S. Shantappa and Others vs Chulachavva

B. Veerappa, J.—This is an unsuccessful defendants'' second appeal against the judgment and decree dated 1.4.2014 made in R.A. No. 32/2013 on the file of the Senior Civil Judge, Ron, confirming the judgment and decree dated 5.4.2013 made in O.S. No. 92/2012 on the file of the Civil Judge, Ron, decreeing the suit of the plaintiff declaring that the plaintiff is entitled for partition and separate possession of 1/4th share in the suit schedule property.

It is the case of the plaintiff that the suit schedule property originally belongs to Dyavappa the propositus of the family, who had four children by name Hanamavva, Shantappa, Sakrappa, Chulachavva. Defendant Nos. 1 and 2 and plaintiff are the sons and daughters of Dyavappa and another daughter of Hanamavva died leaving behind Dharmappa, Padiyappa Dharmappa Lokapur, Renavva, Padiyavva and Nagappa Dharmappa Lokapur. The suit schedule properties are joint family properties of the plaintiff and defendants. Plaintiff is also one of the co-parcener and she is entitled to 1/4th share in the suit schedule properties, defendant Nos. 1 and 2 are entitled to 1/4th share, and defendant Nos. 3 to 6 are entitled to 1/4th share. Plaintiff demanded the defendants to effect the partition, but the defendants postponed the partition on one or the other ground and subsequently refused to effect partition. Therefore, the present suit was filed.

Defendant Nos. 1 to 4 appeared through counsel. Defendant Nos. 2, 3 and 6 failed to appear. They are placed ex-parte. Steps were not taken against defendant No. 5 and suit came to be dismissed against defendant No. 5. Defendant No. 1 has filed the written statement and defendant No. 4 has adopted the same written statement. The defendants denied all the plaint averments and contended that 1/4th share was more than 8 acres average market value of the suit schedule property per acre at Shantagiri which is more than Rs. 1,00,000/- and as such the share of the plaintiff exceeds Rs. 5,00,000/-. Therefore, the Court has no pecuniary jurisdiction and also contended that many times after the marriage of the plaintiff, she was admitted to the hospital and once she underwent an operation. The medical expenses were borne by the defendant No. 1 and the said expenses exceeds the share of the plaintiff in the suit schedule properties and hence the plaintiff is not entitled to any share in the suit properties etc., and therefore prayed for dismissal of the suit.

In order to establish her case plaintiff examined as P.W. 1 and marked documents Exs. P1 to P7. Even though sufficient opportunity was given to the defendants, they failed to lead any rebuttal evidence. After considering the entire material on record, the trial Court held that the suit schedule properties are the joint family properties and defendants failed to prove that the Court has no pecuniary jurisdiction and defendant No. 1 also failed to prove that he has borne the medical expenses of the plaintiff which exceeds her share in the suit schedule properties and ultimately the suit was decreed granting 1/4th share in favour of the plaintiff. Against the said judgment and decree, the defendants filed appeal in R.A. No. 32/2013 before the Senior Civil Judge, Ron, who after hearing both the parties has dismissed the appeal and confirmed the judgment and decree of the Trial Court. Against the said concurrent findings of fact, the present regular second appeal is filed.

I have heard the learned counsel for the appellants.

Sri Sadiq N. Goodwala, the learned counsel for the appellants has contended that defendant Nos. 1 and 4 though filed written statement before the Trial Court, has not cross-examined P.W. 1 nor adduced any evidence to rebut the case of the plaintiff. Therefore, appellants requested the appellate court to remand the matter to the trial Court to put forth their case. The said request was not acceded to by the Lower Appellate Court which has resulted in injustice to the appellants. Therefore, he sought to set aside the impugned judgment and decree of the Courts below.

I have given my thoughtful consideration to the arguments advanced by the learned counsel for the appellants and perused the entire material on record.

The substance of the plaintiffs case is that the suit schedule properties are the joint family properties of both plaintiff and defendants who are joint family members. Therefore, she is entitled to 1/4th share in the suit schedule properties. The defendant Nos. 2, 3 and 6 are placed ex-parte. Defendant Nos. 1 and 4 filed written statement, they have not denied the relationship of the plaintiff or the status of the joint family in respect of the suit schedule properties and the only contention raised by the defendants in the written statement is that they have spent medical expenses for the plaintiff which exceeds the share of the plaintiff in the suit schedule properties and therefore, the plaintiff is not entitled to any share. The Trial Court considering both the oral and documentary evidence on record viz., Exs. P1 to P7 has come to the conclusion that the plaintiff has proved the relationship with the original propositus that she is one of the daughter of the original propositus and plaintiff also proved the joint family status and defendant No. 1 though filed written statement has not led in any evidence and the oral testimony of P.W. 1 has remained unchallenged as the defendant has not chosen to cross-examine P.W. 1 and some of the properties were mutated to the name of the defendants by virtue of Varsa and Vatani. But no such registered partition deed is forthcoming and it is not the case of the defendants that there was partition and the only contention taken by the defendants is that they have spent money towards medical expenses of the plaintiff more than the share she is entitled to in the suit schedule properties. Therefore, by implication defendant No. 1 is admitting the relationship and share of the plaintiff in the suit property. Accordingly, suit came to be decreed.

On re-appreciating the entire material on record, the Lower Appellate Court refused the request made by the learned counsel for the appellants to remand the matter and recorded a finding that it is not the case of the defendants that the trial Court has not given sufficient opportunity. In the Original Suit before the Trial Court it clearly indicates that issues were framed on 2.1.2013 and the plaintiff got examined herself as P.W. 1 on 22.1.2013 and the case was posted for cross-examination of P.W. 1 till 13.3.2013 on four dates of hearing on the request of the learned counsel for the defendants. Despite the same, P.W. 1 has not been cross-examined by the defendants'' side. Therefore, the matter was posted on 13.3.2013 for defendants'' evidence and again it was posted on 20.03.2013 and again on 26.3.2013. The defendants have not adduced any rebuttal evidence and the case was posted for arguments on merits on 28.03.2013. On 28.03.2013 the learned Counsel for plaintiff has sought for time again and it was posted on 1.4.2013. On 1.4.2013 the arguments were heard and posted for judgment on 5.4.2013. The Lower Appellate Court also recorded a finding that about 15 hearing dates were given to the defendants to adduce evidence in which sufficient opportunity was provided by the Lower Court but the defendants have not taken any care to own their responsibility and ultimately held that this is not a case for remand as no case was made out to remand the matter to the Trial Court. Accordingly, the appeal was dismissed. Though the learned counsel for the appellant strongly contended that an opportunity ought to have been given by the Lower Appellate Court in order to substantiate the disputes between the parties. It is the specific case of the plaintiff that sufficient opportunity was given before the trial Court is not disputed and it is also not in dispute that more than 15 hearing dates were given for the defendants to avail the opportunity but they have not availed the opportunity in order to cross examine P.W. 1 and to prove their case. The contention of the learned counsel for the appellant that an opportunity should have been given by the Lower Appellate Court cannot be accepted. Both the Courts below concurrently held that the relationship between the parties is not disputed. Entitlement of share of the plaintiff, status of joint family properties and relationship of the parties is also not in dispute. The defendants cannot deprive the legitimate share of the plaintiff. Therefore, the appellants have not made out any prima facie case to interfere with the findings of fact recorded by the courts below based on the cogent legal evidence under the provisions of Section 100 of the Code of Civil Procedure in order to substantiate their case. No substantial question of law involved in the appeal. Accordingly, the appeal is dismissed at the stage of admission without reference to the respondents.