Laxman vs Rangappa

Aravind Kumar, J.—1. Respondent herein who is plaintiff in O.S. 206/2005 filed the suit in question for the relief of partition and separate possession and same came to be decreed partly declaring that plaintiff is entitled for 1/2 share in land bearing Sy. No. 15/2 measuring 5 acres 16 guntas situated at Bablad Village, Mamadapur Hobli, Bijapur Taluk. Being aggrieved by the same defendant filed an appeal in R.A. 95/2009 and first appellate Court by Judgment and decree dated 29.08.2011 dismissed the same and affirmed the Judgment and decree passed by trial Court. Hence, this second appeal has been preferred by defendant.

Heard Sri Ameet Kumar Deshpande, learned Advocate appearing for appellant and Sri J. Augustin, learned Advocate appearing for respondent. Perused the judgment and decree passed by the Trial Court as affirmed by the First Appellate Court.

Facts which has lead to filing of this appeal can be crystallized as under:

Plaintiff and defendant are brothers. It is the case of plaintiff that they had purchased suit schedule property under a registered sale deed dated 11.05.1981 and revenue entries came to be mutated jointly in their names and defendant without the knowledge of plaintiff a mutation entry was created in favour of Smt. Channakka who is the sister of plaintiff and defendant on the basis of alleged relinquishment of right by plaintiff and defendant in her favour. It was contended that said transfer of right in favour of Smt. Channakka without there being any valid registered document of conveyance would not confer any right in favour of Smt. Channakka. It was further contended that defendant had got mutated revenue records of said land in his favour in the year 2005 under M.R. No. 4/04-05 stating that Smt. Channakka has given-up her right in favour of defendant as if watni has been effected by Smt. Channakka. It was contended that sister of plaintiff and defendant Smt. Channakka cannot effect partition and convey any right in favour of defendant only on the basis of wardi. Hence, plaintiff claimed half share in the suit property since it was jointly purchased by plaintiff and defendant. On account of defendant refusing to give half share to plaintiff, suit in question was instituted.

After service of summons, defendant appeared, filed written statement and denied the averments made in the plaint and contended that plaintiff cannot seek relief of nullifying Mutation Entry No. 674 and M.R. No. 4/04-05 and Civil Court has no jurisdiction to decide said issue. It was also contended by defendant that out of the joint family income suit schedule property has been purchased jointly in the name of plaintiff and defendant and there was partition of joint family property under a registered partition deed dated 10.05.1985 between plaintiff, defendant and another brother Shankar. In the said partition, no share was allotted to Smt. Channakka. Therefore, Smt. Channakka, on coming to know of such partition, questioned plaintiff and defendant for excluding her from said partition. It was further contended by the defendant that Smt. Channakka threatened to file a suit for enforcing her right and at that point of time, elders of the village had intervened and suit property came to be allotted to the share of Smt. Channakka and she was enjoying the suit property after effecting M.R. No. 674 on 20.07.1986. Defendant further contended that Smt. Channakka was looked after by defendant since her husband had deserted her and in a oral family arrangement she transferred her right over suit schedule property in favour of defendant and accordingly M.R. No. 4/04-05 came to be effected in favour of defendant. Thus, there was oral family arrangement recorded in the presence of respectful witnesses and Smt. Channakka had transferred her right in the suit property. Hence, it was contended that plaintiff cannot have any right of share in the suit property.

On the basis of pleadings of the parties, Trial Court formulated following issues for its consideration:

i. Whether the plaintiff proves that, the suit property bearing Sy. No. 15/2, measuring 5 acres 16 guntas of Babalad village, Tq. Bijapur is the joint property of the plaintiff and defendant and liable for partition?

ii. Whether the plaintiff is entitled for 1/2 share in the suit properties?

iii. Whether the defendant proves that, in the year 1985 there was a partition effected between plaintiff and defendant through registered partition deed dated 10.05.1985, since then they are living separately?

iv. Whether the defendant proves that the suit properties were allotted to Channakka as per Mutation Entry No. 674 of Bidari village, in lieu of her share as no share was given to her in 1985, late Channakka in a oral family arrangement gave he property plaintiff and M.E. No. 4/2004-2005 was effected?

v. What order or decree?

Additional Issue

i. Whether the plaintiff proves that, the suit property is purchased by himself and defendant?

Plaintiff in order to prove his case got himself examined as P.W. 1 and examined three witnesses as PWs. 2 to 4 and in all, produced 9 documents and got them marked as Exs. P1 to P9. Defendant in order to substantiate the plea put-forward in the written statement got himself examined as D.W. 1 and got examined one witness as D.W. 2 and got produced 10 documents and marked them as Exs. D1 to D10. Trial Court after considering the pleadings, evidence and arguments of learned Advocates, by judgment and decree dated 09.06.2009 decreed the suit.

Being aggrieved by said judgment and decree, defendant preferred an appeal in R.A. No. 95/2009. First Appellate Court after considering the arguments advanced by respective learned Advocates appearing for both parties and on re-appreciation of entire evidence formulated the following points for its consideration:

i. Whether the appellant/defendant proves that the Negative finding on issue-1 and Affirmative findings on Issues-2 to 4 and Addl. Issue-1 recorded by the lower Court are perverse, capricious and legally not sustainable?

ii. Whether the interference of this Court is required?

iii. What order?

On re-appreciation of evidence and after considering the arguments advanced, by its judgment and decree dated 29.08.2011 First Appellate Court dismissed the appeal and confirmed the judgment and decree passed by the Trial Court.

Being aggrieved by same, defendant has pursued his grievance by filing present second appeal.

It is the contention of Sri Ameet Kumar Deshpande, learned Advocate appearing for appellant that trial Court after having recorded a finding on issue No. 2 in the affirmative could not have recorded its finding on issue No. 1 in the negative or vice versa. He would contend that trial Court has recorded a definite finding on issue No. 4 by holding that in the partition that took place in 1986 suit schedule property had fallen to the share of Smt. Channakka and she became the owner of suit land under Section 14(1) of the Hindu Succession Act (for short ''Act'') and as such, it could not have held that on her demise Section 15(2)(a) of the Act is attracted and as such, plaintiff and defendant being her legal heirs are entitled for equal share in suit schedule property. It is also contended that Section 15(1)(a) of the Act and not Section 15(2)(a) of the Act which would be applicable. On this prime ground, learned Advocate appearing for appellant would seek for formulating substantial question of law as formulated in the appeal memorandum and prays for answering the same in favour of appellant by allowing the appeal and dismissing the suit.

Per contra, Sri J. Augustin, learned Advocate appearing for respondent/plaintiff would support the judgment and decree passed by the Trial Court as affirmed by First Appellate Court.

It is no doubt true that Trial Court has recorded finding on issue No. 1 in the negative and issue No. 4 in the affirmative holding that defendant had proved that the suit property is allotted to Smt. Channakka. The First Appellate Court also seems to have proceeded on the footing that Section 14(1) of the Act is applicable.

Be that as it may, the fact remains that Smt. Channakka is none other than sister of plaintiff and defendant. Though Smt. Channakka was married, undisputedly she was not residing in the company of her husband and as rightly pointed out by learned Advocate appearing for the parties she had been deserted by her husband. As to whether the plaintiff and defendant under alleged oral partition could have relinquished their right, title and interest in favour of Smt. Channakka without there being a registered document or not, is not required to be gone into inasmuch as on issue No. 4 the Trial Court after appreciation of evidence both oral and documentary has given specific finding that mutation entry in respect of suit schedule property stood in the name of Smt. Channakka. It is also not in dispute that Smt. Channakka died intestate. As such, on her death succession having opened up and there being no class-I heirs and plaintiff and defendant being class-II heirs would be entitled to the property for being divided amongst them. Though Sri Ameet Kumar Deshpande, learned Advocate appearing for appellant would contend that there is one more sharer by name Sri Shankar and he has not been arrayed as party to the proceedings and as such, quantification of share requires to be re-determined, this Court is of the considered view that since Shankar not having been made party before the Trial Court or before the appellate Court and he having not raised his little finger at any point of time, there is no necessity for disturbing judgment and decree passed by the Trial Court but it requires to be observed that if a co-sharer has been excluded from allotment of share, he would be entitled to seek for appropriation of his share in the final decree proceedings. As such, with these observations, this Court is of the considered view that finding recorded by the Trial Court as affirmed by the First Appellate Court insofar as decreeing the suit for partition requires to be affirmed.

I find there is no substantial question of law involved in this appeal for being framed, adjudicated, and answered and the one canvassed to be formulated, if formulated and answered would only be an exercise in futility or it becomes an academic exercise and as such, this Court desist from embarking upon undertaking such an exercise.

With these observations and subject to observations made hereinabove, I proceed to pass the following:

ORDER

(i) Second appeal is hereby dismissed.

(ii) Judgment and decree passed by the Trial Court in O.S. No. 206/2005 dated 09.06.2009 as affirmed by First Appellate Court in R.A. 95/2009 dated 29.08.2011 is hereby confirmed subject to observation made hereinabove.

(iii) No order as to costs.

In view of appeal having been dismissed, question of consideration of I.A. No. 1/2015 does not arise. Accordingly, I.A. No. 1/2015 stands rejected.