Peerappa and Others vs Sadashiv and Others

S.N. Satyanarayana, J.

Plaintiffs in O.S. No. 255/2008 on the file of the Principal Civil Judge and JMFC, Raibag have come up in this second appeal impugning the judgment of both the Courts below in dismissing their suit filed for partition and permanent injunction.

Brief facts leading to this second appeal are as under:

"Plaintiff No. 1-Peerappa and plaintiff No. 2-Hanamant are the sons of Balappa Peerappa Mang. According to them, land bearing Sy. No. 77/1B of Chinchali village of Raibag taluk, Belgaum District measuring to an extent of 6 acres 33 guntas was purchased by their father Balappa and his younger brother Ramu under registered sale deed dated 26.04.1972 and it is the absolute property of their father Balappa and his younger brother Ramu. It is also their case that, subsequently in the year 1987 Balappa''s younger brother Ramu sold his share in Sy. No. 77/1B of Chinchali village to an extent of 3 acres 16 guntas in favour of third party, which according to them is the exclusive share of Ramu in the total extent of 6 acres 33 guntas and remaining 3 acres 17 guntas continued to be in the name of their father with R.S. No. 77/1B/1. It is the grievance of the plaintiffs that, in the year 1993, a watni document was prepared in the name of their father Balappa Peerappa Mang showing that he has divided 3 acres 17 guntas of land in Sy. No. 77/1B/1 of Chinchali village among his brother''s sons, wife, his sister''s sons and his sister and also in the name of plaintiff Nos. 1 and 2 in the original suit."

According to them, watni which is said to have taken place in the year 1993 is a make believe watni by defendant Nos. 1, 3, 4 and 5 behind the back of plaintiffs father and plaintiffs and as such, they will not get any right, title and share in respect of any portion of the suit land, which was allotted to their name pursuant to the mutation entry No. 349 of the year 1993. In the said suit, it was also contended that there was an attempt on the part of defendant No. 1 to sell the land to an extent of 24 guntas, which is identified as R.S. No. 77/1B/1E in favour of defendant No. 2, in respect of which the agreement is already entered into between defendant Nos. 1 and 2. In the said suit, which was filed in the year 2008, summons were issued to the defendants. Defendant No. 1 remained ex-parte and defendant No. 2 entered appearance filed written statement contending that, he has already purchased the land to an extent of 24 guntas in the suit schedule property, which is identified as R.S. No. 77/1B/1E and he is in possession and cultivation of the same. In the said proceeding, defendant No. 4, who is one of the beneficiary under M.E. No. 349 entered appearance and filed detailed written statement denying each and every averment in the plaint and per contra, he proceeded to place on record that, though property in Sy. No. 77/1B was purchased by plaintiffs father Balappa along with his brother Ramu, father of defendant No. 1, in the said family besides Balappa and Ramu, there were three other brothers and a sister, all of them were living in joint family and it is for the benefit of the joint family, half portion of Sy. No. 77/1B which was measuring 6 acres 33 guntas was sold and the proceeds were utilized for the benefit of the family. As such, plaintiffs father Balappa during his lifetime effected partition of the remaining extent of 3 acres 17 guntas in the suit schedule property bearing R.S. No. 77/1B/1 in favour of his children, his brother''s sons, sister''s sons and his brother''s wife and others. On the basis of the partition which has taken place as per the watni patra dated 27.05.1993, shares allotted in the remaining portion of property bearing Sy. No. 77/1B to plaintiffs, defendant Nos. 1, 3, 4 and 5 is mutated and registered in their name vide M.E. No. 349. It is also contended that said Balappa never challenged the watni which was effected in the year 1993 and he died in the year 2002/03 and thereafter, his children namely, plaintiff Nos. 1 and 2 are challenging the same, which is beyond the period of limitation. Based on the aforesaid pleadings, the trial Court proceeded to frame the following issues.

"i) Whether the plaintiffs prove that, they are the absolute owners in possession of the suit lands?

ii) Whether the plaintiffs prove the alleged interference?

iii) Whether the defendant No. 2 and 4 prove that, the suit is barred by limitation?

iv) Whether the defendant No. 2 proves that he is the bonafide purchaser?

v) Is plaintiff entitle for the relief as prayed for?"

Plaintiff No. 1 adduced evidence as P.W.1. By then, plaintiff No. 2 died and his children were brought on record as plaintiff Nos. 2A to 2D. In support of the case of the plaintiffs, an independent witness by name Sri. Vasant Mayappa Maisale was examined as P.W.2. In all 15 documents were produced and marked as Exs. P1 to P15. On behalf of the defendants, defendant No. 4 who had filed detailed written statement denying the plaintiffs claim and who is also one of the beneficiary under M.E. No. 349 adduced evidence as D.W.1. Defendant No. 2 who is purchaser of the share of defendant No. 1 was examined as D.W.2 and one of the members of the family namely, Krishna S/o. Nana Mang was examined as D.W.3. In all 18 documents were produced, which are marked as Exs. D1 to D18. The trial Court on appreciation of the pleadings, oral and documentary evidence available on record proceeded to answer issue Nos. 1 and 2 in the negative, which were framed to consider whether plaintiffs prove that they are absolute owners in possession of the suit land and the alleged interference pleaded by the plaintiffs against the defendants. Sofar issue Nos. 3 and 4 which were based on the written statement filed by defendant Nos. 2 and 4 with reference to whether they prove that suit is barred by limitation and defendant No. 2 in establishing that he is the bonafide purchaser for value were answered in the affirmative and consequently, issue which was framed to consider whether plaintiffs are entitled for the relief as prayed for was answered in the negative and suit of the plaintiffs was dismissed. Being aggrieved by the same, plaintiffs preferred an appeal in R.A. No. 8/2012 on the file of the Senior Civil Judge and JMFC, Raibagm, wherein, the lower appellate Court on going through the grounds of appeal and also finding of the trial Court on issue Nos. 1 to 5 framed following points for consideration.

"i) Whether the trial court has erred in considered that the suit is barred by limitation?

ii) Whether the trial court has not properly appreciated the oral and documentary evidence of the parties?

iii) Whether the judgment and decree of the trial court is perverse and illegal?

iv) Whether the judgment and decree under appeal needs modification at the hands of this court?

v) What order?"

Thereafter, lower appellate Court heard the learned counsel for the appellants and as well as the respondents and proceeded to answer point Nos. 1 to 4, which were with reference to the finding of the trial Court on the point of limitation holding that the suit was barred by limitation and also with reference to the appreciation of the oral and documentary evidence and further with reference to the judgment and decree passed by the trial Court as perverse and illegal and which needs for modification in favour of the defendants in the original suit and against the plaintiffs by answering the same in the negative and consequently, dismissed the appeal filed by the plaintiffs in the original suit. Being aggrieved by the concurrent finding of both the Courts below, this second appeal is filed.

Heard the learned counsel Sri. B.S. Kamate appearing for the appellants, who are plaintiffs in the original suit and appellant in the lower appellate Court, perused the judgments of both the Courts below and also pleadings, oral and documentary evidence available on record. On going through the judgments of both the Courts below and in the light of the pleadings, oral and documentary evidence available on record, what is seen is, the suit schedule property namely, property bearing Sy. No. 77/1B/1 measuring to an extent of 3 acres 17 guntas is the remaining extant of land available with Balappa after 3 acres 16 guntas sold by Ramu under sale deed of the year 1987. With this, what is seen is that, an extent of 6 acres 33 guntas was purchased by Balappa and Ramu on 26.04.1972, out of that, 3 acres 16 guntas is sold by Ramu under sale deed of the year 1987. What was available with the hands of Balappa i.e., father of plaintiffs is 3 acres 17 guntas. Ex. P11 which is the mutation entry of the year 1993 under M.E. No. 349 would indicate that, when Balappa i.e., father of plaintiff Nos. 1 and 2 was alive effected partition of the suit land namely 3 acres 17 guntas, which was by then given R.S. No. 77/1B/1, which he has divided among six persons. One of them is his brother Ramu''s widow Satyavva, others are Lagamanna, Mahadev, Basappa and Sadashive, who are children of the brother and sister of Balappa i.e., plaintiffs father. That plaintiffs father has jointly given 31 guntas to plaintiff Nos. 1 and 2 under the said partition. Though in the suit, plaintiffs claim that the aforesaid partition which is said to have effected on 27.05.1993 is under the treat to their father, there is no evidence to support the same. Admittedly, plaintiffs father Balappa who effected partition on 27.05.1993 continued to live up to 2002 and he died in the year 2002 or 2003 prior to filing of the suit. Plaintiffs father Balappa who effected partition in the year 1993 did not challenge the same throughout his lifetime, therefore, it is not open to his sons who are plaintiffs in the original suit to challenge the same after his death.

Assuming for a moment that the suit schedule properties are the exclusive property of plaintiffs and their father Balappa, what prevented plaintiffs from challenging the mutation entry within three years is what is considered by the trial Court and as well as the lower appellate Court. On going through the pleadings and evidence of both the Courts below and also the finding of the trial Court on issue Nos. 1 to 5 and that of lower appellate Court on point Nos. 1 to 4, it is clearly seen that both the Courts below have appreciated the pleadings and evidence threadbare and have come to the conclusion that the suit of the plaintiffs in first place is barred by limitation. Secondly, they have failed to prove that the partition of the year 1993 by their father is under compulsion of defendant Nos. 1 and 3 to 5 as contended by the plaintiffs. They have also failed to demonstrate that there was a threat on their father to effect partition as per Ex. P30. In the absence of any evidence to support the same, both the Courts below have refused to believe the plaint averments and have proceeded to accept the division as shown in Ex. P13 namely M.E. No. 349, wherein the share awarded to the plaintiff Nos. 1 and 2 is only to an extent of 31 guntas and consequently refused to interfere with the right of defendant Nos. 1 and 3 to 5 in the suit schedule property to various extents and of which, defendant No. 1''s share is purchased by defendant No. 2. In this second appeal, on going through the grounds urged with reference to the finding of both the Courts below, this Court find no substantial question of law arises for consideration. Therefore, question of admitting this second appeal does not arise.

Accordingly, this second appeal is dismissed.