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2012 DIGILAW 968 (KAR)

Nunkanna v. Palamma W/o. Thuppala Guruvaiah

2012-11-30

B.MANOHAR

body2012
JUDGMENT B. Manohar , J.--The appellants are plaintiffs in O.S.No. 336/2002 being aggrieved by the judgment and decree dated 10-08-2005 passed by the Court of Civil Judge (Sr.Dn.), Challakere filed this appeal. The plaintiffs have filed a suit seeking for declaration declaring that the plaintiffs are entitled for half share in the suit schedule property and put the plaintiffs in possession by metes and bounds. In the plaint, it is contended that suit schedule properties were originally belonged to the propositus Boraiah, he had two sons by name Boraiah and Siddaiah. After his death, his two sons namely Boraiah and Siddaiah were in possession of the suit schedule properties. Siddaiah had a son by name Gundaiah, he died issueless. Boraiah had three sons, namely Gonuru Guruvaiah, Hotte Sanghaiah and Boraiah. After the death of Siddaiah, the mutation entries in respect of the land in dispute stand in the name of eldest son of Boraiah i.e. Gonuru Guruvaiah. However, all the three sons were in joint possession and enjoyment of the suit schedule properties. After the death of Gonuru Guruvaiah and Boraiah, the katha in respect of the suit schedule properties stand in the name of Gonuru Palaiah who is the son of Gonuru Guruvaiah and father of plaintiffs 1 and 2. Hotte Sanghaiah died issueless. The plaintiffs No. 3 and 4 are the grandchildren of Gonuru Guruvaiah, through Mooka Boraiah and Gonuru Boraiah. The 3rd son of Boraiah i.e. the brother of Hotte Sanghaiah had a son by name Thuppala Guruvaiah, the said Thuppala Guruvaiah had a wife by name Palamma who is the defendant No. 1. Defendants 2 to 5 are the sons of Thuppala Guruvaiah and the first defendant. 2. It is the case of the plaintiffs that the plaintiffs and defendants were in joint possession and enjoyment of the suit schedule properties. The father of the plaintiffs was an illiterate and ignorant person. The defendants taking undue advantage of the illiteracy of the father of the plaintiffs, got changed the katha in the name of the first defendant in collusion with the revenue authorities. When the plaintiffs went to cultivate the suit schedule property in the month of June 2002, the defendants resisted and not allowed the plaintiffs to cultivate the same contending that they, are the absolute owners of the suit schedule properties and the plaintiffs have no right in respect of the suit schedule properties. When the plaintiffs went to cultivate the suit schedule property in the month of June 2002, the defendants resisted and not allowed the plaintiffs to cultivate the same contending that they, are the absolute owners of the suit schedule properties and the plaintiffs have no right in respect of the suit schedule properties. Immediately, the plaintiffs had convened the Panchayat in the village. Inspite of the advise given by the Panchayat, the defendants have not heeded the advise of Panchayat. In view of that, the plaintiffs have filed a suit seeking for half share in respect of the suit schedule properties. 3. The defendants 1 to 5 entered appearance and filed their written statement. The 6th defendant though served with notice, not filed any written statement. The defendants 1 to 5 denied the averments made in the plaint in toto and contended that there is no relationship between the plaintiffs and defendants. The genealogical tree produced by the plaintiffs is a concocted and created in order to grab the properties illegally. It was specifically contended that their ancestor one Boraiah had a son by name Guruvaiah who is the father of defendants 2 to 5 and husband of the first defendant. He died leaving behind them as legal representatives. Item Nos. 1 and 2 of the suit schedule properties are the ancestral properties and out of the income of item Nos. 1 and 2 properties, item No. 3 property was purchased. Katha stands in the name of their father Guruvaiah, during his lifetime, they were jointly cultivating the suit schedule properties along with late Guruvaiah. Except late Guruvaiah and his family members nobody has got any right, title or interest in respect of the suit schedule properties. The plaintiffs are strangers to their family. Further, the plaintiffs have their own land in Sy.No. 72, 61/1 and 83/4 in katha No. 273. Further, there was partition in the family of defendants as per the partition deed dated 7-8-2002 and they are enjoying their respective shares as per the partition deed referred to above. Hence sought for dismissal of the suit. 4. On the basis of the pleadings of the parties, the trial Court framed the following issues: (i) Whether the plaintiffs prove that the suit schedule properties are the ancestral and joint family properties of them and the defendants? Hence sought for dismissal of the suit. 4. On the basis of the pleadings of the parties, the trial Court framed the following issues: (i) Whether the plaintiffs prove that the suit schedule properties are the ancestral and joint family properties of them and the defendants? (ii) Whether the plaintiffs prove that they have got half share in the suit schedule properties? (iii) Whether the plaintiffs are entitled for partition and separate possession of their half share in the suit schedule properties? (iv) What decree or order? Additional Issues: (i) Whether the defendants prove that the plaintiffs also have got their own lands bearing res-sy. No. 72/1, 61/1 and 83/4 katha No. 273 as contended in their amended written statement defence para No. 2? 5. In order to prove the case of the plaintiffs, the second plaintiff got himself examined as P.W. 1 and examined other three witnesses as P.W. 2 to P.W. 4 and got marked the documents as Ex.P1 to Ex.P41. On behalf of the defendants, 5th defendant was examined as D.W.1 and got marked the documents as Ex.D1 to Ex.D32. The 6th defendant has not lead any evidence. 6. P.W. 1 in his evidence has reiterated the plaint averments and contended that Guruvaiah the grandfather of plaintiffs died about 95 years back and the father of the plaintiffs 1 and 2 died about 20 years back. He does not have correct knowledge about the date of death and also properties held by his ancestors and they are living jointly. In the cross-examination, the P.W. 1 deposed that he does not have any records to show that they were living jointly in one house. He further deposed that after their marriage, they were living separately. He further deposed that there was partition between the grandfather and his brother and the grandfather of the plaintiffs is enjoying half portion of the properties. He has denied the suggestion that from the year 1965-66 to 1981-82, the mutation entry stands in the name of Guruvaiah, who is the husband of the first defendant and father of defendants 2 to 5. After his death, the mutation in respect of the suit schedule properties was transferred in the name of the first defendant. He has not objected for transfer of mutation entry in the name of the first defendant though he was aware of the said fact. After his death, the mutation in respect of the suit schedule properties was transferred in the name of the first defendant. He has not objected for transfer of mutation entry in the name of the first defendant though he was aware of the said fact. P.W. 1 further denied that the husband of the first defendant purchased the land bearing Sy.No. 6 from one Siddaiah son of Jogaiah in the year 1931-32 and that as per the preliminary records the katha in respect of the said property stands in the name of the husband of the first defendant and father of defendants 2 to 5. He further deposed that his grandfather Gonuru Guruvaiah had two brothers Hotte Sanghaiah and Boraiah. The plaintiffs 1 and 2 are the sons of Gonuru Palaiah son of Gonuru Guruvaiah whereas the first defendant is the wife of Guruvaiah. Taking advantage of our illiteracy, the husband of the first defendant mutated his name. He further deposed that they have not produced any documents to show that they were jointly cultivating the suit schedule properties. He has further deposed that they were cultivating the property allotted to the share of the father of the plaintiffs. Apart from that the 4th plaintiff's father had purchased the lands bearing Sy.No. 61/1, 83/4 and Sy.No. 72 and he was paying the land revenue in respect of Sy.No. 72 and he was not paying the land revenue in respect of Sy.No. 61/1 and 83/4. 7. P.W. 2 who is the close relative of the plaintiffs in his evidence has deposed that the husband of the first defendant is the son of Boraiah and he is the brother of Gonuru Guruvaiah and there is relationship between the plaintiffs and defendants. In the cross-examination he expressed his unacquaintedness about the cultivation of the land except stating that the plaintiffs and defendants are jointly cultivating the land. He himself admitted that he is a close relative of the plaintiffs. P.W. 3 filed similar examination-in-chief by way of affidavit. In the cross-examination he has expressed that he has no knowledge regarding the cultivation of the land except stating that the plaintiffs and defendants jointly cultivating the land. P.W. 4 also deposed in the similar lines as that of P.W. 3 in the examination-in-chief. P.W. 3 filed similar examination-in-chief by way of affidavit. In the cross-examination he has expressed that he has no knowledge regarding the cultivation of the land except stating that the plaintiffs and defendants jointly cultivating the land. P.W. 4 also deposed in the similar lines as that of P.W. 3 in the examination-in-chief. In the cross-examination he also expressed his lack of knowledge regarding the cultivation of the land, except stating that the plaintiffs and defendants are jointly cultivating the land. Further, he has stated that he was residing 1 km away from the land and he does not know what cultivation is being made in the suit schedule properties. 8. On behalf of the defendants, 5th defendant who is the son of the first defendant was examined as D.W.1. He deposed that item Nos. 1 and 2 properties are ancestral properties of his grandfather Boraiah and after his death, his father succeeded the said estate. Out of the income of item Nos. 1 and 2 properties, item No. 3 was purchased by his father in the year 1931-32. After the death of their father, suit schedule properties were partitioned in the year 2002. From the said date of partition, they are cultivating the suit schedule properties separately. Further, he also deposed that there is no relationship between the plaintiffs and defendants. He has produced the preliminary documents to show that the mutation entry stands in the name of his father as well as grandfather. In the cross-examination though he has denied the relationship, he has admitted that his grandfather Boraiah is related to the grandfather of the plaintiffs 1 and 2. He has admitted that his mother has taken loan from the Bank by mortgaging the properties and non-payment of the said dues, the Bank has filed a suit and obtained a decree and thereafter the payment made by the mother of the plaintiffs. Since the mother of the plaintiffs is aged about 70 years and she is partially blind and deaf, she has not come for giving the evidence. From the period of his grandfather, the defendants are cultivating the suit schedule properties, the plaintiffs have no right over the suit schedule properties. The plaintiffs have also acquired some properties and cultivating the same. From the period of his grandfather, the defendants are cultivating the suit schedule properties, the plaintiffs have no right over the suit schedule properties. The plaintiffs have also acquired some properties and cultivating the same. He has produced the partition deed of the year 2002 between defendants 1 to 5 and mutation entries and Kandayam receipts as Ex.D1 to Ex.D41. 9. The trial Court after considering the arguments addressed by the parties and after considering the oral and documentary evidence let in by the parties held issue Nos. 1 to 3 in the negative and additional issue No.1 in the affirmative, consequently by its judgment and decree dated 10-08-2005 dismissed the suit filed by the plaintiffs. Being aggrieved by the said judgment and decree dated 10-08-2005, the plaintiffs have preferred this appeal. 10. Sri. M.V. Seshachala, learned counsel appearing for the appellants contended that the judgment and decree passed by the trial Court is contrary to law and material evidence on record. The trial Court having held that the plaintiffs are the lenient descendents of the original propositus late Boraiah, denying half share to them in the properties in contrary to law. The finding of the trial Court that there was oral partition between the grandfather of the plaintiffs and defendants and they are cultivating the land separately is not based on any of the documents produced by the defendants. Further, the first defendant is the wife of Guruvaiah and is the eldest member of the family and she has not stepped into the witness box and deposed the correct fact. For non examination of the vital witness, the trial Court ought to have drawn adverse inference against the defendants. In the absence of any partition between the parties, the plaintiffs are entitled for half share in the properties. The entire approach made by the trial Court is contrary to law. He relied upon the judgments reported in Bharat Singh and Another Vs. Bhagirathi, AIR 1966 SC 405 to contend that the mutation entry is not conclusive proof of actual possession of the properties; Commissioner of Income Tax Kanpur Vs. Kalloomal Tapeswari Prasad (HUF) , Kanpur, AIR 1981 SC 1463 to contend that under Hindu Law, the partition may be either total or partial, a partial partition may be as regards persons who are members of the family or as regards properties which belonged to it. Kalloomal Tapeswari Prasad (HUF) , Kanpur, AIR 1981 SC 1463 to contend that under Hindu Law, the partition may be either total or partial, a partial partition may be as regards persons who are members of the family or as regards properties which belonged to it. Gaya Din (D) Through Lrs. and Others Vs. Hanuman Prasad (D) Through Lrs. and Others, 2000 (7) SCALE 613 to contend that the members of the joint family collectively own the coparcenary property. Each member has an interest in such property, though his interest becomes definite on partition. He also relied upon a judgment reported in Ram Pat and Others Vs. State of Haryana, AIR 2009 SC 2847 to contend that the entries made in the revenue records were not decisive for proving actual possession. 11. On the other hand, Sri. B.M. Siddappa, learned counsel appearing for the respondents 1 to 5 argued in support of the judgment and decree passed by the trial Court and contended that from the last 50 years, the plaintiffs and defendants are cultivating the properties belonging to their respective shares. From the year 1965-66 onwards, the mutation entries stand in the name of the husband of the first defendant. After his death, mutation entry has been changed in the name of the first defendant. After lapse of more than 35 years, the plaintiffs have filed a suit for partition. Further, P.W. 1 himself has admitted in his evidence that they are cultivating the properties allotted to their share. Hence, it is not open tot he plaintiffs to seek for partition and sought for dismissal of the appeal. 12. Considering the arguments addressed by the parties and on examining the oral and documentary evidence, the only point that arise for consideration in this appeal is- Whether the plaintiffs have made out a case for interference with the judgment and decree passed by the trial Court and entitled for half share in the suit schedule properties? 13. Though the plaintiffs have claimed half share in the suit schedule properties on the ground that the suit schedule properties belonged to late Boraiah who is the great-grandfather of the plaintiffs and defendants and they are from the Gunthkollammanahally and jointly cultivating the suit schedule properties, except oral evidence no document has been produced to show that they are jointly cultivating the land. The plaintiffs in their evidence have deposed that they were jointly cultivating the suit schedule properties, however, no document has been produced. P.W. 1 in his evidence has deposed that the suit schedule properties were partitioned by their grandfather, as the grandfather was in possession of the his half share, the plaintiffs are cultivating the same. Neither ration card nor voters list has been produced in this regard. On the other hand, the 5th defendant in his evidence has deposed that there is no relationship between the plaintiffs and defendants. Boraiah is the grandfather who is the original propositus of the properties. After the death of his grandfather, and after the death of his father, he is in possession and cultivating the said properties. Item No. 3 property was purchased from the income of item Nos. 1 and 2 in the year 1931-32. The mutation entry from the year 1965-66 to 1981-82 stand in the name of the father of the defendants and after his death, in the year 1982, it was changed in the name of the first defendant. The plaintiffs were fully aware of the said fact and they have not objected for change of mutation in the name of the first defendant. Further the plaintiffs were also owning the properties bearing Sy.No. 61/1, 83/4 and Sy.No. 72 and the plaintiffs are cultivating the said properties and at no point of time, they are jointly cultivating the suit schedule properties. The preliminary records produced by the defendants clearly disclose that the RTC entries stand in the name of Guruvaiah son of Boraiah, after his death, it was changed in the name of the first defendant in the year 1981-82. If the plaintiffs were cultivating the suit properties, the plaintiffs would have sought for changing the mutation entries in their names. The defendants have produced the preliminary records and other revenue records and Kandayam receipts clearly disclose that the defendants are in possession and cultivating the properties, the plaintiffs themselves admitted that they are residing separately for the last more than 25 years. No claim has been made for the last 25 years, the suit has been filed only in the year 2002. Under Section 110 of the Limitation Act, the suit has to be filed within 12 years seeking for possession. The plaintiffs have not exercised their rights well within time. No claim has been made for the last 25 years, the suit has been filed only in the year 2002. Under Section 110 of the Limitation Act, the suit has to be filed within 12 years seeking for possession. The plaintiffs have not exercised their rights well within time. Hence the suit filed by the plaintiffs itself is barred by limitation. Apart from that, no document has been produced to show that they have right over the suit schedule properties and have not made the claim within the reasonable period. Admission made by the plaintiffs itself clearly disclose that there is a division of joint family properties during the time of their grandfather and they are cultivating half portion of the properties. That being so, the plaintiffs are not entitled to seek for half share in the suit schedule properties. The trial Court after considering the oral and documentary evidence came to the conclusion that the plaintiffs are not entitled for any share in the suit schedule properties. On reappreciating the same, I find that the plaintiffs have not made out a case to interfere with the judgment and decree passed by the trial Court and no document has been produced to establish the right over the suit schedule properties. In the absence of the same, the plaintiffs are not entitled for any share in the properties. The appellants have not made out a case to interfere with the order passed by the trial Court. Accordingly, the appeal is dismissed.