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2020 DIGILAW 313 (KAR)

Parutappa S/O Basavantappa Simhasan v. Sankappa S/O Shankarappa @ Somashekarappa Simhasan

2020-02-03

ASHOK S.KINAGI

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JUDGMENT : The appellants/defendants have filed this appeal challenging the judgment and decree dated 16.06.2005 passed by the Presiding Officer, Fast Track Court-I, Bagalkot in R.A.No.17/2005. 2. The brief facts of the case are that, one original propositus Parasappa had two sons by name, Shankarappa and Basavantappa. Shankarappa had a wife by name Mallawwa and out of their wedlock, plaintiffs Sankappa and Kadappa were born. Basavantappa had two sons by name Parutappa defendant No.1 and Chandrashekhar defendant No.2. Parutappa had four sons by name, Mallikarjun defendant No.3, Vishnu defendant No.4, Ravi defendant No.5 and Vishwanath defendant No.6. Plaintiffs and defendants are members of Hindu undivided joint family and the suit properties are the ancestral joint family properties and that no partition took place in between the plaintiffs and defendants. The plaintiffs requested the defendants to effect partition, but the defendants refused to effect the partition. Hence, the plaintiffs constrained to file the suit. 3. Defendant No.1 filed written statement denying the plaint averments and also relationship of plaintiffs with the deceased Shankarappa. It is contended that the plaintiffs are not the sons of deceased Shankarappa and they are not entitled for share in the suit schedule property. It is further contended that deceased Shankarappa during his lifetime relinquished his rights in favour of Basavantappa, hence, Basavantappa became the owner of the suit lands. It is further contended that, father of defendants, i.e., Basavantappa has purchased suit land on 25.04.1946 from one Muralidhar Balamukund Marawadi. He further contended that the plaintiffs are not concerned to their family and hence, they are not entitled for a share in the suit properties and the suit filed by the plaintiffs is not maintainable. Hence, they sought for dismissal of the suit. Defendant Nos.2 to 5 filed a memo adopting the written statement filed by defendant No.1. The trial Court on the basis of the pleadings, framed following issues. (i) Whether the plaintiffs prove that, plaintiffs and defendants from a Hindu joint family? (ii) Whether the plaintiffs prove that, suit ‘B’ schedule properties are the joint family properties of plaintiffs and defendants? (iii) Whether plaintiffs proves that, plaintiffs have got ½ share in suit properties? (iv) Whether plaintiffs are entitled to relief, as sought for, in this suit? (v) What order or decree? 4. Plaintiff No.1 in support of his case examined himself as P.W.1 and got marked Exs.P1 to P9. (iii) Whether plaintiffs proves that, plaintiffs have got ½ share in suit properties? (iv) Whether plaintiffs are entitled to relief, as sought for, in this suit? (v) What order or decree? 4. Plaintiff No.1 in support of his case examined himself as P.W.1 and got marked Exs.P1 to P9. Defendant No.1 was examined as D.W.1 and two witnesses were examined as D.W.2 and D.W.3 and he marked documents Exs.D1 to D7. 5. The trial Court after appreciating the oral and documentary evidence held that, the plaintiffs have failed to prove that plaintiffs and defendants form a Hindu joint family. It is further held that the plaintiffs have failed to prove that suit “B” schedule properties are the joint family properties of plaintiffs and defendants and further held that the plaintiffs are not entitled for ½ share in suit properties and consequently, dismissed the suit of the plaintiffs. 6. Being aggrieved by the judgment and decree, the plaintiffs preferred an appeal before the Presiding Officer, FTC-I, Bagalkot in R.A.No.17/2005. The first appellate Court framed the following points: (i) Whether the plaintiffs have proved that the suit schedule “B” properties are the joint family properties consisting of themselves and defendants? (ii) Whether the plaintiffs are entitled to the relief of partition and separate possession of their share in the suit schedule “B” properties, and if so, to what share and in which of the suit schedule “B” propertie? (iii) Whether the judgment and decree under appeal passed by the trial Court are liable to be set aside or modified? (iv) What decree or order? 7. The first appellate Court after re-appreciating the evidence held that, plaintiffs have proved that the suit schedule “B” properties are the joint family properties consisting of plaintiffs and defendants and further held that the plaintiffs are entitled to the relief of partition and separate possession of their share in the suit schedule “B” properties. Accordingly, allowed the appeal in part by setting aside the judgment and decree passed by the trial Court holding that the plaintiffs are entitled for partition and separate possession of their half share in the suit schedule “B” house properties bearing Nos.324, 325 and 325-A situated at Amingad village in Hungund Taluk. Being aggrieved by the judgment and decree passed by the first appellate Court, the defendants are before this Court in this appeal. 8. Being aggrieved by the judgment and decree passed by the first appellate Court, the defendants are before this Court in this appeal. 8. Heard the learned counsel for the appellants and respondents. 9. The learned counsel for the appellants submits that Shankarappa has relinquished his rights in favour of Basavantappa, i.e., father of defendant Nos.1 and 2. Hence, father of defendant Nos.1 and 2, i.e., Basavantappa became the owner by virtue of relinquishment deed and after his death, defendant Nos.1 and 2 succeeded to the properties. He further submitted that plaintiffs are not concerned to the family of the defendants and they are not the sons of Shankarappa. Hence, he seeks for allowing the appeal. 10. Perused the records. It is the case of the plaintiffs that, plaintiffs are the sons of Shankarappa and no partition has taken place in between Shankarappa and Basavantappa by metes and bounds. Plaintiffs being the sons of Shankarappa are entitled for share in the suit properties. Since the defendants refused to effect partition, they have filed the suit. Plaintiff No.1 himself examined as P.W.1. In the examination-in-chief he has reiterated the plaint averments. In the cross-examination he admitted that Shankarappa relinquished his share in plot No.126 in favour of his brother Basavantappa, i.e., father of defendant Nos.1 and 2. 11. D.W.1 has deposited that the plaintiffs are not the sons of Shankarappa and they are not concerned to the family of defendants and they are not entitled for share. Though the defendants have taken a specific contention in the written statement that the plaintiffs are not the sons of deceased Shankarappa, but in the cross-examination, D.W.1 does not deny the fact that plaintiffs are the sons of deceased Shankarappa. On the other hand, D.W.1 pleads ignorance about the same by stating that he do not know plaintiffs are the sons of Shankarappa. 12. D.W.2 deposed that Mallawwa, i.e., mother of the plaintiffs was engaged to one Malakappa Nagaral and though her marriage was fixed, but she ran away with Shankarappa and they got settled at Banahatti and started residing together as husband and wife and out of their wedlock, plaintiffs are born and the plaintiffs are the sons of Shankarappa and Mallawwa. D.W.3 also admits that plaintiffs are the sons of deceased Shankarappa. 13. D.W.3 also admits that plaintiffs are the sons of deceased Shankarappa. 13. Defendants have taken a contention that Shankarappa during his lifetime has relinquished his right in favour of Basavantappa and in fact no records have been produced by the defendants to show that father of the plaintiffs, i.e., Shankarappa relinquished his rights in favour of Basavantappa. Except the oral evidence, defendants have not placed any records. It is not in dispute that suit schedule “B” properties are the ancestral and joint family property. Admittedly, there is no partition in between Shankarappa and Basavantappa. In view of the facts and circumstances, when there is no partition in between the parties to the suit and plaintiffs being the sons of deceased Shankarappa, they have got right to claim a share in the suit property and they are entitled for a share in the suit properties. Hence, the first appellate Court has rightly held that the plaintiffs are the sons of deceased Shankarappa and they are entitled for a share in the suit schedule properties. P.W.1 in the cross-examination has clearly admitted that plot situated in Sy.No.126 has been relinquished by deceased Shankarappa in favour of deceased Basavantappa. The first appellate Court held that in view of admission of P.W.1 that Shankarappa has relinquished his share in Plot No.126 in favour of his brother Basavantappa and the plaintiffs have not challenged the said finding. In view of the same, I do not find any substantial question of law involved in the present appeal. Accordingly, the appeal is dismissed.