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2023 DIGILAW 1352 (KAR)

Hemalatha v. Lolakshi

2023-12-01

S.R.KRISHNA KUMAR

body2023
JUDGMENT 1. This appeal is directed against the impugned judgment and decree dtd. 29/11/2021 passed in O.S.No.72/2019 by the Additional Senior Civil Judge & JMFC, Hassan (hereinafter referred to as the 'Trial Court' for short) whereby the said suit filed by respondent No.1-plaintiff against the appellants-defendants No.3 and 5 and respondents No.2 to 5 - defendants No.1, 2, 4 and 6 for partition and separate possession of the plaintiff's alleged share in the suit schedule immovable properties was decreed in part, thereby declaring that the plaintiff and defendants No.1 to 6 were entitled to 1/7th share in item Nos.2 and 3 of the suit schedule properties. By the impugned judgment and decree, the Trial Court dismissed the suit of the plaintiff in respect of item No.1 of the plaint schedule properties. 2. Heard the learned Counsel for the appellants-defendant Nos.3 and 5 and learned Counsel for the respondent No.1-plaintiff and respondents No.2 to 5 - defendant Nos.1, 2, 4, and 6. 3. The material on record discloses that respondent No.1- plaintiff is the daughter of respondent No.2-defendant No.1, Sri Dyavegowda, while the appellants-defendant Nos.3 and 5 and respondents No.3 to 5 - defendant Nos.2, 4 and 6 are the remaining daughters of respondent No.2-defendant No.1. 4. The respondent No.1-plaintiff instituted the aforesaid suit seeking partition of three items of suit schedule properties inter alia contending that the same are ancestral and joint family properties. Defendant No.1 - Dyavegowda and defendant No.6-Shashikala filed a common written statement admitting the relationship between the parties and also admitting that item Nos.2 and 3 of the suit schedule properties were joint family properties. They however contended that item No.1 of the suit schedule properties was separate and self-acquired property of defendant No.1 who acquired the same under a registered sale deed dtd. 28/11/1968. It was therefore contended that while the suit can be decreed in respect of item Nos.2 and 3, the suit in relation to item No.1 was liable to be dismissed. 5. Defendant Nos.2 to 5 filed a common separate written statement inter alia denying the various allegations and claim made by the plaintiff. Defendant Nos.2 to 5 also did not accept the contention of the plaintiff that the suit schedule properties are joint family properties and sought for dismissal of the suit. 6. Based on the aforesaid pleadings of the parties, the Trial Court framed the following: ISSUES 1. Defendant Nos.2 to 5 also did not accept the contention of the plaintiff that the suit schedule properties are joint family properties and sought for dismissal of the suit. 6. Based on the aforesaid pleadings of the parties, the Trial Court framed the following: ISSUES 1. Whether the plaintiff proves that the suit schedule properties are joint family properties of herself and defendants? 2. Whether the plaintiff has share in the suit properties? If so, to what extent? 3. Whether the defendant No.1 proves that item No.1 property is his self-acquired property? 4. What order or decree? 7. The plaintiff examined herself as PW1 and Exs.P1 to P4 were marked. Defendant No.1 examined himself as DW1 and defendant No.6 as DW2 and Exs.D1 to D4 were marked. After hearing the parties, the Trial Court came to the conclusion that it was an undisputed fact that item Nos.2 and 3 of the suit schedule properties were joint family properties and were liable to be partitioned. However, in the light of the pleadings and evidence of the parties coupled with the registered sale deed in particular, the unimpeached, unchallenged and uncontroverted evidence of DWs.1 and 2 to the effect that item No.1 of the suit schedule properties was a separate and self-acquired property of defendant No.1, the Trial Court proceeded to dismiss the suit insofar as item No.1 was concerned. In this context, it is relevant to state that the plaintiff has not filed a separate appeal/cross-objection/crossappeal as against dismissal of the suit in respect of item No.1 of the suit schedule properties. However, the present appeal is preferred by defendants No.3 and 5 inter alia contending that item No.1 of the suit schedule properties was also a joint family property and the same deserves to be partitioned between the parties. 8. In addition to reiterating the various contentions urged in the memorandum of appeal and referring to the material on record, learned Counsel for the appellants - defendants Nos.3 and 5 invited my attention to Exs.P1 to P3 and Exs.D2 to D4, the revenue records in order to contend that the said revenue records in relation to the item No.1 of the suit schedule property will indicate that the same was ancestral property in the hands of defendant No.1 and consequently available for partition. It is therefore contended that the impugned judgment and decree insofar as it relates to dismissing the suit for partition and separate possession in respect of item No.1 of the suit schedule properties deserves to be set aside and a decree for partition is to be passed in respect of item No.1 of the suit schedule properties also. 9. Per contra, learned Counsel for respondent No.2 - defendant No.1 submits that having regard to the undisputed fact that the sale deed in relation to item No.1 of the suit schedule property stood in the name of defendant No.1 who had acquired the same vide registered sale deed dtd. 28/11/1968 marked as Ex.D1, the entries in the revenue records in respect of item No.1 were clearly erroneous and the said entries stood rebutted by the sale deed dtd. 28/11/1968. It is also submitted that in their written statement that the appellants-defendant Nos.3 and 5 neither stated nor contended that item No.1 was a joint family/ancestral property nor did they cross-examine PW1, DW1 or DW2 in this regard. Learned Counsel would further point out that the appellants-defendant Nos. 3 and 5 did not adduce any evidence to establish that item No.1 of the suit schedule properties was joint family property and consequently, the Trial Court was fully justified in dismissing the suit in respect of item No.1, particularly when the plaintiff (PW1) herself had admitted that item No.1 was separate and self-acquired property of defendant No.1 and the plaintiff had not filed a separate appeal/cross-appeal/cross-objection challenging the impugned judgment and decree. It was therefore submitted that there is no merit in the appeal and the same is liable to be dismissed. 10. A perusal of the material on record, the following points arise for consideration in the present appeal: ) Whether the Trial Court was justified in coming to the conclusion that item No.1 of the suit schedule property was not a joint family property? ii) Whether the impugned judgment and decree passed by the Trial Court warrants interference in the present appeal? 11. Re:Point Nos.1 and 2: Since both these points are inter-linked, they are taken up together for consideration. 12. A perusal of the pleadings of the parties will indicate that the plaintiff specifically contended that all three items of suit schedule properties were joint family and ancestral properties. 11. Re:Point Nos.1 and 2: Since both these points are inter-linked, they are taken up together for consideration. 12. A perusal of the pleadings of the parties will indicate that the plaintiff specifically contended that all three items of suit schedule properties were joint family and ancestral properties. However, in their common written statement, the appellantsdefendants No.3 and 5 along with defendant Nos.2 and 4 disputed and denied the various contentions and claims put forth by the plaintiff. A perusal of the written statement of appellants-defendant Nos.3 and 5 will indicate that there is no averment to the effect that item No.1 of the suit schedule property was a joint family/ancestral property. In this regard, it is trite law that in the absence of pleadings, no amount of evidence can be looked into by a Court and on this ground alone, the claim of the appellants-defendant Nos.3 and 5 that item No.1 of the suit schedule property was a joint family property cannot be accepted. 13. A perusal of the evidence of PW1, DW1 and DW2 will indicate that all of them are ad-idem as regards item No.1 of the suit schedule property being separate and self-acquired property of defendant no.1. In this context, it is relevant to state that in her cross-examination recorded on 11/3/2020, PW1 has categorically admitted that item No.1 of the suit schedule property was a separate and self-acquired property of her father-defendant No.1. 14. Similarly, defendant No.6-DW2 in her cross-examination recorded on 24/11/2021 has also admitted that item No.1 of the suit schedule property was a separate and self-acquired property of defendant No.1. As stated supra, the evidence of defendant No.1- DW1 to the effect that item No.1 of the suit schedule property was his separate and self-acquired property has neither been impeached, challenged or discredited in his cross-examination by the appellants, who in fact, neither cross-examined PW1, DW1 and DW2. In other words, the appellants-defendant Nos.3 and 5 did not choose to cross-examine either the plaintiff, defendants No.1 and 6 which would lead to the sole inference that they have acquiesced to the fact that item No.1 of the suit schedule property was a separate and self-acquired property of defendant No.1. 15. In other words, the appellants-defendant Nos.3 and 5 did not choose to cross-examine either the plaintiff, defendants No.1 and 6 which would lead to the sole inference that they have acquiesced to the fact that item No.1 of the suit schedule property was a separate and self-acquired property of defendant No.1. 15. It is also relevant to note that appellants - defendants No.3 and 5 herein have not adduced any evidence to establish that item No.1 of the suit schedule property was ancestral and joint family property. The sole ground on which attempt is made by the appellants to contend that item No.1 of the suit schedule property was a joint family property is by inviting my attention to the entries in the revenue records which state that item No.1 was an ancestral property in the hands of defendant No.1. In this context, it has to be stated that the said entry is clearly erroneous inasmuch as Ex.D1, the registered sale deed dtd. 28/11/1968 clearly establishes that the said property was purchased by defendant No.1 and consequently, the presumption available under Sec. 133 of the Karnataka Land Revenue Act, 1964, regarding genuineness and validity of the entries in the revenue records clearly stand rebutted by registered sale deed dtd. 28/11/1968 which came into existence at an undisputed point in time evidencing that item No.1 of the suit schedule property was a separate and self-acquired property of defendant No.1. 16. It is also significant to note that except a stray entry in the revenue records to the effect that item No.1 was ancestral property, the other materials viz., mutation proceedings, revenue proceedings etc., have not been placed by the plaintiff either before the Trial Court or before this Court to substantiate the said stray entry in the revenue records, which is contrary to the registered sale deed at Ex.D1. Under these circumstances, I am of the considered opinion that the Trial Court was fully justified in coming to the conclusion that item No.1 of the suit schedule property was a separate and self-acquired property of defendant No.1. Accordingly, point Nos.1 and 2 are answered against the appellants. 17. Upon re-appreciation, re-evaluation and reconsideration of the entire material on record, I do not find any ground to interfere with the well considered and proper judgment and decree passed by the Trial Court. 18. Accordingly, point Nos.1 and 2 are answered against the appellants. 17. Upon re-appreciation, re-evaluation and reconsideration of the entire material on record, I do not find any ground to interfere with the well considered and proper judgment and decree passed by the Trial Court. 18. Accordingly, there is no merit in the appeal and the same is hereby dismissed. In view of dismissal of the appeal, all pending IAs., stand disposed of accordingly.