Karnataka High Court
Varija vs Lalitha Manjunath on 14 September, 2010
Bench: K.L.Manjunath, B.Manohar
I
IN THE BIGH couaw OF KARNATAKA AT BANGALQRE
DATED THIS THE 14"'DAx or sEPTEMBER,.2diQoo
PRESENT £m'V
THE HON'BLE MR. JUSTICE_KoLo M§fi;fi§3§fiooo_o
AND . a4 . ._ 1,
THE HON'BLE Mk. 3§S$icfi"BHMAydfiAg~~w5
REGULAR FIRST §pPmA;lfio.53(2fiO4o@pAfi)
BETWEEN: V K A .u V
1. Varija w/o latg Raghufiamofho o
2. ChandrahésaoS/Solgféffiaghfitam
'1'.Jogi_,___5'{}_.ye'a;:;;'g;_. " * "
Both afe R/at°Jooi_fio§se;'
Kadri Kai--Batta1,f,"fi v."
Manga1ore}o*D,K;,Ao=_j- .. APPELLANTS
(By Advoca£eHSri¢O.Shivarama Bhat)
11_£alitha Manjgnath w/o
KfManjufiath{ 74 years,
Riot 4é,"fiTI Housing Colony,
Nagasettyxflalli,
".Bangé1ére~94.
' =2}oSh§iada Alwa d/o late
'T.B]Jogi, 67 years,
=.V R70 27/27, Hill Rock Society,
Vmfimboli, Andheri (west),
Mumbai.
6%"
2
3. Yashoda M.Rao d/o late
T.B.Jogi, 66 years, No.14,
4"'Cross,d CITB Colony,
Mylapore. Chennai.
4. Jayajakshi d/o late T.B.Jogi,
61 years, 2809, Wood Eag1es,_
Drive St.Charles, :"
Missouri No.63303, I
U.S.A.
5. Sunanda Valand d/o 1ateHn*
T.B.Jogi, 58 years, 26/ififlofs
377a, Ibex Bi1l,.Lusaka,'*f,'"
Zambia. *HF '-- rv
R-1 to 5 are R/by their _ _a
Power of Afitorney He1der<f._ f
K.Manjunathf$/o late a t dm
K.Venkatramana,.Tfigjears, *
R/atWNo)4§;;§TI_Eousing }
Colony,=Nagasettyha11i,W
Bangalorefu*,°~'%'*r'-
5. Vijaya'd/ovlateaaaehuram
T.Jogi, 47 years, "°
ft?» Su§aya:d[o late Raghuram
. E Jogi, 44 years,
'"_fiE5x&dj,arefR/at Jogi House,
KadriMKai¥Battal, Mangalore. .. RESPONDENTS
_ (Advoeate M/s Lawyers Inc. for R-1 to 6)
"»x"i3-7".. served)
._u .:'i This Regular First Appeal is filed under Sec.96
"moi CPC against the judgment and decree dated
-?~./
3
29.8.2003 passed in 0.S.No.5/95 on the file of the
Prl. Civil Judge (Sr.Dn.), Mangalore,D.K. decreeing
the suit for partition and separate possession.
This Appeal is coming on for final hearing?this
day, MANJUNATH 3. delivered the following;_pf*juz
Legality and correctness of the judgmest and
decree passed. by the Qrliflficivil'_dud§ef;i§riDn.i}
Mangalore in O.S.No-$;Q5 dated é9,8.fGG3"is called
in question by the defendants
in the court below;
2. Thai facts wleading_ to this case are as
hereunder:* Respondents were plaintiffs before the
'court below. vdhey filed the suit for partition and
separate possession of their 1/fim share each in he
plaint; schedule properties. According to the
plaintif£sg"one Thimmappayya Bairappa Jogi was the
. "father of the plaintiffs and paternal grand--father
"°;Q--Qf2rdefendants 2 to 4 and father--inm1aw of 1"
Vdefendant Smt.Varija. Defendants are the widow and
4
children of one Raghuram who was the brother of the
plaintiffs. Father of the plaintiffs was the oyner
of the plaint schedule property. Hef*died; on
2.12.1972 intestate. Plaintifffs brother Raghuram E
who was the husband of i" defendant3and*fatheDgofl
defendants 2 to 4 died in the month of igefist;1§es}
Plaintiffs had another brother by name f.f;Jogi who
died on 17.11.1992;n7he[ egsvinaxgied and died
intestate and he had no issues and his wife pres
deceased. hieyiup:?#ain§iffsrxhae*o%nother sister by
name Endi¥§ "who %§i$¢ fidiedL intestate without any
issues. hp Thereferefihlpiaintiffs filed a suit for
partition 'andv separate. possession of their share
and for mesne profits.
3:_*se£¢eaa5tg contested the suit. They admit the
'= relationship between the plaintiffs and themselves.
»if<mhey denied the claim of the plaintiffs on the
i=ground that late Thimappayya Bairappa Jogi was a
iyveoolageni tenant and they have succeeded. to the
'R=_said property after the death of Thimappayya
'Q/.
5
Bairappa Jogi and Raghuram and that plaintiffs
being daughters of late Thimmappayya Bairappa Jogi
were given in marriage and are residing separately
and since the date of death of Thimnappayya
Bairappa Jogi defendants have beoofiephabsolutedm
owners and they are in possession of propertyaahdi
they have perfected their title by way of adverse
possession. They also denied that the defendants
are getting income of hs,1§,Q0bl+ per annum.
3. Based on the above pieadings, following issues
were framed by the court beiofit
1. Whetherthe~pl..ai.nt~iffs prove that they have
been. in 'joint 'and. constructive possession
_of the suit 'E' schedule properties along
_§fiith defendants?
,'a, Whether the defendants prove that whatever
" _ 'title and interest the plaintiffs
"rehadfi_in""the plaint schedule property are
,_ lost 3 by adverse possession of the
" defendants and. prior to them. by the now
deceased R.T.Jogi?
'.3f§Whether the defendants prove that there was
'"tclear ouster of plaintiffs right over the
suit schedule property since their
marriage?
W.
6
4. Whether the defendants are liable to render
accounts? "2
5. Whether the plaintiffs protein} the
correctness of the description 'of, the
plaint A schedule property?
6. Whether the plaintiffs provegthe cause of7.
action to the suit?
7. Whether the valuation and court fee paid is'
incorrect?
8. Whether the Wplaintiffs dare entitled for
partition and separate possession of their
share? If so to what share?,f;
9. Whether 'the 1plaintiffsw_are entitled for
mesne profits? _=_ .»"y
1o.whap decree or=¢:de;2 f
Addl; Issue Natl} Whether the suit is bad for
'-- « -- "7* ~ partial partition as
= contended in para 6(A) of
'the written statement of
defendants?
In order to prove their respective contentions, one
of the plaintiffs Yashoda M.Rao was examined as PW1
and one KfiManfiunath was examined as PW-2 and relied
::upon'Exs?§~1 to 11. On behalf of the defendants,
"7l 2?? defendant Chandrahasa. got examined. himself' as
3f"v_u d§W%l and relied upon Exs.D--1 to 4. Trial court,
$y'
7
after considering the evidence let in by the
parties, held issues 1, 4, 5, 6 and 8,_the
affirmative, issues 2, 3, 7 & Addl. Issue~'..>,I=Io'.V»l'1__"in
the negative and issue No.9 was as the
same has to be considered
proceedings. Ultimately, gsuit 'of ethe"£plainti£fs
came to be decree them are
entitled for 1/?" share in all the plaint schedule
properties. This is assailed
in this appeal.
4. We Bhat, counsel for
the appevlZl.ants-- Kumar, counsei for the
responpdents."
;"€£'hough--.pseveral grounds are urged in the appeal
memo," d'ur_i.ng\,."'Vthe course of arguments he has
canvassed following points only: According to him,
:'ri'a*i--.,_ncourt has committed an error in holding that
are entitled to equal share. According
"~«.to"him, plaintiffs have lost their title in view of
'Fur
8
the defendants perfected their title by way of
adverse possession. According to him, plaintiffs 2
to 5 were married prior to amendment? tohafiindu
Succession Act and therefore they cannefi seek any =
partition in the family properties, .h He _also
contends that plaintiffs are notuentitied to edual
share as determined by the court below, Per contra,
counsel for the respondents "contends that the
appellants who shave Wsetf up {the Uplea of adverse
possession has miserahl§_failed to prove the issue
of adve:_se " frrial court, while
considering issue No,2 relying upon the evidence of
the parties ~hasf4§o@af to the conclusion that
pdefendsnts have failed to prove either ousting of
Aplaintiffsg from claiming their share or plea of
adverse' possession. Therefore, he requests the
V7_ court to'diseiss the appeal.
x*5}h=Having heard the counsel for the parties, the
E"only5 point to be considered in this appeal is
H"»shether the appellants can set up adverse
fikx
'=.«~their title by way of adverse possession.
9
possession. against 'the oowparceners and. similarly
ouster pleaded by the respondents has been proved
by the appellants.
7. It is not in dispute that p1aintiffs_are thefk
daughters of T.B.Jogi and it is also not"in.dispute
that defendants are the legal heirs of one R.T.Jo§i
who was the brother of plaintiffs. It is also not
in dispute that suit properties were owned by late
T.B.Jogi. It is also net"in dispute that he died_
'\m9'£\_!.1»F-'L4£';'VC
intestate. i. He idied fin »thei year 1972. Weber
plaintiffsi"father §}§LJo¢i died intestate in the
year 1972, E.B.Jo§iibeing~the absolute owner of the
suit properties, all his legal heirs being Class--I
* heigs under the Hindu Succession Act are entitled
tb elaifi equal share. So far as these points are
conce.rned,. ' ideiifendants have not disputed. But the
'":fEdefence raised by the defendants are two fold. One
'"is_<that plaintiffs have been ousted from the
E"wproperty and that the defendants have perfected
From
fix
g__,.
EG
looking into the evidence of Yashoda M.Rao, they
contended that plaintiffs are entitled terlequal
share as they being the classwl heirs of $;fi;§ogi
and her brother late R.T.Jogi was _nanaging fand*_
maintaining the property on behalf pf_el1 the legal}
heirs of T.B.Jogi. We._hayeJrseen§[%§é ierosst
examination of Yashoda M.Rao;f her efidenee has not
been seriously challengedhtfltylhen nelfhave the
evidence of Manjunath_ who Tis'"thetthusband of 1"
plaintiff _;*.or:'_ the appellants-
defendants Eye fhaée levidendev of zmi defendant
Chandrahasa; Vein his examinationwinwchief he only
says that* after ufihén death of T.B.Jogi he has
_repaired sand "maintained the suit house and the
dpreperty egg he further admits that the assessment
register 'stiil" stands in 'the name of his grand-
Vfather"T;fi;3ogi and he has been paying assessment
gf*after, the death of his father. It is not in
"FL dispnte that father of defendants 2 to 4 R.T.Jogi
sdied in August,1988. It is the case of the
étr
11
(Sf,
defendants that plaintiffs did not objected' for
repairing the house by the defendants and he has
produced certain documents to show that the amount
spent by him to repair the old house. yfie haye seen
the examination-in-chief carefuily in order to_find.'
out the contention of thei "defendants 2 that
Plaintiffs have been ousted and that the defendants
have perfected their titie3.By. say _of adverse
possession. it is dnfortunate that in the entire
WA' V __ ...,
examination-invchieffdxéhandrahasa3. who has been
to the adverse possession or ousting the plaintiffs
from claiming their share in the suit properties.
,f8;_ it is to be noted that if father of defendants
Zflto 4 died in the year 1988, when the defendants
'f'v.have' not ftgien the contention that immediately
~i§ after the death of T.B.Jogi in the year 1972, their
i".£a£h¢£; R.T.Jogi started enjoying the property
iVaindependently by setting up adverse possession
w""€""'
f"»_against the defendants. If R.T.Jogi enjoying the
6%
12
property as one of Classwl heir of T.B.Jogi,
question of setting up of adverse possession by
defendants 2 od after the death of R_§?Jogi does
not arise at all. From looking into~the*evidencee
and pleadings, we are of the figm opinion that that
defendants did not set up has agfén¢e,§h§gpg§c§a§§a
R.T.Jogi had claimed adverse possession aeainst the
plaintiffs. When Ri§:So§i;has{not claimed adverse
possession during hiss life ;tim§;$;if he died in
Aug'ust,1988f+ji:E 5th_e~.s'u_it_V 1;... ifiledm in the year 1995,
question_ of' c1eiming= adverse jpossession does not
arise at_allg Wsimilarly, in regard to the plea of
ouster is'concerned}.in the entire evidence of DW--l
'_pthere._§'i'ssA.noteven la. whisper. The only sentence
tstated hyhflfiel in his examination--in-chief is that
when {,héIf;;efi¢vated or repaired the existing
building{ plaintiffs did not objected for the same.
dldEveQ,_if "the said. contention is accepted, it can
,onlv say the plaintiffs being the paternal aunts of
fhW¥l have allowed DW-1 to carry out the repairs on
W
13
behalf of all the plaintiffs as they ate also
having equal share. In the circumstances; we are
of 'the opinion. that trial court is _jestifiedh in
holding 'issues 2 & 3 against... the _--defenda'nt3 :.;.i:d_
determining the share of the ifileintiffsi holding 2
that each of them are entitled to 1/6" share in all
the plaint schedule propezties: We do not see any
perversity in the findings bf the tzial court and
we are of the opinioh~thatVegpteciation of evidence
by the trial copit is sound and gtoper.
9. In dthe"[¥9séit;7:Ehel appeal is dismissed.
Parties to hear theit costs.
.__ _ 1
Séfe
.....
Sd/".
Judge l»d3Vfi]«3/isoéia