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Karnataka High Court · body

2022 DIGILAW 475 (KAR)

V. Thimmegowda v. V. Gangathimmaiah

2022-04-05

R.NATARAJ

body2022
JUDGMENT 1. This appeal is filed by the defendant Nos.1 and 2 in O.S.136/2012 challenging the concurrent finding of fact recorded by both the Courts that the plaintiff is entitled to an undivided share in the suit schedule properties. 2. The parties shall henceforth be referred to as they were arrayed before the Trial court. 3. The plaintiff contended that he and defendant Nos.1 to 4 are the children of Venkatappa, who was the propositus of a joint family which owned the properties mentioned in the suit as 'A' Schedule properties. The 'B' Schedule properties were purchased by Venkatappa out of the income generated from the 'A' Schedule properties. He claimed that the revenue records of the 'A' Schedule properties stood in the name of his grand father Govindaiah and was not transferred to the name of Venkatappa, but he managed the suit properties as a Kartha till his death in 1994. It was alleged that the suit properties were not partitioned, and therefore, they continued to be the joint family properties of plaintiff and defendant Nos. 1 to 4. The plaintiff was a Government employee, and therefore, he could not apply himself for the up-keep and management of the joint family properties. He claimed that he retired in the year 2006 and then he came to know that defendant Nos.2 and 3 were making arrangements to alienate the suit properties. It was then that the plaintiffs realized that based on some concocted documents, the defendant Nos.2 and 3 had managed to get the revenue entries of the suit properties transferred to their names and were attempting to alienate the suit properties behind his back. An attempt made by the plaintiff for amicable settlement through a panchayat proved futile. Hence, he filed a suit for partition and separate possession of his share in the suit schedule properties. 4. The Defendant Nos. 1 to 4 filed their written statement and admitted the relationship between them and plaintiff. They also admitted that 'A' schedule properties were the properties of the grandfather of the plaintiff and defendant Nos. 1 to 4. However, they claimed that during the lifetime of their father they had divided the suit properties in terms of a Panchayath Parikath dtd. 20/4/1981. They claimed that this partition was acted upon and the parties were put in separate possession and enjoyment of their respective shares. 1 to 4. However, they claimed that during the lifetime of their father they had divided the suit properties in terms of a Panchayath Parikath dtd. 20/4/1981. They claimed that this partition was acted upon and the parties were put in separate possession and enjoyment of their respective shares. They claimed that as per the desire of Venkatappa, no property was allotted to the share of defendant No.4. The Defendant No.4 also did not want any share in the suit properties. 5. During the pendency of the suit, the defendant No.5 was impleaded at the instance of the plaintiff, since she had purchased suit item Nos.20 and 21 from the defendant No.2 in terms of a sale deed dtd. 25/7/2007. The defendant No.5 claimed that she had demolished the old house situate in the property purchased by her and had constructed a cattle shed. She claimed that she was the owner of said item Nos.20 and 21 and that the plaintiff was not entitled for a share therein. Alternatively, she prayed that suit Item Nos. 20 and 21 be allotted to the share of defendant No.2 in the event of suit being decreed. 6. Based on these rival contentions, the Trial Court framed the following issues; i. Whether the plaintiff proves that suit schedule properties are ancestral and the joint family properties of plaintiff and defendants No.1 to 4 ii. Whether the defendants No.1 to 4 prove that during lifetime of late Venkatappa, plaintiff and defendants with the exclusion of 4th defendant have divided the suit schedule properties under Panchayath Parikath dtd. 20/4/1981? iii. Is the plaintiff entitled for the relief of partition and separate possession of the suit schedule properties? iv. What order or decree? Additional Issue i. Whether 5th defendant prove that she is a bonafide purchaser of the suit schedule item No.20 and 21 properties? 6. The plaintiff was examined as P.W.1 and he marked documents as Exs.P-1 to Ex.P.18. The defendant No.2 was examined as D.W.1 and he marked documents Ex.D.1 to Ex.D.15. The defendant No.3 was examined as D.W.2 and marked documents as Ex.D.16 to Ex.D.18. The defendant No.5 did not enter the witness box. 7. Based on the oral and documentary evidence, the Trial Court held that the plaintiff did not prove that suit Item No.3 was the property which belonged to the joint family. The defendant No.3 was examined as D.W.2 and marked documents as Ex.D.16 to Ex.D.18. The defendant No.5 did not enter the witness box. 7. Based on the oral and documentary evidence, the Trial Court held that the plaintiff did not prove that suit Item No.3 was the property which belonged to the joint family. Likewise, it held that the suit Item Nos.20 and 21 were not the joint family ancestral properties of plaintiff and defendant Nos. 1 to 4 and thus decreed the suit in part and declared that the plaintiff is entitled to 6/25th share in the suit schedule Item Nos.1, 2, 4 to 15, 17 and 18. 8. Being aggrieved by the aforesaid judgment and decree, the defendant Nos.1 and 2 filed R.A. No.329/2018. The First Appellate Court secured the records of the Trial court, heard the counsel for the parties and framed the following points for consideration; i. Whether the appellants/defendants 1 and 2 prove that, there was earlier partition taken place by virtue of Panchayath Parikath at Ex.D.15 and shares were allotted to plaintiff and defendants No. 1 to 3 and thus the suit is liable to be dismissed? ii. Whether the judgment and decree passed by the Court of II Addl. Senior Civil Judge and JMFC., Tumakuru in O.S.No.136/2012 dtd..18/8/2018 is perverse, erroneous and capricious so as to call for any interference by this Court? iii. What Order? 9. The First Appellate Court held that the defendant No.2 relied heavily on the Panchayath Parikath at Ex.D.15, but the said document did not contain the signatures of the plaintiff and defendant No.3 at page Nos.1 to 4 of the said document. It further held that the evidence of D.W.2 disclosed that the partition deed was created for the purpose of denying the plaintiff of his share in the suit properties. Therefore, based on the oral evidence, the First Appellate Court held that the defendant Nos. 1 and 2 were unable to prove the execution of the Panchayath Parikath. Since the defendant Nos.1 and 2 had admitted that the suit properties were the joint family properties, the First Appellate Court held that the judgment and decree passed by the Trial Court was proper and did not require any interference and hence dismissed the appeal. 10. Being aggrieved by the aforesaid judgment and decree, the defendant Nos. 1 and 2 have preferred this Regular Second Appeal. 11. 10. Being aggrieved by the aforesaid judgment and decree, the defendant Nos. 1 and 2 have preferred this Regular Second Appeal. 11. The learned counsel for the appellants submitted that Ex.D.15 was a document which contained the signature of the father of the plaintiff and defendant Nos. 1 to 4 and therefore, the Trial Court and First Appellate Court did not consider this relevant fact. He also submitted that the suit Item Nos. 20 and 21 had fallen to the share of the defendant No.2 and he had disposed off to to defendant No.5 which fact must have weighed in favour of the defendants. He further stated that except the self serving contention of the plaintiff that the suit properties were the joint family properties, he did not place any convincing material before the Trial Court. 12. The learned Counsel invited the attention of the Court to the finding record by the Trial Court at page No.19 where the Trial Court held that the plaintiff did not produce any document in respect of suit Item Nos. 19 to 21, and therefore, contended that the Trial Court committed an error in decreeing the suit. 13. I have considered the submissions made by the learned counsel for defendant Nos. 1 and 2. I have perused the judgment and decree passed by the Trial Court and the First Appellate Court and also perused the grounds urged in this appeal. before the Trial Court that the properties of the family were partitioned in terms of Ex.D-15. It was not their case that the suit properties were not the subject matter of Ex.D.15. The Trial Court and the First Appellate Court have concluded that the defendant Nos.1 and 2 did not adduce convincing evidence to establish the lawful execution of Ex.D.15. Even otherwise, the signature of plaintiff is found on only one page of the Panchayath Parikath, and therefore, the Trial court found it to be suspicious. It also found from the revenue records that the partition was not acted upon. In that view of the matter, the Trial Court and the First Appellate Court were justified in decreeing the suit. I do not find any merits in the appeal, and hence this appeal is dismissed. Pending I.A., if any, does not survive for consideration.