Chaluvegowda @ Raju vs Chandregowda @ Chaluvegowda and Gundegowda @ Sannegowda

Ram Mohan Reddy, J.—Defendant No. 1 in O.S. No. 64/2002 aggrieved by the Judgment, and decree dated 1.1.2008 of the Additional Civil Judge [Sr. Dn.,], Hassan, allowing the suit for declaration, partition and separate possession, filed RA No. 31/2008 before the Additional District Judge, Hassan, which when dismissed by Judgment and decree, dated 18.9.2010, has presented this second appeal. 1st respondent instituted OS No. 64/2002 for declaration, partition and separate possession of the suit schedule properties alleging to be properties belonging to the Joint Hindu Undivided Family, by arraigning appellant and the 2nd respondent as defendants 1 and 2 respectively. It was the assertion of the plaintiff that defendants 1 and 2 are his siblings and children of one Melegowda and Thimmajamma and that whereabouts of their father was not known since 25 years, while their mother''s whereabouts was not known since three months prior to institution of the suit. It was further asserted that the suit schedule properties are joint family ancestral properties, possession of which is jointly held by all the siblings. Plaintiff, claimed to be serving as a ''waterman'' in Hassan City Municipality, and Defendants 1 and 2 clandestinely secured change of katha of the suit schedule properties into their name by creating a false palupatti, leading to plaintiff filing R.A. No. 63/2001 before the Assistant Commissioner, Hassan, which is pending. Plaintiff having sought for accounts of the income of the joint family properties from the defendants, when threatened with dire consequences, is the cause for the suit.

The suit was opposed by filing written statement of the 1st defendant while the 2nd defendant did not offer any resistance. According to the 1st defendant, suit was not maintainable since it was misconceived and liable to be dismissed, while admitting the relationship between the parties, denied the existence of the joint Hindu family on the premise that parties are living separately and hence no jointness in the properties. In addition, it was asserted that the joint family had separated during the year 1980 and the katha of the properties was changed long back, dependent upon the enjoyment of their respective shares of the properties. In addition, it was asserted that the plaintiffs share as per palupatti was agreed to be conveyed to the 1st defendant on receiving cash of Rs. 4,000/-, where afterwards, plaintiff left the village and migrated to his sister''s house where he got properties in his name from his sister. The 1st defendant, further asserted that the plaintiff is a signatory to the palupatti and that during the year 1992-93, in RRT No. 47/1992-93, the Tahsildar initiated proceeding, whence the plaintiff conceded to the partition and the dispute was closed. R.A. No. 63/2001 filed before the Assistant Commissioner is said to be after a lapse of 21 years and is subject matter of revision petition No. 1/2003 before the Deputy Commissioner, who stayed the proceeding before the Assistant Commissioner.

In the premise of pleadings of the parties, the trial court framed the following issues:

Whether the first defendant proves that, there was a partition between members of joint family consists of plaintiff and defendants in the year 1980?

Whether the plaintiff proves that the suit schedule properties are available for partition between himself and defendants and further he has got 1/3rd share over it?

Whether the plaintiff is entitled to partition and separate possession in the suit schedule properties?

What order or decree?

Plaintiff was examined as P.W. 1 and marked documents Ex. P1 to Ex. P26, while the 1st defendant was examined as D.W. 1 and two witnesses as D.W. 2 and D.W. 3 and marked documents Ex. D1 to Ex. D8.

The trial court having regard to the pleadings, evidence both oral and documentary, declined to accept the 1st defendant''s plea, by rejecting Exhibits D2, D6 and D7 as evidence of prior partition and accordingly answered issue No. 1 in the negative and issues 2 and 3 in the affirmative by Judgment and decree dated 1.1.2008.

The Lower Appellate Court, having re-appreciated the evidence, both oral and documentary, concurred with the findings of the trial court, while accepting the submission of the appellant that one house property mentioned in the schedule to the plaint was deleted and was required to be included in the suit schedule properties for the purpose of partition, since that was also one of the joint family properties and accordingly, by Judgment and decree dated 18.9.2010, dismissed the appeal while including item No. 5 property in the suit schedule properties.

The first submission of learned Counsel for the appellant that inclusion of the suit schedule item No. 5 and deletion thereof by the plaintiff, which property in fact is one of the joint family properties, suit had to be dismissed, cannot be countenanced.

The lower appellate court, having noticed deletion of suit item No. 5 in the suit schedule, nevertheless, at the instance of the appellant, included the same as item No. 5, in the suit schedule joint family properties, in its Judgment and decree and therefore the appellant cannot be said to be aggrieved so as to prefer this second appeal.

The second and last submission of the learned counsel for the appellant that Ex. D2, Ex. D6 and Ex. D7 coupled with the oral testimony of D.W. 2 was sufficient to establish a prior partition is also without merit. Ex. D2 is the unregistered sale agreement dated 29.10.1980, said to have been executed by the plaintiff in favour of the appellant agreeing to convey his share in the suit schedule properties for valuable consideration of Rs. 4,000/-. The covenants in the agreement do not disclose either release or relinquishment of the rights of the plaintiff in favour of the 1st defendant. In order to prove the contents of Ex. D2, the 1st defendant did not examine any witness hence there was no corroboration. Therefore, Ex. D2 not evidencing partition of the joint family properties or separation of status of the joint family is not proof of prior partition. In fact, D.W. 2 said to be a witness to Ex. D2, in cross examination, admitted the fact that he had not seen payment of consideration by the 1st defendant to the plaintiff. Ex. D7 is executed on a stamp paper purchased on 21.4.1986 and the contents of the same disclose that there was panchayat parikath on 22.3.1986 whence the plaintiff is said to have given up his rights over his share of the suit schedule properties in favour of appellant and the 2nd defendant. This document too, is unregistered. The 2nd defendant was not examined and therefore there was no proof of the fact that there was a partition by way of parikath on 22.3.1986. The conspicuous absence of the 2nd defendant by not filing written statement and not entering the witness box is a clear pointer to the fact that there was absence of relevant material constituting substantial legal evidence over proof of Ex. D7.

Ex. D6 is an agreement of sale dated 29.10.1980 which is unregistered, said to have been executed by the plaintiff conveying his share in the suit schedule properties in favour of the 2nd defendant for valuable consideration of Rs. 4,000/-. Suffice it to notice that the 2nd defendant did not enter the witness box nor offer resistance to the suit and therefore there was no evidence worth the while in support of execution of Ex. D6.

In paragraph-2 of the written statement, the 1st defendant - appellant specifically asserted thus,

Both plaintiff and the defendants are living separately and there is no status of jointness and all the properties of the joint family were divided in the year 1980 and katha of the said properties have been changed long back and all are separately enjoying their share as such there is no existence of jointness and joint family property xxx xxxx.

This statement of the 1st defendant over the prior partition in the year 1980 was neither proved nor established, while on the contrary, evidence of DWs. 1, 2 and 3 are over an alleged panchayat parikath that took place on 22.3.1986.

The aforesaid facts, circumstances, and evidence in defence in my opinion, were justifiably rejected by the courts below in the Judgment and decree. In the circumstances, no substantial question of law arises for decision making. In the result, this appeal is accordingly dismissed.