Rudrappa and Others vs Muniveerappa and Others

Aravind Kumar, J.—This is a plaintiffs second appeal calling in question correctness and legality of Judgment and decree passed in R.A. 49/2006 (old No. 151/2004) dated 19.04.2012 whereunder appeal filed by unsuccessful plaintiffs came to be dismissed and Judgment and decree passed by Principal Civil Judge (Jr. Dn) and JMFC, Anekal in O.S. 244/2000 dismissing the suit of plaintiffs which was for declaration that suit schedule property is the joint family property of plaintiffs, second defendant and other members of coparcenary and also for declaration that sale deed dated 15.11.85 executed by defendant No. 2 in favour of defendant No. 1 is not binding on the plaintiffs and other members of the co-parcenary came to be affirmed.

I have heard the arguments of Sriyuths J.D. Hiremath, learned counsel appearing for appellants and Vigneshwara U., learned counsel appearing for caveator/respondent No. 3. Issuing notice to other respondents does not arise inasmuch as this court is of the considered view that there is no substantial question of law involved in this appeal for being formulated, adjudicated and answered and as such appeal is being dismissed at the threshold without being admitted for the reasons indicated herein below:

Parties are referred to as per their rank in trial court.

Plaintiffs contended that suit property originally belonged to their paternal grand father Sri Marisiddappa and he had expired leaving behind his three sons Sriyuths Doddaveerabhadraiah, Mariyappa and Chikkaveerabhadraiah. Said Sri Marisiddappa had two wives by name Smt. Chamundamma and Smt. Chennarudramma. It was contended that Sri Doddaveerabhadraiah and Sri Mariyappa are the sons of Smt. Chamundamma and Sri Chikkaveerabhadraiah is the son of Smt. Chennarudramma. They pleaded suit property along with property bearing Sy. No. 113, 106, 244 measuring 4 acres 1 gunta and three houses situated at Masthenahalli and lands in Sy. No. 245, 246 are in joint possession and enjoyment of plaintiffs'' grand father Sri Marisiddappa and his sons and grandsons. They have further contended that suit properties including land bearing Sy. No. 101 (suit schedule property purchased out of joint family funds) and on account of there being no partition during the life time of Sri Marisiddappa and after his demise, plaintiffs being grandsons of Sri Marisiddappa and sons of Sri Mariyappa, are entitled for suit property being declared to be joint family property. It is further stated defendant No. 1 claims to have purchased the suit property from second defendant who is junior uncle of plaintiffs and by virtue of said sale he tried to interfere with the possession of plaintiffs. Hence suit for partition came to be filed.

On service of suit summons defendant No. 1 appeared through his counsel and filed his written statement. It was contended that Smt. Chennarudramma had only one son by name Sri Chikkveerabhadraiah who is defendant No. 2 and suit property bearing No. 101/1 measuring 35 guntas was acquired on 27.09.1978 and as there was family necessity second defendant had mortgaged the said property in favour of first defendant for Rs. 1,000/- and had delivered possession in his favour which document was duly registered and defendant No. 1 was mortgagee in possession. On account of second defendant being unable to get the mortgage redeemed, he conveyed suit schedule property on 15.11.95 in favour of first defendant which document is duly registered and hence revenue records have been mutated to the name of 1st defendant who continued in possession and enjoyment of the same. It was also contended that first defendant had filed a suit in O.S. 712/97 for relief of injunction and obtained an order of injunction and as such plaintiffs have no right, title or interest in the suit property. On the basis of pleadings of the parties, trial court framed following issues:

Whether the plaintiff proves that the suit property is a joint family property?

Whether the 1st defendant proves that the suit property is the self acquired property of the 2nd defendant and he alienated the same for legal necessities?

Whether the plaintiffs prove that they are in possession of the suit property?

Whether the plaintiffs prove the alleged interference by the 1st defendant?

Whether the plaintiffs are entitled for the relief of declaration and permanent injunction as prayed?

What Order or Decree?

5th plaintiff got himself examined as PW-1 and on behalf of plaintiffs they got marked three documents Exhibits P-1 to P-3. First defendant got himself examined as DW-1 to substantiate his claim made in the written statement and produced 34 documents and they were marked as Exhibits D-1 to D-34. After considering the pleadings and on evaluation of evidence trial court held that except as assertion of plaintiffs that suit schedule property is a joint family property no evidence was placed in support of their claim and as such plaintiffs had utterly failed to prove that suit schedule property is a joint family property. Trial court also took note of the fact that PW-1 in his cross examination at page 3 paragraph 2 has admitted that Sy. No. 244 measuring 4 acres 01 gunta is standing in the name of Senior uncle (Doddappa). It is also admitted by him that land bearing Sy. No. 154 measuring 3 acres 37 guntas is standing in his father''s name (Mariyappa). He has further admitted that Sy. No. 153 measuring 1 acre 33 guntas is standing in the name of second defendant and held that this admission would indicate that properties situated in Sy. No. 244, 154, 153 are in possession of respective parties in whose names the revenue records have been mutated and held that if there was no prior partition as contended by plaintiffs or suit schedule property still continued to be joint family property there was no explanation forthcoming from plaintiffs as to how revenue records came to be mutated long time ago and said question remained unanswered by plaintiffs. It is also noticed by court below that plaintiffs had clearly admitted that there are other joint family properties and if so, suit for partial partition was not maintainable and on these grounds amongst others trial court dismissed the suit for declaration by Judgment and decree dated 02.04.2004.

Being aggrieved by said Judgment and decree unsuccessful plaintiffs pursued their grievance before first appellate court and an application under Order XLI Rule 27 seeking for production of additional evidence was also filed. First appellate court after considering arguments advanced by respective learned advocates formulated following points for its determination:

Whether the appellant proves that the finding given by the trial court on the issues 1 to 5 are perverse, erroneous and hence the impugned judgment and decree passed by the trial court is liable to be set aside?

What Order?

On re-appreciation of entire evidence the first appellate court affirmed the Judgment and decree passed by trial court and it is also been noticed by first appellate court that father of plaintiffs had instituted a suit in O.S. 744/97 for the relief of declaration and same had been dismissed and Miscellaneous Petition filed by plaintiffs had also been dismissed. The fact that first defendant had instituted a suit in O.S. 712/97 wherein an interim order was granted in favour of DW-1 and which suit is said to be decreed as contended by learned counsel appearing for caveator/respondent No. 3 Sri Vigneshwara U., which fact is not seriously disputed by Sri J.D. Hiremath, learned counsel appearing for plaintiffs was yet another reason which swayed in the mind of 1st appellate court to dismiss the appeal. These facts were taken note by the courts below to arrive at a conclusion plaintiffs had failed to prove suit schedule property being joint family property and as such plaintiffs are not entitled for declaration of title.

Sri J.D. Hiremath, learned counsel appearing for appellants has vehemently contended that 1st appellate court ought to have entertained the application filed for production of additional evidence by allowing I.A. No. 6 filed under Order XLI Rule 27 of CPC and it ought not to have dismissed by its order dated 19.04.2012. Sri Hiremath, learned counsel for appellants has made available copy of order passed by first appellate court rejecting the said application. A perusal of said order would clearly indicate that appellants/plaintiffs intended to produce copies of following documents by way of additional evidence:

A copy of the order of conversion dated: 07.03.2005.

Copy of the appeal No. 753/2010 filed by the appellants challenging the order of conversion dated: 07.03.2005, filed on 15.10.2010 before the Karnataka Appellate Tribunal.

Three photographs.

Copy of the order of stay granted in appeal No. 753/2010 before the Karnataka Appellate Tribunal.

Copy of the order of dismissal in O.S. No. 712/2007 on the file of II Addl. Civil Judge (Sr. Dvn) Bangalore (the said certified copy of will be produced in due course, the said suit instituted by the 1st respondent Muniveerappa @ Bajjappa.

As rightly observed by first appellate court the documents referred to herein above does not even remotely suggest about the fact that suit schedule property being joint family property. Hence, it has arrived at a conclusion, rightly so, that these documents would not have any bearing on adjudication of dispute between the parties. Finding arriving at by first appellate court rejecting the application for additional evidence also does not suffer from any infirmity either on facts or on law calling for interference.

For reasons aforestated this court is of the considered view that this second appeal lacks merit and same is liable to be rejected. Hence, I proceed to pass the following:

Second appeal is hereby dismissed.

Judgment and decree dated 19.04.2012 passed in R.A. 49/2006 (Old No. 151/2004) on the file of District and Sessions Judge and Presiding Officer, Fast Track Court, Anekal, Bangalore Rural District is hereby affirmed.

No costs.