Lalitawwa and Others vs Veeranagouda and Others

B. Veerappa, J.—This is a plaintiffs'' Miscellaneous Second Appeal, filed against the judgment and decree dated 20.09.2012 made in RA No. 58/2009 on the file of the Fast Track Court, Ranebennur, allowing the appeal, setting aside the judgment and decree of the trial court and remanded the matter to the trial court for fresh disposal in accordance with law, as early as possible by giving equal opportunity to all the parties, by impleading necessary parties to the suit therein and include all the joint family properties in the suit.

The appellants/plaintiffs filed the suit O.S. No. 122/2005 for partition and separate possession of their 1/4th share in the suit schedule properties, contending that the father of the defendant Nos. 1 and 2, and husband of defendant No. 3/Nmganagouda Patil and husband of plaintiff No. 1/Rudragouda Patil and defendant No. 4 are the brothers and plaintiff No. 2 is the sister. There was a partition in the family among the plaintiffs and defendants in the year 1990 and in this regard, there was a Tippani dated 13.01.1990 and accordingly, M.E. No. 4327 was certified on 14.03.1990. The said partition was made during the lifetime of the father of defendant Nos. 1 and 2 and husband of defendant No. 3/Nmganagouda Patil. The plaintiffs and defendants are enjoying their respective shares separately. At the time of said partition, the present suit properties were kept in common and accordingly, mutation entry was made in respect of the said properties. Now, the relationship between the plaintiffs and defendants is strained and hence, the plaintiffs demanded their share in the suit properties. The defendants denied the same. Hence, they have filed the present suit.

The 1st defendant filed the written statement and defendant Nos. 2 and 3 adopted his written statement and denied the entire plaint averments and specifically contended that there was a partition in the year 1990 and Tippani was made on 13.01.1990. Accordingly, ME No. 4327 was certified on 14.03.1990 and partition took place during the lifetime of Ninganagouda but, they denied that the suit properties were kept in common. The present suit is bad for non-joinder of necessary parties, as the plaintiffs have not included all the joint family members in the present suit. The propositus/Veeranagouda is having eight children-four sons and four daughters. After the death of Veeranagouda, all the family members could not continue jointly. The have made Apsat hissa in their family properties. But, there is no legal partition between the plaintiffs and defendants. The 1st son of Veeranagouda i.e., Shidlingappagouda is no more, who is having wife by name Champakka, who is alive and residing at Kadaramandalagi and she is not included in the present suit. Champakka is having daughters by name Channavva who died at Dholivali village, Harihar Taluk. She was having children by name Basavaraja, Halanagouda, Sureshgouda and Ashokagouda. The said persons were not included in the present suit. Rudragouda is also no more. Plaintiff No. 1 is the son of Rudragouda. Ninganagouda is having the legal representatives i.e., defendant Nos. 1 to 3. Defendant No. 4 is the legal representative of Naganagouda. He was also having daughter by name Kamalavva and she is also not included in the present suit. Plaintiff No. 2 is the daughter of Mahananda. Parvathavva is also the daughter, who is also no more and he is having children by name G.K. Rudresh, G.K. Shankarappa, G.K. Vageeshappa, G.K. Sureshappa and G.K. Nagaraja. The said persons were also not included in the present suit. Hence, the suit of plaintiffs is bad for non-joinder of necessary parties. Therefore, the defendants pray for dismissal of the suit.

On the basis of the pleadings, the trial court framed the following issues:--

"(i) Whether the plaintiffs prove that the suit schedule properties are the ancestral joint family properties of plaintiffs as well as defendants?

(ii) Whether plaintiffs further proves that they are entitled for share in the suit properties. If yes, what is their share?

(iii) Whether plaintiffs further proves that already there was partition in the year 1990 and they are enjoying their respective shares except the suit properties?

(iv) Whether defendants prove that the suit of the plaintiffs is bad for non-joinder of necessary parties?

(v) What order or decree?"

In order to establish their case, the 1st plaintiff examined as PW-1 and got marked Exs. P-1 to 4. On the other hand, 1st defendant examined as DW.1 and another witness as DW-2 and got marked documents Exs. D-1 to 10 on their behalf.

Considering the entire material on record, the trial court held that the plaintiffs proved that the suit schedule properties are the ancestral joint family properties of plaintiffs as well as defendants and plaintiffs further proved that there was partition in the year 1990 and they are enjoying their respective shares except the suit properties and the defendants proved that the suit of the plaintiffs is bad for non-joinder of necessary parties and therefore, the plaintiffs are not entitled to the share in the suit schedule properties. Accordingly, the suit is dismissed.

Aggrieved by the said judgment and decree, the plaintiffs/appellants filed R.A. No. 58/2009 before the Fast Track Judge, Ranebennur, who after hearing both parties, by the impugned judgment and decree dated 20.09.2012, has allowed the appeal and set aside the judgment and decree of the trial court and remanded the matter for fresh consideration, mainly on the ground that the trial court has not decided the suit on merits and the partition which has taken place in the year 1990 was not followed. Against the said judgment and decree, the present appeal is filed.

I have heard the learned counsel for the appellants.

Sri. Avinash Banakar, learned counsel for the appellants, has contended that impugned judgment and decree passed by the lower appellate court remanding the matter to the trial court is erroneous and contrary to law and there was no necessity of other daughters to the case, since, they have given up their share in terms of Apsat vatni. Therefore, the appellate court should not have remanded the matter and ought to have decided the appeal on merits. Therefore, he sought to set aside the impugned judgment and decree of the lower appellate court.

I have given my thoughtful consideration to the arguments advanced by the learned counsel for the appellants and perused the entire material on record.

The plaintiffs filed the suit for partition and separate possession mainly on the ground that at the time of earlier partition, the present suit schedule properties were not divided and it was in joint possession of the plaintiffs and defendants. Therefore, the plaintiffs and defendants are equally entitled to a share in the suit schedule properties.

In defence, the defendants filed the written statement and denied the entire plaint averments and also contended that the earlier partition was not acted upon and also contended that all the four sons and the legal heirs of Veeranagouda were not impleaded as parties in the suit and the suit filed by the plaintiffs is liable to be dismissed for non-joinder of necessary and proper parties. On the basis of the pleadings, the trial court framed the issues and considered the evidence of PW-1, DWs-1 and 2, and documents Exs. P-1 to 4 and Exs. D-1 to 10.

The trial court recorded a finding that the 1st defendant admitted during the course of cross-examination that all the properties were kept in common for the use of four sons of original propositus- Veeranagouda, who was having three sons and a daughter. The plaintiff No. 1 is the wife of Rudragouda Patil and plaintiff No. 2 is the daughter of Veeranagouda Patil. PW-1 during the course of cross-examination has admitted that Veeranagouda was having four sons and four daughters, but all these persons were not impleaded in the present suit by the plaintiffs in order to claim share in the suit properties. The said fact has been contended by the defendants in his written statement. The plaintiffs are claiming that suit schedule properties were kept in common for the use of all the four sons of Veeranagouda. There is no explanation as to why the daughters of Veeranagouda are not entitled for any shares in the suit properties. Admittedly, Veeranagouda is having daughters by name Champakka, Parvatevva, Kamalavva and Mahananda. Out of which, only plaintiff No. 2 who is the daughter of Veeranagouda is impleaded in the present suit. The plaintiffs have also not produced any documentary evidence to show that these properties were kept in common only for the use of four sons of Veeranagouda. It is true that there is no partition with respect to suit schedule properties between the plaintiffs and defendants. But, the plaintiffs have not included all the joint family members in the present suit in order to claim share in the suit properties. The defendants have also admitted that there is a partition in the year 1990, but contended that the said partition is only afsat partition and there is no legal partition between the plaintiffs and defendants. The trial court also recorded a finding that from the evidence produced by the plaintiffs and defendants, it is clear that the suit schedule properties are the ancestral joint family properties of plaintiffs and defendants and other legal heirs of deceased Veeranagouda. The plaintiffs are entitled for partition in the suit properties, but in view of the fact that plaintiffs have not included all the joint family members in the present suit, the suit filed by the plaintiffs is not maintainable for non-joinder of necessary parties. Accordingly, the trial court dismissed the suit.

The lower appellate court, on re-appreciation of entire material on record, recorded a finding that the mutual partition took place in the year 1990 was not valid, as there was partial partition without making all the properties in the common hotchpot and also, all the joint family members were not made parties to the said mutual partition and to the said suit also. Further, the lower appellate court opined that the trial court erred in dismissing the suit of the plaintiffs without going into the merits of the case on the ground that necessary parties are not made as parties to the suit. Therefore, the appellate court opined that the matter requires for remand to the trial court, in order to give equal opportunities to all the parties by impleading all the necessary parties and also bringing all the joint family properties to the common hotch-pot and then dispose off the suit as early as possible, according to law, by giving equal opportunities to all the parties by impleading the necessary parties to the suit therein and also include all the joint family properties to the said suit.

In view of the concurrent findings of fact recorded by the courts below that the plaintiffs have not impleaded all the legal representatives of Veeranagouda as parties to the suit and that the earlier partition was not valid, in order to give a fresh opportunity, the lower appellate court remanded the matter for reconsideration. The same is in accordance with law. The appellants have not made out any ground much less, substantial question of law, to interfere with the finding of fact recorded by the lower appellate court, in exercise of power under Order XLIII Rule 1(u) of the Code of Civil Procedure, 1908.

Accordingly, the appeal is dismissed. The impugned judgment and decree of lower appellate court remanding the matter to the trial court for fresh disposal is confirmed. However, it is expected of the trial court to decide the suit, taking into consideration the relationship between the parties to the lis, as early as possible.