Sampangappa vs Kempamma and Others

A.S. Bopanna, J.—The appellant is assailing the judgment dated 24.07.2010 passed in R.A. No. 164/2005 to the extent where the Lower Appellate Court has excluded suit schedule item No. 4 property from the decree that had been granted by the trial Court to be partitioned as indicated therein.

The plaintiffs viz, Smt. Susheelamma and Smt. Kempamma had instituted the suit in O.S. No. 419/1994 seeking for partition and separate possession of the suit schedule item properties. The appellant herein was arraigned as defendant No. 7 to the suit. Defendant No. 7 had filed his written statement whereunder he had also sought for a share in the properties. Ultimately, the trial Court on taking note of the rival contentions had framed as many as six issues initially and two additional issues thereafter. On considering the evidence that was tendered by the parties, the trial Court had decreed the suit in part insofar as Item Nos. 1 to 4 and 6 to 9. Defendants No. 3, 4 and 5 instituted the appeal in R.A. No. 164/2005. Defendant No. 8 under whom respondent No. 10 herein claims right to Item No. 4 property had filed the appeal in R.A. No. 222/2008. The Lower Appellate Court on considering the said appeal by its judgment dated 24.07.2010 though upheld the judgment and decree of the trial Court insofar as the suit item Nos. 1 to 3 and 6 to 9, however arrived at the conclusion that the inclusion of Item No. 4 property to be partitioned is not justified and excluded the same. It is to be noticed that while doing so, the said consideration was made in R.A. No. 164/2005 since R.A. No. 222/2008 filed by Sri A.M. Gopal was dismissed as it was not accompanied by an application seeking condonation of delay. Since Item No. 4 property has been excluded, the appellant is before this Court as otherwise he would have been entitled to a share in that property as well.

Considering the nature of the contentions put forth before this Court, this Court by the order dated 20.09.2011 framed the following substantial questions of law:

"i) Whether the first appellate court committed an error in not framing the point namely, as to whether the schedule property at item No. 4 is a self acquired property and proved by the defendant No. 4?

ii) Whether the Trial Court committed an error in not framing an issue as to whether item No. 4 in schedule property is a joint family property or ancestral property of the plaintiff?"

A perusal of the questions of law raised would indicate that the conclusion ultimately that is required to be made is as to whether the Lower Appellate Court was justified in excluding the said property in Item No. 4 without raising a point for consideration in that regard. Though such substantial questions of law have been framed by this Court, what is also to be kept in view is the nature of the right that had been claimed by the appellant herein and the manner of consideration that had been made by the trial Court as well as the Lower Appellate Court and in that light, whether the contention as put forth by the appellant lead to a different conclusion than the one which has been made by the Lower Appellate Court.

To the said extent, on having heard the learned counsel for the parties, I have perused the appeal papers including the records received from the trial Court. A perusal of the judgment passed by the Lower Appellate Court would indicate that the Lower Appellate Court while appreciating the evidence available on record has taken into consideration the document at Ex. P12 viz, the RTC relating to the suit Item No. 4 property. The reference therein to the mutation proceedings in M.R. No. 6/92-93 has been taken into consideration and having noticed that the properties stood in the name of Sri A.M. Gopal i.e., defendant No. 8 to the suit has arrived at the conclusion that the said property did not stand in the name of the family members with regard to whom the consideration relating to the partition of the suit item properties were made and therefore excluded the same as it was not available for partition.

Learned counsel for the appellant would no doubt contend that the Lower Appellate Court was not justified in arriving at such conclusion merely because the said entries stood in the name of defendant No. 8 who was not a member of the family unless such conclusion was based on the fact that the property was the exclusive property of defendant No. 4 i.e., the vendor of defendant No. 8, who was a member of the family.

In reply to the said contention, the learned counsel representing respondent No. 10 would seek to contend that the said item of the property was the absolute property of defendant No. 4 and therefore the purchase as made by Sri A.M. Gopal is not contrary nor was it a purchase of joint family property. While taking note of the contention put forth by the learned counsel, it is also to be kept in view that defendant No. 10 was not a party to the suit nor to the appeal before the Lower Appellate Court. But the fact remains that respondent No. 10 has purchased the suit item No. 4 property on 26.06.2006 i.e. much prior to the appeal being filed before the Lower Appellate Court.

The learned counsel would refer to the application filed on behalf of respondent No. 10 seeking vacating of the interim order to contend that along with the said application, the documents are also produced to claim that defendant No. 4 had purchased item No. 4 property in the year 1963. Keeping this aspect in the background, though the said document was not produced as additional evidence either before the Lower Appellate Court or before the trial Court, the aspect that is also to be kept in view is that before the Lower Appellate Court, the consideration with regard to item No. 4 property to be excluded was made at the instance of the appellants in R.A. No. 164/2005 which included defendant No. 4 Sri Nanjundappa D.V., from whom Sri A.M. Gopal is stated to have purchased the property and thereafter sold to respondent No. 10.

While taking note of those aspects of the matter, the fact that the appellant herein was defendant No. 7 in the said suit also cannot be lost sight. This Court is not oblivious to the situation that in a suit for partition, all the parties seeking a share though if arrayed as defendants would stand as plaintiffs. Even then what is necessary to be noticed is that the appellant herein though had claimed a share in the property by filing his written statement and sworn to an affidavit before the trial Court by way of his evidence, the records of the trial Court indicate that his affidavit has been taken as that of D.W. 2. Learned counsel for the appellant no doubt would contend that though such affidavit is available on record, the same cannot be treated as his evidence. I am unable to accept such contention for the reason that the appellant herein who was defendant No. 7 having filed a separate written statement and having made a claim therein for share in the property was also required to tender his evidence and in that regard, the affidavit has been filed and as seen from the order sheet maintained by the trial Court dated 11.08.2004, the affidavit was taken on record on the said date and since the learned counsel for the other parties had stated that they did not propose to cross-examine him, the matter had been adjourned thereafter after treating it as his evidence.

Therefore, in a matter of the present nature, the said affidavit in any event cannot be ignored. In that light, if the affidavit is perused, though the claim in the written statement was made in respect of all the items of the property, the appellant herein viz, defendant No. 7 has deposed that he is seeking for a share in the suit items No. 1 and 7 properties. In such situation, when the Lower Appellate Court while considering the aspect has taken into consideration the entire aspect of the matter and re-appreciation of the evidence was made and in that regard, the evidence available on record with regard to item No. 4 property was also taken into consideration and a conclusion was arrived, I am of the opinion that merely because no point was raised in that regard by the Lower Appellate Court, it cannot be said that the Lower Appellate Court has committed an error in coming to its conclusion with regard to the correctness or otherwise of the judgment rendered by the trial Court.

Therefore, for the said reasons, I am of the opinion that the substantial questions of law raised in this appeal would have to be answered against the appellant herein. Hence, I see no reason to interfere with the judgment passed by the Lower Appellate Court.

Accordingly, the appeal stands disposed of.