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2014 DIGILAW 264 (KAR)

T. P. Mangala v. Papashetty

2014-02-28

K.L.MANJUNATH, RAVI V.MALIMATH

body2014
JUDGMENT K.L. Manjunath, J. 1. The appellant were the plaintiffs in O.S. No. 19 of 2010, on the file of the Civil Judge (Senior Division), Pandavapura. Being not satisfied with the decree granted to them on 22-10-2011, the present appeal is filed. The facts leading to this appeal are as hereunder: "The plaintiffs are the children of the first defendant. According to them, the suit properties are the joint family properties and were allotted to the first defendant under a registered partition deed dated 21-6-2000 and that the suit properties are very fertile and they were getting sufficient income which is more than the requirements of the family. The first defendant having addicted to bad vices had entered into an agreement to sell the suit item 7. Based on the same, the second defendant filed a suit in O.S. No. 49 of 2004 for specific performance of the contract. The suit filed by the second defendant against the first defendant came to be decreed." 2. Aggrieved by the same, the first defendant had filed an appeal in R.A. No. 95 of 2007, which also came to be dismissed and the judgment and decree passed in O.S. No. 49 of 2004 has been confirmed by this Court in RSA No. 997 of 2009. After the dismissal of the R.A. the plaintiffs filed a suit for partition and separate possession of their 4/5th share in the suit schedule properties. The first defendant did not contest the case. The second, defendant contested the case contending that the first defendant was not addicted to bad vices and he has agreed to sell the suit time 7 in her favour for a valuable consideration, for the legal necessity of the joint family and in order to overcome the judgment and decree passed in O.S. No. 49 of 2004, which has been confirmed by this Court in RSA No. 997 of 2000 the plaintiff's have been set up by their father and that the suit filed by the plaintiff was not maintainable. Based on the above pleadings, the following issues were framed by the Court below: "(i) Whether plaintiffs prove that, all the suit properties are joint family properties of plaintiffs and defendants and they are in joint possession of the same? (ii) Whether they further proves that sale in favour of defendant 1 is not binding on them? Based on the above pleadings, the following issues were framed by the Court below: "(i) Whether plaintiffs prove that, all the suit properties are joint family properties of plaintiffs and defendants and they are in joint possession of the same? (ii) Whether they further proves that sale in favour of defendant 1 is not binding on them? (iii) Whether defendant 2 proves that, she purchased item 7 of the suit properties from defendant 1 for valuable consideration on the basis of which she became the owner of said land and she is in possession of the same? (iv) Whether plaintiffs are entitled for partition and separate possession as claimed? (v) What order or decree?" 3. In order to prove their respective contentions the first plaintiff who is also an Advocate was examined as P.W. 1, he had relied upon Exhibits P.Ws. 1 to 13. The second defendant got examined herself as D.W. 1 and she relied upon Exhibits D. 1 to D. 5. 4. The Trial Court after considering the entire issues let in by the parties held issues 1 to 14 in negative and ultimately, the suit came to be decreed declaring that the plaintiffs are entitled for 4/5th share in all the suit schedule properties. 5. The Trial Court further held that considering the nature of the decree obtained by the second defendant against the first defendant, the share of the plaintiff's shall be carved out in all properties excluding property in item 7/1, which shall be allotted to the share of the first defendant in order to protect the interest of the second defendant-purchaser. Being not satisfied with the decree granted to them contending that the Trial Court was also required to grant a decree in respect of Suit No. 7, the present appeal is filed. 6. We have heard the learned Counsel for the appellant. The main contention of the appellant is that the value of the property in item 7 is much more of the value of other properties. Therefore, the Trial Court could not have excluded item 7 to the plaintiff's share. In the circumstances, he requests the Court to set aside the judgment and decree of the Trial Court by allowing this appeal. 7. Therefore, the Trial Court could not have excluded item 7 to the plaintiff's share. In the circumstances, he requests the Court to set aside the judgment and decree of the Trial Court by allowing this appeal. 7. After hearing the Counsel for the appellant and on perusal of the nature of the properties involved in this suit, we have noticed that all the properties are situated within Pandavapura town limits and outskirts of Pandavapura. Suit item 1 is measuring 20 acres of land, which is wet land, suit item 2 is 25 guntas of land, suit item 3 is a non-residential property measuring 100 x 35, where a sugarcane crushing machine is installed. Similarly, suit item 4 is a site measuring 40 x 35 feet, suit item 5 is another residential house measuring 42 x 29 feet, suit item 6 is also site measuring 74 x 9 feet, suit item 8 is an agricultural land measuring 1.40 hectares and even Suit No. 8-B is measuring 2 acres, 20 guntas. If the value of these properties are taken into consideration, the value of item 7 cannot be more than the share of the plaintiff's. Item 7, is a residential house measuring 35 x 40 feet. Therefore, viewed from any angle the value of the property bearing Suit No. 7 would be less than l/5th of first defendants share. In the circumstances, we do not find any merit in this appeal. Accordingly, the appeal is dismissed. Appeal Dismissed.