Dakshayanamma vs Kallappa and Others

B.S. Patil, J.—This regular second appeal is filed challenging the concurrent findings recorded by the Courts below dismissing the suit filed by the plaintiff-appellant herein.

Appellant filed the suit seeking relief of declaration that she is the owner in possession of the suit schedule properties and for permanent injunction to restrain the defendants from interfering with the possession and enjoyment of the plaintiff. The suit schedule properties are described as lands bearing Sy. No. 21/3-P measuring 3 acres 11 guntas and Sy. No. 21/3-P measuring 7 acres 4 guntas that is to say total extent of 10 acres 15 guntas situated at Hurulihally Village, Hosdurga Taluk of Chitradurga District.

According to the plaintiff, she inherited the properties from her father Thimmappa along with defendant No. 9 her sister and they together enjoyed the same along with other properties until defendant No. 9 executed a Release Deed in her favour on 24.07.1989 and thereafter, plaintiff became the absolute owner in possession of the suit properties. It was further contended by her that during the lifetime of her father Thimmappa, oral partition took place between him and his elder brother Nanjappa, whereunder the suit properties fell to the share of Thimmappa, plaintiff''s father. It was also contended that survey number in question totally measured 21 acres 11 guntas, out of which 14 acres 8 guntas and 7 acres 3 guntas were purchased by Nanjappa, the senior uncle of the plaintiff as Manager of the joint family consisting of Nanjappa and father of the plaintiff. The said purchase was made in the year 1922 (04.11.1922) and in the oral partition, plaintiff''s father got half share in that.

Defendants 1 to 6 denied the assertions made by the plaintiff and also denied the claim of the plaintiff that she had been in possession and enjoyment of the suit schedule properties. They also denied the partition of the suit properties and the allegation that in the said partition, suit schedule properties had fallen to the share of the father of the plaintiff. They contended that Thimmappa took his share and severed from the joint family in the year 1910 and thereafter, Nanjappa along with Mallappa belonging to another branch, continued to be in joint family and it is they who purchased Sy. No. 21 during the year 1922. They continued to enjoy jointly the said properties till 1925 and got divided the same in the year 1925, whereunder the suit properties fell to the share of Mallappa and the remaining share fell to the share of Nanjappa. They further contended that in the year 1928 defendants purchased 10 acres 25 guntas of land from Belurappa, son of Lakkappa. Thus, Mallappa started enjoying 22 acres of land in Sy. No. 21.

The Trial Court has framed necessary issues regarding proof by plaintiff of her ownership over the suit schedule properties by way of inheritance and her lawful possession over the same and regarding her entitlement for the relief of declaration sought. Both parties have let in evidence. On appreciation of evidence on record, the Trial Court has come to the conclusion that documents produced by the plaintiff disclosed that entire Sy. No. 21 measured 42 acres 39 guntas and out of that 17 guntas was kharab land. The said land was flooded and divided into five sub-numbers. None of the sub-numbers were standing in the name of Thimmappa, father of the plaintiff. Although plaintiff claimed that her father and her senior uncle had got divided the properties as per the oral partition whereunder the suit properties had allegedly fallen to the share of the plaintiff''s father, she was unable to produce any document, nor there was any clear and categorical assertion with details regarding the point of time when actually the partition took place. Therefore, by appreciating the evidence on record including her statement that she was not in a position to state when exactly partition had taken place, the Trial Court concluded that when the plaintiff was not aware of the properties which had fallen to the share of her father in the alleged partition and when she was not in a position to state when the partition had taken place and in the absence of any evidence to disclose that any portion of the properties, let alone the suit properties had been recorded in the name of Thimmappa pursuant to the alleged partition, it could not be said that plaintiff was able to establish her case. In the process of its reasoning, the Trial Court has considered the oral and documentary evidence placed before it and has concluded on appreciation of the same that if really father of the plaintiff or the plaintiff were owners in possession of the suit schedule properties, plaintiff would have claimed entries in respect of said properties by filing necessary application before the Tahsildar or at least by including in the application that she had filed the suit survey number seeking change of khatha in her name, after the death of her father. The Trial Court has also negatived the alternative plea of the plaintiff that though Sy. No. 21 had been purchased in the name of Nanjappa, her senior/uncle, it was so purchased when father of the plaintiff and her senior uncle were living jointly and therefore she was entitled for a share in the properties, as the respective partition set up by her had not been proved by examining in this regard the evidence of the defendants with reference to the documents produced by them.

When the plaintiff had failed to establish her specific case that the suit schedule properties were purchased by Nanjappa as a member of the joint family and that in the oral partition, suit properties had fallen to the share of her father Thimmappa, it cannot be said that Trial Court was in error in dismissing the suit. Indeed, the lower Appellate Court has reappreciated the entire materials on record and has concurred with the findings recorded by the Trial Court.

The contention of the learned counsel for the appellant that even if the plaintiff is taken to have failed to establish prior partition set up by her, she should be entitled to seek partition in the joint family properties as defendants have also not established that the suit properties were the absolute properties of Nanjappa and that there was prior partition during the year 1910. This contention cannot be accepted, nor would it advance the case of the plaintiff because plaintiff has to succeed based on the specific case made out by her. When she has specifically contended that she has inherited the properties from her father and her father was the absolute owner of the same as a result of a partition that had taken place between the members of the joint family, it was for her to place necessary evidence on record in that regard.

None of the revenue records probablised the assertions made by the plaintiff. When exactly there was partition in the family way back in the year 1910 was not an issue before the Court below. Defendants were not called upon to prove that there was a partition during the year 1910. Therefore, the contention of the learned counsel for the appellant in that regard cannot be accepted. Suffice to observe that both the Courts below have properly appreciated the evidence on record and have come to a just conclusion.

No substantial question of law arises for consideration. Hence, this appeal is dismissed.