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2022 DIGILAW 1402 (KAR)

M A Sabitha v. Maneyapanda C Subbaiah

2022-10-21

V.SRISHANANDA

body2022
JUDGMENT/ORDER 1. Heard Sri Prabhugoud B Tumbigi, learned counsel for the appellants and learned counsel Sri Sanjay Kumar, for K.S. Bheemaiah, learned counsel for respondent Nos.1 (A & B). Perused the records. 2. The appeal is directed against the judgment and decree passed in O.S.No.7/2000. Parties are referred to as plaintiffs and defendants as per their original ranking before the Trial Court for the sake of convenience. 3. A suit came to be filed by the plaintiffs seeking partition of her 1/3rd share after deducting the area sold by father of the first plaintiff. It is contended in the plaint that defendants belong to Maneyapanda family of Kodava race governed by Hindu Law. Sri. Thammaiah is their common ancestor and he had three sons, namely: Ponnappa, Nanjappa and Subbaiah. Among them, Ponnappa had two sons by name Kaverappa and Thammaiah. Kaverappa died leaving behind his two sons namely; Poovaiah and Kushalappa. Thammaiah had two sons by name Muthappa and Ponnappa. Nanjappa had only one son by name Appachu. Said Appachu died leaving behind his daughter Sabitha, who is the first plaintiff. Subbaiah had only one son by name Chengappa. He also died leaving behind his only son Subbaiah, who is the first defendant as his legal heir. During the life time of the father of the first plaintiff, Appachu sold an area of 2.50 acres of wet land out of 3.82 acres and 1.50 acres of bane land in Sy.No.109/1 to the first defendant and his father. Marriage of the first plaintiff was solemnized with one N.B. Ramesh of Arameri village. After death of her father, first plaintiff is in deemed joint possession of the schedule property and is entitled to 1/3rd share in the suit property after deducting the area sold to Appachu by her father. 4. On receipt of the suit summons, third defendant appeared in person and sixth defendant did not choose to appear, defendant Nos.1, 2, 4 and 5 putting their appearance through their counsel and first defendant alone filed his written statement. 5. In the written statement it is contended that in the year 1983, due to acute financial constraints of the father of the first plaintiff, he has sold 3 acres, 1.50 acres of bane land in Sy.No.109/1 under the registered sale deed dtd. 5. In the written statement it is contended that in the year 1983, due to acute financial constraints of the father of the first plaintiff, he has sold 3 acres, 1.50 acres of bane land in Sy.No.109/1 under the registered sale deed dtd. 27/10/1883 for a sum of Rs.6, 000.00 and 1.50 acres of bane land and 2.50 acres of wet land in Sy.No.102/3 under the registered sale deed dtd. 17/4/1985 for a consideration amount of Rs.10, 000.00 each to perform the marriage of the first plaintiff. It is further contended that first plaintiff is also a party to both the transactions. It is also contended by the defendant that late Thammaiah who is the great grand father of the first plaintiff, was in possession of 11.48 acres of wet land in Sy.No.102 in Mugatageri village and also 9.23 acres of bane land in Sy.No.109 attached to the wet land was equally partitioned among three sons of Late Thammaiah. However, admits that Ponnappa, Nanjappa and Subbaiah are the three sons of Thammaiah and it is also contended by the first defendant that Nanjappa and Subbaiaha subsequently had one son by name; Appachu, who is the father of the first plaintiff and Chengappa have inherited three acres of bane land and 3.5 acres of wet land through a oral partition effected in the year 1972. 6. First defendant specifically denied that the first plaintiff is in deemed constructive possession of the suit schedule properties and denied that the schedule properties are amenable to partition and denied that plaintiffs have got 1/3rd share in the suit property after deducting the area sold by her father in favour of the first defendant. In the alternative, first defendant submitted that in the event of partition of the properties sold by the father of the first plaintiff to which the plaintiffs were also parties, the land that has been sold to the first defendant be allotted to him in addition to his own share in the suit property. 7. In view of the rival contentions, Trial Court raised the following issues: 1. Whether the plaintiffs proves that the suit schedule properties are the joint family properties of themselves and defendants? 2. Whether the 1st defendant the partition of the properties of late Thammaiah as state in para No.3 to 5 of Written Statement ? 3. 7. In view of the rival contentions, Trial Court raised the following issues: 1. Whether the plaintiffs proves that the suit schedule properties are the joint family properties of themselves and defendants? 2. Whether the 1st defendant the partition of the properties of late Thammaiah as state in para No.3 to 5 of Written Statement ? 3. Whether the plaintiffs are entitled to partition and separate possession of their share in the suit properties? If so, what are the shares of parties to the suit ? 4. What Order or Decree ?" 8. In order to prove the case of the plaintiffs, first plaintiff Sabitha got examined herself as P.W.1 and she examined M. Bopanna and Kariappa B.C. as P.Ws.2 and 3. Six documents were relied on by the plaintiffs which were exhibited and marked as Exs.P.1 to P.6. Among them, Exs.P.1 and P.2 are the copies of the Jamabandi, Ex.P.3 is the sketch, Ex.P.4 is the notice dtd. 25/10/1999 and Ex.P.5 is the postal acknowledgement, Ex.P.6 is the reply notice to the Ex.P.4. 9. On behalf of the defendants, first defendant M.C. Subbaiah got examined himself as D.W.1 and Sri K.M. Madappa is examined as D.W.2. 10. Defendants relied on seven documents which were exhibited and marked as Exs.D.1 to D.7, comprising of agreement dtd. 17/4/1985, signature of P.W.1 in Ex.D.1 as D.1 (a) and D.1(b). Ex.D.2 is the sale deed dtd. 17/4/1985 wherein the signature of Appachu is found at Ex.D.(c) and D.(k). Ex.D.3 is the another sale deed dtd. 27/10/1983 wherein signatures of Appachu is also marked. Ex.D.4 to D.6 are the revenue receipts and Ex.D.7 is the CRC. 11. On conclusion of the Trial, the learned Trial Judge heard the parties in detail and dismissed the suit of the plaintiff. 12. Being aggrieved by the same, the plaintiffs have filed the present appeal on the following grounds: * The judgment passed by the trial court is highly arbitrary, perverse and against the principles of natural justice and the same is liable to be set aside in limine. * Admittedly the suit schedule properties have not been partition and there is no document to show that the suit schedule properties were bifurcated in between the ancestor of the parties. Hence, it is just necessary to set aside the order of the trial court and award the partition between the parties. * Admittedly the suit schedule properties have not been partition and there is no document to show that the suit schedule properties were bifurcated in between the ancestor of the parties. Hence, it is just necessary to set aside the order of the trial court and award the partition between the parties. * The appellants are admitting they have sold some sort of properties to the 1st respondent by deducting the same the remaining schedule properties is required to be bifurcated in the interest of future generation of the parties. * The trial has not considered the documentary and moral evidence of the appellants by the trial court, hence, the judgment of the trial court is amount to miscarriage of Justice and misconceived. * In fact, the trial court has not considered the joint possession of the appellants In the suit schedule properties and no reason was given for the same. Hence, this judgment is liable to be set aside. * The trial court instead of considering the straight point Involved in the subject matter regarding the partition between the parties, consider the unconcerned technical points which is nowhere concerned to the Issue in hand. Hence, the judgment is perverse and liable to be set aside. * The trial has not properly framed the issues and without any legal and valid documents the contention of the respondent has considered and dismissed the suit. * The appellants are entitled for the share as the matter of right and the relationship between the parties and the existence of the properties has not denied by the of respondents and also document has not produced by the respondents for the bifurcation of the properties, hence, on the sole ground it self ought to have considered the prayer of the appellant by the trial court. * The remaining ground will be urged at the time of arguments. 13. During pendency of the appeal, second appellant died and it is submitted on behalf of the appellant, that appellant No.1 is the sole surviving legal representative of the second appellant. 14. During the pendency of the appeal, respondent Nos.1 and 2 also died and their legal representatives were brought on record. 15. Reiterating the grounds urged in the appeal memorandum, Sri Prabhugoud B Tumbigi, learned counsel for the appellant vehemently contended that the Trial Court grossly erred in dismissing the suit of the plaintiff. 14. During the pendency of the appeal, respondent Nos.1 and 2 also died and their legal representatives were brought on record. 15. Reiterating the grounds urged in the appeal memorandum, Sri Prabhugoud B Tumbigi, learned counsel for the appellant vehemently contended that the Trial Court grossly erred in dismissing the suit of the plaintiff. He further contended that the joint family possessed 21 acres of the land and since the relationship is admitted, the plaintiffs are together entitled to 1/3rd share i.e., minimum 7 acres of the land in the suit properties and even assuming that the properties that has been sold to the first respondent, is eschewed from the share of the father of the first plaintiff, the plaintiffs would be entitled to the remaining land and the said aspect of the matter is not properly appreciated by the learned Trial Judge and sought for allowing the appeal. 16. Per contra, learned counsel for the respondents vehemently contended that the oral partition has already taken place during the life time of the father of the first plaintiff and his brothers and thereafter words whatever the land that has been fallen to the share of the father of the first plaintiff has been sold by two sale deeds, which are marked at Exs.D.2 and D.3 and therefore, plaintiffs are not entitled for any share in the suit property, accordingly, the learned Trial Judge is justified in dismissing the suit of the plaintiffs and sought for dismissal of the appeal. 17. In view of the rival contentions of the parties, the following points would arise for consideration: 1) Whether appellant/plaintiff has made out a case that the suit properties are joint family properties and therefore, she being the children of Sri Appachu, is entitled for 1/3rd share in the suit properties? 2) Whether the first defendant has established that he has become the owner of 1.50 acres of bane land in Sy.No.109/1 under a registered sale deed dtd. 27/10/1983 and also he has become the owner of 2.50 acres of wet land in Sy.No.102/3 under a registered sale deed dtd. 17/4/1985 and therefore, the plaintiff has no right to maintain the suit? 3) What order? 18. In the case on hand, first plaintiff got examined herself as P.W.1. 27/10/1983 and also he has become the owner of 2.50 acres of wet land in Sy.No.102/3 under a registered sale deed dtd. 17/4/1985 and therefore, the plaintiff has no right to maintain the suit? 3) What order? 18. In the case on hand, first plaintiff got examined herself as P.W.1. In lieu of her examination in chief she has filed an affidavit as contemplated under Order VIII Rule 4 CPC, reiterating the contents of the plaint. 19. In support of her case she has relied on the documents referred to supra. In her cross-examination on behalf of the contesting defendants, she has admitted that the suit land comprises of 3 acres of bane land and 4 acres of wet land. She admits that name of her mother is Ammakka and she was alive at the time of suit and she has not been made as a party to the suit. 20. She admits that her father was died in the year 1998. She denies the suggestion that her father has got 3 acres 7 cents of bane land and 3 acres 88 cents of wet land in the partition. She specifically denied the suggestion that the suit properties were already divided. She denies that in the year 1983 her father has sold 1 1/2 acres of land in Sy.No.109/1 to the first defendant. She admits that her marriage was taken place in the year 1985. She admits that at the time of her marriage, 2 1/2 acres of land in Sy.No.102/3 was sold by her father in favour of the first defendants for a valuable consideration of Rs.10, 000.00. She denies the suggestion that as per Ex.D.1, her father has agreed to sell remaining land in Sy.No.109/1. She denies her signatures on Ex.D.1 as Ex.D.1 (a) and D.1 (b). She admits that Ex.D.2 is executed by her father and she has also signed and it is in respect of only wet land. She denies Ex.D.3. She denies that under Ex.D.1 herself and her father agreed to sell the remaining land to the first defendant. She denies the suggestion that Ex.D.1 was prepared in the office of Sri K.M. Madappa. Defendant Nos.2 to 6 are enjoying the lands separately. But, there is no division. 21. On behalf of the plaintiff, one Bopanna is examined as D.W.2. He has also filed his affidavit in lieu of his examination in chief. She denies the suggestion that Ex.D.1 was prepared in the office of Sri K.M. Madappa. Defendant Nos.2 to 6 are enjoying the lands separately. But, there is no division. 21. On behalf of the plaintiff, one Bopanna is examined as D.W.2. He has also filed his affidavit in lieu of his examination in chief. He has stated in the affidavit that he is acquainted with the plaintiff and father of plaintiff. He also stated about the common ancestor Thammaiah. He has specifically stated that there was no partition among the father of the plaintiff and his brothers and submitted that the plaintiff is entitled to 1/3rd share in the property. In his cross-examination, a specific suggestion, he has deposed that in the year 1972, there was a oral partition, for which he has pleaded ignorance. He also denied the knowledge of the father of the plaintiff selling 3 acres of land in favour of the first defendant. He admits that in his affidavit he has mentioned that 2.50 acres of land was sold by the father of the plaintiff to first defendant. He admits that he has studied upto 8th standard and he is not having the knowledge of English language. He admits that the contents shown in his affidavit that 2.50 acres of land has been sold by the father of the plaintiff to 1st defendant is incorrect. He admits that he is not aware of the same. 22. One Kariappa is examined as P.W.3 on behalf of the plaintiff. He has filed an affidavit in lieu of his examination in chief. He has stated that Ammakka is married to Appachu in the year 1960 and since Ammakka was not well, he used to pay visit to the house of Ammakka regularly. She has stated that there was no previous partition among the parties. However, he has stated that for meeting the family necessities, Appachu who is the father of the first plaintiff has sold 2.50 acres of wet land to the first defendant and said land was sold to meet the marriage expenses of plaintiff. In his cross- examination, he admits that mother of the plaintiff is residing with him and he has no knowledge of oral division between the father of the plaintiff and his brothers. In his cross- examination, he admits that mother of the plaintiff is residing with him and he has no knowledge of oral division between the father of the plaintiff and his brothers. He admits that in the year 1983, father of the plaintiff had sold 3 acres of bane land and 1 1/2 acres of wet land in favour of the first defendant. He volunteer to say that said land was sold for the purpose of meeting the marriage expenses of plaintiff. However, he denied the suggestion that in the year 1985 1 1/2 acres of bane land and 2 1/2 acres of wet land was sold to the first defendant. He has stated that his educational qualification is upto 7th standard and he is not aware of English language. 23. First defendant filed his affidavit in lieu of his examination in chief reiterating the contents of written statement and relied on the documents referred to supra. In his cross-examination on behalf of the plaintiff, he admits that common prepositor was Thammaiah. He admits about the relationship among them. He denied the specific suggestion that there was no partition in the year 1977. He admits that in Ex.D.3 there is no signature of plaintiff. He denies the suggestion that the signatures at D.2 (a) to (f) are not the signatures of plaintiff. He denies that from the year 1998, he has been in wrongful possession of the suit lands and he is enjoying the properties wrongfully. 24. On his behalf one K.M. Madappa was examined as D.W.2. He has stated that he is an Advocate by profession and Exs.D.1 and D.2 are drafted by him in his office. He admits that the signature found at Ex.D.1 (e) is his signature and his official seal is that of his office. He has stated that on Exs.D.1 and D.2, plaintiff and his father have subscribed their signatures. In his cross-examination, it is elicited that in Ex.D.1 there is a mention that before May 1988, the regular sale deed would be executed. He denies the suggestion that plaintiff has subscribed her signature to Ex.D.1. The above evidence on record is sought to be re-appreciated on behalf of the plaintiff/appellant. 25. This Court meticulously perused the material on record in the light of the arguments put forth on behalf of the parties. Admittedly, the common prepositor was one Thammaiah. He denies the suggestion that plaintiff has subscribed her signature to Ex.D.1. The above evidence on record is sought to be re-appreciated on behalf of the plaintiff/appellant. 25. This Court meticulously perused the material on record in the light of the arguments put forth on behalf of the parties. Admittedly, the common prepositor was one Thammaiah. According to the first defendant, there was a oral partition in the year 1972 between father of the plaintiff and his brothers. 26. There is no dispute as to the original sale deeds marked at Exs.D.2 and D3. When there is no partition that had taken place, how would be the plaintiff sell the properties covered under Ex.D.2 and D.3 in favour of the first defendant is a question that remains unanswered on behalf of the plaintiff. Further, there is a clear admission by D.W.2 and D.W.3 that the property was sold to the first defendant to meet the marriage expenses of the plaintiff. This aspect of the matter is also found from the pleadings of the plaintiff alone. However, in the evidence she denies her signature on Ex.D.2. It shows that the plaintiff has not come out with the truth when she was examined as witness before the Court. Further, since the registered documents are available and plaintiff having denied the oral partition, it is incumbent on the part of the plaintiff to establish that after the oral partition, what was the land that was remaining and fallen to the share of the plaintiff after the sale that has been effected under Exs.D.2 and D.3 in favour of the first defendant. 27. Ignoring the probative value of Ex.D.1 alone it is incumbent on the part of the plaintiff to establish that even after the sale of the land made by the father of the plaintiff under Exs.D.2 and D.3 to the first defendant, there exists some more land whereby the plaintiff could play her role being the legal heir of Appachu. No such evidence is forthcoming on record. The affidavit of the plaintiff is nothing but the replica of the plaint averments. In the plaint averments there is no mention as to what is the remaining land that remained with Appachu after the sale has been made by Appachu in favour of the first defendant. Under such circumstances, the Trial Court has rightly rejected the claim of the plaintiff. In the plaint averments there is no mention as to what is the remaining land that remained with Appachu after the sale has been made by Appachu in favour of the first defendant. Under such circumstances, the Trial Court has rightly rejected the claim of the plaintiff. In view of the same, point No.1 is answered in the Negative and point No.2 in the Affirmative. 28. Regarding Point No.3:- : In view of finding of this court on Point Nos.1 and 2 as referred to supra, following order is passed:: ORDER Appeal sans merit and is hereby dismissed.