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2017 DIGILAW 656 (KAR)

T. C. Gopalaiah v. Thammanna

2017-03-27

K.N.PHANEENDRA

body2017
JUDGMENT : K. N. Phaneendra, J. This appeal is preferred against the concurrent findings of the judgment rendered by Senior Civil Judge, Maddur, in O.S. No.38/2007 dated 27.01.2012 dismissing the suit of the plaintiff for partition and delivery of separate possession of his half () share in the suit schedule property, which is confirmed by the Principal District Judge, Mandya, by its judgment dated 25.04.2013 in RA No.33/2012. 2. The brief factual matrix of the case is that, the plaintiff and the 1st defendant are the direct brothers. After the death of their father-Channegowda in the year 1976, they have partitioned the suit schedule property and other ancestral properties in the year 1982. As per the partition, in the Suit Schedule Site, plaintiff has got 65 ft. x 45 ft. and the remaining extent of 65 ft. x 125 ft. was allotted to the 1st defendant. Since long, they have been in possession and enjoyment of their respective shares. It is also admitted that after the said oral partition, the plaintiff has sold some of his properties fallen to his share and likewise, the 1st defendant also sold some properties fallen to his share. It is the further case of the plaintiff that the 1st defendant became the Mandal Panchayat Member and thereafter it appears he made an application colluding with the officials and got changed the katha of the entire suit schedule property into his name, as if he is the absolute owner of the entire extent of 70 ft. x 170 ft.. The said order of the panchayath has been challenged in GPA No.6/1998 and the said case came to be allowed. Aggrieved by the said order, the 1st defendant preferred an appeal before the Zilla Panchayat in Appeal No.30/1998- 99, which came to be dismissed. The 1st defendant again preferred a writ petition in W.P. No.12351/2004 before the High Court of Karnataka, Bengaluru and the High Court has disposed of the said writ petition vide order dated 30.11.2006 with a direction to restore the katha in respect of the said site in the name of the father of the plaintiff and the 1st defendant, leaving open to the parties to prove their case respectively before the competent Court. By that time, the plaintiff had already filed a suit in O.S. No.83/2001 for the relief of declaration and consequential relief of injunction in respect of the property allotted to him. However, the said suit came to be dismissed for non-prosecution and it appears the plaintiff did not persuade the Court for restoration of the said site allotted to him and as such it logically came to an end. to appears thereafter, the plaintiff has filed this suit claiming equal share in the said site measuring 70 ft. x170 ft. by way of partition and separate possession. 3. The defendants appeared through their counsel and filed the written statement specifically the 1st defendant has taken up a contention admitting the partition in the year 1982 and allocation of certain ancestral properties in favour of the plaintiff and the 1st defendant. It is his claim that as per the partition, the entire suit schedule property had fallen to his share and katha of the said property has been effected in the name of the respective parties and the defendant was accordingly got changed the katha in his favour. It is contended by the 1st defendant that after partition, the plaintiff has sold a portion of his property to one Shivaraj, wherein, he has categorically shown the western boundary to the said property as vacant site belonging to the plaintiff, which is the suit schedule property. The 1st defendant has also taken up a contention that the suit filed by the plaintiff claiming only the right over the property measuring 65 ft. x 45 ft. has been totally given up during the course of evidence and the plaintiff has claimed that at the time of oral partition between the parties, the suit schedule property has been excluded from the said partition. Therefore, he is entitled for half share in the said property. It is contended that the plaintiff cannot blow hot and cold at a time. For all these reasons, he has submitted that, the plaintiff- s suit is not maintainable and the same is liable to be dismissed. 4. The trial Court has framed the following issues on the above said contentious pleadings in O.S. No.38/2007:- (i) Whether the plaintiff proves that he is in possession and enjoyment of half portion of the suit schedule property by virtue of oral partition took place between himself and his brother 1st defendant? 4. The trial Court has framed the following issues on the above said contentious pleadings in O.S. No.38/2007:- (i) Whether the plaintiff proves that he is in possession and enjoyment of half portion of the suit schedule property by virtue of oral partition took place between himself and his brother 1st defendant? (ii) If so, whether suit filed by plaintiff claiming half share over the suit schedule property is maintainable? (iii) Whether defendants prove that suit of the plaintiff is hit by principles of res judicata? (iv) What order or decree? 5. The trial Court has made a thorough examination of the oral and documentary evidence on record. It has categorically stated in the judgment that, after the oral partition, the parties have taken their properties and respective mutations have been effected and kathas have been changed over. For a period of 15 years, the plaintiff has not questioned the said partition and after lapse of more than 10 years, he filed the present suit. The trial Court has also observed that, originally in the pleadings, the plaintiff has claimed property measuring 65 ft. x 45 ft. on the basis of the oral partition. But, during the course of evidence, the plaintiff has categorically stated that this property was not at all included in the earlier partition. The 1st defendant has taken up a contention that, subsequently there was a partition between the parties. Though the said document was admitted by the plaintiff, but he denied his signature to the said document. Further, the learned counsel has brought to the notice of this Court that, the plaintiff has admitted that the original of the said document is remained with him. The trial Court has categorically made an observation on the basis of the evidence that, though the plaintiff has admitted the said document, in fact he has denied his signature and the said document was allowed to be marked. But, the fact remains that the plaintiff has accepted the partition of the properties at the earliest point of time in the year 1982. But, before the trial Court, he has failed to establish that, the property to the extent of 65 ft. x 45 ft. But, the fact remains that the plaintiff has accepted the partition of the properties at the earliest point of time in the year 1982. But, before the trial Court, he has failed to establish that, the property to the extent of 65 ft. x 45 ft. has fallen to his share, on the other hand, his evidence is that the said property was not at all included in the partition and therefore, he is entitled for half share in the said property. 6. The trial Court after considering the document- Ex.D4, which is the sale deed executed by the plaintiff in favour of one Shivaraju in respect of the property fallen to his share in the earlier partition, wherein the boundaries mentioned to the said property shows that towards East, Tumkur Road and towards West, vacant site of the plaintiff. But, in the schedule mentioned in the suit filed earlier, in O.S. No.285/1998 to the plaintiff, the remaining property in the same site is shown towards South. Therefore, the boundaries shown to the property, which was sold and the boundaries mentioned in O.S. No.285/1998 do not reconcile with each other. Therefore, the trial Court considering the above said facts and circumstances of the case, has come to the conclusion that the plaintiff has blown hot and cold at a time and he has not established the oral partition before the Court allocating 65 ft. x 45 ft. i.e., site to the extent of his site in his favour. On the other hand, he has also not proved before the Court that the property was not included in the earlier partition at all. The above said stand in the pleading and the evidence are not reconciling with each other. Therefore, the trial Court has dismissed the suit. 7. Being aggrieved by the said judgment, the plaintiff has preferred an appeal before the First Appellate Court reiterating the above said factual aspects. The learned District Judge has framed some points for consideration on the basis of the grounds urged before it. (i) Whether the suit is hit by principles of res- judicata? (ii) Whether the impugned judgment is sustainable both in law and also on facts? (iii) What order? 8. The learned District Judge has framed some points for consideration on the basis of the grounds urged before it. (i) Whether the suit is hit by principles of res- judicata? (ii) Whether the impugned judgment is sustainable both in law and also on facts? (iii) What order? 8. Though the First Appellate Court has held that the suit of the plaintiff is not hit by the principles of res judicata, but the pleadings in O.S. No.285/1998 and the contents of the writ petition, and as well as the pleadings in this case and the evidence led by the parties has been re-looked in to by it. Though the First Appellate Court has not in detail considered the materials on record, nevertheless observed the controversy between the parties in the pleadings of the parties and the evidence led by the parties and ultimately it has come to the conclusion that the trial Court has not committed any error in dismissing the suit of the plaintiff. Aggrieved by the above said two judgments, the present Regular Second Appeal is preferred. 9. On careful perusal of the oral and documentary evidence and as well as the pleadings of the parties, it is clear that the plaintiff's case is that, he obtained some portion of the property measuring 65 ft. x 45 ft. in the oral partition. It is his case before the Court in OS No.285/1998 that the suit schedule property measuring 65 ft. x 45 ft. with specific boundaries fallen to his share in the oral partition. In this case, particularly he has claimed half share in the suit schedule property for the reasons best known to him. Even in the plaint, how he could claim more than 65 ft. x 45 ft. is also not stated. On the other hand, during the course of evidence, he has taken up a different stand that this property was not at all included in the earlier partition, therefore, he is entitled for the property to the extent of 70 ft. x 85 ft. On the other hand, a document was produced by defendant No.1 i.e. the plaint in O.S. No.285/1998 and Ex.D4, which shows that the plaintiff has sold a particular portion of his property, which is not the suit schedule property, to one Mr. x 85 ft. On the other hand, a document was produced by defendant No.1 i.e. the plaint in O.S. No.285/1998 and Ex.D4, which shows that the plaintiff has sold a particular portion of his property, which is not the suit schedule property, to one Mr. Shivaraju as per Ex.D4, in which he has categorically shown the site belonging to the 1st defendant is towards the Eastern side. Therefore, both the courts below came to the conclusion that, the pleadings and the evidence of the plaintiff are not reconciling with each other. Even the property was orally partitioned between the parties to the extent of 65 ft. x 45 ft., according to the plaintiff, though he has got changed the katha of other properties, there is no mention as to how he has not made any application before Gram Panchayat to change the katha of this particular property at the earliest point of time, immediately after the partition. Further it is not explained as to how he has only got changed the katha in respect of all other properties. On the other hand, the defendant has made such application for change of katha of the entire property into his name. This clearly creates a serious doubt in the case of the plaintiff as to whether he is making any attempt to further claim share in this property, though he had been allocated the shares in ancestral properties and having taken up such share and having filed suit in O.S. No.285/1998 to the specific extent, he has not prosecuted the said suit for the reasons best known to him. Actually, the plaintiff has filed a suit for declaration and allowed that suit to be dismissed, and not got it restored for further proceedings. When such being the case, in my opinion, the pleadings made in that particular suit binds him, in spite of the fact that the present suit may not be barred by res judicata. On the basis of pleadings already pleaded by him, he cannot go or travel beyond the said pleadings already made in the said suit. Therefore, the trial Court and the First Appellate Court have properly appreciated the oral and documentary evidence on record. Even any erroneous appreciation of fact cannot become a substantial question of law to be considered during the second appeal. Therefore, the trial Court and the First Appellate Court have properly appreciated the oral and documentary evidence on record. Even any erroneous appreciation of fact cannot become a substantial question of law to be considered during the second appeal. In the above facts and circumstances of the case, I do not find any strong reasons to frame any substantial question of law in this case. Hence, the appeal is liable to be dismissed at the stage of admission itself. Hence, the following order: ORDER 1. Appeal is dismissed with costs. 2. In view of dismissal of the appeal, IA No.1/2017 for Temporary Injunction does not survive for consideration. Hence, the said application is dismissed.