Hanamanth Shingadeppa Gadded vs Rudrappa Krishnappa Gadded

A.V. Chandrashekara, J.—The present appeal is filed u/s 100 of Civil Procedure Code, 1908 challenging the concurrent findings of the Trial Court bearing O.S. No. 324 of 2004 pending on the file of Additional Civil Judge (Senior Division), Jamkhandi, sitting at Mudhol and confirmation of the same by the District and Sessions Judge, Fast Track Court, Jamkhandi in R.A. No. 145 of 2008. The said suit had been filed for relief of partition and separate possession in respect of land measuring 14.27 acres in Survey No. 126. The appellants herein were plaintiffs and respondents were defendants in the suit.

According to the plaintiffs, one Huliya was the propositus and he had two sons namely Krishnappa and Singadeppa. Krishnappa had one son namely Rudrappa, who is defendant 1 and Singadeppa had five sons, who are plaintiffs and defendants 2 to 4. The land in Sy. No. 126 of Lokapur Village originally measuring 14.27 acres was an ancestral property of the family of the plaintiffs and defendants. After the death of propositus Huliya, the mutation was effected in the name of his son Krishnappa. After the death of Krishnappa, mutation was done in the name of defendant 1-Rudrappa and Rudrappa was minor when his father died. Hence, his uncle Singadeppa was the guardian of defendant 1 and also sharer in the suit property.

According to the plaintiffs, the entire extent of 14.27 acres of land in Sy. No. 126 has been in joint possession of the plaintiffs and defendants more particularly being the joint family. Therefore, they have sought for half share in the suit schedule property. According to the plaintiffs, no partition has ever taken place between the plaintiffs and defendants or their predecessors at any point of time and name of defendant 1 is found in the land records as he is the elder member of the family. Defendant 1 is stated to have sold 4 acres of non-agricultural land in Sy. No. 126 and refused to pay consideration amount to the plaintiffs and defendants 2 to 4. With these pleadings, they had approached the Court for relief of possession and partition.

Defendant 1 filed detailed written statement denying the plaint averments. According to him, plaintiffs had no right or title over the suit property and have denied that the plaintiffs have half share in the suit property. According to the defendants, partition took place long back and therefore, the suit itself is not maintainable for partition. According to defendant 1, several persons are owning number of properties. Families of plaintiffs and defendants have been living separately for more than 30 years. Plaintiff 1 has purchased an open space bearing No. 2473 from defendants 1 and 2 has also purchased one open space bearing No. 2324 from defendant 1. Hence, defendants requested for dismissal of the suit.

On the basis of the above pleadings following issues had been framed:

(a) Whether the plaintiffs prove that they suit properties are the ancestral and joint family properties?

(b) Whether the plaintiffs further prove that there was no partition in between the plaintiffs and defendants in respect of the suit properties?

(c) Whether the defendant 1 proves that suit of the plaintiffs is bad for non-joinder of necessary parties as pleaded in para. 16 of the W.S.?

(d) Whether the plaintiffs prove that they themselves and defendants 2 to 4 are entitled for half share in the suit properties?

(e) What order or decree?

On behalf of the plaintiffs, plaintiff 1 is examined as P.W. 1 and in all 9 exhibits have been marked. On behalf of the defendants, defendant 1 has been examined as D.W. 1 and two other witnesses have been examined and as many as 18 exhibits have been marked.

After hearing the learned Counsel for the parties, the learned Judge of the Trial Court has answered issues 1 to 4 in the negative and consequently, dismissed the suit. Against the said judgment and decree dated 3-4-2008 passed in O.S. No. 324 of 2008, regular appeal was filed u/s 96 of C.P.C. in R.A. No. 145 of 2008. Several grounds had been urged in the appeal memo filed u/s 96 of C.P.C. On hearing the arguments, the regular appeal is also dismissed by a considered judgment dated 23-7-2009. These concurrent findings are called in question on various grounds as set out in the appeal memo. Several questions have been raised in this appeal to be considered as substantial questions of law within the purview of Section 100 of C.P.C.

The learned Counsel for the appellants has submitted the arguments in regard to the admission.

It is true that the land in Sy. No. 126 measuring 14.27 acres was divided, but the plaint is silent as to when it was subdivided as Sy. Nos. 126/1 and 126/2. Admittedly, the documents produced by the defendants would go to show that 4 acres of land has already been converted into non-agricultural purpose and several residential plots have been carved out in the said land. Plaintiff 1 and defendant 2 themselves have purchased two residential plots from defendant 1. Several evidence has been placed on record to show that land in Sy. No. 126 is no more a joint family property. Exs. D. 17 and D. 18 are the sale deeds executed by the defendant 1 in respect of plaintiff 1 and defendant 2 and others. The learned Judge of the Trial Court has made a specific observation, which is as follows:

If the said plaintiffs and defendant 2 are having the share and if the suit property is joint family property between the plaintiffs and defendants, then how plaintiffs and defendant 2 purchased the plots from the defendant 1 in the suit land i.e., 4 acres N.A. from defendant 1 under the registered sale deed. In this regard, no proper explanation is coming from the plaintiff''s side. The said plaintiffs and defendant 2 purchased the plots under the Exs. D. 17 and D. 18 from the defendant 1 in the suit land itself shows that, there was a partition in between the father of the plaintiffs and father of the defendant 1 in the family property.

What is argued before this Court by the learned Counsel for the appellant is that there is nothing on record to show that 4 acres had fallen to the share of defendant 1 as his share. It is further argued that defendant 1 has not taken a specific plea of earlier partition in the written statement. It is true that there is no specific plea in regard to earlier partition in the written statement. But there is a specific plea in regard to severance of joint status of the family and two families living separately and enjoying their shares separately. Inference drawn by the Trial Court and First Appellate Court is based on unequivocal admissions culled out from the mouth of P.W. 1 and this admission is within the purview of Section 17 of the Indian Evidence Act, 1872.

There is no explanation as to why 4 acres of land was got converted for non-agricultural purpose and how several residential plots were formed. There is no explanation as to how defendant 1 could sell these plots to various persons and how plaintiffs and defendant 2 could themselves purchase separate residential plots. Even otherwise, P.W. 1 has admitted that suit property has been mutated in the name of defendant 1, 30 years ago and his father died 17-18 years ago. If really plaintiff had share in the property, they would not have kept mum for a period of 30 years. At no point of time, either the plaintiff or their father objected for effecting mutation in the name of defendant 1 in respect of suit property. The admissions culled out from the mouth of P.W. 1 are enough to dismiss the suit and therefore, the Trial Court and First Appellate Court have rightly dismissed the suit and appeal. The Trial Court and the First Appellate Court have assessed the evidence on the basis of broad preponderance of probabilities and have come to a proper conclusion. There is no perversity or illegality in the approach adopted by the Trial Court or the First Appellate Court. There is no reason to interfere with the concurrent factual findings in regard to the severance status of the joint family and division of the properties and same being acted upon. Hence, there is no merit in the appeal. Hence, the appeal is liable to be dismissed at the threshold itself:

ORDER

The appeal filed u/s 100 of C.P.C. challenging the concurrent findings of the Trial Court bearing O.S. No. 324 of 2004 pending on the file of Additional Civil Judge (Senior Division), Jamkhandi, sitting at Mudhol and affirmed by the District and Sessions Judge, Fast Track Court, Jamkhandi in R.A. No. 145 of 2008 is dismissed as unfit for admission. There is no order as to costs.