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2023 DIGILAW 581 (KAR)

Puttarangaiah v. N. Gangappa

2023-04-11

ASHOK S.KINAGI

body2023
JUDGMENT : Ashok S. Kinagi, J. 1. Aggrieved by the judgment and decree dated 07.03.2005, passed in O.S.No. 480/1999 by the Principal Civil Judge (Jr Dn.) & JMFC, Tumkur, confirmed by the judgment and decree dated 01.04.2011, passed in R.A.No. 175/2007 by the I Additional District Judge, Tumkur, the appellants have filed this second appeal. 2. Parties are referred to as per their ranking before the trial Court. The appellants are the defendants 1 to 6 and respondent No. 1 is the plaintiff, respondents No. 2 to 9 are defendants 7 to 14 before the trial Court. 3. The brief facts leading rise to filing of this appeal are as under: The plaintiff has filed a suit for partition and separate possession in respect of suit schedule properties. The plaintiff, defendants 12 and 13 and father of defendants 1 to 6 are sons of Late Nagaiah. Defendants 7 to 11 are the sons and daughters of Muddamma, D/o Nagaiah. The plaintiff and defendants are the members of joint Hindu coparcener family and the properties are the ancestral coparcenary/ properties of plaintiff and defendants who are in joint possession of the same. The plaintiff has l/4th share in all the suit schedule properties. The plaintiff demanded partition and separate possession of his share to which the defendants put off promising to do it on some reason or the other. But they are keeping off their promise. Hence, the plaintiff filed the suit for partition and separate possession. Defendants No. 1 to 6 did not file written statement. Defendants No. 12 to 14 filed written statement admitting the relationship of the parties. It is denied that the plaintiff and defendants are the members of joint Hindu coparcener family and the properties mentioned in the suit schedule are the ancestral coparcener properties and they are in joint possession of the same. It is denied that plaintiff has l/4th share in all suit schedule properties. It is contended that there was a division in the joint family of the plaintiff and his brothers, namely, N.Rangaiah, Veerarangaiah - defendant No. 12 and Veerakyathaiah -defendant No. 13 during the year 1960. Since the said division, the plaintiff and his brothers are residing separately and enjoying the properties that came to their share. It is contended that there was a division in the joint family of the plaintiff and his brothers, namely, N.Rangaiah, Veerarangaiah - defendant No. 12 and Veerakyathaiah -defendant No. 13 during the year 1960. Since the said division, the plaintiff and his brothers are residing separately and enjoying the properties that came to their share. Out of suit schedule properties, item No. 11, 12, 13, 15, 17 and 4 were the ancestral and joint family properties of plaintiff and his brothers. The plaintiff was allotted the properties situated at T.Gollahalli Village of Koratagere Taluk shown as item Nos. 11, 12 and 17 and his brothers N.Rangaiah, Veerarangaiah and Veerakyathaiah were each allotted l/3rd share in Sy.No. 23 in item Nos.4, 13 and 15. Item Nos.1, 2, 3, 5, 7, 8 and 10 of the suit schedule properties, all situated at Jodisatyamangala Village which was an inam land. N.Rangaiah, the father of defendants 1 to 6 and husband of defendant No. 14 were cultivating the said land as a tenant. After the advent of Inams Abolition Act in the state of Mysore, the said lands vested in the State Government and as the said N.Rangaiah was cultivating the said land as a tenant, occupancy rights was conferred on him and the khatha of the said lands was also made out in his name and he paid the premium amount of Rs.215/- as per the orders. Thus it is clear that the properties are the self acquired properties of said N.Rangaiah. Veerakyathaiah purchased Sy.No. 76 and 95 of Satyamangala Village described in item No. 6 and 9 of the suit schedule properties from one Subbannachar, the owner of the property for valuable consideration under registered sale deed dated 14.11.1967, since then, he is in physical possession and enjoyment of the same as the absolute owner thereof and therefore it is his self-acquired property. Item No. 16 of the suit schedule properties is the self-acquired property of defendant No. 14 and item No. 10 is a tenanted property of N.Rangaiah arid the case pertaining to the said land is pending before the Land Tribunal, Tumkur. It is contended that the plaintiff filed the suit with an ulterior motive of making a wrongful gain and denied all the allegations made in the plaint, contrary to what is stated in the written statement. Hence prayed to dismiss the suit. It is contended that the plaintiff filed the suit with an ulterior motive of making a wrongful gain and denied all the allegations made in the plaint, contrary to what is stated in the written statement. Hence prayed to dismiss the suit. Though it is contended in the written statement that the defendants No. 1 to 6 adopted the written statement filed by defendants 12 to 14, but there are no signatures of defendants 1 to 6 in the written statement filed by defendants 12 to 14. Further, defendants 1 to 6 have not filed any memo for adopting the written statement filed by defendants 12 to 14. Defendant No. 12(g) filed a written statement denying the averments made in the plaint and sought for dismissal of the suit. The Trial Court, on the basis of the above said pleadings, framed the following issues: 1. Whether plaintiff proves that the partition and separate possession are the joint family properties of plaintiff and defendants? 2. Whether defendants prove the previous division in the joint family between plaintiff and defendants Nos. 12, 13 and N.Rangaiah as alleged in the written statement? 3. Whether defendants prove that plaint item Nos. 1, 2, 3, 5, 7, 8, 10 of schedule properties are the self-acquired properties of late N.Rangaiah, father of defendants 1 to 6? 4. Whether defendants prove that plaint schedule item Nos. 5 and 9 are the self-acquired properties of defendant No. 13? 5. Whether defendants prove that item No. 16 of plaint schedule is the self-acquired property of defendant No. 14? 6. Whether there is any cause of action for the suit? 7. Whether plaintiff is entitled for partition of schedule properties? If so, what is the share of each of the party to the suit in the schedule properties? 8. What decree or order? Plaintiff examined himself as PW-1 and examined one witness as PW-2 and got marked documents as Exs.Pl to P66. Defendant No. 1 examined himself as DW-1 and one witness as DW-2 and got marked documents as Exs.Dl to D78. The trial Court after recording the oral evidence and considering the material on record answered issue No. 1 partly in affirmative and partly in negative, issue Nos.2 to 4 in negative, issue Nos.5, 6 and 7 in affirmative, and consequently decreed the suit in part. The trial Court after recording the oral evidence and considering the material on record answered issue No. 1 partly in affirmative and partly in negative, issue Nos.2 to 4 in negative, issue Nos.5, 6 and 7 in affirmative, and consequently decreed the suit in part. It is ordered and decreed that plaintiff is having 6/25th share in item Nos.1 to 15 and item No. 17 of the suit schedule properties; defendants 1 to 6 and defendant No. 14 together are having 6/25th share in the suit schedule item Nos.1 to 15 and 17; defendants 7 to 11 are together having l/25tn share in suit schedule item Nos.1 to 15 and 17; defendants No. 12(a) to 12(g) are together having 6/25m share in suit schedule item Nos.1 to 15 and 17; defendant No. 13 is having 6/25th share in suit schedule item Nos.1 to 15 and 17. Defendants 1 to 6 aggrieved by the judgment and preliminary decree passed in the above said suit, filed an appeal in R.A.No. 176/2007. The Appellate Court, after hearing the parties, has framed the following points for consideration: 1. Whether the plaintiff proves that all the suit schedule item No. 1 to 17 are the joint family properties of plaintiff and defendants? 2. Whether the defendant No. 1 to 6, defendant No. 12, 13 and 14 prove that item Nos. 1, 2, 3, 5, 7, 8, 10 of suit schedule properties are self-acquired properties of father of defendant No. Rangaiah? 3. Whether the defendants prove that item No. 6 and 9 of suit schedule properties are self-acquired properties of defendant No. 13? 4. Whether they further prove that item No. 16 of suit schedule properties are self-acquired property of defendant No. 14? 5. Whether the judgment and decree passed by the lower Court needs to be interfered with by the hands of this Court? 6. What order? The Appellate Court, after re-appreciating the oral and documentary evidence, answered point No. 1 in affirmative, except item No. 16 of the suit schedule properties and answered points 2, 3 and 5 in negative, point No. 4 in affirmative and consequently dismissed the appeal filed by the defendants 1 to 6, confirming the judgment and decree passed by the trial Court. The defendants 1 to 6, aggrieved by the judgment and decree passed by the courts below, has filed this second appeal. The defendants 1 to 6, aggrieved by the judgment and decree passed by the courts below, has filed this second appeal. This court has admitted the appeal on the following substantial question of law: 1. Whether the judgment and decree of the lower courts are perverse in misreading the material evidence on record with regard to the earlier partition? 2. Whether the judgment and decree of the courts below are perverse in misreading the admissions made by the plaintiffs with regard to the previous partition? 4. Heard learned counsel for the parties. 5. Learned counsel for the defendants 1 to 6 submits that the courts below have ignored the admission of PW-1 in regard to severance of family and also prior partition is proved by the defendants and all the properties are divided into 3 equal parts. When the prior partition was accepted, the plaintiff could not have filed the suit. He submits that the defendants had denied that the suit schedule properties are not the joint family properties and the initial burden is on the plaintiff to establish the nature of properties and the said suit schedule properties are not the joint family properties. He further submits that the plaintiff has not pleaded how the properties are acquired by the family. He submits that the plaintiff has failed to establish the initial burden casted upon him. Hence on these grounds he prays to allow the appeal. 6. Per contra, learned counsel for the plaintiff supports the impugned judgments and decrees passed by the courts below. 7. Perused the records and considered the submissions of learned counsel for the parties. 8. Substantial questions of law No. 1 and 2: As the substantial questions of law are interlinked with each other, and in order to avoid repetition of facts, they are taken up together for consideration. 9. There is no dispute in regard to the relationship between the parties. It is the case of the plaintiff that the suit schedule properties are the ancestral joint family properties of plaintiff and defendants and they are in joint possession and enjoyment. The plaintiff is having l/4th share in the suit schedule properties. It is the case of the plaintiff that no partition is effected between the parties in respect of suit schedule properties. The plaintiff demanded for partition, but the defendants refused to do so. Hence plaintiff was constrained to file the suit. The plaintiff is having l/4th share in the suit schedule properties. It is the case of the plaintiff that no partition is effected between the parties in respect of suit schedule properties. The plaintiff demanded for partition, but the defendants refused to do so. Hence plaintiff was constrained to file the suit. Defendants 12 to 14 filed written statement contending that there was a prior partition in the year 1960 and parties are in possession of their respective shares. Insofar as item No. 16 is concerned, it is the self-acquired property of defendant No. 14. It is also admitted that item Nos.1, 4, 11, 12, 13 and 15 are the ancestral joint family properties of the plaintiff and his brothers. It is the specific case of the defendants that partition took place in between the plaintiff and his brothers in the year 1960. The plaintiff contended that there is no partition in the family. Though the defendants have taken a defence that some of the properties are the self-acquired properties and also prior partition, in such a case, the burden lies on the person who contends that the properties are his self-acquired properties and also prior partition. In order to prove the defence of defendants 12 to 14, defendant No. 1 was examined as DW-1 and reiterated the averments made in the written statement in his examination-in-chief. DW-1 has entered into witness box on 27.02.2002. On that date, age of DW-1 is shown as 53 years and it is the contention of the defendants that the partition took place between the plaintiff and his brothers in the year 1960. If the defence of the defendants is accepted that there was a prior partition in the year 1960, DW-1 was aged about 10 years, he was minor as on the date of alleged prior partition. DW-1 has no personal knowledge regarding the alleged partition. The plaintiff has denied the alleged prior partition. The defendants did not examine any independent witnesses to prove the alleged prior partition. DW-1 in the course of evidence has admitted that during the lifetime of his father Naga;ah, Nagaiah was looking after the family affairs and after his demise, his elder son was looking after the family affairs. The plaintiff has denied the alleged prior partition. The defendants did not examine any independent witnesses to prove the alleged prior partition. DW-1 in the course of evidence has admitted that during the lifetime of his father Naga;ah, Nagaiah was looking after the family affairs and after his demise, his elder son was looking after the family affairs. Insofar as lands bearing Sy.Nos.Sl, 71, 25, 79, 94, 75, 102, 105 and 106 situated at Satyamangala Village, are the tenanted lands and the said lands are jodi inam lands and his father Nagaiah was cultivating the said land as a tenant and his father filed an application under Section 6 of the Mysore (Personal & Miscellaneous) Inam Abolition Act, for granting the tenanted lands. During the pendency of the proceedings, Sri. Nagaiah died and his elder son was brought on record for and on behalf of the joint family. Though a suggestion was put to DW-1 that his grandfather filed an application in the year 1956 before the Special Tahsildar for granting the said lands under the Inam Abolition Act, DW-1 has not denied the suggestion. The plaintiff has produced Ex.P17 which is the certified copy of the application submitted by father of DW-1 before the Special Tahsildar Inam Abolition, Tumkur, Ex.P17 clearly discloses that Sy.No. 71, 61, 70, 95, 76, 25, 79, 100/2 and 100/5 of Satyamangala Village were the ancestral tenanted lands of N.Rangaiah. Further it discloses that the grandfather of DW-1 was earlier cultivating the said lands and the said lands are the ancestral tenanted lands of the family of N.Rangaiah. DW-1 admitted that his father was the eldest son to his grandfather. After the demise of Nagaiah, his elder son gave application to enter his name in respect of the lands mentioned in Ex.P17. The said lands are the ancestral tenanted lands. The defendants in order to prove Ex.Dl, have not examined any independent witness to prove the alleged prior partition. The plaintiff has specifically denied the execution of Ex.Dl. When the execution of the said document is denied, the burden lies upon the defendants to prove Ex.Dl. Further, the defendants have not examined the scribe of Ex.Dl and also not examined the witnesses who were present at the time of writing Ex.Dl. The defendants have failed to prove Ex.Dl, i.e., regarding prior partition. When the execution of the said document is denied, the burden lies upon the defendants to prove Ex.Dl. Further, the defendants have not examined the scribe of Ex.Dl and also not examined the witnesses who were present at the time of writing Ex.Dl. The defendants have failed to prove Ex.Dl, i.e., regarding prior partition. This Court is of the opinion that the defendants failed to prove that there was a prior partition in the year 1960, on the contrary, the plaintiff has proved that the suit schedule properties are the ancestral joint family properties of plaintiff and defendants. Defendants 1 to 6 though appeared through their counsel, did not choose to file written statement and also did not file a memo for adopting the written statement filed by defendants 12 to 14. Further, DW-1 has not produced any authorization to establish that defendants 12 to 14 have authorized DW-1 to depose on behalf of defendants 12 to 14. In the absence of written statement of defendants 1 to 6, the trial Court could not have permitted DW-1 to depose on behalf of other defendants i.e., defendants 12 to 14. The trial Court ought to have discarded the evidence of DW-1 on the ground that defendants 1 to 6 have not filed written statement, on the contrary, considered the evidence of DW-1 and held that the defendants have failed to demonstrate prior partition as alleged in the written statement filed by defendants 12 to 14. The courts below have rightly considered the material evidence on record and come to a right conclusion. In view of the above discussion, I answer both the substantial questions of law in negative. 10. In view of the above, I do not find any grounds to interfere with the impugned judgments and decrees passed by the courts below. Hence, I proceed to pass the following: ORDER: The appeal is dismissed. No order as to the cost.