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2008 DIGILAW 23 (KAR)

Shanthappa v. Channabasavaiah

2008-01-09

K.RAMANNA

body2008
JUDGMENT K. Ramanna, J. The appellants/plaintiffs have come up with this second appeal challenging the legality and correctness of the judgment and decree dated 01-03-2002 passed by the learned Prl.Civil Judge [Sr Dn] and CJM at Tumkur in RA Nos.13 and 18 of 1991 and judgment and decree dated 1312-1990 passed by the Civil Judge [Jr Dn] Gubbi in O.S.No.60/1982. 2. For the sake of convenience the parties will be referred to in their rank assigned to them before the trial Court. 3. The brief facts of the case in a nutshell are that; the plaintiff has filed the suit against defendants before the trial Court for partition and separate possession in respect of suit schedule properties consisting of 19 items. It is the case of plaintiff that one Shankarappa had three sons namely, Lingappa, Gangaiah and Channabasavaiah; that the said Shankarappa died leaving behind the said three sons to succeed to his estate; that Lingappa 15t son died leaving behind 2nd and 3rd defendants; that 2nd son Gangaiah died leaving behind his son 1st defendant; that 3rd son Channabasavaiah died leaving behind he plaintiff; that the suit schedule properties are ancestral and joint family properties of plaintiff and the defendants; that difference arose in the management of joint family properties; that plaintiff requested the defendants to effect partition of the joint family properties; that defendants have not complied the request of the plaintiff. Hence he filed the suit. 4. On appearance before trial Court defendants filed written statement and contested the suit, denying the genealogy furnished by plaintiff and they further denied their relationship with plaintiff. According to them the said Shankerappa had no son by name Channabasavaiah; that the plaintiff is a stranger to the family of defendants; that plaintiff is a resident of Rampura; that the suit schedule properties are not the ancestral joint family properties of plaintiff and defendants; that the said Shankerappa had only two sons namely Lingappa and Gangaiah and there was already partition of their ancestral properties about 80 years ago; that defendants are in enjoyment and possession of their respective shares; that even otherwise they have perfected their title by adverse possession. Hence it is prayed for dismissal of the suit of the plaintiff. 5. On the basis of pleadings of the parties the trial Court in all framed 8 issues. Hence it is prayed for dismissal of the suit of the plaintiff. 5. On the basis of pleadings of the parties the trial Court in all framed 8 issues. The plaintiff in support of his case examined himself as P. W.1 and got examined 11 more witnesses as P.W.2 and 12 and got marked documents Ex. P.1 to 19. On behalf of the defendants, defendant No.2 examined himself as D.W.1 and also got marked documents EX.D.1 to 34. During the pendency of suit the original plaintiff died and his LR were brought on record. The trial Court after considering the material evidence placed before it came to the conclusion that the deceased original plaintiff is the grand son of Properties Shankerappa and further held that suit schedule properties item No. 6, 8 and 10 are the ancestral properties. Accrodingly, decreed the suit of plaintiff for partition of his 1/3 share in respect of suit schedule properties item No.6, 8 and 10. Being not satisfied with the said judgment and decree the LR of the deceased original plaintiff preferred appeal R.A.No.18/1991 and the defendants preferred R.A.No. 13/1991 before the Civil Judge [Sr Dn] & CJM, Tumkur, the learned Civil Judge after hearing the Counsel for both parties, considering the materials placed before it allowed R.A.No. 13/1991 filed by defendants seting aside the judgment and decree passed by trial Court and dismissed the R.A.No.18/1991 filed by the plaintiffs, holding that though plaintiffs are belong to the joint family of properties Shankarappa and though the suit schedule properties except item No.13 are the joint family properties, the suit of the plaintiff is barred by limitation.Hence the plaintiffs/appellants have come up with this appeal under Section 100 CPC. 6. According, to appellants the judgment and decree passed by the lower appellate Court is on mere assumptions and presumptions; that there is no evidence to demonstrate that appellants were excluded during the partition of ancestral properties of properties Shankarappa; that when the lower appellate Court come to the conclusion that suit schedule properties, except item No.13 are the ancestral properties it ought to have decreed the suit of plaintiffs.Hence, it is prayed to allow the appeal and consequently to allow the suit. 7. 7. Heard the arguments of Counsel for both parties and perused the records, the substantial question of law that arises for my consideration is: (1) Whether the lower appellate Court is justified in admitting Ex. P-13 into evidence and considering the same, when there is absolutely no material as regards authenticity of the said document and when it is not a public document? (2) Whether the Courts below could have held that the suit is barred by time only relying upon EX.P-13 which was not at all produced by the defendant during trial? (3) Whether the Courts below were right in holding that the plaintiff is not entitled to the suit schedule properties along with the defendants? 8. According to plaintiffs, the suit schedule properties belong to joint family of one Shankarappa; that he died leaving behind three sons namely, Lingappa, Gangaiah & Channabasavaiah; defendants-2 & 3 are the sons of Lingappa, defendant No. 1 is the son of Gangaiah and the plaintiff is the son of Channabasavaiah. However, this has been seriously disputed by the defendants. According to them, the said Shankarappa had only two sons i.e., Lingappa and Gangaiah; that the said Shankarappa had no son by name Channabasavaiah. In this regard, the plaintiffs witnesses who were examined before the Court deposed that Channabasavaiah the father of deceased original plaintiff is the son of Shankarappa; that the married the daughter of one Sannaganganna of Rampura and since the said Sannaganganna had no male issue, he was residing in Rampura in his father-in-laws house enjoying his properties; that he died during the year 1925. Howeve, according to plaintiff, he died only during 1955. However, from the evidence of plaintiffs witnesses, it is clear that the said Channabasavaiah died at Rampura village and he was enjoying the properties of his father-in-law. Further, EX.P-12 - Will executed by Sannaganganna in favour of his daughter Kallamma, wife of Channabasavaiah and that other documents - index of land, RTC extracts discloses that the said land stood in the name of deceased original plaintiff after the death of his wife kallamma. Thus the over all evidence placed on record discloses that deceased original plaintiff is the son of Channabasavaiah and grand son of Shankarappa. Further more the said finding recorded by the Courts below in not disputed before me, in this appeal. 9. Thus the over all evidence placed on record discloses that deceased original plaintiff is the son of Channabasavaiah and grand son of Shankarappa. Further more the said finding recorded by the Courts below in not disputed before me, in this appeal. 9. As regards the suit schedule properties are concerned, according to plaintiffs, the same are the ancestral joint family properties. Even the defendants had not seriously disputed the same and D.W.1 has admitted during his cross-examination that suit schedule properties are ancestral properties, except suit schedule item No.13. 10. Further, EX.P-13 the application of Channabasavaiah to the Tahsildar, Gubbi discloses that there was partition in the family of Shankarappa among his sons Lingappa and Gangaiah and that Channabasavaiah was excluded from the partition. Considering the circumstances involved in the case and the oral evidence of witness of both the parties, the Court had come to the conclusion that the said document must be of the year prior to 1923. The said document/Ex.13 has been produced by plaintiffs themselves through P.W.12 and there were no reasons to disbelieve the same. Further more, the plaintiffs witnesses have deposed before Court that Lingappa and Gangaiah were residing separately during their life time and enjoying the suit schedule properties separately. Thus, the oral evidence of plaintiff and the document EX.P.13 produced and relied on by plaintiff( itself clearly discloses that there was partition among the sons of Shankarappa and that Channabasavaiah has been excluded from partition which was within his knowledge. 11. Of course( from the materials placed before it( the Courts below have come to the conclusion that the deceased original plaintiff is the grandson of Shankarappa and the son of Channabasavaiah. Further( it is held that suit schedule properties are ancestral properties. However, since a clear finding has been recorded by it( that there was partition among Lingappa and Gangaiah during their life time about 50 years back to the filing of the suit which was within the knowledge of Channabasavaiah and that the said partition has not been challenged by said Channabasavaiah and the suit came to be filed only during the year 1982. Therefore, the Courts below have rightly held that the suit of plaintiff is barred by limitation. Therefore, the Courts below have rightly held that the suit of plaintiff is barred by limitation. Article 110 of Limitation Act provides for a period of limitation of 12 years for a person excluded from a joint family property to enforce a right to share therein( and the said period begins to run from the date of knowledge of plaintiff of such exclusion. Thus( in the instant case( since( no suit came to be filed by Chanabasavaiah or the deceased original plaintiff within the said period of 12 years( the Courts below were right in holding that the suit of plaintiff is barred by limitation. Of course( it is argued that there were no specific issue raised in this regard by the trial Court and that the defendants have not led any evidence to prove that the said Channabasavaiah has been excluded from the joint family property. Considering the issues raised by the trial Court and the evidence led in by the parties, it is clear that issue No.5 is relating to the fact of partition between Lingappa and Gangaiah, sons of Shankarappa about 80 years back to filing of the suit which is obviously excluding Channabasavaiah - father of deceased original plaintiff. Both the parties have led evidence in this regard and there is a clear material placed on record that there was a partition between Lingappa and Gangaiah during their life time about 50 years back to the filing of the suit and that the document Ex. P-13 produced by the plaintiff itself discloses that the said Channabasavaiah had the knowledge of exclusion and he is said to have objected for the same and demanded for fresh partition and a panchayat was also convened in that regard. However, no suit came to be filed at that time and he continued to live in Rampura and enjoy the properties of his father-in-law. There were no disputes during the life time of sons of Shankarappa and disputes arose only after their death their children. However, no suit came to be filed at that time and he continued to live in Rampura and enjoy the properties of his father-in-law. There were no disputes during the life time of sons of Shankarappa and disputes arose only after their death their children. Since specific materials placed in support of the case of the defendants that there was partition of the joint family properties of Shankarappa about 50 years prior to filing of the suit and that the respective parties are in possession of the same since then and developed the same without any interference by the plaintiffs or their predecessor in spite of having knowledge of partition among the other two sons of Shnakarappa, it appears the deceased original plaintiff and his father Channabasavaiah waived their share in the suit property. Thus the lower appellate Court has rightly dismissed the suit of plaintiffs as barred by limitation and the same does not require any interference.Hence the appeal fails and is accordingly, dismissed as devoid of merits. No costs.