C. Madaiah and Others vs Puttagecchaiah and Others

N. Kumar, J.—This is a plaintiffs'' appeal against the judgment and decree of the trial Court which has dismissed the suit of the plaintiffs with cost.

For the purpose of convenience, parties are referred to as they are referred to in the original suit.

The case of the plaintiffs is deceased Madaiah is having three sons by name late Mada @ Bukka, late Ninga @ Chikkadodda and late Ninga @ Dodda. The plaintiffs are the children of late Ninga @ Chikkadodda. The defendants 1 and 2 are the children of late Mada @ Bukka. The defendants 3 and 4 are the grand son of late Ninga @ Dodda. Defendant No. 5 is the wife of the son of late Ninga @ Dodda. Defendant No. 6 is the son of defendant No. 5. They contend that the plaintiffs and defendants constitute a Hindu Undivided family. The deceased Madaiah during his life time has not effected a partition in respect of the suit schedule property. Similarly, late Sri Mada @ Bukka also did not effect any partition during his life time in respect of the suit schedule property. The plaintiffs and defendants also have not effected any partition in respect of the suit schedule property. Plaintiffs and defendants are in joint possession of the suit schedule property. The plaint schedule property belongs to the joint family of the plaintiffs and defendants, is an ancestral property. The khata of the suit schedule property stands in the name of late Ninga @ Chikkadodda and Ninga @ Dodda and Madaiah jointly. Plaintiffs and defendants and their ancestors are enjoying this property jointly. Plaintiffs have 1/3rd share in the plaint schedule property. When the plaintiffs demanded their 1/3rd share in the suit property from the defendants, the defendants have denied their right. The panchayat was arranged in the village. Even in the Panchayat they refused to give their legitimate share and therefore the plaintiffs were constrained to file the suit for partition and separate possession of their legitimate 1/3rd share in the schedule property.

After service of summons, defendants 1, 2, 3, 5 and 6 appeared through their counsel and filed their written statement. Defendant No. 4 remained absent and hence was placed ex-parte. Defendant No. 2 in his written statement has contended that the suit of the plaintiff is not maintainable either in law or in facts. He admits the relationship set out in paragraph 2 of the plaint. He specifically pleaded that, a decade ago there was a oral partition between the father of the plaintiffs late Ninga @ Chikkadodda and father of defendants 1 and 2 late Mada @ Bukka and grand-father of defendants 3, 4 and 6 and father-in-law of defendant No. 5. Accordingly, on northern side of the schedule property measuring 3 acres 20 guntas of land has fallen to the share of father of defendants 1 and 2. On southern side of the suit schedule property measuring 1 acre 20 guntas of land is fallen to the share of father-in-law of the defendant Nos. 3, 4 and 6 and remaining 1 acre 20 guntas of land is fallen to the share of the plaintiffs. Father of the plaintiffs and grand father of defendants 3, 4 and 6 were having some properties at Bommanahalli village i.e. Sy. No. 74/7 measuring 20 guntas, Sy. No. 72/1 measuring 1 acre 7 guntas, Sy. No. 91/21 measuring 3 guntas, Sy. No. 85/2 measuring 25 guntas, Sy. No. 89 measuring 9 guntas and Sy. No. 91/27 measuring 1 gunta. The other properties have fallen to the share of Dodda Madaiah and Chikkadoddaiah and they are enjoying the said properties. The said properties have not been included in the present suit. Hence, the suit for partial partition is not maintainable.

The father of defendants 1 and 2 was allotted only 3 acres 20 guntas in the suit properties and no other properties were allotted to them. Since there was already partition between the father of the plaintiffs and his brothers, the present suit is not maintainable. It was further contended that father of defendants 1 and 2 Mada @ Bukka was having two wives by name Manchamma and Puttamma. After the death of the first wife of Mada @ Bukka by name Manchamma, he got married with Puttamma. 1st defendant is the son of Manchamma and 2nd defendant is the son of Puttamma. In between the defendants 1 and 2 there is no partition. The father of defendants 1 and 2 Mada @ Bukka after receiving his share in the ancestral properties has acquired some independent properties. The 2nd defendant is retaining his right to claim his share in those properties. Defendants 1 and 2 are having their share in the suit schedule property measuring 3 acres 20 guntas. Hence, 2nd defendant claimed 1 acre 30 guntas of land in the suit schedule property. Therefore, they sought for dismissal of the suit. Defendants 3 to 6 filed their written statement admitting the claim made by the plaintiffs in the present suit and claimed that their share also be allotted to them.

On the basis of the aforesaid pleadings, the trial Court framed the following issues:

a. Whether the plaintiffs prove that schedule property is the joint family and ancestral property of them and defendants?

b. Whether the plaintiffs further prove that they are in joint possession of schedule property with defendants?

c. Whether the 2nd defendant proves that there was oral partition between plaintiffs'' father and defendants No. 1 and 2''s father with defendants 3, 4 and 6 grandfathers some years back?

d. Whether the 2nd defendant proves that suit is bad for non-joinder of necessary parties?

e. Whether the 2nd defendant proves that suit is not maintainable as it is filed for partial partition?

f. Whether the plaintiffs are entitled to plaint reliefs?

g. What order or decree?

The plaintiffs in order to substantiate their claim examined the first plaintiff Madaiah as PW1 and produced two documents RTC extracts as Exs.P1 and P2. On behalf of the defendants Ningaiah the 2nd defendant was examined as DW1 and 3rd defendant Mahadevu was examined as DW2. They also produced 8 documents which are marked as Exs.D1 to D8.

The trial Court on appreciation of the oral and documentary evidence on record held that the plaintiffs have not included all the joint family properties in the present suit, hence, partial partition cannot be granted. In view of the admission of PW1 in the cross examination that the suit schedule property was already partitioned and they are enjoying the same separately, suit for partition is not maintainable. Therefore, the plaintiffs have established that the suit schedule property was the joint family and ancestral property of them and defendants. They failed to prove that they are in joint possession of the property. The 2nd defendant has proved that there was oral partition between the plaintiffs'' father and father of defendants 1 and 2 and grand father of defendants 3, 4 and 6 some years back. The suit is not bad for non-joinder of necessary parties. The suit is not maintainable and the plaintiffs are not entitled to any relief and accordingly dismissed the suit. Aggrieved by the said judgment and decree, plaintiffs are before this Court.

Learned counsel appearing for the plaintiffs appellants assailing the impugned judgment and decree of the trial Court contended that, when admittedly the plaint suit schedule property is a joint family property, in the absence of any evidence of partition, merely on the basis of an admission of PW1 in cross-examination, the trial Court could not have dismissed the suit of the plaintiff. It is his specific contention, apart from the suit schedule property there are other properties in the joint family. Except the suit schedule property, all the properties were partitioned and therefore the suit is filed only in respect of the suit schedule property which was not the subject matter of partition earlier and therefore he submits the Court below committed a serious error in dismissing the suit of the plaintiffs.

We do not see any substance in the said contention.

The 2nd defendant in his written statement has set out clearly several other properties belonging to the joint family. In support of the same, RTC extracts were produced. The fact that the joint family owned those properties is not in dispute. If those properties are all joint family properties, the plaintiffs ought to have included them in the suit and sought for partition and separate possession of all the joint family properties. If those properties were all partitioned earlier, the minimum that was required for the plaintiffs is to plead that there was an earlier partition and in the partition all those properties have been divided by metes and bounds and the suit is brought only in respect of the property which was not the subject matter of that partition. The plaint has been very cleverly drafted in paragraph 3 of the plaint. It is specifically pleaded that the plaintiffs and defendants are members of Hindu Joint Family. Neither during the life time of Madaiah nor after his death and till the date of filing of the suit there was no partition. Thereafter, the averments states, plaint schedule property is not partitioned. As against this, the defendants have conveniently proved by producing the documentary evidence and also relying on the cross-examination of PW1 that there was a partition. In fact PW1 in his cross-examination has categorically stated a suggestion that, northern portion of the suit schedule property measuring 3 acres 20 guntas is cultivated by the defendants 1 and 2 and towards southern side of the schedule property measuring 1 acre 20 guntas was cultivated by the defendants 3 to 5 and southern side of the said property measuring 1 acre 20 guntas was cultivated by the plaintiffs separately. He pleads the ignorance that in the partition of the Bommanahalli property, a major share is given to the plaintiffs'' father and Mada @ Bukka''s share and defendants 3, 4 and 6 got a lesser share. He also admits that, his father and his brothers have shared the family house. Even the brothers of his father are also living in separate portion of the family house. He also admits that they are paying taxes in respect of the properties which has fallen to their share. This evidence clearly clinches the issue. It is also supported by the entries in the revenue records. It is in those circumstances by taking into consideration the aforesaid legal evidence, the trial Court was justified in holding the suit for partition is bad when other family properties are not included. If there was a partition in the family earlier, the subject matter of the suit was also partitioned as set out by the defendant No. 2 in the written statement which is now accepted by the plaintiffs in cross-examination. Therefore, the suit for partition in respect of the property which is already a subject matter of the partition is not maintainable. In that view of the matter, we do not see any merit in the contention of the plaintiffs and no case is made out for admission.

Accordingly, appeal is dismissed.