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2020 DIGILAW 1317 (KAR)

Ramanna Hanamant @ Hanamappa Jyali v. Laxman Hanamant @ Hanamappa Jyali

2020-07-03

SACHIN SHANKAR MAGADUM

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JUDGMENT Sachin Shankar Magadum, J. - The top noted second appeal is filed by defendant Nos.2 to 6 challenging the concurrent judgment and decree dated 10.12.2019 passed by the Senior Civil Judge & JMFC, Bilagiin R.A.No.26/2015 confirming the judgment and decree dated 09.10.2015 passed by the Civil Judge & JMFC, Bilagiin O.S.No.104/2013. 2. Respondent No.1/plaintiff filed a suit for partition and separate possession against his father namely Hanamant, his brothers and sisters seeking partition and separate possession. Respondent No.1/plaintiff specifically contended that the suit schedule properties are ancestral properties. Respondent No.1/plaintiff averred in the plaint that the suit schedule properties were purchased by utilizing joint family funds. The cause of action to fi le the present suit was, after defendant No.2 transferred agriculturalland bearing Sy.No.63/2 measuring 5 acres in favour of his wife and children i.e., defendant Nos.3 to 6. It is also averred in the plaint that the parents had filed a similar suit in O.S.No.100/2010, in the said suit the father of plaintiff namely Hanamant transposed himself as defendant. Since mother of present plaintiff namely Sheetavva died during the pendency of O.S.No.100/2010, the suit was dismissed as abated. 3. There is also an averment by the plaintiff that after the death of her mother he had filed an application seeking to withdraw his counter claim in O.S.No.100/2010. The Court has granted permission and accordingly suit was dismissed as abated and counter claim was withdrawn. The present suit is filed by the 1st respondent/plaintiff by specifically contending that the suit schedule properties are the joint family ancestral properties and since the defendants are acting adversely to interest of plaintiff, the present suit is filed. 4. On receipt of summons, defendant Nos.1 and 2 were placed exparte. Further it is forthcoming that defendant Nos.2, 3, 5, 6, 7 and 9 though appeared in the suit and engaged an advocate did not chose to fi le written statement. The 3rd respondent who is defendant No.8 contested the proceedings by filing written statement and also counter claim seeking share in the suit schedule property. 5. Though the 1st respondent/plaintiff herein did not enter witness box, however respondent No.3/defendant No.8 in support of her contentions led in oral evidence by relying on Exs.D.1 to D.10. The 3rd respondent who is defendant No.8 contested the proceedings by filing written statement and also counter claim seeking share in the suit schedule property. 5. Though the 1st respondent/plaintiff herein did not enter witness box, however respondent No.3/defendant No.8 in support of her contentions led in oral evidence by relying on Exs.D.1 to D.10. The Trial Court on appreciation of evidence led in by the 3rd respondent/defendant No.8 and in absence of challenge by present appellants and other defendants has decreed the suit by holding that respondent Nos.3 and 4 are entitled for 1/6th share each in the suit schedule property. 6. Being aggrieved by the judgment and decree of the Trial Court, the present appellant preferred an appeal in R.A.No.26/2015. The First Appellate Court on re-appreciation of oral and documentary evidence has concurred with the findings recorded by the Trial Court which has categorically held at paragraph No.24 of the judgment that the contentions and the oral and documentary evidence led in by respondent No.3/defendant No.8 has gone unchallenged. The First Appellant Court was of the view that the 3rd respondent and plaintiff have established their case and since admitted facts need not be proved as required under Section 58 of the Indian Evidence Act, the First Appellate Court was of the view that the amended provision of Section 6 of Hindu Succession Act is applicable to the present case on hand and 3rd respondent/defendant No.8 is entitled as coparcener. The First Appellate Court was of the view that the judgment and decree of the Trial Court is in accordance with law and does not suffer from any perversity. Both the Courts in absence of contest and by relying on the evidence adduced by the 3rd respondent have decreed the suit by quantifying the share of plaintiff and defendant No.8. 7. Questioning these two concurrent findings of the Courts below, learned counsel for the appellant would vehemently argue and contend before this Court that, the 1st respondent/plaintiff having filed the present suit has not led in any evidence. In this background, he would submit to this Court that the judgment and decree of the Trial Court in decreeing the suit of the 1st respondent/plaintiff suffers from serious perversity. 8. Though there is some force in submission of the learned counsel, however I am not inclined to accept the said contention. In this background, he would submit to this Court that the judgment and decree of the Trial Court in decreeing the suit of the 1st respondent/plaintiff suffers from serious perversity. 8. Though there is some force in submission of the learned counsel, however I am not inclined to accept the said contention. Admittedly the present suit is one for partition and separate possession and in a partition suit, all the parties are plaintiffs. Even if the 1st respondent/plaintiff having filed a suit for partition by paying requisite court fee has not chosen to enter the witness box, there is a counter claim by respondent No.3/defendant No.8 and defendant No.8 who is sailing with plaintiff has led in oral evidence and also produced documentary evidence. Defendant No.8 has succeeded in establishing that the suit schedule properties are the joint family ancestral properties. The present appellants have neither contested the proceedings by filing written statement, nor have chosen to cross examine defendant No.8. 9. In that view of the matter, the contention raised by the appellant cannot be accepted. I would also find no illegality with the judgment and decree of the Trial Court in awarding share to the plaintiff. Though the 1st respondent/plaintiff has not chosen to lead evidence but as a plaintiff there is a prayer to effect partition by meets and bounds and Court is paid. When the counter claim of defendant No.8 is allowed, it presupposes that a prayer by plaintiff interse supporting claim of defendant No.8 needs to be looked into particularly when Court fee is also paid on the plaint and hence quantification of plaintiff share is in accordance with law. 10. I do not find any gross injustice or miscarriage of justice that has caused to the appellant herein on account of both the Courts awarded legitimate share to the plaintiff. If defendant No.8 has succeeded, then the 1st respondent/plaintiff at whose instance the suit came to be filed would also succeed. 11. In that view of the matter, the judgment and decree of the Courts below in awarding 1/6th share to the plaintiff and defendant No.8 is in accordance with law and in consonance with the amended provision of Section 6 of the Hindu Succession Act. No substantial question of law arises in the present second appeal, accordingly dismissed. 12. 11. In that view of the matter, the judgment and decree of the Courts below in awarding 1/6th share to the plaintiff and defendant No.8 is in accordance with law and in consonance with the amended provision of Section 6 of the Hindu Succession Act. No substantial question of law arises in the present second appeal, accordingly dismissed. 12. In view of the disposal of the above appeal, I.A.No.1/2020 does not survive for consideration, accordingly disposed of.