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Judgment
B. Manohar
Though this appeal is coming on for admission, with the consent of the learned counsel for the parties, this appeal is taken up for final disposal.
Appellants are the plaintiffs, being aggrieved by the judgment and decree dated 26-3-2007 made in R.A. No. 30/2004 passed by the Sessions Judge, Fast Track Court-III, Bangalore Rural District, confirming the judgment and decree dated 21-6-2004 made in O.S. No. 45/1992 passed by the Additional Civil. Judge (Sr.Dn.) Ramanagar dismissing the suit filed by the appellants, filed this appeal.
The appellants filed a suit seeking for partition and separate possession of plaintiffs'' 3/4th share in the suit schedule property and for the mesne profits and costs. In the plaint, it is contended that the plaintiffs 1 to 3 are the sons of the first defendant and they formed Hindu Joint Family. First defendant is the Kartha of that family. The said family possessed ancestral joint family properties. The plaintiffs 1 and 2 are permanent residents of Bangalore and 3rd plaintiff is residing with the first defendant. The said family possessed property in khaneshumari No. 160 and 161 of Akkur Village. For the purpose of formation of road, Village Panchayat acquired some portion of the property and in lieu of the said acquisition, the Village Panchayat has given site No. 159 of Akkur village, as such, the said property is also joint family property. The said property has been divided between the brothers of the first defendant; in the partition, suit item No. 1 property fell no the share of the first defendant. The first defendant is a habitual drunkard and he was not managing the affairs of the family though there was no loan. For his lust and vicious desires, the first defendant has alienated the suit item No. 1 property, bit by bit in favour of defendants 2 to 5. The amount derived under such sale was not utilised for the family benefits. The said sales are not binding on the plaintiffs, since the first defendant has no right to alienate the joint family properties. Though the legal notice was issued to the first defendant, he did not mend his behavior. In view of that, the plaintiffs have filed a suit seeking for partition and separate possession of their legitimate shares.
Though the first defendant was served with the notice and appeared through the Advocate, no written statement has been filed. Subsequently, he died and his legal representatives i.e. daughters have come on record as 1(a) and 1(b) and filed a memo accepting the contention of the plaintiffs.
The defendants 2 and 3 have filed joint written statement and denied the averments made in the plaint and denied that plaintiffs 1 to 3 and defendant No 1 constitute the joint family and the first defendant was the kartha of that family. They have further contended that the Public Works Department has acquired some portion of khaneshumari No. 160 and 161 for the formation of the road and in lieu of that, site No. 159 was granted to the first defendant. They have denied that khaneshumari No. 160 and 161 belonged to the joint family of the first defendant. The second defendant purchased the land measuring 20 feet x 20 feet in item No. 1 property, as per the registered sale deed dated 11-5-1992. Since then he has been in possession and cultivating the said land. He has constructed the house and leased the same in favour of Nanjegowda for the purpose of running a Hotel. The 3rd defendant has also purchased a bit of land in item No.1 property in the year 1983 itself and constructed a house and sold the said house in favour of the 4th defendant. It was further alleged that no document has been produced before the Court to show that item No. I property is the ancestral property and the plaintiffs 1 to 3 have right over the said property. These defendants are the bonafide purchasers of the property from the first defendant. Hence the plaintiffs have no locus standi to file the suit and sought for dismissal for the suit.
The defendants 4 and 5 have adopted the contentions of defendants 1 to 3 and also further contended that the defendant No. 4 purchased a house in old khaneshumari No. 159/2 and new khaneshumari No. 160/1 from defendant No. 3 on 29-12-1989. Since then, she is residing in the said house and she is not concerned with the transaction between the plaintiffs and defendants. There is inordinate delay in filing the suit against the 4th defendant and sought for dismissal of the suit. The 5th defendant has purchased a bit of vacant site in khaneshumari No. 160/3 on 17-9-1991 from the first defendant. Since then, he has been in possession of the said property and sought for dismissal of the suit.
On the basis of the pleadings of the parties, the Trial Court framed the following issues and additional issues:
(i) Whether the plaintiffs prove that the suit schedule properties are their ancestral properties?
(ii) Whether they further prove that the alienation made by the defendant No. 1 bit by bit in favour of defendants No. 2 and 4 in respect of the portion of the suit schedule properties is not for legal necessity of the family and it is not binding upon them?
(iii) Whether they further proves that they are entitled to the partition and separate possession of their 3/4th share in the suit schedule properties?
(iv) Whether the defendants 2 to 4 prove that they are the bonafide purchasers of the portion of the suit schedule property bit by bit from the defendant No. 1 for the valuable consideration?
(v) Whether the plaintiffs are entitled to the reliefs sought for in this suit?
(vi) What decree or order?
Additional Issue:
(i) Whether defendants prove that the suit is not maintainable in the present form for non-joinder of necessary of parties as alleged in para 7 of the written statement?
The plaintiffs in order to prove their case examined 3rd plaintiff and P.W.1 and marked the documents as Ex. P1 and Ex.P8. On behalf of the defendants, the second defendant was examined as D.W.1 and also examined two other witnesses as D.W2 and D.W3 and got marked the documents as Ex.D.1 to Ex.D.14.
The Trial Court considering the oral and documentary evidence let in by the parties held issue Nos. 1 to 4 and additional issue No. 1 in the negative and issue No. 5 in partly affirmative, consequently by its judgment and decree dated 21-6-2004 decreed the suit in part and declared that the plaintiffs are entitled for partition and separate possession of 1/5th share each in item No. 2, 0.13 guntas of land in Sy. No. 197/4 and item No. 3, 640 Sq.ft. area excluding the properties purchased by defendants 2 to 5. However, the prayer in respect of partition of item No. 1 and also mesne profits stands dismissed. The plaintiffs being aggrieved by the judgment and decree made in O.S. No. 40/1992 filed R.A. No. 30/2004 insofar as rejection of their claim in respect of item No. 1 property is concerned.
In the regular appeal it is contended that the judgment and decree passed by the Trial Court partly decreeing the suit is opposed to law and facts. The judgment and decree is otherwise unjust, unlawful capricious and contrary to law. The finding of the Trial Court that the appellants have failed to establish that all the suit schedule properties are not ancestral properties is contrary to the facts of the case. The Trial Court has erred in holding that the appellants have not produced any documents to establish that the properties purchased by the defendants 2 to 5 are the joint family properties available for partition is not sustainable in law and sought for allowing the appeal. The Appellate Court after considering the arguments addressed by the parties framed the following point for its consideration:
Whether the learned Trial Judge has erred in properly appreciating the oral and documentary evidence on record in the light of settled principle of law and whether interference by this court in the impugned judgment and decree is necessary.?
The lower Appellate Court after considering the arguments addressed by the parties and on re-appreciating the oral and documentary evidence held the point framed in the appeal against the plaintiffs. Consequently, by its judgment and decree dated 26-3-2007 dismissed the appeal confirming the judgment and decree passed by the court below. Being aggrieved by the judgment and decree passed by the courts below, the plaintiffs preferred this appeal.
Sri. N. Subba Shastry, learned counsel appearing for the appellants inter alia contended that the judgment and decree passed by the courts below are contrary to law and the courts below have misunderstood and misread the case pleaded by the appellants. The court below has not framed the necessary issues and the issues framed are contrary to law. The finding of the court below that the suit schedule properties are not the ancestral properties is contrary to the evidence on record. The conclusion reached by the court below to the matter in controversy is erroneous in law. The burden is upon the defendants to prove that the property has been alienated by the kartha of the joint family for the legal necessities and for antecedent debts. However, the said burden was fastened on the plaintiffs. The entire approach made by the courts below is contrary to law and sought for setting aside the same by allowing this appeal.
On the other hand, Sri. V.F. Kumbar, learned counsel appearing for the respondents has argued in support of the judgment and decree passed by the courts below and contended that the court below after considering the arguments addressed by the parties and reassessing the oral and documentary evidence available on record and after examining the documentary evidence came to the conclusion that the suit schedule properties are not the ancestral properties. The plaintiffs have also not placed any material to show that they are joint family properties. Hence, the plaintiffs have no right to seek for partition of the properties, which was sold by the first defendant in favour of defendants 2 to 5 and sought for dismissal of the appeal.
I have carefully considered the arguments addressed by the learned counsel for the parties and perused the oral and documentary evidence let in by the parties.
Having heard the learned counsel for the parties, the only point that arise for consideration in this appeal is-
Whether the plaintiffs have proved that the suit schedule properties are the ancestral properties of the plaintiffs and defendant No. 1. and whether the judgment and decree passed by the Courts below require to he interfered by this court in this appeal?
The relationship between the plaintiffs and first defendant is not disputed. The plaintiffs claim that the suit schedule properties are the ancestral properties of plaintiffs and first defendant and in the family partition between the paternal grandfather and the first defendant, the suit schedule property was allotted to the share of the first defendant. However, no document has been produced with regard to the partition between the paternal grandfather and the first defendant. However, defendants 2 to 5 have contended that the suit schedule properties are the self-acquired properties of the first defendant and the plaintiffs have no right in respect of the said properties and he has alienated a portion of the property in favour of defendants 2 and 3 in the years 1983 and 1992. The 3rd defendant purchased a portion of the property in the year 1983 and constructed a house and sold the said property in favour of the 4th defendant on 29-1.2-1989. The plaintiffs were fully aware of the said fact. They have not raised any objections for the said alienation. The sale of a portion of the property is within the knowledge of the plaintiffs. The suit came to be filed in the year 1992. There is an inordinate delay in filing the suit. Further, defendant No. 2 had purchased the land measuring 20 feet x 20 feet on 11-5-1992 and constructed the house and leased fee said house in favour of Nanjegwoda. Though the plaintiffs have pleaded that the suit schedule properties are the ancestral properties of the plaintiffs, they have failed to prove that they are joint family properties.
The 3rd plaintiff was examined as P.W.1 and he has reiterated the plaint averments and contended that the suit schedule properties are the ancestral properties and the plaintiffs have got right over the said properties and the first defendant has no right to alienate the properties and alienation made is not binding on the plaintiffs. However in the cross-examination, though he has stated that the suit property earlier belonged to his paternal grandfather and it was partitioned between the paternal grandfather and father, he has stated that "I do not know whether my father got the suit schedule property and other properties in the partition". He further deposed that "I cannot tell whether my father has sold any other property". He has admitted that his father was the Chairman of the Village Panchayat. He also denied the suggestion made to the effect that his father has sold item No. 1 property to clear the debts and for the purpose of marriage of his sister. He further admitted that he has no material to show that the suit properties were allotted to the share of his father except the mutation entry made in the name of the first defendant. He has marked Ex.P1 to Ex.P8, which are the copies of notice, RTC entries and Demand Registers. Ex.P.6 is the copy of the order passed by the Assistant Commissioner granting item No. 1 property in favour of the first defendant and one Kempegowda.
The second defendant was examined as D.W.1. He has deposed in his evidence that the suit item No. 1 property is the self-acquired property of the first defendant. He has alienated the land measuring 20 feet x 20 feet in favour of the second defendant as per registered sale deed Ex.D1 dated 11-5-1982. Further, the first defendant has alienated 12 feet x 20 feet in favour of the 3rd defendant. The 3rd defendant has constructed the house and alienated the same in favour of Chowdamma. Further, the first defendant has alienated Sy. No. 71/2 in favour of Chamegowda as per Ex.D5 on 28-7-1969. Further, the land bearing Sy.No. 179/4 in favour of Chamegowda as per Ex.D6 dated 22-5-1968 and Sy.No. 195/3 in favour of Putta Badregowda, as per Ex.D8 on 7-3-1984. The plaintiffs have never objected for the alienation of these properties and these properties have not been included in the present suit seeking for partition. If the properties sold by the first defendant are the ancestral properties, these properties should have been included in the present suit. This itself show that the suit schedule properties are not the ancestral properties. He has got marked Ex.D1 to Ex.D.14. In the cross-examination, nothing contrary has been elicited from D.W.1. The D.W.1 denied the suggestion made by the plaintiffs that the first defendant was addicted to the bad vices and the alienation made for the purpose of money for his addiction. Further he has denied the suggestion made by the plaintiffs that the site khaneshumari No. 159 was allotted to the first defendant and his brother. He has deposed that site No. 159 was allotted in favour of the first defendant as well as Kempegowda and they are entitled for 40 feet x 40 feet property and Kempegowda is not the brother of the plaintiffs.
D.W.2 is a resident of Virupakshapura Village. He also deposed that the suit schedule properties are not the ancestral properties of the first defendant. The said properties were purchased by the first defendant He has sold the same to defendants 2 to 5 for a valuable sale consideration and the first defendant was a Chairman of the Village Panchayat and he was not: addicted to any bad habits. For the purpose of maintenance of his family and to perform his daughter''s marriage, the first defendant alienated the property. In the cross examination, D.W.2 deposed that the second respondent purchased the property for a sum of Rs. 2,000/-. He has signed as an attesting witness of Ex.D. 1. Further D.W.3 who was aged about SO years and the resident of Virupakshapura Hobli. He has deposed that the suit schedule properties are the self-acquired properties of the first defendant. For the purpose of formation of road, he has given khaneshumari No. 160 and 161 and he was a respectable member in the village and he was not addicted to any of the bad habits. For the maintenance of his family, he sold some of his properties and the suit schedule properties cannot be treated as the ancestral properties. Nothing contrary has been elicited in the cross-examination.
On reappreciating the oral and documentary evidence, I find that the appellants have not produced any documents to show that the suit schedule properties are the ancestral properties of the plaintiffs and defendant No. 1 except the oral assertion made in the plaint, as well as in the oral evidence. However, P.W.1 who is the son of the first defendant has admitted in the cross-examination that: he does not know whether his father has got share in the ancestral property and has he alienated any properties? Admittedly, the appellants 2 and 3 are the permanent residents of Bangalore and 3rd appellant is residing along with the first defendant in the family house. The records clearly disclose that the first defendant has alienated the properties in the year 1969, 1968, 1984 and 1989 1992 as per Ex.D1, D4 to D8. In the cross-examination he has deposed that he is not aware whether his father has sold any properties. The residents of the village examined as D.W.2 and D.W.3 have stated that the first defendant was a respectable person in the village and he was the Chairman of the Village Panchayat and for the purpose of family necessities and to perform the marriage of his daughter, he has alienated some of the properties. All these properties are the self-acquired properties of the first defendant
The overwhelming oral and documentary evidence have been produced before the court to show that the first defendant is a respectable member of the village and Chairman of the Village Panchayth and he has alienated the properties for the maintenance of his family. Though the plaintiffs 1 to 3 asserted that suit schedule properties are the joint family properties, no materials have been produced before the court to support the said contention. No independent witness has been examined to prove their case except the third appellant. Hence, the case pleaded by the plaintiffs cannot be accepted. During the pendency of the suit, the first defendant died. The Trial Court after considering the oral and documentary evidence decreed the suit and declared that the plaintiffs are entitled to 1/5th share in item Nos. 2 and 3 properties except the property already alienated in favour of defendants 2 to 5 and rejected the claim in respect of item No. 1 property. The Lower Appellate Court on reappreciating the oral and documentary evidence came to the conclusion that the plaintiffs have failed to prove that the suit schedule properties are the ancestral properties. Accordingly, dismissed the appeal confirming the judgment and decree passed by the court below.
On considering the arguments addressed and considering the oral and documentary evidence, I find that the suit schedule properties are not the ancestral properties of plaintiffs and defendant No.1. Hence, the appellants are not entitled for partition of item No.1 property, which has been sold by the first defendant in favour of defendants 2 to 5. The judgment and decree passed by the court below does not require interference by this court. The appellants have not made out a case to interfere with the judgment and decree passed by the court below. There is no substantial question of law to be decided by this court.
Accordingly the appeal is dismissed.
Parties to bear their own costs.