Shivalingaiah and Others vs G.S. Veena and Others

Budihal R.B., J—This second appeal is preferred by the appellants-defendants 3, 4 and 5 challenging the judgment and decrees passed by the Courts below.

Respondent No. 1 herein and one G.S. Shivakumar being the plaintiffs filed the suit for partition and separate possession of all the suit schedule properties. Plaintiff Nos. 1 and 2 and defendant No. 2 are the children of defendant No. 1. Defendant Nos. 4 and 5 are the children of defendant No. 3. Defendant Nos. 1 and 3 are brothers. Defendants 7 and 8 are the purchasers of suit schedule item Nos. 4 and 5 from defendant No. 3. It is the case of defendant No. 3 that defendant No. 1 was residing at Kolgatta village since last 25 years after his marriage and defendant No. 3 being the Manager of the family was looking after the affairs of the suit schedule property. It is also the contention of defendant No. 3 that defendant No. 1 when he went to Kolgatta village in 1969 to look after the properties of his father-in-law, subsequently, he executed release deed in favour of defendant No. 1. It is also his further contention that the properties at Kolgatta were not at all included in this suit. Therefore the suit for partial partition is not at all maintainable. So far as suit schedule item Nos. 2, 4 and 5 are concerned, it is contended that the suit of the plaintiffs is barred by limitation. Considering these pleadings, the trial Court decreed the suit of the plaintiffs only in respect of suit schedule item Nos. 1 and 3 and dismissed the suit so far as suit schedule item Nos. 2, 4 and 5. Being aggrieved by the judgment and decree passed by the trial Court, the appellants herein have preferred R.A. No. 125/2007. The first appellate Court, after re-appreciating the entire material on record both oral as well as documentary, dismissed the appeal with cost confirming the judgment and decree passed by the trial Court. Being aggrieved by the same, the appellants herein who are defendant Nos. 3, 4 and 5 have preferred the present appeal.

Heard the arguments of the learned counsel appearing for the appellants herein on admission.

Learned counsel for the appellants during the course of his arguments submitted that materials on record clearly show that defendant No. 1 had gone to Kolgatta village after his marriage to look after the properties of the family of his wife and when he was so looking after the properties there, suit schedule item No. 2 was jointly sold by defendant Nos. 1 and 3 and out of the sale proceeds, defendant No. 1 used the proceeds for discharge of the loan amount and also for purchase of the properties at Kolgatta. It is also the contention of the learned counsel for the appellants herein that the properties purchased at Kolgatta were not at all included in the schedule of the plaint and the suit filed by the plaintiffs for partial partition of the properties is not at all maintainable, which aspect is not at all considered by the trial Court as well as by the first appellate Court. He has submitted that so far as suit schedule item Nos. 4 and 5 are concerned, the sales were effected long back and it was within the knowledge of defendant No. 1 who is the father of plaintiff Nos. 1 and 2. Therefore, the suit of the plaintiffs was barred by the law of limitation. He has submitted that in view of these legal aspects involved in the matter, the appeal is to be admitted.

I have perused the grounds urged in the appeal memorandum and the judgment and decree passed by the Courts below.

Looking to the pleadings of both the parties, the relationship is not in dispute. Defendant Nos. 7 and 8 are the purchasers of suit schedule item Nos. 4 and 5. Defendant Nos. 1 and 3 have jointly alienated the suit schedule item No. 4 and 5 to discharge the loan raised by defendant No. 1 and the properties were sold in the year 1977. Therefore, the trial Court assessing the materials placed on record and also considering the oral evidence of the parties has come to the conclusion that as the alienation was within the knowledge of the plaintiffs they cannot succeed in setting aside the said sale transaction effected in respect of suit schedule item Nos. 4 and 5. So far as suit schedule item No. 2 is concerned, it is held by the trial Court that even according to both the parties it is an admitted fact that defendant No. 3 was acting as a manager of the family and in that capacity he has sold suit schedule item No. 2 for the necessity of the family and therefore, plaintiffs cannot contend that the said alienation is not binding on them. Accordingly, the trial Court has decreed the suit partially in respect of suit schedule item Nos. 1 and 3.

So far as the contention of defendant No. 3 that unless and until the properties at Kolgatta are included in the suit, the suit is not maintainable, the trial Court has considered this aspect in detail and ultimately has come to the conclusion that defendant Nos. 3, 4 and 5 have utterly failed to prove the fact that defendant No. 1 has purchased some of the properties at Kolgatta village by investing the sale proceeds of suit schedule item No. 2. This finding recorded by the trial Court has been confirmed by the first appellate Court.

Looking to these materials placed on record and the concurrent findings of the Courts below, I am of the opinion that no illegality has been committed by the Courts below in coming to such conclusion. There are no grounds for this Court to interfere into the judgment and decrees passed by the Courts below. No substantial question of law is involved in this appeal. Accordingly, appeal stands dismissed.

In view of the dismissal of the appeal, I.A. No. 1/2013 filed for stay does not survive for consideration. Accordingly, it is disposed of.