B.M. Thippeswamy vs Mahanataswamy And Others

This Regular Second Appeal is filed by the unsuccessful plaintiff challenging the Judgment and Decree dated 18.01.2011 passed by the Principal

Civil Judge at Challakere in OS No.135/2009 and the concurring Judgment and Decree dated 12.07.2012 passed by the Senior Civil Judge, Challakere

in R.A.No.14/2011. Both the Trial Court and the First Appellate Court dismissed the suit of the plaintiff for partition and separate possession of the

suit property on the ground that the suit property did not belong to the joint family.

For the sake of brevity and easy understanding, the parties shall henceforth be referred to as they were arrayed before the Trial Court. The

appellant was the plaintiff, while the respondents were the defendants before the Trial Court.

The suit filed by the plaintiff disclose that his father - the defendant No.1, had acquired the suit property in terms of a compromise decree between

the defendant No.1 and his father in OS No.19/1974. He contended that the plaintiff and the defendant No.1 were in possession of the suit property

and thus, it belonged to the joint family. He claimed that his sisters were married off and that they were sufficiently compensated with gold ornaments

and cash at the time of their marriage and that therefore, they were not entitled to share in the suit property. He alleged that differences arose

between him and the defendant No.1 and attempt at mediation through panchayath failed. He alleged that he came to know that there was a sale

transaction in respect of the suit properties and when he verified, he came to know that the defendant No.1 had sold it to the defendant No.2 though

there was no corresponding legal necessity. Therefore, he sought for partition and separate possession of his half share in the suit property.

The defendant No.1 filed his written statement and denied the averments of the plaint.

The defendant No.2 filed his written statement contending that the suit property belonged to Sri.N.M.Indushekar which he purchased in terms of a

sale deed dated 06.08.1982. The said N.M.Indushekarwas the brother-in-law of the defendant No.1. The said N.M.Indushekar had executed a

General Power of Attorney in favour of the defendant No.1 on 02.05.1977, authorizing him to sell the suit property. Accordingly, the defendant No.1

sold the suit property in favour of the defendant No.2 as the agent and Power of Attorney of N.M.Indushekar. He therefore, contended that the suit

property was never the joint family property of the plaintiff and the defendant No.1 as contended. He alleged that though the plaintiff knew all the

facts, he had falsely claimed a share in the suit property.

The Trial Court framed the following issues based on the rival pleadings.

“1. Whether the plaintiff proves that the plaintiff and the first defendant are in joint possession of the suit schedule property?

Whether the suit of the plaintiff is maintainable without seeking the relief of cancellation of the sale deed executed in favour of the

second defendant?

Whether the plaintiff is entitled for partition and separate possession of half share in the suit schedule property?

Whether the suit of the plaintiff is bad for non joinder of necessary parties?

Whether the second defendant proves that he is the absolute owner of the suit schedule property?

What order or decree?â€​

Before the Trial Court, the plaintiff was examined as PW1 and another witness was examined as PW2 and they marked Exs.P1 to P8. While the

defendant No.2 was examined as DW1 and he marked Exs.D1 to D13.

The Trial Court noticed that the suit filed in OS No.19/1974 was compromised between the defendant No.1 and his father in terms of which four

properties were divided amongst the defendant No.1 and his father. The Trial Court held that the plaintiff was unable to prove that the suit property

belonged to the joint family. The Trial Court also held that the suit was bad for non-joinder of necessary parties, since the sisters of the plaintiff were

not arrayed as parties in the suit. The Trial Court also noticed that the suit property was sold by the defendant No.1, as the Power of Attorney of

N.M.Indushekar, in favour of the defendant No.2 and thus, held that the plaintiff was not entitled for any share in the suit property.

The plaintiff challenged the aforesaid Judgment and Decree of the Trial Court in R.A.No.14/2011. The First Appellate Court held that in the

compromise decree in OS No.19/1974, the ‘B’ schedule property mentioned therein was partitioned and half share fell to the share of the

defendant No.1. The First Appellate Court held that the defendant No.2 had purchased this property through the Power of Attorney of

N.M.Indushekar. The First Appellate Court therefore, held that the plaintiff having not proved his right over the suit property, was not entitled for any

share therein and thus, dismissed the appeal and confirmed the Judgment and Decree of the Trial Court.

The plaintiff has therefore filed this regular second appeal challenging the Judgment and Decree of the Trial Court and the First Appellate Court.

Heard the counsel for the plaintiff and the defendant No.2, perused the Trial Court record and Judgments and Decrees of the Trial Court and the

First Appellate Court and also the grounds urged in support of the appeal memorandum.

It is the contention of the plaintiff that the suit property was one of the items that the defendant No.1 received at a partition that was recorded in

OS No.19/1974. He therefore, contended that the suit property was the joint family ancestral property and that he too was entitled for a share therein.

He further contended that the suit could not have been dismissed for non-joinder of the necessary parties, in view of the power vested in the Trial

Court under Order I Rule 10 of the Code of Civil Procedure, 1908. He therefore, contended that he is entitled for an undivided half share in the suit

property.

It is no doubt true that a suit for partition cannot be dismissed on the ground of non joinder of necessary parties, in view of the wide power vested

in the Court to add or delete the parties at any stage of the suit. Though this Court would not accept the reasoning of the Trial Court in dismissing the

suit on the ground of non joinder of the necessary parties, yet this Court would not venture to deal with the above, in view of the other facts which dis-

entitle the plaintiff for any relief in the suit.

It is seen that as on 03.06.2010, the age of the plaintiff was 29 years which meant that he was born in the year 1981. Even if it is assumed that the

suit property was allotted to the share of the defendant No.1 in a compromise reported in OS No.19/1974, the said compromise was accepted by the

Court on 10.06.1974. Therefore, as on the date of such a compromise, the plaintiff was not even born and the property in the hands of the defendant

No.1 belonged to him absolutely. It is seen from Ex.P3 that in terms of a sale deed dated 12.12.1978, the suit property was sold by the defendant No.1

to one Sri.Chandraiah. Later, the said Chandraiah is stated to have sold the property to N.M.Indushekar in terms of a sale deed dated 06.08.1982

(Ex.P4). This was followed by the sale deed dated 08.05.1987 executed by the defendant No.1 as the Power of Attorney of Sri.N.M.Indushekar in

favour of the father of the defendant No.2 herein. Therefore, the plaintiff could not contend that he was in joint possession of the suit property along

with the defendant No.1, while the plaintiff was not even born when the defendant No.1 received the suit property in terms of the compromise as per

Ex.P1. The plaintiff had therefore, failed to prove beyond doubt that the suit property was available for partition.

The plaintiff was bound to take steps to file a suit for partition within 3 years from the date of he attaining the age of majority and to challenge the

first sale dated 12.12.1978 (Ex.P3). The plaintiff had failed to do so, but, the suit was filed in the year 2009. Thus, the suit itself was belated and no

relief could have been granted. The Trial Court and the First Appellate Court have thoughtfully appreciated the facts, oral and documentary evidence

and have rightly held that the plaintiff is not entitled for any relief.

I do not find any irregularity or illegality in the Judgments and Decrees of the Trial Court and the First Appellate Court and as no substantial question

of law arises in this appeal, the same is dismissed.