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2010 DIGILAW 1139 (KAR)

K. Chaluvaiah v. Shradamma

2010-11-03

B.MANOHAR, K.L.MANJUNATH

body2010
JUDGMENT K.L. MANJUNATH, J.—The appellants are challenging the legality and correctness of the Judgment and decree passed by the Civil Judge, (Sr. Dn.), Ramanagaram, dated 2nd Sept. 2004 in O.S. No. 52/1994, being not satisfied with partial decree granted to them. 2. The facts leading to this case are as hereunder: According to the plaint averments, the plaintiffs are the children of second defendant born to his second wife Huchamma. The first defendant Sharadamma is the widow of one Narasimhaiah who was the only son of Kalyanaiah, born to his first wife late Puttamma. Kalyanaiah, the second defendant died during the pendency of the suit. After his death his daughters were also brought on record as defendants-2(a) to 2(c). According to the plaint averments, 30 years prior to the institution of the suit their grandfather Giriyappa died leaving behind him his three sons, namely, Kempadasaiah, Singaraiah and Kalyanaiah. After the death of Giriyappa all the joint family properties were divided among his three sons. After the death of first wife Kalyanaiah married Huchamma as his second wife and the plaintiffs as well as the defendants lived together as members of the joint family and since the second defendant has join hands with the first defendant as the second defendant made an attempt to create an independent right in respect of the suit schedule property to the name of the first defendant, the plaintiffs filed the suit claiming 1/6th share in all the plaint properties. Prior to the institution of the suit, the proceedings were also initiated before the Tahsildar, Magadi in RRT CR No. 338/89-90 and the Tahsildar after detailed enquiry passed an order on 2.5.1994 directing the parties to approach the Civil Court for their redressal. In the circumstances, the suit for partition was filed by them claiming 1/6th share in all the plaint schedule properties. 3. The second defendant did not contest the suit. The first defendant alone contested the suit. As a matter of fact, the second defendant filed written statement accepting the averments made in the plaint supporting the case of the plaintiffs. 4. The main contention of the first defendant before the Court below was that she admitted the relationship between the plaintiffs and the defendants. She also admitted that Kalyanaiah had two wives by name, Puttamma and Huchamma and her husband Narasimhaiah was born to the first wife Puttamma. 4. The main contention of the first defendant before the Court below was that she admitted the relationship between the plaintiffs and the defendants. She also admitted that Kalyanaiah had two wives by name, Puttamma and Huchamma and her husband Narasimhaiah was born to the first wife Puttamma. She also admitted the suit properties as the joint family properties. She denied that the plaintiffs and defendants 1 and 2 are continued to be the members of the Joint family. According to her, during life time of her husband Narasimhaiah, in the year 1970 there was partition between late Narasimhaiah and the second defendant and Narasimhaiah continued to be in possession of the property as detailed in paragraph 8 of the written statement and after the death of Narasimhaiah, the first defendant made an application for transfer of revenue entries to her name from the name of her husband and that with an intention to knock of the property of the first defendant, proceedings were initiated by the plaintiffs before the Tahsildar and the Tahsildar directed the plaintiffs to approach the Civil Court. Therefore, she contends that the suit filed by the plaintiffs claiming share in the properties allotted to Narasimaiah as detailed in para 8 of the written statement is not maintainable and that she has no objection for partition in the remaining properties of the plaint schedule property. In the circumstances, she requested the Court to dismiss the suit holding that the plaintiffs are not entitled to claim the share in the items mentioned in para 8 of the written statement. 5. Based on the above pleadings, the following issues were framed by the Court below: (1) Whether the plaintiffs prove that the suit schedule properties are undivided? (2) Whether the first defendant proves that the suit schedule properties are allotted to the share of the husband in the partition? (3) Whether the plaintiffs are entitled for the partition claimed? If so, to what share if any? (4) What decree or order? 6. In order to prove their respective contentions, on behalf of the plaintiffs, in all 4 witnesses were examined. P.W. 1 Naganna is the Power of Attorney Holder of the plaintiffs. P.Ws. (3) Whether the plaintiffs are entitled for the partition claimed? If so, to what share if any? (4) What decree or order? 6. In order to prove their respective contentions, on behalf of the plaintiffs, in all 4 witnesses were examined. P.W. 1 Naganna is the Power of Attorney Holder of the plaintiffs. P.Ws. 2 to 4 were examined to show that all the parties are living together as members of the joint family and that there was no partition between Narasimhaiah and his father and that the plaintiffs are entitled to share in all the plaint schedule properties. Plaintiffs relied upon Exs. P1 to P58. Defendant No. 1 had got examined as D.W. 1. She also relied upon Ex. D1 to D58. The Trial Court considering the evidence let in by the parties held issues 1 to 3 partly in affirmative and granted the decree in favour of the plaintiffs in part holding that each of the plaintiffs are entitled for partition and separate possession of 8/35th share in the schedule properties excluding 1 acre 10 guntas of land each in Sy. No. 29/1, Sy. No. 29/2, 38 and 36/2 and 12 guntas in Sy. No. 95/lA and 10 guntas in Sy. No. 96/3 and a portion of the suit house described in item No. 10 and held that the 1st defendant is entitled to the above properties. Accordingly, the preliminary decree was drawn by the Judgment dated 2 Sept., 2004. 7. Being not satisfied with the decree passed by the Court below, the present appeal is filed by the plaintiffs seeking share in the properties claimed by defendant 1. 8. We have heard Sri B.G. Sridharan, learned senior counsel appearing for the appellant and H. Vijaya Kumar for Respondent 1 and Sri Umesh for Respondent 2(b). 9. Though several grounds are urged in the appeal Memo, Sri B.G. Sridharan, has raised the following grounds at the time of his argument: According to him, the finding of the Court below that there was a partition between Narasimhaiah and Kalyanaiah is incorrect. According to him, the first defendant who set up the plea of partition has failed to prove the same and Trial Court has committed a serious error in accepting the theory of earlier partition said to have been drawn between Kalyanaiah and Narasimhaiah. According to him, the first defendant who set up the plea of partition has failed to prove the same and Trial Court has committed a serious error in accepting the theory of earlier partition said to have been drawn between Kalyanaiah and Narasimhaiah. He further contends that the revenue entries standing in the name of defendant 1 would be subject to the result of the civil suit. Therefore, the Trial Court did not consider the directions of the Tahsildar, Magadi in RRT proceedings. He further contends, the Trial Court has committed a serious error in drawing an adverse inference against the plaintiffs on the ground that they did not step into the witness box as the Power of Attorney holder P.W. 1 has no knowledge about the family of the plaintiffs. According to him, the Power of Attorney discloses the purpose for which Power of Attorney has been executed by the plaintiffs authorising P.W. 1 Naganna to depose before the Court on behalf of the plaintiffs. Even if Naganna were to be a stranger to the family since he is aware of the affairs of the joint family, he was competent enough to depose on behalf of the plaintiffs. Therefore, the Trial Court has committed an error in rejecting the evidence of P.W. 1. He further contends the Trial Court has also committed an error in not holding that the partition drawn between Narasimhaiah and Kalyanaiah was unequal and unfair and disadvantages to the plaintiffs. Therefore, the plaintiffs were entitled to maintain a suit for partition for reopening of the same on the ground of unequal partition. 10. Per contra, Mr. Vijaya Kumar, Learned counsel for the respondent 1 submits that when the partition took place between Narasimhaiah and Kalyanaiah, the plaintiffs were not born and Naganna who has been examined as P.W. 1 had no knowledge or contact with the family. According to him, Naganna is a retired Revenue official retired as Deputy Tahsildar and is a permanent resident of Thirumale village which is far off from the village of the plaintiffs and defendants. According to him, Naganna is a retired Revenue official retired as Deputy Tahsildar and is a permanent resident of Thirumale village which is far off from the village of the plaintiffs and defendants. According to him, the plaintiffs and the defendants are Vokkaligas by community and P.W. 1 is a Brahmin and he has no contact of whatsoever with the plaintiffs considering the age of the plaintiffs and the acquaintance of P.W. 1 with the plaintiffs would only show that the evidence of P.W. 1 has to be brushed aside on the ground that he has been set up by the plaintiffs for the reasons best known to them. According to him, plaintiffs are not illiterates. The first plaintiff is an elected representative of Grama Panchayat. He was attending to the Court every day. P.W. 3 in his evidence has admitted that when he was cross-examined by the counsel for the first defendant, the plaintiff No. 1 was sitting in the Court hall, which would only show that the reasons assigned in Power of Attorney cannot be believed and that the Trial Court has rightly rejected the evidence of P.W. 1- Naganna. He further submits that considering the evidence of Honnagiraiah- P.W. 3 and other witnesses disclose that Panchayat was convened on several occasions to effect partition. Though second defendant was willing to give a share, the 1st defendant did not agree. But the said evidence is contrary to the allegations made in the plaint averments by the plaintiffs against the second defendant. He lastly contends that the partition between Narasimhaiah and Kalyanaiah was acted upon as revenue records were mutated in the name of Narasimhaiah during his life time and after his death, defendant 1 made an application for transfer of the revenue records to her name. Therefore, he contends that earlier partition has been accepted and proved. He further contends that Ex. D1 is the legal notice got issued by Kalyanaiah wherein he admits the partition between Narasimhaiah and him. Ex. D1 is dated 15.4.1982 and the suit is instituted by the plaintiffs in the year 1994. Therefore, it is clear that the plaintiffs have been set up by the second defendant who has supported them. In the circumstances, he requests the Court to dismiss the suit. 11. Ex. D1 is dated 15.4.1982 and the suit is instituted by the plaintiffs in the year 1994. Therefore, it is clear that the plaintiffs have been set up by the second defendant who has supported them. In the circumstances, he requests the Court to dismiss the suit. 11. Having heard the counsel for the parties, the only point to be considered by us in this appeal is whether the plaintiffs prove that they are entitled to claim share in the properties as detailed in para 8 of the written statement of the first defendant. 12. Having heard the counsel for the parties, we have noticed that the relationship between the parties are not in dispute. It is also not in dispute that all the plaint schedule properties were joint family properties at one point of time. The dispute is in regard to the properties claimed by the first defendant contending that she has become owner on account of the death of her husband Narasimhaiah and that there was a partition between Narasimhaiah and his father Kalayanaiah, the second defendant. Therefore, the only point to be considered by us in this appeal is whether there was a partition between Kalyanaiah and Narasimhaiah. If it is so, whether the plaintiffs can claim a share in the properties allotted to Narasimhaiah without challenging the prior partition either as unequal or unfair and such partition does not bind them. 13. Admittedly, none of the plaintiffs stepped into the witness box. They have relied upon the evidence of Naganna-P.W. 1 who is the Power of Attorney holder. He is a Brahmin by community and a resident of Thirumale village. According to P.W. 1 he has no connection of whatsoever with the family of the plaintiffs and defendants. If we look into the evidence of P.W. 1, he does not say how he came in contact with the plaintiffs and how he has acquainted with Narasimhaiah or Sharadamma, in order to give evidence to claim a share. Admittedly, he was working as a revenue officials in different places. According to him his acquaintance with the plaintiffs of 4 decades. This has been stated by him in the first sentence of examination-in-chief. Ex. P1 is the Power of Attorney executed by the plaintiffs in favour of P.W. 1. Admittedly, he was working as a revenue officials in different places. According to him his acquaintance with the plaintiffs of 4 decades. This has been stated by him in the first sentence of examination-in-chief. Ex. P1 is the Power of Attorney executed by the plaintiffs in favour of P.W. 1. In para 2 of the cross-examination P.W. 1 has admitted that the age of the first plaintiff as 35, second plaintiff as 32, third plaintiffs as 29, fourth plaintiffs age as 25 years. If it is so, P.W. 1 could not have come in contact with the plaintiffs since 1961, as none of the plaintiffs were born. 14. On perusal of the entire evidence of P.W. 1 it does not inspire the Court to accept the evidence of P.W. 1 and as a matter of fact the Trial Court has also held that the evidence of P.W. 1 cannot be believed. In para 11 of the cross-examination he admits that he is not aware of issuance of notice by Kalyanaiah as per Ex. D1. He does not know the contents of Ex. D1. He does not know the contents of reply sent by the first defendant as per Ex. D2. He has further admitted that he does not know whether defendant 1 Sharadamma is residing at Bennapanapalya or Mallasandra. He does not know whether she resides in a mud roof house or in any other place. He does not know whether the Katha of the house stands in her name or not. 15. Therefore, by looking into the evidence of P.W. 1, no Court can hold that he is well acquainted with the family of the plaintiffs and defendants in order to give evidence in respect of all the properties and the share claimed by the plaintiffs. Similarly, the evidence of Narasimhaiah P.W. 2 or P.W. 3 Honnagiraiah or the evidence of P.W. 4 Cheluvaiah cannot be accepted by any Court since they are not aware of the actual dispute between the parties. The Trial Court considering Ex. D1 and other revenue records produced by defendant 1, has come to the conclusion that there was partition between Narasimhaiah and Kalyanaiah during the lifetime of Nararasimhaiah. Admittedly, Narasimhaiah died on 20.9.1981 as per Ex. D8-death certificate. Ex. The Trial Court considering Ex. D1 and other revenue records produced by defendant 1, has come to the conclusion that there was partition between Narasimhaiah and Kalyanaiah during the lifetime of Nararasimhaiah. Admittedly, Narasimhaiah died on 20.9.1981 as per Ex. D8-death certificate. Ex. D1 has been got issued after the death of Narasimhaiah which would only discloses that an attempt was made at the first instance by Kalyanaiah to claim a share in the properties given by him to his son Narasimhaiah born to his first wife Puttamma. Since he could not succeed, 12 years later, he has set up the plaintiffs to file a suit for partition claiming share in the property allotted to late Narasimhaiah. The Trial Court considering the relevant revenue records has rightly rejected the claim of the plaintiffs in respect of the properties claimed by the 1st defendant. In the circumstances, we do not see any merits in this appeal. 16. Accordingly, the appeal is dismissed. Parties to bear their costs.