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2024 DIGILAW 4 (KAR)

Ramesh v. Suresh

2024-01-02

E.S.INDIRESH

body2024
JUDGMENT 1. In this appeal, the appellant is assailing the judgment and decree dtd. 22/12/2009 in RA No.32 of 2008 on the file of Fast Track Court No.I, Gulbarga, confirming the judgment and decree dtd. 12/12/2007 in OS No.31 of 1998 on the file of III Additional Civil Judge (Sr. Dn.), Gulbarga, dismissing the suit of the plaintiff. 2. For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the trial Court. 3. Relevant facts for the adjudication of the case as contended by the plaintiff are that, the plaintiff is the adopted son of one Sanganna Athanoor, who died leaving behind his wife-Gangabai. Thereafter, the plaintiff was adopted by said Gangabai on 30/4/1968 and Deed of Adoption was registered on 12/1/1972 at Gulbarga. It is the case of the plaintiff that, the mother of the plaintiff had Sreedhan properties and out of those funds, the mother of the plaintiff had shared the funds with the father of the defendant No.1-Gundappa, to purchase the suit schedule property. It is also stated in the plaint that, the mother of the plaintiff is also having a share in the suit schedule property and has invested her money for construction of building in Plot Nos.79 and 80 and therefore, it is contended by the plaintiff that the plaintiff is having right, title and interest over the suit schedule property. It is also the case of the plaintiff that, Partition Deed dtd. 9/3/1983, made in respect of the subject matter of the suit, is not binding on the plaintiff. It also contended in the plaint that, the mother of the plaintiff had filed suit in OS No.25 of 1978 against the father of defendant No.1 and in the said proceedings the said Gundappa had admitted in the written statement relating to the transaction made between himself and the mother of the plaintiff and therefore, it is the case of the plaintiff that, the said admission made by the father of the defendant No.1 is binding on the defendants. It is also stated in the plaint that, in earlier suit, OS No.337 of 1972 between the mother of the plaintiff and the father of the defendant No.1, where the decree is passed and the said judgment and decree is binding on the said Gundappa and consequently on the defendant No.1. It is also stated in the plaint that, in earlier suit, OS No.337 of 1972 between the mother of the plaintiff and the father of the defendant No.1, where the decree is passed and the said judgment and decree is binding on the said Gundappa and consequently on the defendant No.1. Accordingly, the plaintiff has sought for relief of declaration with possession and consequential relief of injunction in respect of the suit schedule property. 4. After service of notice, the defendant No.1 entered appearance and filed written statement denying the averments made in the plaint, particularly, took up the contention that, the description of the suit property is incorrect and as such, sought for dismissal of the suit. 5. On the basis of the pleadings on record, the Trial Court has framed the issues for its consideration. 6. In order to establish their case, the plaintiff has examined two witnesses as PW1 and PW2 and produced 22 documents as Exs.P1 to P22. On the other hand, defendants have examined DW1 and DW2 and got marked 15 documents as Exs.D1 to D15. 7. The Trial Court, after considering the material on record, by its judgment and decree dtd. 12/12/2007 dismissed the suit. Feeling aggrieved by the same, the plaintiff has filed RA No.32 of 2008 before the First Appellate Court and the said appeal was resisted by the defendants. The First Appellate Court dismissed the appeal by judgment and decree dtd. 22/12/2009, consequently confirmed the judgment and decree passed by the Trial Court. Feeling aggrieved by the same, the pf has preferred this second appeal. 8. I have Heard Sri Ajay Kumar A.K., learned counsel appearing for the appellant and Sri Ganesh S. Kalaburagi and Sri Ananth S. Jahagirdar, learned counsel appearing for the contesting respondents. 9. Learned counsel appearing for the appellant contended that, the finding recorded by both the courts below is incorrect as the mother of the plaintiff had parted her Sreedhan properties in favour of the father of the defendant No.1-Gundappa to purchase the suit schedule property, as well as to construct the building in the suit schedule property. Therefore, he contended that, the finding recorded by both the courts below requires to be interfered with in this appeal. 10. Therefore, he contended that, the finding recorded by both the courts below requires to be interfered with in this appeal. 10. Nextly, it is contended by the learned counsel appearing for the appellant that, both the courts below have not considered the written statement filed by the father of the defendant No.1, in OS No.25 of 1978 and further the judgment and decree in OS No. 337 of 1972 is binding on the parties. Therefore, he sought for interference of this Court. 11. Per contra, learned counsel appearing for the contesting respondents sought to justify the judgment and decree passed by the courts below. 12. Having heard the learned counsel appearing for the parties and on careful consideration of the original records as well as the finding recorded by the courts below, wherein, it is not in dispute that, the plaintiff is natural brother of the defendant No.1. The plaintiff was given in adoption by his natural father-Gundappa, in favour of his sister-in-law-Gangabai and therefore, the relationship between the parties is not disputed. The core question to be answered in this appeal is whether the mother of the plaintiff has contributed towards the purchase of the plot Nos.79 and 80 through father of the defendant No.1. In this regard, it is not in dispute that the father of the plaintiff-Sanganna Atanoor died and the plaintiff was adopted by the wife of Sanganna AthanurGangabai on 30/4/1968 (Annexure-P6). Perusal of the plaint would indicate that, nothing is stated in the plaint related to the contribution made by the mother of the plaintiff at the time of purchasing the schedule plots. In this regard, I have careful examined the Sale Deeds dtd. 27/12/1973 (Ex.D1) and dtd. 4/1/1978 (Ex.D9). Both the Sale Deeds reveals that, the subject matter of the suit has been purchased by the father of the defendant No.1 on his own earnings. Therefore, as there is no pleading, in respect of the same, it is relevant to refer to the judgment of this Court, in the case of Janatadal Party, Bangalore vs. The Indian National Congress and others reported in ILR 2014 KAR 4726, wherein at paragraphs 42 and 43 reads as follows. "42. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. "42. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. Provisions relating to pleadings are meant to give each side intimation of the case of the other so that it may be met, to enable the Court to determine what is the real issue between parties and to prevent from the course which litigation, on particular of causes of action, must take. It is to ensure that the litigants came to trail with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. To ensure that each side is fully alive to the question that are likely to be raised or considered so that they may have an opportunity of placing the relevant evidence appropriate to the issues before the Court for its consideration. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. 43. When the facts necessary to make out a particular claim, or to seek particular relief, are not found in the plaint, the Court cannot focus the attention of the parties, or its own attention on the claim or relief, by framing an appropriate issue. The general rule, is that the relief should be founded on pleadings made by the parties. It is equally well settled that in the absence of pleadings, evidence if any produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary an material facts should be pleaded by the party in support of the case set up by it." 13. Following the declaration of law made by this Court I am of the view that, there is no pleading relating to substantiate the case of the plaintiff with regard to making of payment by the mother of the plaintiff at the time of execution of the Sale Deeds referred to at Exs.D1 and D9 and further the deposition of the independent witness-PW2, do not conform to the pleadings on record and therefore, I am of the view that, the both the courts below were justified in dismissing the suit of the plaintiff. Having arrived at such conclusion that, the plaintiff has failed to establish his right through his pleadings in the plaint, and therefore, I am of the view that, the other contentions raised by the appellant cannot be accepted. Both the courts below having taken note of the entire material on record and after appreciation of evidence arrived at a just conclusion that, the plaintiff has not made out a case for granting relief of declaration with consequential relief. In that view of the matter as the appellant fails to make out a case as required under Sec. 100 of Code of Civil Procedure and no substantial question of law is required to be framed in this appeal, the Regular Second Appeal deserves to be dismissed and accordingly, dismissed.