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2013 DIGILAW 1241 (KAR)

Yamanappa v. Neevratti

2013-10-29

B.SREENIVASE GOWDA

body2013
Judgment : 1. This appeal is filed by the defendant Nos.1 to 4, challenging the judgment and decree passed by the trial Court, whereby it has decreed the suit of the plaintiff holding that the plaintiff is entitled partition and separate possession of his half share in the suit properties by meets and bounds. 2. This appeal was filed on 18.03.2005 before the Principal Bench, Bangalore. On 16.09.2005, the notice was ordered to the respondents and records were called for. On 13.07.2006, the appeal was admitted and again records were called for and the appellant was asked to file paper books within three months. On 07.06.2013, Court notice was ordered to the appellants on the ground that the advocate representing the appellants in the above appeal has passed away. Accordingly, the Court notices were issued to all the appellants, the appellant Nos.1 and 2 were served with Court notice personally and the notice issued to the appellant Nos.3 and 4 were returned with a report of the Process Server that they were residing at Kolhapur for the last 20 years. 3. After service of suit summons, the defendants appeared through their learned counsel before the trial Court. Only the defendant No.1 filed his written statement and contested the suit and the same has been adopted by appellant Nos.2 to 4. 4. The appellant Nos.1 and 2, who were served with Court notices personally have not chosen to put appearance before this Court either as party-in-person or through any advocate. Under the said circumstances I had to examine the matter in order to find out whether there is any merit in this appeal and any useful purpose will be served in keeping the matter pending in this Court and found that there is no merit in this appeal and no purpose will be served in keeping the matter pending. 5. The plaintiff has filed a suit in O.S.No.212/1994, contending that one Pandu died about 30 years back leaving behind him his two sons by name Dattu and Ganapathi. His first son Dattu died on 19.3.77 leaving behind his wife Laxmibai and a son Neevratti (the plaintiff). His second son Ganapathi died on 12.11.76 leaving behind him his son Yamanappa (first defendant). The plaintiff and the first defendant are the joint family members and they are in joint possession and enjoyment of the suit properties. 6. His first son Dattu died on 19.3.77 leaving behind his wife Laxmibai and a son Neevratti (the plaintiff). His second son Ganapathi died on 12.11.76 leaving behind him his son Yamanappa (first defendant). The plaintiff and the first defendant are the joint family members and they are in joint possession and enjoyment of the suit properties. 6. The father of the plaintiff by name Dattu and the father of the defendant No.1 by name Ganapathi had purchased the property bearing Sy.Nos.144/4, 13/1A and Sy.No.11/1 out of joint family fund and they enjoyed the said properties by cultivating the same jointly as their joint family properties. Similarly, the plaintiff and defendant No.1 are in joint possession and enjoyment of land bearing Sy.No.13/1B measuring 08 guntas. After the death of Dattu and Ganapathi, the plaintiff and defendant No.1 continued in joint possession and enjoyment of the said properties. Subsequently, they have cultivated the land bearing Sy.No.70 measuring 38 acres 36 guntas as tenant under the Landlordship of one Deshpande. After the death of Dattu and Ganapathi, the defendant No.1, who used to look after the family affairs, filed Form No.7 before the Land Tribunal, Athani for grant of occupancy rights. The Land Tribunal granted occupancy rights in favour of the first defendant in respect of Sy.No.70. 7. It is the further case of the plaintiff that during the life time of Late Dattu and Ganapathi, they have enjoyed the land bearing Sy.No.70 as tenants and they have paid occupancy price while issuing Form No.10 in favour of the defendant No.1. Taking undue advantage of the occupancy right granted by the Land Tribunal, the first defendant got his name mutated in the revenue records and denied the legitimate share of the plaintiff over the said property and he refused to effect partition. Therefore, the plaintiff has filed this suit for partition and separate possession of his half share in all the suit properties. The first defendant filed his written statement denying the case of the plaintiff and the same has been adopted by the other defendants. 8. The trial Court based on the pleadings of the parties, has framed the following issues and additional issues for its consideration: ISSUES: 1. Whether the plaintiff is having half share in the suit properties as alleged? 2. Whether the plaintiff is entitled for the partition and separate possession of half share in the suit properties? 3. 8. The trial Court based on the pleadings of the parties, has framed the following issues and additional issues for its consideration: ISSUES: 1. Whether the plaintiff is having half share in the suit properties as alleged? 2. Whether the plaintiff is entitled for the partition and separate possession of half share in the suit properties? 3. What decree or order? ADDL. ISSUES: 1. Whether the plaintiff proves that the suit properties are joint family properties of himself and defendant No.1? 2. Whether the plaintiff proves that the suit land bearing Sy.No.70 measuring 38 acres 36 guntas assessed at Rs.12.68 ps. of Sambargi village is joint family tenancy land of himself and defendant No.1? 3. Whether the plaintiff proves that he is in joint possession of all the suit properties along with defendant No.1? 4. Whether the defendant No.1 proves that the suit land Sy.No.70 of Sambargi is his tenancy land and he is in exclusive possession and enjoyment excluding the plaintiff? 5. Whether the defendant No.1 proves that the father of plaintiff i.e., Dattu and his father i.e., Ganapathi were divided long back? 6. Whether the defendant Nos.2 to 4 proves that they are having rights in the suit properties? 9. The plaintiffs in support of his case examined himself as PW1 and examined two witnesses as PW2 and PW3 and produced 11 documents, which were marked as Exs.P.1 to P.11. on behalf of the defendants, the first defendant was examined as DW1 and examined a witness by name Dadasab Shidram Chougla as DW2 and no documents were produced on their behalf. 10. A perusal of Exs.P2 to P5, the record of rights in respect of the suit land bearing Sy.Nos.11/1, 13/1A, 144/4 and 13/1B, it is clear that the names of the plaintiff and defendant No.1 are appeared in the above revenue records as joint owners in possession of all four lands. PW2 -Sadashiv Gurubasu Mirji, who is the native of the plaintiff and defendant No.1 of Shirur village has categorically deposed before the Court about joint possession and enjoyment by the plaintiff and defendant No.1 over the suit properties. PW2 -Sadashiv Gurubasu Mirji, who is the native of the plaintiff and defendant No.1 of Shirur village has categorically deposed before the Court about joint possession and enjoyment by the plaintiff and defendant No.1 over the suit properties. PW3 - Balasaheb Venkatrao Deshpande, who is the son of late Venkatrao Deshapande, the original owner of the suit land bearing Sy.No.70 of Shirur village categorically deposed that during the life time of Deshpande the plaintiff's father by name Dattu and his brother by name Ganapathi were the tenants and were in joint possession and enjoyment of the suit properties under his father Venkatrao Deshpande. The trial court considering the above material aspect of the matter is justified in decreeing the suit of the plaintiff holding that he is entitled to partition and separate possession of his half share in the suit properties by meets and bounds. 11. I have carefully gone through the judgment and decree of the trial Court and I found that they are based on the proper appreciation of the oral and documentary evidence on record and there is no illegality or infirmity warranting my interference in this first appeal. 12. Accordingly the appeal is dismissed as devoid of merits. No order as to costs.