Karnataka High Court
Yamanavva And Anr. vs Chandrawwa on 10 March, 2005
Equivalent citations: ILR2005KAR2329
Author: V.G. Sabhahit
Bench: V.G. Sabhahit
JUDGMENT V.G. Sabhahit, J.
1. This appeal is directed against the judgment and decree passed by the Court of Prl. Civil Judge, Bijapur, in RA. No. 84/1988 dated 25.6.1993 confirming the judgment and decree passed by the Court of Prl. Munsiff, Bijapur, in O.S. 181/81 dated 16.8.1988.
2. The material facts of the case leading upto this appeal with reference to the rank of the parties before the Trial Court are as follows:
The plaintiff filed the suit O.S. 181/81 seeking for a declaration that plaintiff has half share in the suit properties and for partition of his share by metes and bounds and to direct defendants to put plaintiff in possession of the said share and for mesne profits and costs. The suit schedule property comprises of land bearing Sy. No. 4 measuring 15 acres 37 guntas situate at Babalad village in Bijapur Taluk and a house as per the description given in para-2 of the plaint situated in Babalad village in Bijapur District.
3. It is averred that the suit schedule property was the Walikarki sites in the land and it is partible. Walikarki has been abolished by the village offices Watan Abolition Act, 1961, which come into force from 1.2.1963. It is averred that Yellappa was the propositus. He had two sons Ramappa and Bhimappa. Ramappa died in 1978. He had two wives Gangawa who died in 1971 and Somavva died in 1965. The defendant-Chandravva is the daughter of Ramappa though the first wife-Gangawa. Shantawa-second wife died in 1965 leaving behind Yellappa who died in 1990. It is averred that Yellappa died undivided from the plaintiff and on his death is son Ramappa succeeded to half share in Yellappa's interest by survivorship and in additional l/4th share by succession. The defendant and Ramappa's interest by succession on the death of Yellappa, the defendant succeeded to his interest. Thus, on the date of the suit, plaintiff is entitled to half share and defendant is entitled to half share in the suit schedule property. It is averred that family of the plaintiff and defendant all along joint and said properties are joint ancestral properties. The suit properties have all along been in joint undivided interest of Ramappa, the plaintiff claims that he is having half share in the suit properties. The suit land being Walikerki inam land was resumed by the vested in the State and it has been regranted to Ramappa as he was Manager of the joint family. That regrant enures to the benefit of the plaintiff as Ramappa and the plaintiff were the undivided members of Hindu Mithakshara family. It is further averred that one Laxman the son of paternal cousin of Ramappa and plaintiff had filed O.S. 168/67 and claimed partition and possession of his alleged half share in the suit properties. Ramappa was defendant No. 1 and plaintiff was defendant No. 2 in the said suit. The said suit was compromised and compromise decree was passed and the suit is dismissed against plaintiff and it was decreed that Laxman had no right, title or interest and is entitled to be paid Rs. 250/- per year from Ramappa during his lift time and Laxman died 3 years next before filing of the suit. Since the said suit is dismissed against the plaintiff, the terms of the compromise decree between Ramappa and Laxman would not in any was affect the undivided interest of the plaintiff in the suit property. The plaintiff demanded all the defendants that he be given his half share by partition and separate possession in the suit properties, defendants are evade to give share of the plaintiff and therefore it has become necessary to file a suit seeking half share in the suit schedule property. The cause of action in the suit arose in April, 1981 when the plaintiff demanded separate possession of his share which was not complied with the defendant.
4. The suit was resisted by the defendants averring that plaintiff's suit is false, contentions in the plaint are all false and they are specifically denied except those which are specifically admitted to be true. The suit land is not joint family property of deceased Ramappa father of defendant and the plaintiff and hence it cannot be partitioned under law. Deceased Ramappa and plaintiff have separated long back about 35 years ago next before filing of the written statement 21.8.1981 and since then Ramappa was in exclusive possession and enjoyment of the suit land. It is further averred that plaintiff has left Bablad village long back and he is now residing in Maharashtra. Even if it is held that the suit land is joint family property, the deceased Ramappa being in exclusive possession and enjoyment of the same for more than 12 years has become owner by adverse possession. It is further admitted that the suit land was walikarki vatan land and the same has been regranted in the name of Ramappa as he was the Manager of the joint family and that regrant of the land to Ramappa enures to the benefit of the plaintiff also. As Ramappa and plaintiff are undivided members of Hindu Mitakshara family and that the land is thus partible as joint family land after regrant to Ramappa and plaintiffs right, title or interest thus continued in subsisting even after the regrant of land to Ramappa consisting of Ramappa and plaintiff are all false and is not tenable. The decree in O.S. 168/67 operates as resjudicata in the present suit and the present suit is not maintainable. The suit is barred by time, there is no cause of action for the suit,
5. The Trial Court framed appropriate issues. On behalf of the plaintiff, plaintiff was examined as PW. 1 and he also examined PW. 2 on behalf of the defendant, defendant was examined as DW. 1 and she also examined DW. 2. The plaintiff did not produce any documentary evidence. On behalf of the defendants, D1 to D24 were got marked. The Trial Court after considering the contention of the parties and the material on record passed an exparte judgment on 10.1.1994. Being aggrieved by the same, Misc. Appeal 19/95 was filed on the file of Addl. Civil Judge, Bijapur, which was dismissed on 21.2.1996 and being aggrieved by the same, CRP. No. 1504/97 filed before this court and the said revision petition was allowed and exparte judgment was set aside and the matter was remitted to the Trial Court and thereafter the trial court gave opportunity to the parties to lead further evidence and by judgment dated 16.8.1998 held that the plaintiff has failed to prove that the suit land is joint family property between himself and deceased Ramappa and defendant has proved that plaintiff and deceased Ramappa had separated long back when the suit land was exclusive possession and enjoyment of Ramappa and in view of the order passed in O.S. 168/67 and further held that the regrant made in favour of deceased Ramappa that plaintiff is not entitled to share in the schedule property which has been regranted to Ramappa and also held that the suit filed by the plaintiff is barred by time and accordingly, dismissed the suit of the plaintiff. Being aggrieved by the said judgment and decree, the plaintiff preferred RA.84/88 on the file of Civil Judge, Bijapur, during the pendency of the appeal. The plaintiff died and his LRs., are brought on record. The first appellate court by its judgment dated 25.6.1993 confirmed judgment and decree passed by the trial court and dismissed the appeal and being aggrieved by the said judgment and decree the legal representatives of the plaintiff have preferred this second appeal under Section 100 CPC.,
6. The appeal was admitted on 14.6.1994 for consideration of the following substantial questions of law:
"1. Whether the finding of the Courts below that there was a partition in the family of palintiff is contrary to the evidence on record?
2. Whether the finding of the Courts below that the suit of the plaintiff is barred by time is sustainable in law?"
7. This court by order dated 3.2.1998 allowed the appeal and being aggrieved by the same, respondent preferred civil Appeal No. 3710/1999 on the file of the Ho'nble Supreme Court and the Hon'ble Supreme Court by order dated 16.12.2004 set aside the order passed by this court on 3.2.1998 holding that no substantial questions of law had been framed and directing this court to frame the substantial question of law if any, and then proceed with the matter and then decide the same, in accordance with law. Accordingly, the matter was posted before this court. It was found that this court has framed substantial question of law referred to above on 14.6.1994 and having regard to the contentions urged they are the substantial questions of law which arises for determination of this court.
8. I have heard the learned counsel appearing for the parties and perused the judgment passed by the trial court and the first appeallate court and the oral and documentary evidence on record in the light of the decisions relied upon by the learned Counsel appearing for the appellant and the respondent and I answer the substantial questions of law as follows:
Q.No. 1 : In the negative.
Q.No. 2: In the affirmative for the following:
REASONS
9. QUESTION 1 and 2: These two points are considered together since they are interconnected and to avoid repetition. The learned counsel appearing for the appeallant submitted that the earlier partition had not been proved. Even otherwise since the suit schedule property is walikarki land it was impartible and could not be partitioned by the members of the family and it became partible only after it was regranted in favour of father of the defendant and the cause of action for filing the suit for partition arose only it was regranted in favour of Ramappa father of the defendant and wherefore the courts below are not at all justified in holding that the suit was barred by time. The learned Counsel further submitted that the finding of the courts below that there was partition of the properties between Bheemappa-the plaintiff and father of defendant-Ramappa is perverse and the same is liable to be set aside. It has been held in the decision relied upon by the learned Counsel for the parties in APPANNA v. LAKKAPPA DEVAPPA, 1983(1) KLJ 482 that in case of walikarki properties when a regrant is made in the name of one of the members of the family who was performing the walikarki services, the grant enures to the benefit of all the holders of that office in the family and the members of the family have a right to claim partition in the said regranted land and the land vested after abolition of the village office of watan on 1.2.1963 and thereafter when the land is regranted cause of action for the suit for partition arises and having regard to the fact in the said case the regrant was made in 1963 and the suit was filed in 1969 it was held that the suit was intime. It is well settled in view of the decision relied upon by the learned Counsel for the respondent that this court gets jurisdiction to interfere with the concurrent finding on the question of fact only when substantial question of law arises for determination and concurrent finding is not interfere in exercise of power of this court under section 100 CPC., in second appeal unless the finding is perverse and arbitrary and contrary to material on record as held in MSV RAJA v. SEENI THEVAR, and in THIAGARAJAN AND ORS. v. SRI VENUGOPALASWAMYB. KOIL, .
10. I have gone through the judgment and decree passed by the Trial Court and the appellate court as also the oral and documentary evidence on record. It is the case of the plaintiff in the present case that it is not in dispute that the suit schedule property is the watan land and the same has been granted in favour of Ramappa - father of the defendant. It is the contention of the plaintiff that plaintiff and father of the defendant continued to be members of the joint family and wherefore the regrant that is made in favour of the plaintiff under the village office abolition act by order dated 6.3.1969 would enure to the benefit of the plaintiff also who is member of the joint family and wherefore, the plaintiff is entitled to half share by metes and bounds in the schedule property. It is the contention of the defendant that there was partition of the family property about 35 years next before filing of the suit and in the said partition, the schedule property was allotted to the share of the father of the defendant and father of the defendant has been in exclusive possession of the property. It is also the case of the defendant that after the death of the father of the plaintiff, defendants father-Ramappa was doing watan service exclusively. The plaintiff went away to Maharashtra and was living with his kept mistress and Ramappa was in exclusive possession and cultivation of the schedule property and was rendering watan service and therefore, he made an application for grant of the land and the same has been passed by the competant authority individually in favour of the defendant and wherefore the plaintiff is not entitled to half share in the schedule property. In order to substantiate the contention of the plaintiff, plaintiff has been examined as PW. 1 and he also examined PW.2. However, no documentary evidence is got marked on behalf Of the plaintiff It is clear from the material on record that both the courts below have concurrently held that there was partition of the properties between plaintiff and Ramappa-father of the defendant about 35 years next before filing of the suit and the same is proved by the proceedings in the earlier suit in O.S. 168/67 wherein the plaintiff has clearly admitted the said partition and the fact that Ramappa was in exclusive possession of the schedule property and further, the family was not joint when the regrant was made in favour of the defendants after Ramappa and the grant was exclusively in favour of the defendant and would not enure to the benefit of the family of the Plaintiff as there was severance of the status of the Joint Family and the suit is barred by time. It is clear from the perusal of the oral and documentary evidence on record that the said finding arrived at by the courts below is justified and is supported by cogent reasons. It is also averred in the plaint itself that earlier suit O.S. 168/67 had been filed by Laxman for partition and separate possession of the schedule properties which are the subject matter of the present suit also and that Ramappa was defendant No. 1 and plaintiff in the present suit was defendant No. 2 in the said suit. However, the plaintiff during his evidence in cross examination in chief states that he was not a party in the said suit and in that suit the Laxman was the plaintiff and in the said suit defendants father was defendant No. 1 and he was directed to pay yearly maintenance of Rs. 250/till the life time of Laxman and he has not received any notice or summons in that suit. The said evidence of PW. 1 is contrary to the averment made in the plaint wherein it was clearly admitted that he was arrayed as defendant No. 2 in the said suit and when the plaintiff PW. 1 was confronted with the written statement in the earlier suit wherein he had admitted the earlier partition and exclusive possession of Ramappa the truth has come out and it is clearly elicited in the cross examination of PW. 1 that it is true that elder brother of plaintiff-Laxman has filed O.S. 168/ 67 on the file of Prl. Munsiff, Bijapur, against him and his elder brother Ramappa. It is true that himself and his elder brother Ramappa together instructed their Counsel jointly in their written statement the contents of written statement were read over and explained to them by their Counsel when it was drafted to them, verified and accepted the contention to the best of their knowledge and belief and it is also true that O.S. 168/67 was also in respect of the subject matter in the present suit. However, he denied the suggestion and stated that himself and his elder brother Ramappa were separated and that the suit land was in his exclusive possession and he has stated that the averment made in the written statement in para-4 is false. However, it is further elicited that it is true that in O.S. No. 168/67 a compromise was entered into between plaintiff and defendant No. 1. He was also present on that day when the compromise was recorded before the Court, He did not sign on the said compromise petition and after reading the compromise petition he came to know that his elder brother Ramappa was the exclusive owner to the suit land and the suit house, he did not object to the said compromise petition. He attended the proceedings from Babalad village and it is clear from the written statement that is filed in O.S. 168/87 which has been produced before the trial court that in the written statement filed by defendants 1 and 2 in the said suit viz., plaintiff and his brother Ramappa, it is clearly stated as per Ex. D3 as follows:
"These defendants No. 1 and 2 have separated and the suit land is in the exclusive possession of defendant No. 1".
11. Wherefore, It is clear that both the Courts below have held that plaintiff him self has admitted that there was partition of the schedule properties and defendant's father Ramappa was in exclusive possession of the said properties. The further facts elicited in the cross examination of PW. 1 would clearly corroborate the contention of the defendant that there was partition of the properties as contended by the defendant as it is elicited in the cross examination of PW. 1 that it is true that after the death of their father, their elder brother Ramappa continued service of walikarki to the Government and after the death of their father, himself and deceased Ramappa together filed their joint wardi to enter their names in the record of rights in the suit land. It is not true that unless the name of his brother Ramappa has been entered in the revenue registers, he included his name also entered, he has not produced any such receipt for having paid the land revenue, he was in receipt of notice from revenue authorities about the regrant of the suit land and the same is in his house and he can produce it. It is further elicited that, it is true that two divisions were created in the said house. In the cross examination of PW. 9 at para-9 that two divisions, one for himself and another to his brother Ramappa. The partition of the said house took place in the presence of elders. It is also true that division of suit house was affected by 35 years back (witness cross examined on 17.11.1987). It is true that at the time the elders of the village allotted the suit land to the exclusive possession of said Ramappa his brother about 35 years back. It is not true to suggest that two, three years after this partition he went to Sholapur with his wife and children for his livelihood and he started to live with kept mistress after deserting his wife and that he had six children born to him out of the said relationship with his kept mistress. Only other witness on behalf of the plaintiff is P W. 2 and his evidence is not helpful to the plaintiff to show that the suit schedule properties are the joint family properties and that himself and Ramappa continued to be joint constituted memebrs of the undivided Hindu family and it is clear from the facts elicited in the cross examination of PW.2 though he has stated in examination in chief that the plaintiff and defendants are in joint possession and enjoyment of the suit schedule property which is contrary to the evidence of PW.1 himself as even according to PW.1 there was partition of the house and they were living separate possession and land was allotted exclusively to Ramappa. It is elicited in the cross examination of PW.2 that he does not know in whose name suit land came to be entered and Bheemappa and Ramappa having joint possession and enjoyment of suit properties. It is not true to suggest that he does not own any land or any house in Babalad village. He has not produced any records to show that he has house and land in Babalad village and wherefore it is clear that the evidence of PW.2 is contrary to the evidence of plaintiff himself and he does not have any personal knowledge and his evidence is not helpful to the plaintiff to prove that the suit schedule properties are in joint possession of the plaintiff and Ramappa as members of the undivided family.
12. On the other hand the evidence adduced by the defendant and his witness and documentary evidence produced by them would clearly show that there was partition of the Joint Family properties and that the defendant is in exclusive possession of the schedule properties and he has been paying the land revenue. Entries in the revenue records are in the name of Ramappa and after his death, it is in the name of the defendant and wherefore, the courts below have rightly held that the plaintiff has failed to prove that suit schedule properties are the joint family properties and defendants have proved that there was partition of schedule properties. Having regard to the fact that the suit schedule properties are the watan lands, it is clear that the same would become partible according to the decision relied upon by the learned Counsel appearing for the appellant only after it is regranted and however, on the date of regrant the plaintiff is able to show that he was a member of the joint family with the Ramappa in whose name the regrant was made, he is also entitled to a share in the suit property notwithstanding the fact that the order is passed in the name of Ramappa individually. It is not in dispute that the regrant order was passed in favour of Ramappa father of defendant on 6.3.1969 and in view of the settled position of law, it is clear that the said regrant would enure to the benefit of the plaintiff also if he is able to prove that himself and Ramappa were the members of the joint family on the date of regrant and mere fact that the order has been passed in favour of Ramappa would not preclude the plaintiff from claiming his share in the property if he is able to prove that he was living jointly as member of the undivided family with Ramappa. Both the courts below have held that, in view of the earlier partition proved by the defendant, the regrant made in the present case on 6.3.1969 in favour of Ramappa father of the defendant would not enure to the benefit of the plaintiff as he has failed to prove that he is the member of the joint family and there was already severance of status of the family about 35 years next before filing of the suit itself and even if the property is held to be partible only after the order of regrant. On the date of regrant he was not the member of the joint family comprising of himself and Ramappa as alleged in the plaint which has not been proved and Wherefore, he is not entitled to the relief sought for in the suit. The facts elicited in the cross examination of PW.1 would show that according to him, he had also filed an application for grant of occupancy right jointly in favour of himself and Ramappa and has also gone to the extent of saying that Tribunal has also passed an order in that behalf and he got the order passed in that behalf conferring occupancy right jointly in favour of plaintiff and Ramappa and as it is elicited in the cross examination that he had also applied for regrant of suit land in his name jointly with Ramappa so also Ramappa had also filed an application for regrant about 20 years back (witness cross examined on 17.11.87). It was regarnted in the name of Ramappa and he also objected for the regrant of Ramappa only before the revenue authority but he did not take any action on his objections. Inspitc of this, suit land was not regranted in his favour. He enquired with Ramappa as to why land was regranted only in his name. However, the said order is not produced and wherefore, it is clear that according to the evidence of PW. 1 he had objected to grant of the land exclusively in favour of Ramappa and it has been subsequently ordered to be granted jointly in favour of himself and Ramappa and though he says that the order is available in his house, but the same was not produced and plaintiff has not produced any document on his behalf to sub stantitate the contention in that behalf.
13. On the other hand, the evidence of the defendant and the witness examined on behalf of the defendant as also the documentary evidence on record and the averment made in the plaint would clearly shows that the fact that land was regranted in favour of Ramappa father of defendant in his individual name on 6.3.1969 is not in dispute and wherefore, it is clear that in the light of the above said finding, the courts below were justified in holding that the order dated 6.3.1969 passed in favour of the defendant would not enure to the benefit of the plaintiff as he has failed to prove that he is the member of the undivided family with Ramappa on the date of regrant and I hold that the finding of the courts below are based upon the material on record and cannot be said to be contrary to the evidence on record.
14. Both the courts below have given a finding on the question of limitation as the judgment and decree passed by them was appealable and if a finding is given to the effect that the suit schedule property was joint family property, it was appropriate that finding was given on the question of limitation also and both the courts below have held that the suit filed by the plaintiff is barred by time in view of Article 110 of the Schedule to the Limitation Act. It is clear from the material on record that according to the facts elicited in the cross examination of PW. 1- the plaintiff, the plaintiff was denied his right. In the schedule properties and defendant's father Ramappa was in exclusive possession of the schedule property and he was in possession of the property and acknowleding the same as a owner. The facts elicited in his deposition in the cross examination at para-8 is that, it is true that his brother Ramappa refused his interest in the suit land in the year 1969 itself by saying that he had no right, title or interest in the suit land. It is also true that Ramappa thereafter started cultivating the suit land by excluding him as a sole owner and he did not feel it necessary to file a suit against Ramappa at that time only and he did not take any legal action till filing of the suit. Wherefore, the evidence of the plaintiff himself would show that he was ousted from the joint family in the year 1969 itself. The suit is filed by the plaintiff against the defendant in O.S. 181/81 on 19.6.1981. The courts below have also held that even after the starting point for limitation is counted from the date of regrant i.e. 6.3.1969 when the right to suit for partition accrued, the suit ought to have been filed within 12 years from the said date 19.3.1981 and the suit filed of the plaintiff is on 19.6.1981, beyond 12 years is barred by time. Wherefore, viewed from any angle the findings arrived at by the courts below that the suit of the plaintiff is barred by limitation as it is filed beyond time prescribed under Article 110 of the schedule to the Limitation Act, the said finding of the courts below is based upon the above said material on record and for cogent reasons and is justified. Accordingly, I answer the substantial questions of law against the appellant and held that judgment and decree passed by the courts below is entitled to be confirmed and pass the following order.
The appeal is dismissed, Judgment and decree passed by the Court of Prl. Civil Judge and CJM., Bijapur, in RA. No. 84/1988 dated 25.6.1993 confirming the judgment and decree passed by the Prl.Munsiff, Bijapur, in O.S. No. 181/1981 dated 16.8.1988 is confirmed. However, having regard to the facts of the case, there shall be no order as to costs in this appeal.