Giryanna Dead by L.Rs. (Hanumanthayappa and Others) vs Bheemappa, Sri Thimmarayappa and Smt. Nagamma

Ravi Malimath, J.—Aggrieved by the judgment and decree dated 04.11.2008 passed by the Civil Judge (Jr Dn.), & JMFC, Madhugiri in R.A. No. 178/99 confirming the judgment and decree dated 05.08.1999 passed by the Principal Civil Judge (Jr. Dn.) & JMFC. Pavagada in O.S. No. 359/94, the defendants have filed the present appeal.

The parties are referred to as they were referred to in the trial Court.

The plaintiff filed a suit against the defendants far declaration of his title and for a consequential relief of permanent injunction. It is averred that the defendant No. 1 and the plaintiff being brothers divided the ancestral property during the life time of his father. The plaintiff received the schedule properties in the said division arid since then he is in enjoyment and possession of the same and cultivating the lands. The plaintiff being a heart patient, the defendants took advantage of his illness and interfered with his suit schedule properties. Hence, the suit for declaration of his title and permanent injunction.

Defendants 1 to 3 and 5 to 9 adopted the written statement of the 4th defendant by denying the plaint averments. They denied the division of the property between the plaintiff and the defendant No. 1 and contended that the plaintiff and defendant No. 1 being co-parceners continued to be in joint possession and enjoyment of the suit schedule properties. In the absence of any partition, the plaintiff could not claim a right of declaration. Since the suit is not one for partition, the decreetal of the suit is erroneous. They set up a counter claim that defendants 1 to 4 also have a joint right in yet another property and the same is not disclosed in the plaint viz., Survey No. 33/1A. The trial Court on framing as many as seven issues decreed the suit of the plaintiff. Aggrieved by the same, the defendants preferred an appeal before the First Appellate Court in R.A. No. 178/1999 wherein by the impugned order the appeal was dismissed and the judgment and decree of the trial Court was confirmed. Hence the present appeal.

Sri. Harish H.V. the learned Counsel appearing for the appellants contends that both the Courts below committed an error on facts and hence interference is called for. He submits that the trial Court committed an error in accepting the plea of oral partition. He submits that there is no material to substantiate the plea of the plaintiff that an oral partition had been effected. He further contends that the suit for declaration is not maintainable in view of the absence of a partition between the co-parceners. He contends that the schedule property is only with reference to Survey No. 115 measuring 21 acres 23 guntas. However, there is yet another property bearing Survey No. 33/1A measuring 22 acres 10 guntas. He therefore contends that if the plaintiff intends partition, the same should be done for all the properties and not for one single property. He therefore submits that the trial Court by wrongly placing reliance on the plea of division of properties, erroneously declared the suit of the plaintiff.

Heard the learned Counsel appearing for the appellants.

The trial Court while considering the evidence on record took note of the fact that the schedule property was mutated in the name of the plaintiff since the year 1974-75. Even as on date, the entries have not been questioned by the defendants. Further, that Survey No. 33/1 has been mutated in the name of Defendant No. 1. The mutation in the name of the defendant No. 1 has also not been objected to by the plaintiff when the lands have been divided and as a consequence of which the suit schedule properties has been mutated in the name of the plaintiff and none of the defendants objected the same. On the other hand, the Survey No. 33/1 is mutated in the name of the defendant and the plaintiff has also not objected the same. The plea of prior partition between the brothers i.e., the plaintiff and the defendant No. 1 was accepted by the trial Court. I find no error committed by the Appellate Court in accepting the partition as contended by the plaintiff.

The suit schedule property bearing Survey No. 115 measures an extent of 21 acres 23 guntas, which is a dry land. The other remaining Survey No. 33/J measures 22 acres 10 guntas is a wet/irrigated land. The status and possession of both the lands is not disputed. Therefore by virtue of the division entered into between the plaintiff and the defendant No. 1, the plaintiff has received 21 acres 23 guntas of dry land in Survey No. 115 and the defendant No. 1 has received 22 acres 10 guntas of wet land in Survey No. 33/1. The contention of the plaintiff was that notwithstanding the said division only because of the failing health of the plaintiff, the defendants are interfering with the peaceful possession and enjoyment of the suit schedule property. The properties of the family having been more than equitably distributed by the plaintiff and the defendant No. 1 more so in favour of the defendant rather than infavour of the plaintiff. On equitable grounds also, it could be seen that the defendants has received an equal extent of agricultural land which are wet land by virtue of the partition. The plaintiff has received even though a equal extent of land a dry land. On equity also, it is the defendant who has gained more from the partition than the plaintiff. Hence on this ground also, I find no ground that calls for any interference.

There is no material to substantiate the case of the defendant that there is an absence of partition. The trial Court while considering the material, placed reliance on the record of rights wherein the name of the plaintiff has been entered since the year 1974-75 in Survey No. 115 is concerned and the name of the defendant No. 1 so far as Survey No. 33/1 is concerned. Hence the prior partition was proved by the plaintiff. The trial Court has dealt with the contention of the defendant in the right prescribed manner. I find no error committed by the trial court in passing the impugned order.

The trial Court also considered the fact that the defendant No. 1 viz., the brother of the plaintiff has merely adopted the written statement filed by the other defendant and has not chosen to lead evidence also. The evidence of the other defendants viz., the children of the 1st defendant, was appropriately considered in the background of the 1st defendant declining to lead his evidence. The appellate Court while considering the judgment and decree of the trial Court confirmed the findings and facts. The appellate court while framing three questions for consideration declined to interfere in the well-reasoned order of the trial Court There is sufficient pleadings and proof given by the plaintiff to establish his case. I find no error committed by the appellate Court in dismissing the said appeal.

Both the Courts below have concurrently held against the defendants. The facts recorded by the trial Court is confirmed by the appellate Court. I find no error committed by both the Courts below. The findings on facts do not require any interference by this Court, The substantial questions of law as raised by the appellants do not rise for consideration in this appeal. The question of law sought to be raised in this appeal. The question of law sought to be raised in this appeal revolves around the facts. In the absence of any substantial questions of law arising for consideration in this appeal, the appeal being devoid of any substantial questions of law is accordingly dismissed.