Peerapa and Others vs Poonam and Others

B.V. Nagarathna, J.—1. Defendants 7 and 9 in O.S. No. 132/2005 have filed this Second Appeal, assailing judgment and decree passed in R.A. No. 60/2008 dated 25.4.15 by the II Addl. District Judge at Haveri (sitting at Ranebennur) by which, the judgment and decree passed in O.S. No. 132/05 dated 3.4.2008 by the Additional Civil Judge (Sr.Dn), Ranebennur, has been confirmed and the appeal has been dismissed.

For the sake of convenience, the parties shall be referred to, in terms of their status before the Trial Court.

Respondents 1 to 4 herein filed the suit seeking the relief of partition and separate of their 1/5th share in the suit schedule properties. According to them they are the wife and children of one Babu @ Ashok Lamani. That, originally one Laxman was the owner of the suit properties. He had five sons, namely, Shivappa, Peerappa, Kumalappa @ Kumar, Vasant, Babu @ Ashok. Shivappa who is deceased has five children and Babu @ Ashok who is since deceased has left behind plaintiffs 1 to 4 as his legal heirs. That, on the demise of Laxman defendants got their names entered in the revenue records i.e. defendants 1 to 9 and 11 and 12 as per M.E. No. 8324A and 7804. Defendants 7 and 9 colluded with each other and have sold some portion of the suit property in favour of defendant-10. That, the suit properties were liable to be partitioned between the sons of Laxman on his demise but the same was not done. Therefore, plaintiffs are entitled to 1/5th share in the suit schedule properties.

In response to the suit summons and court notices issued by the Trial Court, defendants 1 to 6 appeared and filed their written statement admitting the family genealogy given by the plaintiffs in the plaint. They admitted that the plaintiffs were the wife and children of Babu @ Ashok, one of the sons of late Laxman Lamani - the original propositus, who was the erstwhile owner of suit properties. That, Babu @ Ashok had left Ranebennur since long and his whereabouts were not known. They found his dead body when he died on 22.07.2004. In fact he had married one Halavva, who died prior to his death on 23.2.2001. While accepting the genealogy furnished by the plaintiffs, it was also contended that the plaintiffs were not the legal heirs and that defendant No. 3 is the only legal representative of Babu @ Ashok entitled to division in the suit properties. It was further averred that plaintiff No. 1 was residing at Belgaum and she was not married to Babu @ Ashok and the birth of children defendants 2 to 4 were denied and it was contended that they were not entitled to any share in the suit properties. But the Trial Court has also noted that the plaintiffs as well as defendants 1 to 6 have admitted that the plaintiffs as well as defendants 1 to 6 were entitled to 1/5th share in the properties as the suit properties were ancestral properties and they have no objection for the properties being divided and a decree being passed in the suit.

Defendants 7 to 9 in their written statement denied the plaint averments and also the fact that plaintiffs were the wife and children of Babu @ Ashok. They contended that Babu @ Ashok went away to Belgaum and he lived with somebody. But there are no records available with regard to the status of plaintiffs 2 to 4 vis-a-vis Babu @ Ashok. It is further contended that defendants 7 and 9 sold suit properties in favour of defendant No. 10 and in the event of there being any partition, the properties sold to defendant No. 10 may be allotted in the names of defendant Nos. 7 and 9. With the aforesaid averments they sought for dismissal of the suit.

On the basis of the aforesaid pleadings, the Trial Court framed the following issues for its consideration:

Whether plaintiffs prove that, suit schedule properties are the joint family ancestral properties of plaintiffs and defendants?

Whether plaintiffs prove the genealogy is correct?

Whether plaintiffs prove that, defendants have denied to give partition and separate possession in the suit properties?

Whether defendants prove that, all the suit schedule properties were partitioned in the year 1948 and 1964 and accordingly M.E. No. 3107 & 6073 entered in their names?

Whether defendants prove that, plaintiffs belongs to Marati and they belongs to Lamani caste and there is no interest in between two peoples and said Ashok Lamani''s whereabouts were not known since from 20 years. Hence, suit of the plaintiff is not maintainable either under law or on facts?

Whether defendants prove that, there is no cause of action to file this suit?

What order or decree?

In support of their case the plaintiff No. 1 examined herself as PW.1. They relied upon 17 documents which were marked as Ex.P.1 to P.17. The defendants examined five witnesses as DW.1 to DW.5 and produced one document which was marked as Ex.D.1.

On the basis of said evidence, the trial Court answered issue Nos. 1 to 3 in the affirmative, issue Nos. 4 and 6 in the negative, issue No. 5 partly in affirmative and partly negative and decreed the suit, holding that the plaintiffs were entitled to 1/5th share in the suit schedule property along with defendants except the properties as shown in Ex.D.1.

Being aggrieved by the judgment and decree of the trial court dated 3.4.2008, the defendants 7 to 9 filed R.A. No. 60/2008 before the I Appellate Court, which on hearing the respective parties framed following points for its consideration:

Whether the plaintiffs are entitled for the share by way of partition in the suit schedule properties?

Whether the trial court has properly appreciated the evidence?

Whether the judgment and decree of the trial court needs interference?

What order?

It answered points 1 and 2 in the affirmative and point No. 3 in the negative and dismissed the appeal by confirming the judgment of the Trial Court.

Being aggrieved by the judgment and decree of the Trial Court defendant Nos. 7 and 9 only have preferred this Second Appeal.

I have heard the learned Counsel for the appellants and learned Counsel for Caveator/respondents 1 and 3 and perused the material on record.

It is contended on behalf of the appellants that both the courts below were not right in holding that the plaintiffs were the wife and children of Babu @ Ashok Lamani and thereby granting 1/5th share in the suit properties to them. He submitted that the plaintiffs who had approached the Trial Court seeking relief of partition and separation possession ought to have established their relationship with Babu @ Ashok Lamani in the first instance, as the same was denied by defendants 7 to 9 in their written statement. He contended that absolutely no corroborative evidence was produced in the affirmative either documentary or oral evidence in support of their case that they were the legal heirs of Babu @ Ashok Lamani. In the absence of establishing their relationship with the deceased, no share in the suit schedule properties could have been granted to them by the courts below. He contended that both the courts have ignored this aspect of the matter vis-a-vis the relationship of the plaintiff to deceased Babu @ Ashok Lamani and thereby erred in granting 1/5th share in the suit properties to the plaintiffs. Therefore, he contended that substantial questions of law would arise in this appeal as the courts below have not rightly answered issue of relationship of plaintiffs and defendants family and hence the appeal may admitted for a detailed hearing of the same.

Per contra, learned Counsel for caveator/respondents 1 to 3, while supporting the judgment and decree of the courts below contended that defendants 1 to 6 in their written statement admitted the genealogy which was shown in the plaint. It is only appellants herein who denied it with a view to deprive plaintiffs'' of their share in the suit schedule properties. He also contended that the finding of fact given by courts below on the relationship between the parties has attained finality and this Court, in the Second Appeal cannot re-appreciate that aspect by raising any substantial question of law in that regard. He contended that there is no merit in the appeal and the same may be dismissed in limine.

Having heard the learned Counsel for the parties and on perusal of the records, it is noted that the plaintiff had given family genealogy or family tree in para 5 of the plaint as under:

The said genealogy was admitted by defendants 1 to 6 in their written statement, who in fact also sought a share in the suit properties. Defendants 7 and 9 who did not admit that genealogy, on the other hand, contended that Babu @ Ashok Lamani was married to Halavva who predeceased him on 23.10.2001, did not let-in positive evidence in that regard. Having regard to the absence of evidence on the aspect of relationship between the plaintiffs and defendants on the side of defendants, the Trial Court as well as the I Appellate Court considered the positive evidence of the plaintiffs in light of admissions made in the written statement by defendants 1 to 6 and also admission made by D.W.4-Kashibai Shivappa Chawhan @ Lamani, who is widow of Shivappa, and on that basis came to the conclusion that indeed the genealogy given by plaintiffs was correct and that the plaintiffs were the legal heirs of Babu @ Ashok Lamani, being wife and children and on that basis granted 1/5th share to them.

The approach of the Trial Court as well as the I Appellate Court in this regard cannot be found fault with, particularly, in the absence of there being any contrary evidence let-in by defendants-7 to 9 who have contended that Babu @ Ashok Lamani was married to Halavva who had predeceased him. In civil proceedings, the Court would have to proceed on the basis of preponderance of probabilities and based on the evidence on record, rather than to proceed on conjectures with regard to the relationship between the parties, merely because the defendants 7 and 9 took a contention that Babu @ Ashok Lamani was initially married to Halavva, particularly, in the absence of any proof of that pleadings.

The Trial Court while granting 1/5th share to plaintiffs has also taken care to note that defendants 7 and 9 had sold the suit item No. 3 to defendant-10 under Ex.D.1 and has held that the plaintiffs and defendants 1 to 6 would not be entitled to any share in that item. The findings as given by the Trial Court and I Appellate Court on the issues raised therein are just and proper.

I do not find any infirmity in the judgment of the courts below. No substantial question of law would arise in this second appeal. The appeal is dismissed.

Having regard to the relationship between the parties, they are directed to bear their respective costs.

In view of the dismissal of the appeal, I.A. 1/2015 also stands dismissed.