Nagappa vs Shivalingappa

A.V. Chandrashekara, J.—Defendants 3 and 4 in original suit bearing O.S. No. 82 of 2007 which was pending on the file of Additional Civil Judge (Senior Division), Jamkhandi sitting at Mudhol have filed this appeal u/s 100 of Civil Procedure Code, 1908 challenging the judgment and decree passed in R.A. No. 183 of 2009. Respondents 1 to 10 herein were defendants 1(A) to 1(1) and plaintiff 2 in the said case. Respondents 11 and 12 were defendants 1 and 2 in the said case. Parties will be referred to as plaintiffs and defendants as per their ranking in the Trial Court.

Plaintiff and defendant 1 are children of one Hanumant Dhanagar. Suit schedule property described in the schedule appended in the plaint measuring 2 acres 28 guntas is in Mirji Village of Mudhol Taluk. It is the ancestral property of the plaintiff and defendant 1. Defendant 2 is the wife of defendant 1 and both of them have sold the entire suit schedule property in favour of defendants 3 and 4 to an extent of 1 acre and 1 acre 28 guntas through separate sale deeds dated 13-8-2007 respectively. It is this alienation which is called in question by filing a suit for partition and separate possession of 2/6th share. Defendant 1 has filed written statement but did not lead any evidence. Defendant 4 had filed written statement by contesting the suit.

Defendant 1''s case a put forth in his written statement, is that the alienation has been made for the purpose of family necessity. According to defendants 3 and 4 suit is time barred. With these pleadings they had requested the Court to dismiss the suit.

One the basis of the above pleadings the following issues have been framed:

Whether plaintiffs prove that they have share in the suit properties? If so to what extent?

Whether defendant 1 proves that he has sold the suit property to defendants 3 and 4 for his family necessity?

Whether suit is time barred?

Whether plaintiff is entitled for the relief as prayed for?

What order or order?

Shantawwa Shivalingappa Makali is examined as P.W. 1 and Siddappa Dundappa Langoti is examined as P.W. 2 and four documents have been got marked on their behalf. Defendant 3 is examined as D.W. 1 and three witnesses have been examined on their behalf. After analysing the evidence and after hearing the arguments, learned Senior Civil Judge has chosen to answer issues 1 and 4 in the affirmative and issues 2 and 3 have been answered in the negative. The suit is decreed granting 1/6th share to the legal representatives of deceased plaintiff 1 and 1/6th share to plaintiff 2. Direction is given to draw a preliminary decree. This considered judgment dated 30-3-2011 had been called in question by filing an appeal u/s 96 of CPC. The said appeal was withdrawn and transferred to the Fast Track Court, Jamkhandi and numbered as R.A. No. 183 of 2009. The said appeal came to be dismissed on 30-3-2011 confirming the judgment of the Trial Court. It is these concurrent judgments which are called in question on various grounds set out in the appeal memo.

From the records, it is evident that there is no serious dispute about the facts that the property in question is the ancestral property of the defendant 1. Though defendant 1 is manager of the joint family, he has sold the entire family property though he has a limited share. When there are major members in the family, kartha is not entitled to alienate the undivided share of the major members. Kartha of joint family is entitled to alienate the undivided share of a minor coparcener if there is legal necessity for the family or pressure estate of joint family. Evidence on record would disclose that D.Ws. 1 and 2 have admitted that defendant 1 is addicted to bad wises like drinking and gambling. Though he has pleaded that entire property is alienated in his favour, he has not stepped into witness-box. Defendants/purchasers cannot have better case that the defendants who have virtually abstained from offering for tendering evidence. Entries in revenue records do not confer any title on the persons whose names are found in revenue records unless it is supported by valid documents. Mere recitals marked in Exs. P. 12 and P. 13 would not demonstrate the existence of legal necessity or pressure on the estate. The Trial Court has considered the evidence in right perspective and has disbelieved the case of the plaintiff. The First Appellate Court, being final Court of facts has, on reassessment of the entire evidence in its right perspective, confirmed the judgment of the Trial Court. There is no illegality or perversity found in the judgment of the Trial Court and First Appellate Court. There is absolute no infirmity in regard to the findings that the properties are joint family properties and alienation being made contrary to the interest of the plaintiffs. In this view of the matter the questions of law proposed in the appeal are no substantial questions of law. The appeal is devoid of merits and is liable to be dismissed as unfit for admission:

ORDER

The appeal is dismissed as unfit for admission by confirming the judgment and decree of both the Courts. There is no order as to costs.