Karnataka High Court
Rangappa @ Benne Rangappa vs C N Ramakrishna on 25 September, 2012
Author: B.Manohar
Bench: B.Manohar
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 25TH DAY OF SEPTEMBER 2012
BEFORE
THE HON'BLE MR. JUSTICE B.MANOHAR
RSA No.732/2006
BETWEEN :
RANGAPPA @ BENNE RANGAPPA
SINCE DECEASED BY HIS LRS
1(a) SMT.GANGAMMA,
W/O.LATE RANGAPPA,
AGED ABOUT 65 YEARS.
1(b) SRI.R.SHIVANNA,
S/O.LATE RANGAPPA,
AGED ABOUT 44 YEARS.
1(c) SMT TANGAMMA,
W/O.R.RANGASWAMY,
AGED ABOUT 46 YEARS.
1(d) SMT.R.SHANTHAMMA,
W/O.G.D.JAMBUNATH,
AGED ABOUT 38 YEARS.
ALL ARE RESIDENTS OF GANJIGATTI
PANDARAHALLI POST,
CHITRADURGA TALUK & DISTRICT. ...APPELLANTS
(BY SRI.B.M.SIDDAPPA, ADVOCATE)
2
AND:
1. C.N.RAMAKRISHNA
SINCE DECEASED BY HIS LRS
1(a) SMT.KRISHNAVENAMMA,
W/O.LATE C.N.RAMAKRISHNA,
AGED ABOUT 70 YEARS.
1(b) SRI.CHANDRASHEKAR,
S/O.LATE C.N.RAMAKRISHNA
AGED ABOUT 50 YEARS0
1(c) SRI.RAJASHEKAR,
S/O.LATE C.N.RAMAKRISHNA
AGED ABOUT 48 YEARS.
1(d) SRI.INDUSHEKAR,
S/O.LATE C.N.RAMAKRISHNA
AGED ABOUT 46 YEARS.
1(e) NAGAREKAH,
D/O.LATE C.N.RAMAKRISHNA
AGED ABOUT 37 YEARS.
ALL ARE RESIDING AT JOGIMATTI ROAD,
CHITRADURGA TALUK & DISTRICT,
PIN CODE - 577 501.
2. C. NAGAPPA
S/O C RAMAJETTI
AGE NOT KNOWN
R/O MALLIDIHALLI
HOLALKERE,
CHITRADURGA-577 501.
3. C.R.THIPPA JETTI
S/O C RAMAJETTI
AGE NOT KNOWN,
3
R/O RAMAKRISHNA ASHRAMA
V V PURAM,
MYSORE - 570 001.
4. C.K.SHARADA
W/O LATE C.R.KRISHNAMURTHY
AGED ABOUT 64 YEARS
5. C.K.RAVI
S/O V R KRISHNA MURTHY
AGED ABOUT 50 YEARS.
6. C.K.SHASHI VARMA
S/O C.R.KRISHNAMURTHY
AGED ABOUT 44 YEARS
RESPONDENTS NO.4 TO 6 ARE FORMAL
AND NECESSARY PARTIES TO THIS APPEAL.
7. C.K.PRABHAKARA
S/O C.R.KESHVAMURTHY
AGED ABOUT 34 YEARS
RESIDING AT DODDAPET,
NEAR RANGAIAHNA BAGILLU
CHITARDURGA - 577 501.
8. C.K.PRABHAKARA
S/O C.R.KESHVAMURTHY
AGED ABOUT 34 YEARS
RESIDING AT DODDAPET,
NEAR RANGAIAHNA BAGILLU
CHITRADURGA - 577 501.
9. NAGARAJA
S/O SHAMANNA
AGE: MAJOR, SCHOOL MASTER,
RESIDING AT DODDAPET,
NEAR RANGAIAHNA BAGILLU,
CHITRADURGA.
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10. ADIGIRI
S/O.SHAMANNA
AGE: MAJOR,
R/O ARTISAN TRAINING CENTRE
CHANNAPATTANA,
BANGALORE DISTRICT-571 501.
NAGARATHNAMMA
W/O VENKATARAMANA JETTY
SINCE DECEASED BY HIS LRS
11. MADHUSUDHANA
S/O VENKATARAMANA JETTY
RESIDING NEAR RAILWAY STATION
CHITRADURGA- 577 501.
12. C.V.MANJUNATH
S/O LATE VENKATARAMANA JETTY
POLICE CONSTABLE
HUNASUR POLICE STATION
HUNSUR-571 105.
13. ANNAPPA
S/O LATE VENKATARAMANA JETTY
14. LEELAVATHI
D/O LATE VENKATARAMANA JETTY
15. BHAGYA
W/O KRISHNAPPA
HINDI TEACHER,
ALAGALAGATTA
GUBBI TALUK,
TUMKUR DISTRICT.
16. DEVAKI
D/O VENKATARAMANA JETTY
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17. LATHA
D/O VENKATARAMANA JETTY
18. VANI
D/O VENKATARAMANA JETTY
ALL ARE MAJORS AND
RESPONDENTS NO.11 & 13 TO 18
ARE RESIDENTS OF JOGIMATTI ROAD
CHITRADURGA TOWN - 577 501. ...RESPONDENTS
(BY SRI.S.SIDDAPPA, ADV FOR R1[A-E]
SRI.RAVINDRA & SRI.RAJANNA, ADVS FOR R11 & 14,
R2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13, 15, 16, 17 & R18 ARE SERVICE
H/S V/O DATED 21/09/2011)
RSA FILED U/S. 100 OF CPC AGAINST THE JUDGMENT
AND DECREE DATED 28.11.2005 PASSED IN RA.NO.116/2004
ON THE FILE OF THE ADDL. DIST. JUDGE, FAST TRACK
COURT, CHITRADURGA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED
19.2.1998 PASSED IN O.S.NO.593/1989 ON THE FILE OF THE
CIVIL JUDGE (JR.DN.) CHITRADURGA.
THIS APPEAL COMING ON FOR HEARING THIS THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Appellant who is the first defendant in O.S.No.593/1989 has filed this appeal challenging the judgment and decree dated 28-11-2005 made in R.A.No.116/2004 passed by the Additional District Judge, Fast Track Court, Chitradurga dismissing the appeal filed by the appellant herein confirming the judgment and decree 19-2-1998 passed by the Additional Civil Judge (Jr.Dn.) at 6 Chitradurga.
2. The plaintiff-first respondent herein filed a suit seeking for declaration declaring that he is entitled for half share in the suit schedule properties and also for partition and separate possession of the same. In the plaint, it was contended that the suit schedule property is the ancestral property of the plaintiff and defendants 2 to
11. Originally, T.Govinda Jetty is the original propositus of the joint family. He had two sons by name Subba Jettappa and Thimma Jettappa. Thimma Jettappa had three children by name Putta Jettappa, Malla Jettappa and Sesha Jettappa. Plaintiff is the son of Malla Jettappa. Subba Jettappa had two children by name Rama Jettappa and Thippa Jettappa. The suit schedule property was enjoyed by Subba Jettappa and Thimma Jettappa half share equally. The son of Subba Jettappa by name Thippa Jettappa after taking his 1/4th share in the suit schedule property has relinquished his right in respect of other properties in favour of his brother Rama Jettappa as per the registered relinquishment deed dated 26-7-1945. Thippa Jettappa had no issues. The property obtained through relinquishment deed has been bequeathed in favour of the 11 th defendant who is the wife of Venkataramanappa who is the son of 7 Malla Jettappa as per the registered Will dated 26-5-1946. Rama Jettappa had six children. Defendants 2 and 3 are the children of Rama Jettappa and defendant No.4 is the daughter-in-law of Rama Jettappa. The defendants 5 to 7 are the children of 4 th defendant and defendants 8 to 10 are the sons of Shama Jettappa and grandsons of Rama Jettappa.
3. It is the case of the plaintiff that as per the registered partition deed dated 8-12-1954, half share property in possession of the Thimma Jettappa in respect of Sy.No.119/1 was partitioned by his sons. 3 acres 9 guntas of land was allotted to Malla Jettappa. After his death, his four children partitioned the property of Malla Jettappa as per the registered partition deed dated 28-8-1978. It is further averred in the plaint that the sons and grand children of Subba Jettappa are entitled for 1/24th share in the suit schedule property. Though the property was divided by the decedents of Subba Jettappa and Thimma Jettappa, they were jointly cultivating the suit schedule property and dividing the proceeds and expenses according to their respective shares. In the family partition of Thimma Jettappa, as per the registered partition deed dated 08-12-1954, 3 acres 9 guntas of land was allotted to Malla Jettappa. Subsequently, there was 8 partition among the sons of Malla Jettappa. The said 3 acres 9 guntas of land was allotted to the shares of the plaintiff. Though there is a registered partition, the lands are being cultivated jointly and the proceeds and income were divided according to their respective shares.
4. Thippa Jettappa son of Subba Jettappa has taken his half share from his brother Rama Jettappa and relinquished his right over other properties as per the relinquishment deed dated 26-7-1945. Since he had no issues, as per the registered Will dated 26-5-1946 he bequeathed his share of the property in favour of the 11 th defendant who is the wife of Venkataramanappa son of Malla Jettappa. In view of the partition among the joint family, the defendants are entitled for 1/24th share. However, katha continues to stand in the name of Rama Jettappa who is the elderly person of the family and after his death, it was continued in the name of his son Thimma Jettappa. After the death of Thimma Jettappa, Krishna Jettappa's name has been shown in respect of the entire 6 acres 19 guntas of land. After the death of Krishna Jettappa, mutation entry has been changed in the name of Sharada who is the wife of Krishna Jettappa. The said Sharada sold 6 acres 19 guntas of land as per the registered sale deed 9 dated 10-2-1988 in favour of the first defendant, though she has no right to alienate the said property and she is owner only in respect of 1/24th share. The suit schedule property is being cultivated by the first defendant on the basis of the half crop share basis. After purchase of the property, the first defendant refused to give half share of the crop to the plaintiff. Then only the plaintiff came to know about the alienation of the suit schedule property by defendants 4 to 7. In view of that, the plaintiff has filed the suit with the above reliefs.
5. The first defendant entered appearance and filed his written statement denying the allegations made in the plaint and also denied that the suit schedule property is the ancestral joint family property of the plaintiff and defendants 2 to 11. He has disputed the genealogical tree furnished by the plaintiff showing the relationship of plaintiff and defendants 2 to 11. He specifically contended that Thimma Jettappa is not the brother of Subba Jettappa. There is no relationship between those two persons. Hence, Thimma Jettappa is not entitled for half share in the suit schedule property. He also disputed the partition between Subba Jettappa and Thimma Jettappa. He also disputed the registered relinquishment deed dated 26-7-1945 10 executed by Thippa Jettappa son of Subba Jettappa and also the registered partition deed dated 8-12-1954 effected between the sons of Thimma Jettappa. Further disputed the subsequent registered partition deed dated 28-8-1978 between the sons of Malla Jettappa. He also disputed the registered Will dated 26-5-1946 executed by Thippa Jettappa in favour of the 11th defendant. He contended that all these documents are concocted documents and Malla Jettappa was not allotted half share in the suit schedule properties. The partition effected between the parties is not binding on the first defendant.
6. The specific case of the first defendant is that as per the registered sale deed dated 10-2-1982, he has purchased 6 acres and 18 guntas of land for a valuable sale consideration of Rs.6,000/- from its owners i.e. defendants 4 to 7. After the death of C.R.Krishnamurthy, the defendants 4 to 7 became the absolute owners and they sold the said property to this defendant. Hence, pursuant to the sale deed, he became the absolute owner. Further he contended that prior to the purchase of the land by him, he was cultivating the suit schedule property for the last more than 40 years i.e. from the time of his father on half crop share basis. Further, he 11 has also filed an application before the Land Tribunal for grant of occupancy rights, however, subsequently he withdrew the said application with a view to purchase the said property. After purchase of the said property, he is paying Kandayam and mutation entries stand in his name. Hence, the plaintiff is not entitled for any share and sought for dismissal of the suit.
7. Though defendants 2 to 10 are served with notice, they have not entered appearance and contested the suit. The legal representatives of the 11th defendant filed the written statement by admitting the plaint averments and also contended that the son of Subba Jettappa i.e Thippa Jettappa who is the brother of Rama Jettappa taking his 1/4th share from his brother relinquished his rights over the other properties as per the relinquishment deed dated 26-7-1945 and bequeathed the same in favour of the 11th defendant as per the registered Will dated 26-5-1946. After the death of the testator, the 11th defendant became the absolute owner of the 1/4 th share of Thippa Jettappa. Hence, she is entitled for 1/4 th share in the suit schedule property. Further she also contended that the children of Rama Jettappa filed O.S.No.612/1964 in the court of Munsiff, Chitradurga against the 11th defendant and her husband 12 Venkataramanappa, seeking for possession of the property. The 11th defendant has taken up the defense that the said property has been bequeathed by Thippa Jettappa. Hence she became the absolute owner. The Trial Court framed the issues regarding the validity of the Will and declared that the Will executed by Thippa Jettappa is a valid Will and the 11th defendant became the absolute owner of 1/4 th share of the suit schedule property. The said order has become final. Hence, it is not open to the first defendant to contend that he has purchased the entire extent of 6 acres 18 guntas of land in Sy.No.119/1. Hence sought for decreeing the suit and also sought for allotment of 1/4th share and she also stated that she is ready to pay necessary court fee.
8. On the basis of the pleadings of the parties, the Trial Court framed the following issues:
1. Whether the plaintiff proves that the suit schedule land is the ancestral property of defendants 2 to 11 as alleged?
2. Whether the plaintiff proves that under the partition deed dated 8/12/1954 his father Malla Jettappa was allotted half share in the suit schedule property as alleged?
3. Whether the plaintiff proved that 13 under the partition deed dated 28/8/1978 his father's half share has been allotted to him and that he has been in possession of the suit land?
4. Whether the plaintiff proves that Thippa Jettappa took his share in the suit land by executing sale deed in favour of his brother as alleged?
5. Whether the plaintiff proves that sons of Rama Jettappa are entitled to 1/24th share each in the suit land?
6. Whether the plaintiff proves that he is entitled to half share in the suit schedule land?
7. Whether the first defendant proves that late Subba Jettappa was the exclusive owner of the suit schedule land?
8. Whether the first defendant proves that he acquired title to the suit schedule land under sale deed dated 10/2/1982 executed by C.K.Sharada and her children as pleaded?
9. Whether the first defendant is a bonafide purchaser for value without notice of the alleged rights of plaintiff ?
10. Whether the plaintiff is entitle to partition and separate possession of half share in the suit schedule land?
11. Whether the plaintiff is entitle to further mesne profits?14
12. To what order or decree?
9. The plaintiff in order to prove his case got examined himself as P.W.1 and examined another witness as P.W.2 and also marked the documents as Ex.P1 to Ex.P6. On behalf of the defendants, the first defendant examined himself as D.W.1 and got marked the documents as Ex.D1 to Ex.D22. The defendant No.11(d) was examined as D.W.2 on behalf of the Defendants No.11(a) to (h) and got marked the documents as Ex.D23 and Ex.D25.
10. The Trial Court on appreciating the oral and documentary evidence let in by the parties and after considering the arguments addressed by the parties held issues No.1 to 6 and 10 & 11 in the affirmative and issue Nos.7 to 9 in the negative. Consequently by its judgment and decree dated 19-2-1998 decreed the suit filed by the plaintiff against the defendants 1 to 10 and declared that the plaintiff is entitled for half share and also the legal representatives of the 11 th defendant are entitled for 1/4th share in the suit land. It is further ordered to divide the same by metes and bounds and directed to hold an enquiry regarding mesne profits.
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11. Being aggrieved by the judgment and decree dated 19-2-1998, the first defendant filed RA No.116/2004 on the file of the Additional District Judge, Fast Track Court, Chitradurga contending that the judgment and decree passed by the Trial Court is contrary to law and without considering the oral and documentary evidence of the parties. The lower Appellate Court after considering the arguments addressed by the parties and reappreciating the oral and documentary evidence adduced by the parties, framed the following points for its consideration:
i) Whether the defendant No.1/Appellant proves that the joint family was not in existence?
ii) Whether the judgment of the trial court requires interference?
iii) What order?
12. The Lower Appellate Court after considering the arguments advanced by the learned counsel for the parties answered points No.1 and 2 in the negative and consequently by its judgment and decree dated 28-11-2005 dismissed the appeal filed by the appellant confirming the judgment and decree passed by the Trial Court. The first defendant being aggrieved by the judgment and decree passed 16 by the courts below has filed this second appeal. During the pendency of the appeal the appellant died and his legal representatives have come on record as appellant.
13. Sri.B.M.Siddappa, learned counsel appearing for the appellants contended that the judgment and decree passed by both the courts below are contrary to law and evidence on record. Both the courts below have grossly erred in decreeing the suit filed by the plaintiff and no material has been produced before the court to show that the plaintiff is related to the family of Subba Jettappa. The partition effected in the year 1954 as well as in the year 1978 are not binding on the first defendant. The partition has taken place in the family of the Thimma Jettappa and there is no relationship between the Thimma Jettappa and Subba Jettappa. No document has been produced before the court with regard to the relationship of Thimma Jettappa and Subba Jettappa and also partition of the suit schedule property to an extent of half share each. The suit schedule properties are the self-acquired properties of Subba Jettappa, after his death, his son succeeded the interest of Subba Jettappa and his son Krishnamurthy became the absolute owner and after his death, his wife and children defendants 4 to 7 alienated the property in favour 17 of the appellant. In the absence of any documents, the courts below ought not to have decreed the suit filed by the plaintiff. Thimma Jettappa who is the grandfather of the plaintiff has no right whatsoever in respect of the suit schedule properties. Further all the properties of the joint family are not included in the partition. Hence, the suit filed by the plaintiff is not maintainable. It is the specific case of Sri.B.M.Siddappa that if there is any partition between Subba Jettappa and Thimma Jettappa and pursuant to the said partition, if they are already enjoying their respective shares, the question of partitioning the properties does not arise. The prior partition between Thimma Jettappa and Subba Jettappa has not been considered by the courts below. The relinquishment deed dated 26-7-1945 is between two sons of Subba Jettappa. The plaintiff has no right in respect of the said property. Further the 11 th defendant has not filed any suit claiming any share. Hence, it is not open to the plaintiff to contend that said Thippa Jettappa has bequeathed his 1/4th share in favour of the 11th defendant. The appreciation of the evidence by the Trial Court is contrary to law. He also relied upon the judgments reported in ILR 1998 KAR 681 (SRI TUKARAM v/s SRI SAMBHAJI AND OTHERS); AIR 2011 SC 2328 (YOMESHBHAI PRASHANKAR BHATT v/s STATE OF 18 GUJRAT); (2006)1 SCC 168 (RAMLAL AND ANOTHER v/s PHAGUA AND OTHERS); AIR 2006 SC 2848 (C.A.SULAIMAN AND OTHERS v/s STATE BANK OF TRAVANCORE, ALWAYEE AND OTHERS); ILR 2010 KAR 60 (NANJAPPA v/s NANJAPPA, SINCE DESEASED BY HIS LRs; ILR 2008 KAR 87 (S.JAGADISH v/s DR.S.KUMARASWAMY SINCE DEAD BY LRs S.K.LINGARAJU AND OTHERS) and AIR 1979 SC 135 (GANESH BHAVAN PATEL AND ANOTHER v/s STATE OF MAHARASHTRA) and sought for setting aside the judgment and decree passed by the courts below by allowing this appeal.
14. On the other hand, Sri.Sunil Dutt Yadav, learned counsel appearing for the first respondent argued in support of the judgment and decree passed by the courts below and contended that there is no infirmity or irregularity in the said judgment and decree passed by both the courts below. Both the courts have concurrently held that the plaintiff is entitled for half share in the property. This court can not re- appreciate the evidence of the parties. The finding of the Court below is purely a question of fact. There is no substantial question of law to be decided by this court.
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15. Originally the suit schedule property belonged to T.Govinda Jetty. He had two sons Subba Jettappa and Thimma Jettappa. The plaintiff belonged to the joint family of Thimma Jettappa whereas the defendants 2 to 10 belonged to joint family of Subba Jettappa. In the family partition, 3 acres 19 guntas of land in Sy.No.119/1 situated at Ganjigatte village was allotted to the share of Thimma Jettappa. The said property was partitioned between his three sons and Malla Jettappa became the absolute owner of the said property. After his death, in the family partition between the sons of Malla Jettappa, the plaintiff became the absolute owner. Subba Jettappa and his family members got only half share i.e. only 3 acres 9 guntas of land in Sy.No.119/1 and they cannot claim the entire extent of 6 acres 19 guntas of land. Further, one of the sons of Subba Jettappa bequeathed his 1/4th share in favour of the 11th defendant as per the registered Will dated 26-7-1945. Hence the defendants 2 to 10 are entitled for 1/24th share. The respondent No.4 cannot alienate the entire 6 acres 19 guntas of land since she is the owner in respect of 1/24th share. Since defendants 4 to 7 are not the owners of the property, they cannot sell the properties. Hence, sought for dismissal of the appeal.
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16. I have carefully considered the arguments addressed by the parties and perused the oral and documentary evidence adduced by the parties.
17. At the time of admission of the appeal, this court had framed the following substantial questions of law:
"Whether the courts below were right in contending that no partition had taken place prior to filing of the suit in the face of the documents produced as per Exs.P4 and P6 and the admission of the plaintiffs in their pleadings?"
18. The case of the appellant is that their father had purchased the suit schedule property as per the registered sale deed dated 10-2-1982 from respondents 4 to 7. Prior to the purchase of the said property, he was cultivating the said land on the basis of the half crop share basis for the last more than 40 years. He has filed Form No.7 for grant of occupancy rights. However, he withdrew the said application stating that he was not cultivating as a tenant, he was cultivating on Waara basis and he was giving half share of the crop to the 4th defendant - Sharada w/o Krishna Jettappa. The specific case pleaded by the appellant is that there is no relationship between 21 the Subba Jettappa and Thimma Jettappa. Further no document has been produced to show that there is partition between Subba Jettappa and Thimma Jettappa. Even if there is any partition, the plaintiff cannot seek for partition of the very same property. On the other hand, the plaintiff contended that he is the grandson of Thimma Jettappa who is the son of Govinda Jetty. Thimma Jettappa got half share in Sy.No.119/1 and the said property has been divided between the sons of Thimma Jettappa. Thereafter, the sons of Malla Jettappa partitioned the property in the year 1978 and became the absolute owners and the plaintiff became the absolute owner of the said property pursuant to the said partition deed. It is further contended that son of Subba Jettappa i.e. Thippa Jettappa who is the brother of Rama Jettappa had taken his 1/4 th share from the joint family and bequeathed the said property in favour of the 11 th defendant. Hence, the 11th defendant got 1/4th share in the properties. Further, the case of 11th defendant is that execution of the Will has been questioned in O.S.No.612/1964. In the Court of Munsiff at Chitradurga, wherein the court has upheld the execution of the Will in favour of the 11 th defendant. Hence, defendants 4 to 7 have no right to alienate the entire extent of the suit schedule property. The defendants 4 to 7 can alienate only 1/24th share s1ince they are not the owners of the entire 22 extent, hence they cannot alienate the properties.
19. The plaintiff examined himself as P.W.1 and got marked the documents as Ex.P1 to Ex.P6. The registered partition deed of the year 1954 was marked as Ex.P4 and registered partition deed dated 28-8-1978 was marked as Ex.P6 and Relinquishment deed executed by Thippa Jettappa was marked as Ex.P3. Some of the recitals in the relinquishment deed and also the registered partition deed dated 8-12-1954 clearly disclose that there is partition between the sons of Govinda Jetty i.e. between Subba Jettappa and Thimma Jettappa. The specific averment made in the relinquishment deed is that Thippa Jettappa has taken his 1/4th share in the ancestral property and relinquished his right over the other properties. Further, in the registered partition deed dated 8-12-1954, an averment is also made to the effect that the ancestral property allotted to Thimma Jettappa is being partitioned between the sons of Thimma Jettappa. The records clearly disclose that the family of Thimma Jettappa became the owners of 3 acres 19 guntas of land and the children of Subba Jettappa and others are entitled for the remaining extent of land. Further one of the sons of Subba Jettappa has taken his 1/4 th share and settled the said property in favour of the 11 th defendant. Hence, 23 the defendants are entitled for their share to the extent of 1/24th. He was cross-examined by the defendants, but nothing contrary has been elicited in the cross-examination. The plaintiff in support of his case examined P.W.2 who is 80 years old elderly person who supported his case.
20. The appellant who was the first defendant in the suit was examined as D.W.1 and reiterated the averments made in the written statement and stated that pursuant to the purchase of the said property, he was cultivating the land and he was paying Waara to the defendants and he has produced the agreement and also revenue records and receipt for paying half crop share. Further, one of the legal representative of the 11th defendant was examined as D.W.2 and supported the case of the plaintiff and also claimed 1/4th share in the suit schedule property.
21. The Trial Court on considering the oral and documentary evidence and on appreciating the registered documents i.e. Ex.P3, Ex.P4, Ex.P6 and Ex.D24 i.e. registered Will dated 26-5-1946, held that the suit schedule property belonged to the joint family of Govinda Jetty. After his death, Subba Jettappa and Thimma Jettappa 24 were enjoying half share of the property each and the plaintiff has proved that the suit schedule property is an ancestral property of the plaintiff and defendants 2 to 11. The Trial Court has clearly held that the plaintiff has proved that he is the absolute owner of the half share pursuant to the registered Partition Deed dated 8-12-1954 as well as 28-8-1978. Accordingly, decreed the suit filed by the plaintiff. On an appeal filed by the first defendant, the lower Appellate Court on reappreciating the oral and documentary evidence, dismissed the appeal confirming the judgment and decree passed by the Trial Court. Being aggrieved by the same, the present appeal has been filed.
22. I am of the view that the courts below on appreciating the oral and documentary evidence came to the conclusion that the plaintiff is entitled for half share in the suit schedule property and pursuant to the Will dated 26-4-1946, the 11th defendant is entitled for 1/4th share. The main contention urged is that all the properties are not included in the partition cannot be acceptable though the dispute is only with regard to the suit schedule property. There is no evidence with regard to the existence of other joint family properties. Except the first defendant, who is the subsequent purchaser of the suit 25 schedule property, none of the joint family members raised any objections. Hence, the purchaser cannot raise such objections with regard to partial partition of the property on the basis of the judgment reported in ILR 1998 KAR 681 cited supra. The case pleaded by the plaintiffs is that though there is a partition of Joint family property, suit schedule property was being cultivated by the first defendant on half crop share basis and divided the proceeds and expenses according to their respective shares. However defendants No.4 to 7 alienated property though they were not the owners of property and claimed half share in the suit scheduled property. The prayer in the suit is for possession of property by metes and bounds. The Courts below after appreciating the oral and documentary evidence have come to the conclusion that the plaintiff is entitled for half share. The finding recorded by both the courts below is on the basis of the evidence adduced by the parties. The contention of the appellant that there is no evidence cannot be acceptable. The judgments relied upon by the appellant in ILR 2009 KAR 60 and ILR 2007 KAR 87 cited supra are not applicable to the facts of the present case.
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23. I find that the judgment and decree passed by the courts below are based on the oral and documentary evidence adduced by the parties and both the courts below concurrently held that the plaintiff is entitled to half share in the suit schedule property. The finding recorded by the courts below is purely a question of fact. The appellant has not made out a case to interfere with the same. Accordingly, the appeal is dismissed.
Sd/-
JUDGE mpk/-*