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2023 DIGILAW 529 (KAR)

Padma T. L v. Sarojamma

2023-03-29

H.P.SANDESH

body2023
JUDGMENT 1. This matter is listed for admission. Heard the learned counsel appearing for the appellant. 2. This appeal is filed challenging the judgment and decree dtd. 28/6/2017 passed in R.A.No.21/2015 on the file of the Principal District Judge, Tumakuru. 3. The factual matrix of the case of the plaintiff before the Trial Court is that her father T K Laxmana @ T K Laxmanappa died in the year 2007 leaving behind the plaintiff and defendant Nos.2 to 13 as sole successors. It is also contended that the said T K Laxmana got released from his joint family by executing the release deed dtd. 22/12/1949. It is contended that her father commenced petty engineering work at Garden road, Tumkur. Due to joint efforts and hard labour of the plaintiff and defendant Nos.3, 8, 12, T L Parthasarathy, deceased T L Anandha Babu, T K Laxmana @ Laxmanappa established the industry under the name and style "Jaya Laxmi Industries and Engineering Work" at Garden Road, Tumkur. Out of the income derived from the industries, her father purchased item Nos.1 and 2 in the suit 'A' schedule in his name under the sale deed dtd. 29/7/1962 and item Nos.1 to 21 of 'B' schedule are also purchased by her father out of the income derived from the joint family. T K Ramanna @ Ramaiah who is none other than younger brother of plaintiff's father by his tricking and deceptive tactics became very close to T K Laxmana @ T K Laxmanappa. The things have gone to the extent that T K Laxmana does not carry his work without saying by T K Ramanna. All the children of T K Laxmana @ T K Laxmanappa were under the care and control of his father even after their marriage. 4. It is further contended that during the lifetime of T K Laxmana @ Laxmanappa, he managed the affairs of the joint family consisting of defendant Nos.2 to 13. By taking the situation of above, the said T K Ramanna got prepared a General Power of Attorney supposed to be executed by the plaintiff, defendant Nos.3, 8, 12, T L Parthasarathy and T L Anandha Babu on 4/2/1985 by saying that he intended to sell his property which was acquired by him under the grant. By taking the situation of above, the said T K Ramanna got prepared a General Power of Attorney supposed to be executed by the plaintiff, defendant Nos.3, 8, 12, T L Parthasarathy and T L Anandha Babu on 4/2/1985 by saying that he intended to sell his property which was acquired by him under the grant. The said T K Laxmana @ T K Laxmanappa also intended to sell his family property because of sudden down of business in the industries. Banking on the words of T K Ramanna, the father of the plaintiff insisted his children to affix their signature on the paper and accordingly, plaintiff, defendant Nos.3, 8, T L Parthasarathy and T L Anandha Babu affixed their signature to the said document without reading the same. However, subsequently, business in the industry was recovered. Later, the plaintiff and defendant Nos.2 to 13 came to know the fraud done by the T K Ramanna but the father of the plaintiff was not in position to hear the words of his children as he was fully dominated by T K Ramanna. On the strength of said GPA, T K Ramanna sold the properties situated at Tumkur bearing municipal No.131/A and 131/B. Amount paid by the purchaser was utilized by defendant No.13. Inspite of the same, T K Laxmana colluding with his brother sold item Nos.1 and 2 in 'A' schedule property to defendant No.14 under the sale deed dtd. 6/10/2005. After the purchase of 'A' schedule property, defendant No.14 converted the land into nonagricultural land and sold the same by way of registered Gift Deed in favour of defendant Nos.16 to 25 on different dates. 5. It is further contended that her father has no exclusive right to sell the suit 'A' schedule property in favour of defendant No.14 and there is no division in the family of the plaintiff and defendant Nos.1 to 12. The alleged sale deed dtd. 6/10/2005 executed by her father in favour of defendant No.14 in respect of suit 'A' schedule property is not binding on the share of the plaintiff. It is further contended that the alleged gift deeds executed by defendant Nos.14 and 15 in respect of suit 'A' schedule property in favour of defendant Nos.16 to 25 are also not binding on the share of the plaintiff. It is further contended that the alleged gift deeds executed by defendant Nos.14 and 15 in respect of suit 'A' schedule property in favour of defendant Nos.16 to 25 are also not binding on the share of the plaintiff. The grant of old Sy.No.36/4 and new Sy.No.271 was for and on behalf of the joint family and after the grant, the same was blended in the joint family and being enjoyed by all the members of the joint family. 6. It is further contended that the plaintiff and the defendants are in joint possession and enjoyment of the suit schedule property after the death of T K Laxmaiah. Defendant No.8 by creating some bogus document in her favour, sold item No.1 in the 'B' schedule property to defendant No.26 and hence, defendant No.9 got issued notice to defendant No.8 and 26 but they gave evasive reply. The father of the plaintiff has no exclusive right to bequeath the Will in favour of defendant No.8 and the alleged Will is created and concocted by defendant No.9 to grab the properties and defraud the rights of the other joint family members in respect of the suit 'B' schedule property hence, the said Will is not binding on the plaintiff. It is further contended that the father of the plaintiff has demanded and requested to affect the partition in respect of the suit schedule property but defendant Nos.1 to 12 colluding with defendant Nos.13 to 15 denied the rights of the plaintiff. Hence, the plaintiff filed the suit for the relief of partition and separate possession. 7. In pursuance of suit summons, defendant No.14 filed the written statement denying the averments made in the plaint. It is contended that the plaintiff has not valued the suit properly as he has purchased the suit schedule property and other property under the sale deed dtd. 6/10/2005 for sale consideration and after purchase, he got converted and formed the layout and also alienated almost all sites and as such the suit of the plaintiff is bad for non-joinder of necessary parties. It is also contended that, the suit 'A' schedule property is the self acquired property of deceased T K Laxmana and also he being the head of the Hindu undivided Joint family has got ever right to alienate the same. It is also contended that, the suit 'A' schedule property is the self acquired property of deceased T K Laxmana and also he being the head of the Hindu undivided Joint family has got ever right to alienate the same. In the meanwhile, the plaintiff, defendant Nos.2 to 14 and sons of T K Laxmanappa have executed a registered GAP dtd. 4/2/1998 in favour of T K Laxmanappa pertaining to suit property and other joint family properties and in turn the said T K Laxmanappa on the basis of said registered GAP has sold the suit property in favour of defendant No.14 for valuable consideration under a registered sale deed dtd. 6/10/2005 and possession was delivered on the same day and later, he got converted and formed the layout and also alienated almost all the sites formed in the suit schedule property. It is also contended that defendant No.13 had filed a suit in O.S.No.30/2007 against him and the same was dismissed on 25/8/2010. The plaintiff and his family members have received the sale proceeds from their father, hence, the plaintiff has no manner of right, title and interest much less the possession over the suit schedule property and prayed to dismiss the suit. 8. Defendant No.22 also filed the written statement denying the averments made in the plaint and contended that since partition has taken place long back among the members of joint family comprising of plaintiff and defendant Nos.1 to 12, T K Laxmana @ Laxmanappa sold the suit 'A' schedule property in favour of defendant No.14 through a registered sale deed dtd. 6/10/2005 for the legal necessity and thereafter defendant No.14 converted the suit land and alienated one of the site property to him through a registered gift deed hence, the suit of the plaintiff is not maintainable and prayed to dismissed the suit. 9. Based on the pleadings of the parties, the Trial Court framed the issues and allowed the parties to lead their evidence. In order to prove the case of the plaintiff, she herself has examined as PW1 and got marked the documents at Ex.P1 to P3. On the other hand, defendant No.22 examined himself as DW1 and also examined one witness as DW2 and got marked the documents at Ex.D1 to D4. In order to prove the case of the plaintiff, she herself has examined as PW1 and got marked the documents at Ex.P1 to P3. On the other hand, defendant No.22 examined himself as DW1 and also examined one witness as DW2 and got marked the documents at Ex.D1 to D4. The Trial Court after considering both oral and documentary evidence placed on record dismissed the suit in coming to the conclusion that the plaintiff has not established that the suit schedule properties are the joint family properties and hence, she is not entitled for the relief of partition and separate possession. 10. Being aggrieved by the judgment and decree of the Trial Court, an appeal was preferred before the First Appellate Court. The First Appellate Court also on reappreciation of material available on record dismissed the appeal by confirming the judgment and decree of the Trial Court. Hence, the present appeal is filed before this Court. 11. The main contention of the learned counsel for the appellant that both the Courts have committed an error in holding that the suit schedule properties are not the joint family properties despite the fact that in O.S.No.6/2009, the suit schedule properties are held as joint family properties of T K Laxmana and his sons. The counsel further contended that both the Courts have erred in holding that the suit filed by the appellant is hit by principles of res-judicata despite their being no issue or pleadings with regard to the bar of res-judicata and both the Courts have erred in holding that the appellant has not produced material evidence or examined independent witness ignoring the fact of admission given by the purchasers in another case which was placed on record. Hence, this Court has to frame the substantial question of law with regard that whether both the Courts have erred in holding that the suit schedule properties are not the joint family properties and the very approach of both the Courts have erred in holding that the suit of the appellant is hit by principles of res-judicata despite their being no issue or pleadings with regard to the bar of res-judicata. 12. 12. Having heard the learned counsel for the appellant and also on perusal of the material available on record, it discloses that in the plaint it is contended that there was a release deed in favour of the father of the plaintiff in the year 1949 and it is also contended that the father of the plaintiff had started an industry in the name and style "Jaya Laxmi Industries and Engineering Work" and defendant Nos.1 to 12 also assisted her father and out of the income derived from the industry, the property was purchased on 29/7/1962. On the other hand, defendant No.14 contends that the suit 'A' schedule property is the self acquired property of the father of the plaintiff and after the purchase of the property, defendant No.14 invested the money and formed the layout and sold some of the sites. When the plaintiff has filed the suit for the relief of partition and separate possession and pleaded that the suit schedule properties are the joint family properties, the plaintiff has to establish the same that the suit schedule properties are the joint family properties of plaintiff and defendants. In order to substantiate the said contention, no document has been placed before the Court, except producing the document of sale deed dtd. 6/10/2005 and copy of RTC. In order to prove the fact that the family was having joint family properties and out of the joint nucleus the suit schedule properties are purchased, no document is placed before the Court. Hence, the Trial Court came to the conclusion that mere pleading is not enough and the plaintiff has to establish that the suit schedule properties are purchased out of joint nucleus. In order to prove that the suit schedule properties are purchased out of joint nucleus, no material has been placed before the Court. 13. It is also important to note that the power of attorney is executed by the plaintiff and also the other defendant in favour of the uncle of the plaintiff. Based on the power of attorney, the property was sold. Now, the plaintiff cannot contend that by misrepresentation, signature was taken. In order to prove the fact that the property was the joint family property, no material has been placed. Hence, the Trial Court dismissed the suit answering all the issues as negative. 14. Based on the power of attorney, the property was sold. Now, the plaintiff cannot contend that by misrepresentation, signature was taken. In order to prove the fact that the property was the joint family property, no material has been placed. Hence, the Trial Court dismissed the suit answering all the issues as negative. 14. The First Appellate Court on re-appreciation of both oral and documentary evidence placed on record, while answering point Nos.1 and 2 that whether the plaintiff proves that, the suit schedule properties are joint family properties, as contended and whether the plaintiff proves that she is entitled for the relief of partition, discussed in detail in paragraph No.18 that defendant Nos.11 and 9 have filed O.S.No.6/2009 and certified copy of the same is produced at Ex.D2. The present plaintiff is defendant No.10 in the said suit. The pleadings in both present suit and O.S.No.6/2009 are one and the same and there, item No.3 of schedule 'A' property was involved and sale deed was disputed by challenging the GPA but the said suit came to be dismissed. The very challenge made by the other joint family members i.e., defendant Nos.11 and 9 was dismissed. 15. Apart from that, defendant No.9 had filed a suit for declaration of his title under Ex.D2 and the said suit came to be dismissed. The plaintiff has not raised any of these defence in the said suit which were raised in this suit and she remained exparte. She did not give any explanation for remaining exparte in the said suit. Hence, the Court has taken note of the fact that when she was a party to the proceeding and the suit was dismissed in O.S.No.6/2009 that itself discloses that there was no legal necessity regarding the existence of schedule 'B' property and the plaintiff has not at all whispered anything about the same. Apart from that, the First Appellate Court has taken note of the fact that no material has been placed before the Court to show that the properties are purchased out of joint nucleus. 16. The First Appellate Court on re-appreciation of both oral and documentary evidence placed on record, came to the conclusion that res judicata applies since in other suit the plaintiff is also a defendant and the pleadings are one and the same with regard to the sale of the property. 16. The First Appellate Court on re-appreciation of both oral and documentary evidence placed on record, came to the conclusion that res judicata applies since in other suit the plaintiff is also a defendant and the pleadings are one and the same with regard to the sale of the property. In this case, the father had sold the property as he had acquired the property in the year 1962 and no attempt is made to collect the joint nucleus with regard to the release deed of the year 1949 but Sale Deed came into existence in the year 1962. In order to substantiate the same also no material has been placed before the Court. 17. The First Appellate Court on considering the application filed under Order 41 Rule 27 of CPC, came to the conclusion that it will not change the pleadings and the evidence of the plaintiff and the plaintiff cannot fill-up the lacunas in the evidence. It is also observed that what she has not pleaded, she has deposed and what she has deposed is not pleaded and pleading and her evidence are contrary to each other. Even by producing the documents, it does not change the pleading and evidence of the plaintiff. Hence, the First Appellate Court came to the conclusion that the plaintiff/appellant has not made out any ground to invoke Order 41 Rule 27 of CPC. 18. Having perused the material available on record both the Trial Court as well as the First Appellate Court have given the anxious consideration to both oral and documentary evidence placed on record and also came to the conclusion that the plaintiff has not proved that the suit schedule properties are the joint family properties and also not placed any material that the suit schedule properties are acquired out of joint nucleus. When such finding is given by both the Trial Court as well as the First Appellate Court and on re-appreciation of both oral and documentary evidence placed on record, I do not find any error committed by both the Courts in passing an order of dismissal of the suit and the same has been confirmed in an appeal by the First Appellate Court. While invoking Sec. 100 of CPC., there must be a perversity in the finding of the Trial Court as well as the First Appellate Court. While invoking Sec. 100 of CPC., there must be a perversity in the finding of the Trial Court as well as the First Appellate Court. I do not find any such perversity in the finding since both the Courts have given concurrent finding that no material had been placed to show that the properties belongs to the joint family properties and the same is acquired out of joint nucleus. Hence, I do not find any ground to invoke Sec. 100 of CPC., to admit the appeal and to frame any substantial question of law. 19. In view of the discussions made above, I pass the following: ORDER The appeal is dismissed. In view of dismissal of the appeal, I.A.No.1/2017 for condonation of delay of 60 days in filing the appeal does not survive for consideration, the same stands disposed of.