Nagappa vs Dandina Manchappa

B.S. Patil, J.—This regular second appeal is filed by the defendants in O.S. No. 374/1989 aggrieved by the dismissal of their suit, confirmed in appeal by the Appellate Court by dismissing R.A. No. 109/2007.

Brief facts leading to the present second appeal are that plaintiffs/respondents 1 to 3 herein instituted the suit O.S. No. 374/1989 seeking partition and separate possession of their 1/4th share in the suit schedule properties item Nos. 1 to 19, contending inter alia that suit schedule properties were the ancestral joint family properties owned by the family consisting of propositor Sri. Thatyappa and his four sons namely, Sriyuths. Dodda Keriyappa, Manchappa, Bheemappa and Sanna Keriyappa.

The defendants are legal representatives of three of the said four sons of Sri. Thatyappa. Plaintiffs claim that they are the children of Sri. Sanna Keriyappa. It is the case of plaintiffs that suit properties item Nos. 1 to 11 and item Nos. 16 to 19 were ancestral properties, whereas item Nos. 12 to 15 were joint family ancestral lease hold properties. They urged that about 8 years prior to the institution of the suit there was a family arrangement wherein plaintiffs were allotted item No. 17 and item No. 3 of the suit properties.

They urged that defendants 1 to 16 were the legal heirs of deceased Sri. Dodda Keriyappa and were together entitled for 1/4th share and defendants 17 to 24 were the legal heirs of deceased Sri. Manchappa and were also together entitled for 1/4th share, whereas defendants 25 to 29 being the legal heirs of deceased Sri. Bheemappa were together entitled for 1/4th share. It was contended by them that plaintiffs were together entitled to get 1/4th share in all the suit schedule properties. They urged that despite repeated requests and demands by the plaintiffs, the defendants failed to effect partition and allot plaintiffs legitimate share in the suit properties. Hence, they issued legal notice dated 20.02.1984 demanding partition, for which defendants sent an untenable reply.

Defendants 1 to 29 appeared and contested the case. Second defendant filed the written statement and rest of the defendants adopted the same. While they admitted the relationship inter say between the defendants, they denied the assertion of the plaintiffs that they were the legal heirs of Sri. Sanna Keriyappa, S/o Sri. Thatyappa. They urged that Sri. Thatyappa had only three sons and there was one other son by name, Sri. Sanna Keriyappa. They also urged that defendants belonged to Dandina Family.

In paragraph 2 of the written statement certain assertions made in the plaint have been denied. In paragraph 8(a) by way of amendment the defendants have contended that item Nos. 12, 13, 14 and 15 were all agricultural lands cultivated on the basis of tenancy as tenants and in respect of the said lands, occupancy rights have been granted by the Land Tribunal, Soraba in favour of the defendants in their individual capacity. They have furnished the details of survey numbers and the extent of lands that have been granted in their favour by the Tribunal. They have thus contended that plaintiffs were not members of the family of the defendants or their ancestors and that they had no share in any of the suit properties.

Based on the pleadings the trial Court framed necessary issues. Plaintiff No. 1 was examined as P.W. 1 and one witness by name Sri. Bangarappa was examined as P.W.2. They produced and marked Exs.P-1 to P-32. Defendants on their part examined the second defendant - Sri. Dandina Nagappa as D.W.1 and one witness by name Sri. Keriyappa @ Ambleppa was examined as D.W.2. They produced and marked Exs.D-1 to D-51.

The trial Court found that plaintiffs were able to establish that their father Sri. Sanna Keriyappa was the son of propositor Sri. Thatyappa and that about 8 years prior to the suit, family settlement had taken place whereunder properties at item Nos. 3 and 17 had been given to the possession of the plaintiffs. It further held that defendants failed to establish that there was oral partition among defendants during the year 1963. It also found that the tenanted properties were joint family properties belonging to plaintiffs and defendants, wherein the branches of the plaintiffs and defendants had 1/4th share each. Thus, trial Court decreed the suit.

The trial Court has proceeded on the basis of the so called admission said to have been made in paragraph 2 of the written statement and in the evidence of D.W.1 regarding the status of the properties as joint family properties. Even as regards the tenancy rights acquired it was held that they were acquired by the joint family consisting of ancestors of the plaintiffs and the defendants. The trial Court has also placed reliance on Ex.P-3 - Geneology issued by the Village Accountant certifying that Sri. Sanna Keriyappa father of the plaintiffs was one of the sons of the propositor Sri. Thatyappa.

Aggrieved by the judgment and decree passed by the trial Court, the defendants filed R.A. No. 109/2007 before the Appellate Court. The appellate Judge has confirmed the findings recorded by the trial Court and has dismissed the appeal. The learned appellate Judge has also referred to and relied on the alleged admission made in the written statement and in the evidence of D.W.1 regarding the nature of the suit schedule properties as ancestral properties.

In the circumstance, this second appeal is filed against the concurrent findings of Courts below. This Court has framed the following Substantial Questions of Law.

(i) Whether the Courts below were right and justified in recording the finding that father of the plaintiffs Sri. Sanna Keriyappa was the son of Sri. Thatyappa, relying on Ex. P-3?

(ii) Whether both the Courts below have misconstrued the defence taken by the defendants in paragraph 2 of the written statement as admission made by the defendants regarding the status of the suit schedule properties as joint family properties?

Ex.P-3 is the Geneology issued by the Village Accountant duly certified by him. P.W.1, who is the son of Sri. Sanna Keriyappa, fourth son of Sri. Thatyappa has produced these documents and has spoken for the same. P.W.2 - Sri. Bangarappa, resident of the same village and who was aged 75 years at the time he gave his evidence, has also spoken regarding the relationship of Sri. Sanna Keriyappa with the other three brothers and Sri. Thatyappa as his father. Both the Courts have appreciated the evidence both documentary and oral including the evidence adduced by the defendants, which is mainly in the form of oral evidence of the defendants himself and one other witness, while coming to the conclusion that relationship between the parties as pleaded by the plaintiffs, stood established. It is contended by the learned counsel for the appellant, Sri. S.V. Prakash that Ex.P-3 is admittedly prepared at the instance of the plaintiffs and that the author of the document was not examined to prove the contents. This contention cannot be accepted because it is a public document issued by the competent official namely, Village Accountant who would be having the knowledge of the matters stated therein. In addition, an elderly villager has been examined by the plaintiffs. Trial Court has assigned cogent reasons in holding that this document has been proved. The appellate Court has reappreciated the same and has concurrent with the said finding. In exercise of the power under Section 100, this Court will not disturb such finding. Hence, the Substantial Question of Law framed at Point No. 1 is answered against the appellants and in favour of plaintiffs/respondents.

As regards the Substantial Question of Law pertaining to the nature of the properties found as ancestral/joint family properties based on the alleged admission made by the defendants, the learned counsel for both the parties have taken me through the written statement. Paragraph 2 of the written statement, if carefully read, would show that defendants have not admitted the fact that item Nos. 12 to 15 were the properties in respect where-of ancestors of the defendants had leasehold rights. In fact, this is clarified in paragraph 8(a) of the written statement. They have no doubt admitted the fact that other items of the properties were the ancestral and joint family properties.

Even in the evidence adduced there is no such admission by D.W.1 that leasehold rights belonged to the joint family. On the other hand, they have specifically stated that in respect of item Nos. 12 to 15 occupancy rights were granted individually in favour of the concerned defendants, whereas the other properties were the ancestral properties. This is clear from paragraph 7 of the deposition of Sri. Dandina Nagappa - D.W.1.

Both the Courts have misconstrued the contents of paragraph 2 of the written statement in coming to the conclusion that there has been an admission by them that the tenanted lands belonged to the family of the defendants and they were ancestral properties. In addition, it is important to notice that in the revenue records names of none of these defendants, in respect of these four properties, have been recorded as tenants cultivating the land. It is the names of the individual defendants, which have been entered as cultivators and applications in Form-7 claiming occupancy rights as per the provisions of the Karnataka Land Reforms Act, 1961, have been filed by the defendants in their individual capacity. In such circumstance, the Courts below were not right and justified in returning the findings holding that item Nos. 12 to 15 were joint family properties, wherein plaintiffs and all other defendants had share. Hence, Substantial Question of Law framed at Point No. 2 is answered in favour of the appellants and against plaintiffs/respondents to the extent stated above.

In the result, I pass the following:

ORDER

(i) The second appeal is partly allowed.

(ii) Judgment and decree passed by the Courts below as regards item Nos. 1 to 11 and 16 to 19, is confirmed and the judgment and decree passed by the Courts below insofar as item Nos. 12 to 15, is set aside and suit filed by the plaintiffs seeking partition in respect of item Nos. 12 to 15 is dismissed.

(iii) Parties to bear their respective costs.