Bommakka vs Ramanna

Budihal R.B., J.—The appellants-plaintiffs being aggrieved by the judgment and decree dated 25.10.2005 passed in R.A. No. 1/2003 by the Civil Judge (Sr. Dn.) at Challakere, modifying the judgment and decree dated 15.11.2002 in O.S. No. 276/1995 on the file of the Civil Judge (Jr. Dn.) at Challakere, have preferred the present second appeal, on the following grounds:

That, the judgment and decree passed by the courts below are contrary to law, fact and evidence of the case and the entire approach of the courts below is manifestly illegal. The courts below have not noted that the appellants are also entitled for half share in the suit schedule property as the trial court had erred in holding that they are entitled only for 1/3rd share and the first appellate court has erred in holding that they are entitled for 7/24th share. The courts below ought to have decreed the suit of the appellants-plaintiffs as they have proved their case.

While admitting the present appeal, this Court has framed following substantial question of law for consideration:

"Whether the first appellate court was right in reducing the share granted by the trial court in the suit?" 3. The facts leading to the case in brief are that relationship of the parties is not in dispute and it is mentioned in the plaint para No. 2 and the genealogical tree is also shown as annexed to the plaint. The schedule property is the land bearing Sy. No. 30/2 measuring 2 acres 10 guntas situated at Challakere Village shown in schedule to the plaint. It is pleaded that suit schedule property is the ancestral and joint family property of the plaintiffs and defendants. The 1st defendant who was the only son to his father Chennangi Thippaiah had acquired the suit schedule property by way of law of inheritance. The original plaintiff-Papanayak and the defendants were cultivating the suit schedule property. After the marriage of the original plaintiff, about ten years ago, difference arose among the women folk and hence, he came out of the family and residing separately. The plaintiff was cultivating the suit schedule property in a bit and the defendants were cultivating different bits in order to derive good income. During the current year, when the original plaintiff started to cultivate the land on the southern side of the suit schedule property, the defendants expressed what they intended to cultivate the same. In view of non allotment of definite share by metes and bounds, original plaintiff was not able to go on agricultural operations in the suit schedule property. So he demanded his legitimate 1/3rd share in the suit schedule property. Defendant No. 1, being the kartha of the family, promised to partition the suit schedule property and put the plaintiff in a separate possession but dodging the same on one pretext or the other. As the 1st defendant was not heeding the words of the elderly persons, plaintiff-Papanayaka filed the aforesaid suit originally for 1/3rd share and subsequently, by way of amendment, he sought half share in the suit schedule property. During the pendency of the suit, the original plaintiff Papanayaka died and his legal representatives were brought on record.

Defendant No. 2 filed written statement admitting the relationship between the original plaintiff and defendants. The allegations made in para No. 3 of the plaint had been denied. It was contended that the plaintiffs suit was not properly valued and there was no cause of action. It was further contended that the plaintiff Papanayaka was the eldest son of defendant No. 1 and his marriage was solemnized about 30 years back and there after, plaintiffs family and defendants were residing in the same roof as joint family members and also enjoying the suit schedule property jointly for a period of 5-6 years. Thereafter, due to differences between the women folk, original plaintiff left the joint family about 25 years back. But they were jointly cultivating the suit schedule property for a period of 5-6 years. Thereafter, original plaintiff demanded his share in the suit schedule property and convened panchayat in the village. But defendant No. 1, as prestige of the family, without giving any room for dispute, had divided the properties orally about 20 years back. In the oral division, original plaintiff was allotted to an extent of southern 29 guntas in the suit schedule property and one coconut tree. Defendant No. 2 was allotted middle portion to an extent of 31 guntas and defendant No. 3 was allotted 29 guntas of northern side of the suit schedule property. From the date of said allotment, original plaintiff had been in possession and enjoyment of the same as owner. But defendant Nos. 2 and 3 were jointly cultivating their shares. After their marriage, they were cultivating separately as per the allotment. Defendant Nos. 2 and 3 had, by their own efforts, improved their shares by spending huge amount. Defendant No. 2 had no objection to change katha to an extent of 29 guntas and one coconut tree in favour of the original plaintiff. Hence, sought to dismiss the suit.

Defendant No. 3 also filed a separate written statement. The sum and substance of the written statement of defendant No. 3 was as that of defendant No. 2. He had pleaded that as the age of defendant No. 1 advanced and thinking that he would not survive for any longer, defendant No. 1 had conveyed the panchayat in the presence of witnesses and got divided the suit schedule property in writing and executed a Will on 17.10.1995 in terms of oral division that had taken place about 20 years ago. Hence, sought to dismiss the suit of the plaintiff.

On the basis of the above pleadings, the trial court had framed the following issues:

"1) Whether the plaintiffs prove that the suit schedule property is the ancestral and joint family property of the plaintiffs and defendants?

2) Whether the plaintiffs prove that plaintiffs and defendants are cultivating the suit schedule property severally and jointly?

3) Whether defendants prove that the division of the property made under Will is binding on the plaintiff and the defendants?

4) Whether the plaintiffs are entitled for partition and separate possession of 1/2 share in the suit schedule property by metes and bounds as per Section 54 CPC?

5) The Court fee paid on the plaint is insufficient?

6) Whether this Court has no jurisdiction to entertain the suit?

7) What Order and Decree?"

After considering the merits of the case, the trial court decreed the suit of the plaintiff for 1/3rd share in the suit schedule property. Being aggrieved by the judgment and decree of the trial court, the legal representatives of original plaintiffs Papanayaka preferred appeal in R.A No. 1/2003 before the first appellate court, whereby the first appellate court had allowed the appeal in part and the judgment and decree of the trial court was modified stating that plaintiffs were entitled to 7/24th share in the suit schedule property. Being not satisfied with the judgment and decree passed by the first appellate court, the plaintiffs have filed the present regular second appeal.

Heard the arguments of the learned Counsel appearing for the appellants.

Learned Counsel for the respondents remained absent, and no representation was made on their behalf.

Perused the pleadings, oral and documentary evidence produced by the parties before the trial court, judgment and decrees of the courts below as also perused the grounds urged in the appeal memorandum.

In the pleadings as well as in the oral evidence, the relationship of the parties is admitted by both sides. The original plaintiff - C. Papanayak was the son of Papamma, the 1st wife of Chennangi Ajjappa, who was defendant No. 1 in the suit. Defendant Nos. 2 and 3 were the sons of defendant No. 1-Chennangi Ajjappa. Defendant Nos. 4 to 6, who were impleaded subsequently, were the daughters of Palamma, the 2nd wife to defendant No. 1-Chennangi Ajjappa. The original plaintiff filed the suit seeking partition and possession of his 1/3rd share in the suit schedule property and after the death of defendant No. 1-Chennangi Ajjappa, he got amended the plaint to the effect that he was entitled to half share in the suit schedule property on the ground that the suit schedule property was the ancestral and joint family property and no partition was effected. However, in the written statement filed by defendant Nos. 2 and 3, it was contended that the marriage of original plaintiff was performed about 30 years back and after the marriage, for about 5-6 years, he continued to be in the family and thereafter, because of the difference among the women folk, defendant No. 1 effected partition among his three sons in the suit schedule property. An extent of 29 guntas towards southern side of the suit schedule property had been given to plaintiff and the other portions were given to defendant Nos. 2 and 3 and according to them, it was an oral partition.

Though it was the contention of the original plaintiff that when Papamma, the 1st wife was still alive, Chennangi Ajjappa married Palamma as his 2nd wife and hence, the children to Palamma through Chennangi Ajjappa were illegitimate children. In the evidence of P.W. 2, he has deposed that after the death of Papamma, who was the 1st wife of Chennangi Ajjappa, he married Palamma as his 2nd wife. This factual aspect had been considered by the both the courts below and they were of the opinion that the plaintiffs failed to prove that Chennangi Ajjappa married Palamma during the life time of Papamma.

Regarding oral partition pleaded by the defendants in their written statement, except their self serving testimony, no other materials have been produced by them. They have not examined any persons to prove the oral partition. They have admitted that there is no representation or an application filed for including the names as per the oral partition. However, before the first appellate court, the appellants had filed an application under Order XLI Rule 27 of CPC for production of the copies of the sale deed stating that respondent No. 2 sold the lands during the pendency of the proceedings before the Court. The first appellate court held that since the transaction was held during the pendency of the proceedings, it was not necessary to allow the application filed under Order I Rule 10 of CPC for impleading the purchaser of the property and the application filed under Order XLI Rule 27 of CPC for production of sale deed was rejected as not necessary at that stage.

So far as the Will is concerned, it was not produced before the courts below by the defendants. Therefore, both the courts came to the conclusion that as there was no supporting material to prove the oral partition and observed that only on the basis of the contention in the written statements and the oral evidence of D.Ws. 1 and 2, it could not be said that the oral partition had been proved. Both the courts have, after considering the materials, concurrently held that the partition alleged in the written statement has not been proved by the defendants. As the suit schedule property is admittedly ancestral and joint family property, and as the partition was not proved, the trial court decreed the suit granting 1/3rd share to the plaintiffs in the suit schedule property. Aggrieved by the judgment and decree of the trial court, the appellants preferred regular appeal, whereby, the first appellate court, while partly allowing the appeal has, modified the judgment and decree of the trial court only with regard to the quantum of share and held that the plaintiffs are entitled to 7/24th share in the suit schedule property in stead of 1/3rd share.

The first appellate court after considering that original plaintiff-Papanayaka and defendant Nos. 2 and 3 were the sons of Chennangi Ajjappa, and as Chennangi Ajjappa expired, held that each sons were entitled to 1/3rd share. Defendant Nos. 4 to 6 are the daughters of Chennangi Ajjappa. P.Ws. 1 and 2 have deposed, in their evidence, that the marriage of defendant Nos. 4 to 6 took place about 25 years back. Though suggestion was made to P.Ws. 1 and 2 that marriage of defendant Nos. 4 to 6 was not performed 25 years back, defendants have not placed any satisfactory material to show as to what was the date of marriage of defendant Nos. 4 to 6. P.Ws. 1 and 2 have denied the suggestion that the marriage of defendant Nos. 4 to 6 was not performed about 25 years back. Therefore, the first appellate court has taken into consideration that defendant Nos. 4 to 6 are also entitled to a share in the property fallen to the share of the deceased defendant No. 1 as per the notional partition and came to the conclusion that plaintiffs are entitled to 7/24th share in the suit schedule property. Therefore, the allotment of share of the suit schedule property calculated by the first appellate court is in accordance with law. No illegality has been committed by the first appellate court nor there is any perverse or capricious view in coming to such conclusion. There are no valid and justifiable grounds for this Court to interfere with the judgment and decree of the first appellate court.

Accordingly, the appeal is dismissed.