Karnataka High Court
Rama S/O Mastappa Naik vs Smt. Mastamma W/O Subbayya Naik on 3 June, 2014
Equivalent citations: 2014 (3) AKR 737
Author: A.V.Chandrashekara
Bench: A.V. Chandrashekara
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 3RD DAY OF JUNE 2014
BEFORE
THE HON'BLE MR. JUSTICE A.V. CHANDRASHEKARA
R.S.A. No.5071/2011 (PAR)
BETWEEN:
1. RAMA S/O MASTAPPA NAIK,
AGED 59 YEARS, GOLIBELLUR, BHATKAL TQ.,
DIST. UTTAR KANNADA-581 320.
2. SOMAYYA S/O MASTAPPA NAIK,
AGED 52 YEARS, GOLIBELLUR, BHATKAL TQ.,
DIST. UTTAR KANNADA-581 320.
3. SHANIYAR S/O MASTAPPA NAIK,
AGED 49 YEARS, GOLIBELLUR, BHATKAL TQ.,
DIST. UTTAR KANNADA-581 320.
4. MANJUNATH S/O MAHADEV NAIK,
AGED 24 YEARS, GOLIBELLUR, BHATKAL TQ.,
DIST. UTTAR KANNADA-581 320.
5. RAMESH S/O MAHADEV NAIK,
AGED 24 YEARS, GOLIBELLUR, BHATKAL TQ.,
DIST. UTTAR KANNADA-581 320.
6. SMT. MASTAMMA W/O MANJAPPA NAIK,
SHEDKULI, JHALI, BHATKAL TQ.,
DIST.: UTTAR KANNADA-581 320.
- APPELLANTS
(BY SRI D.J. NAIK, ADVOCATE)
AND:
1. SMT. MASTAMMA W/O SUBBAYYA NAIK,
BHATKAL TQ. UTTARA KANNADA-581 320.
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2. SRI TIMMAPPA (SINCE DECEASED)
2(a( SMT. PADMAVATI, 49 YEARS,
W/O TIMMAPPA NAIK.
2(b) MOHAN, 26 YEARS.
2(c) MANIKANTA, 23 YEARS.
2(d) NAGINI, 29 YEARS.
2(B) TO 2(D) ARE CHILDREN OF TIMMAPPA NAIK
3(a) SMT. MALLI, 44 YEARS,
W/O MADEVA NAIK,
3(b) SMT. PADMAVATI,
26 YEARS, W/O MADEVA NAIK.
3(c) GANESH, 22 YEARS,
S/O MADEVA NAIK.
ALL ARE RESIDENTS OF GOLIBELLUR VILLAGE,
BHATKAL TQ.-581 320.
- RESPONDENTS
(BY SRI GANAPATI M. BHAT, ADVOCATE FOR R1,
NOTICE TO 2(A-D), 3(A-C) SERVED)
THIS R.S.A. IS FILED U/S 100 OF CPC AGAINST THE
JUDGMENT & DECREE DATED 30.10.2010 PASSED IN R.A.
NO.17/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE, HONAVAR
(ITINERARY COURT AT BHATKAL) DISMISSING THE APPEAL FILED
AGAINST THE JUDGMENT DATED 28.02.2009 AND THE DECREE
PASSED IN O.S. NO. 93/2005 ON THE FILE OF THE PRINCIPAL CIVIL
JUDGE (JR. DN.) AND JMFC AT BHATKAL DECREEING THE SUIT
FILED FOR PARTITION AND PERMANENT INJUNCTION.
THIS APPEAL COMING ON FOR ADMISSION ON THIS DAY,
COURT DELIVERED THE FOLLOWING:-
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JUDGMENT
1. The defendants of an original suit bearing O.S. No. 93/2005 which was pending on the file of Court of Civil Judge (Sr. Dn.) & JMFC, Bhatkal of Uttara Kannada District are before this Court challenging the judgment and decree passed against them on 28.02.2009 and the affirmation of the same in R.A. No. 17/2009 which was pending on the file of Court of Senior Civil Judge, Honnavar Iternating at Bhatkal.
2. Suit filed for the relief of partition and separate possession by Smt. Mastamma wife of Subbayya Naik, first respondent herein as plaintiff has been decreed as prayed for granting half share in the suit schedule property. The same has been confirmed in the appeal filed u/S 96 of C.P.C. in R.A. No. 17/2009.
One person by name Irappa Naik had three daughters by name Durgamma, Madevi @ Kombi, Mastemma (plaintiff). The said Erappa had a younger brother by name Mastappa. According to the plaintiff, Erappa and Mastappa were residing as members of the joint 4 family and were cultivating the schedule property as tenant. Consequent upon the death of Erappa and consequent upon the establishment of Land Tribunal as per the provisions of Karnataka Land Reforms Act (Amended), 1974, Mastappa chose to file an application seeking occupancy right for and on behalf of the joint family consisting of himself and the three daughters of his elder brother. The said Mastappa also died issueless. Third daughter of Erappa, i.e.,Mastemma, chose to file a suit for partition and separate possession of the schedule property against the children of her elder sister Durgamma. Her another elder sister Madevi @ Kombi died issueless long back. Therefore, the said Mastamma chose to file a suit seeking half share in the schedule properties.
The said suit was contested by the children of Durgamma on the ground that the application filed by Masteppa before the Land Tribunal was in his individual capacity and the confirmation of occupancy right was absolute and therefore Mastamma did not have any right to seek any partition. The suit was stated to be not maintainable for non-joinder of other movable and immovable 5 properties. Since Mastappa was the absolute owner of the schedule property based on the granting of occupancy right, he chose to execute a partition deed in the year 1981 through a registered partition deed amongst the children of Smt. Durgamma. Hence the defendants had prayed for dismissal of the suit.
3. On the basis of the above pleadings, the following issues came to be framed in Kannada, which have been translated to English.
ISSUES
1) Whether the plaintiff proves that the schedule properties are the joint family properties of plaintiff and defendants and they are in joint management?
2) Whether the plaintiff proves that no partition of the schedule property has taken place and therefore she is entitled for half share?
3) Whether the plaintiff proves that the defendants have created an illegal document amongst themselves and that the same does not bind her?
4) Whether the plaintiff is entitled for half share by herself and partition and separate possession by herself?
5) Whether the plaintiff is entitled for permanent injunction as prayed for?
6) What decree and relief the parties are entitled to?
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4. Second defendant died during the pendency of the suit and his legal representatives came to be brought on record. Similarly, defendant no.4 also died and his legal representatives have been brought on record. Two witnesses have been examined on behalf of the plaintiff and 23 exhibits have been got marked. Commissioner's report, sketch and warrant have been got marked as Ex.C.1 to Ex.C.3. Rama Mastappa naika is examined as D.W.1 and eight exhibits have been got marked on behalf of the defendants. Ultimately, all the five issues have been answered in the affirmative and consequently suit is decreed as prayed for granting half share. Appeal filed u/S 96 of CPC IN R.A. No. 17/2009 by Rama, Somayya, Shaniyara, Manjunatha, Ramesha and Smt. Mastamma, has been dismissed after contest. Hence concurrent findings are called in question before this Court by filing appeal u/S 100 of CPC.
5. Learned counsel for the appellants has submitted his arguments in regard to admission. Perused the judgments of both the Courts. The fact that Mastappa was the younger brother of Erappa, is not in 7 dispute. Plaintiff is the third daughter of late Erappa and defendants are the children of Durgamma. Second daughter of Erappa died issueless long back. Mastappa and Erappa lived as members of the joint family cannot be disputed. From the evidence placed on record it is evident that Irappa was cultivating the schedule property as a tenant. After his death, his younger brother chose to file an application in Form No. 7 seeking occupancy right before the jurisdictional Land Tribunal. In Ex.P.5, the partition deed it is specifically mentioned that application was filed by Mastappa as the manager of the joint family properties. The very contents of Ex.P.5 would go to show that Mastappa chose to execute partition deed giving shares to the children of Durgamma. Just because Mastamma was not living with Mastappa at the time of partition more particularly because of her marriage, it cannot be said that she was not a member of the joint family. Unless a specific plea of ouster is taken and the special plea is proved as per Sec. 110 of the Limitation Act, the joint and constructive possession of the suit schedule properties by Mastamma cannot be denied.
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6. In a joint Hindu family a married daughter is deemed to be in joint and constructive possession of the schedule properties even though she does not live physically with the other members of the family. This aspect has been considered in detail by the trial Court in para no. 12 and necessary reference is made in Kannada at page nos.7 and 8 of the impugned judgment passed by the trial Court.
7. The defendants had made an attempt to deny the share on the ground that plaintiff had not consented for a partition and that she was living with her husband. D.W.1 has specifically admitted in his evidence that his grandfather Irappa died about 45 years ago and on his death mutation was effected in No. 522/1966. It is also forthcoming in his evidence that after the death of Irappa, khata of the properties were changed into the name of Mastappa as the Manager of the joint family. Even otherwise, defendants have made an attempt to impress upon the Court that the properties in question were surrendered by Erappa Jattappa Naik to the owners and thereafter they were given on lease to Mastappa and therefore Mastappa chose to file 9 an application in Form No. 7 in his individual capacity. This assertion does not find a place in the written statement filed by the defendants. Therefore, the trial Court has specifically held that the defendants have tired to make out a new case during the course of evidence. Therefore, the trial court has held that granting of occupancy right by the Tribunal in favour of Mastappa was for and on behalf of himself and other members of the family, i.e., the children of Irappa. In the light of Mastappa having died issueless and intestate and in the light of Mastappa having become the Manager of the joint family after the death of his elder brother Erappa, Mastamma is also entitled for half share and the children of Durgamma are entitled for half share. The trial Court has assessed the entire evidence on the basis of preponderance of probabilities and has taken into consideration that Mastamma and Durgamma are entitled for half share each and as such the children of Durgamma are entitled for share that would be notionally divided. No illegality or irregularity is found in the judgment of the trial Court. The first appellate Court, being the final Court of facts, has reassessed the entire evidence by framing proper 10 and valid points for consideration as found in para no. 11 at page no.7. The points so framed are reproduced below:
1. Whether the defendants No.1, 3, 4, 5(c), 5(d) and 6 prove that the trial Court has committed error in decreeing the suit of the plaintiff under impugned judgment and decree?
2. Whether the defendants No. 1, 3, 4, 5(c ), 5(d) and 6 prove that the judgment and decree of the trial Court is not based on proper appreciation of the evidence available on record and the principle of law applicable to the case on hand?
3. Whether the defendants No. 1, 3, 4, 5(c ), 5(d) and 6 have made out any ground for interfering with the impugned judgment and decree of the trial Court at the hands of this Court in this appeal?
4. What order and decree?
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8. The first appellate Court has assigned proper and cogent reasons as to why it has concurred with the judgment of the trial Court. The plaintiff did not have any knowledge about Ex.P.5 since she was not intimated in any manner. She came to know of the same after finding some mutation entries in favour of the defendants. The relief of cancellation of the said partition deed is applicable to the present case insofar as it relates to the share of the plaintiff. Even 11 without the relief of cancellation of the partition deed the plaintiff can seek her legitimate share and if any deed has come into being the same will not bind her share. The first appellate Court has come to the conclusion that the trial Court has touched each and every aspect of the evidence available on record more particularly the documentary evidence.
9. Taking into consideration the facts and circumstances of the case and the manner in which the entire oral and documentary evidence has been assessed, there is no scope for interfering with the well considered findings of the trial Court which are affirmed by the first appellate Court.
10. The questions of law proposed in the appeal memorandum, are not the substantial questions of law in essence u/S 100 of CPC. Even otherwise, no substantial question of law arises for consideration before this Court to admit the appeal. Hence the appeal is liable to be dismissed as unfit for admission.
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ORDER Appeal is dismissed as unfit for admission. There is no order as to costs.
Sd/-
JUDGE bvv