Hanumanthaiah and Others vs Huchaiah and Others

B.S. Patil, J.—These two appeals arise out of the common judgment passed in R.A. No. 7/2006 and R.A. No. 103/2006 by the learned Civil Judge (Sr. Da), Turuvekere. The Appellate Judge has allowed the appeals reversing the judgment and decree passed by the Trial Court. The Trial Court had decreed the suit for partition and separate possession filed by appellants herein.

R.A. No. 7/2006 was filed by the 1st respondent - Huchaiah whereas R.A. No. 103/2006 was filed by the purchaser of the property Manjunatha Guptha assailing the judgment and decree directing partition and separate possession of the suit properties.

Facts leading to the dispute in question sated in nutshell are that appellants are the legal representatives of deceased plaintiff According to plaint averments, late Kempaiah was the propositus. He had three sons by name Sannakempaiah, Sannaiah and Papaiah. Plaintiff is the 1st son of Sannakempaiah. Plaintiff had a brother by name Huchaiah. He was arrayed as defendant No. 2. He died during the pendency of the suit. His legal representatives were not brought on record. Hence, the suit stood abated insofar as the said Huchaiah is concerned. Defendant No. 1 is the son of the Sannaiah. 3rd defendant was the purchaser.

It was the case of the plaintiff that suit properties were ancestral properties of the plaintiffs and defendants 1 and 2 and that there was no partition. Revenue entries in respect of the properties stood in the name of father of the plaintiff - Sannakempaiah and after his death, entries were recorded in the name of the brother of the plaintiff - Huchaiah. Plaintiff also asserted that his younger brother - Huchaiah/2nd defendant had left all the properties in his (plaintiff) favour and migrated to another place along with his daughter as he had no male issues. It was urged by plaintiff that 1st defendant taking advantage of the situation alienated item No. 2 to 3rd defendant claiming that he was the absolute owner and hence, the said alienation was not binding on him.

1st defendant contested the suit. He admitted the relationship but contended that name of father of plaintiff and 2nd defendant was Kempaiah and not Sannakempaiah and that the genealogical tree shown in the plaint was not correct. He further contended that his father''s name was Sannakempaiah and he was also called as Sanna. He also asserted that his grand father''s name was Hanuma @ Appaiah and not Kempaiah. Assertion of the plaintiff that the properties were ancestral properties of the plaintiff and defendants 1 and 2 was denied. He further asserted that name of Sannakempaiah found in the revenue records was the name of his father and not that of plaintiffs father. He also asserted that upon the death of his father, his name (1st defendant) came to be entered in the records and not that of 2nd defendant.

His case was that suit properties originally belonged to one Lanke Huchanna Shetty S/o Huchanna Shetty who sold the same in favour of Sannakempaiah@ Sanna - father of 1st defendant as per the registered sale deed dated 26.05.1930 and that ever since the date of purchase, his father was in possession. 1st defendant being the only son, succeeded to the same. Therefore, suit properties were his absolute properties and not ancestral properties.

It is necessary to notice here that on 14.08.1985, almost 6 years prior to the date of filing of the suit, item No. 2 of the suit schedule properties was sold in favour of the 3rd defendant by the 1st defendant.

Both parties let in their evidence. The Trial Court recorded a finding that genealogical tree furnished by the plaintiff was not correct. However, it held that plaintiff successfully proved that schedule properties were ancestral and joint family properties of himself and defendants 1 and 2. Consequently, plaintiff was held entitled for 1/4th share in the suit schedule properties. A finding was also recorded holding that sale in favour of the 3rd defendant by the 1st defendant was not for legal necessity.

The main ground on which the Trial Court persuaded itself to accept the assertion made by the plaintiff regarding nature of the properties as ancestral properties was the revenue records, particularly, the khatha and RTC of the properties allegedly recorded in the name of father of the plaintiff by name Sannakempaiah and the deposition of D.W. 1 which allegedly showed that his father was not residing separately in the year 1930. Therefore, the Trial Court presumed that the properties were purchased by the father of the 1st defendant while he was a member of the joint family out of the joint family funds.

The lower Appellate Court has not concurred with the findings recorded by the Trial Court. It has found by re-appreciating the evidence on record that plaintiff had not come up with correct genealogy and had indeed tried to mislead the Court by wrongly mentioning the name of the propositus as Kempaiah, instead of mentioning it as Hanuma and he had in fact, misused the similarity between the names of defendant No. 1 and his own brother defendant No. 2, both of whom were called as Huchaiah urging that name of his younger brother was recorded in the revenue records upon the death of his father Sannakempaiah. The lower Appellate Court has rightly come to the conclusion that the revenue records were not recorded in the name of 2nd defendant - Huchaiah, but were recorded in the name of 1st defendant - Huchaiah. It has also doubted the case of the plaintiff that before the entries were recorded in the name of defendant No. 1, name of plaintiffs father was entered in the revenue records. In other words, the lower Appellate Court has seriously doubted the case of the plaintiff and has stated that plaintiff had not come out with true facts with regard to relationship between the parties and their names, whereas defendant had come up with the correct position regarding the relationship between the plaintiffs, defendants and their ancestors.

The lower Appellate Court has also taken into consideration the important fact that the suit properties were purchased in the year 1930 by the father of the 1st defendant. There was no material to show that the family had any other properties and that father of the 1st defendant had purchased the suit properties out of the joint family funds. Not only that the plaintiff had not pleaded anything with regard to the same, but also that he did not make any efforts to place any material in this connection. Therefore, the lower Appellate Court has rightly held that there could not be any presumption drawn against the 1st defendant that his father had purchased the suit properties on 26.05.1930 out of joint family funds. Indeed as the plaintiff has not come up with any such assertion, nor has he produced any evidence in this connection, it was not permissible for the Trial Court to make a presumption in that regard, based only on the statement made by D.W. 1 that partition had taken place about 25 years ago between his father and uncle and the suit properties were purchased after the partition. The trial Court made mathematical calculation of 25 years which would not go beyond 1930 to hold that family was joint in 1930 and purchase made was out of joint family nucleus. The Trial Court has inferred and presumed that as admitted by the 1st defendant, the suit properties were purchased before partition when their father and uncle were joint. An admission to be acted upon has to be clear and specific. In the instant case, the statement of D.W. 1 as referred to above cannot be treated as admission. The lower Appellate Court has rightly dealt with the matter in proper perspective by reappreciating the evidence on record.

No substantial question of law arises for consideration. Hence, these appeals are dismissed at the stage of admission.