushetty
Aged about 63 years
R/o Thirumalapura Village,
Kasaba Hobli,
Pandavapura Taluk,
Mandya District - 571 401.
2. Vijayakumari
W/o Muddegowda
Aged about 48 years
R/o Shanthinagar
Pandavapura Town,
Pandavapura,
Mandya District - 571 401. ...RESPONDENTS
3
*****
This RFA is filed under Section 96 of CPC, against
the judgment and decree dated 22.10.2011 passed in
O.S.No.19/2012 on the file of the Civil Judge(Sr.Dn.),
JMFC and MACT at Pandavapura, decreeing the suit for
partition and separate possession.
This RFA coming on for admission this day,
K.L.Manjunath J., delivered the following:-
JUDGMENT
The appellant were the plaintiffs in O.S. No.19/2010, on the file of the Civil Judge (Senior Division), Pandavapura. Being not satisfied with the decree granted to them on 22.10.2011, the present appeal is filed.
2. The facts leading to this appeal are as here under:
The plaintiffs are the children of the first defendant. According to them, the suit properties are the joint family properties and were allotted to the first defendant under a registered partition deed dated 4 21.06.2000 and that the suit properties are very fertile and they were getting sufficient income which is more than the requirements of the family. The first defendant having addicted to bad vices had entered into an agreement to sell the suit item no.7. Based on the same, the second defendant filed a suit in O.S. No.49/2004 for specific performance of the contract. The suit filed by the second defendant against the first defendant came to be decreed.
3. Aggrieved by the same, the first defendant had filed an appeal in R.A. No.95/2007, which also came to be dismissed and the judgment and decree passed in O.S. No.49/2004 has been confirmed by this Court in RSA No.997/2009. After the dismissal of the R.A. the plaintiffs filed a suit for partition and separate possession of their 4/5th share in the suit schedule properties. The first defendant did not contest the case. The second defendant contested the case contending 5 that the first defendant was not addicted to bad vices and he has agreed to sell the suit time no.7 in her favour for a valuable consideration, for the legal necessity of the joint family and in order to overcome the judgment and decree passed in O.S. No.49/2004 , which has been confirmed by this Court in RSA No.997/2000 the plaintiff's have been set up by their father and that the suit filed by the plaintiff was not maintainable. Based on the above pleadings, the following issues were framed by the court below:
"i. Whether plaintiffs prove that, all the suit properties are joint family properties of plaintiffs and defendants and they are in joint possession of the same?
ii. Whether they further proves that sale in favour of defendant no.1 is not binding on them?
iii. Whether defendant no.2 proves that, she purchased item no.7 of the suit 6 properties from defendant no.1 for valuable consideration on the basis of which she became the owner of said land and she is in possession of the same?
iv. Whether plaintiffs are entitled for partition and separate possession as claimed?
v. What order or decree?"
4. In order to prove their respective contentions the first plaintiff who is also an Advocate was examined as PW1, he had relied upon Exhibits PW-1 to PW-13. The second defendant got examined herself as DW-1 and she relied upon Exhibits - D1 to D5.
5. The trial court after considering the entire issues let in by the parties held issue nos.1 to 14 in negative and ultimately, the suit came to be decreed 7 declaring that the plaintiffs are entitled for 4/5th share in all the suit schedule properties.
6. The trial court further held that considering the nature of the decree obtained by the second defendant against the first defendant, the share of the plaintiff's shall be carved out in all properties excluding property in item no.7/1, which shall be allotted to the share of the first defendant in order to protect the interest of the second defendant-purchaser. Being not satisfied with the decree granted to them contending that the trial court was also required to grant a decree in respect of suit no.7, the present appeal is filed.
7. We have heard the learned counsel for the appellant. The main contention of the appellant is that the value of the property in item no.7 is much more of the value of other properties. Therefore, the trial court could not have excluded item no.7 to the plaintiff's 8 share. In the circumstances, he requests the Court to set-aside the judgment and decree of the trial court by allowing this appeal.
8. After hearing the counsel for the appellant and on perusal of the nature of the properties involved in this suit, we have noticed that all the properties are situated within Pandavapura town limits and outskirts of Pandavapura. Suit item no.1 is measuring 20 acres of land, which is wet land, suit item no.2 is 25 guntas of land, suit item no.3 is a non-residential property measuring 100 x 35, where a sugarcane crushing machine is installed. Similarly, suit item no.4 is a site measuring 40 x 35 feet, suit item no.5 is another residential house measuring 42 x 29 feet, suit item no.6 is also site measuring 74 x 9 feet, suit item no.8 is an agricultural land measuring 1.40 hectares and even suit no.8B is measuring 2 acres, 20 guntas. If the value of these properties are taken into consideration, the value 9 of item no.7 cannot be morethan the share of the plaintiff's. Item no.7, is a residential house measuring 35 x 40 feet .
9. Therefore, viewed from any angle the value of the property bearing suit no.7 would be less than 1/5th of first defendant's share. In the circumstances, we do not find any merit in this appeal. Accordingly, the appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE JJ/-