S.M. Mallegowda vs S.M. Anne Gowda and Others

N. Kumar, J—This is plaintiff''s Regular First Appeal challenging the judgment and decree of the Trial Court wherein the suit for partition and separate possession was dismissed on 2.8.2014.

For the purpose of convenience, parties are referred to as they are referred to in the original suit.

The subject matter of the suit is about 29 items of agricultural land bearing different survey numbers wherein Coffee is grown, rest is the wet land which are more particularly, described in the schedule to the plaint and hereinafter referred to as ''scheduled properties''

Plaintiff and defendant Nos. 1 to 5 are the sons of late Manjegowda, son of Annegowda. Defendant No. 6 is the son of defendant No. 1, defendant No. 7 is the son of defendant No. 2. Defendant No. 8 is the purchaser. Manjegowda died leaving behind the plaintiff and defendant No. 1 to 7 as his legal heirs and the scheduled properties.

The case of the plaintiff is that the scheduled properties are ancestral and joint family properties of the plaintiff and defendant Nos. 1 to 7. Defendant Nos. 1 to 7 colluded with revenue officials cooked up M.R. Extracts in respect of the plaint schedule properties without any partition deed and that plaint scheduled properties are in joint and constructive possession of the defendants and plaintiff. Plaintiff requested and demanded for partition of the scheduled properties and allotment of equal share Defendants were cleverly postponing the partition on one or the other reason. Therefore, he got issued a legal notice. Though the defendants were duly served with the notice they did not comply with the demand made therein. Therefore, the plaintiff filed a suit for partition and separate possession of his legitimate share in the plaint scheduled properties.

After service of suit summons, defendants entered appearance. Defendant No. 1 filed the written statement, but he did not dispute the relationship pleaded in the plaint. He also admitted that the plaint scheduled properties are joint family properties, but he denied any collusion with the revenue officials in getting the M.R. extracts in their name. The allegation is that there was no partition. The specific case pleaded is that after the death of the father of the plaintiff, their mother/Smt. Gowramma, advised them to divide the joint family properties. Accordingly, before the villagers and elders, partition took place on 28.2.1996 and a palupatti was drawn under that partition. The plaintiff was allotted Sy. No. 121/3P, measuring 1. acre 7 guntas, Sy. No. 134/4, measuring 17 guntas, Sy. No. 17/5, measuring 5 guntas and Sy. No. 134/5, measuring 1.5 guntas and 35 guntas of Sarkari Beelu The plaintiff is in possession and cultivation and enjoyment of the property allotted to his share.

On the advise of the mother, well irrigated land has been given to the plaintiff and some lesser share has been given to the plaintiff as he was Government employee working as a school teacher. The defendants are all unemployed. Therefore, the mother of the parties advised to give some less share to the plaintiff. From the said date, the plaintiff is in enjoyment and cultivation of his share of property. The defendants have invested huge amount and they are cultivating their share. Plaintiff is a school teacher has excluded his share of land. Therefore, the plaintiff wants to claim in the other properties on the ground that there was no partition at all. Therefore, the suit for partition was barred by limitation as the partition took place on 28.2.1996 and palupatti was also drawn. Accordingly, prayed for dismissal of the suit.

3rd defendant has filed a separate written statement admitting the relationship, the nature of properties and denying the collusion pleaded by the plaintiff and he has reiterated what is stated by the first defendant in his written statement.

8th defendant purchaser adopted the written statement filed by defendant Nos. 1 and 3. His specific case is, he has purchased the suit item No. 27 i.e. property in Sy. No. 153/BP2 measuring 20 guntas of land from Mogappagowda and Annegowda under the registered sale deed dated 27.8.2011 for a sum of Rs. 1,50,000/-. He is in possession and he has invested a huge amount by taking loan from the Bank. Accordingly, he claims that he is a bona fide purchaser of the suit schedule property and sought for dismissal of the suit.

The trial Court on the aforesaid pleadings framed the following eight issues:

"1. Whether the plaintiff proves that the suit schedule properties are their ancestral and joint family properties and he ha got right to claim share over the suit schedule properties?

Whether the defendants prove that a legally valid partition has already taken place in their family?

Whether the defendant No. 8 prove that he is the bona fide purchase of the suit item No. 27?

Whether the suit is properly valued and requisite court fee is paid on the plaint?

Whether the suit is barred by limitation?

Whether the plaintiff is entitled for the relief claimed in the suit?

Whether the plaintiff is entitled for the re-opening of the partition?

What order or decree?"

Plaintiff in order to substantiate his claim, examined himself as P.W. 1 and produced 40 documents which were marked as Ex. P1 to P40. On behalf of defendants, Sri S.M. Annegowda as D.W. 1 and Sanjay the purchaser-8th defendant was examined as D.W. 2 and they have produced and marked documents as Ex. D1 to D11.

The trial Court, on the basis of aforesaid oral and documentary evidence on record held, the plaintiff has failed to prove that the suit schedule properties were their ancestral properties and family properties and he had right in the said properties. The defendants have proved there was a partition of the aforesaid ancestral and joint family properties on 28.2.1996. Defendants have produced Ex. D1 the palupatti. 8th defendant has proved that he is a bona fide purchaser for valuable consideration of suit item No. 27. The suit is also barred by limitation. The plaintiff is not entitled for re-opening of the partition and therefore, it was held, plaintiff is not entitled for the relief and accordingly the suit came to be dismissed.

Aggrieved by the said Judgment and Decree, the plaintiff has preferred this appeal.

Learned counsel for the appellant assailing the impugned Judgment and Decree contended, admittedly plaintiff has been allotted a lesser share compared with other defendants. The partition effected is unequal and therefore, the plaintiff is entitled to seek for re-opening of the partition and equal share with the defendants. The trial Court committed a serious error in rejecting the case of the plaintiff and in dismissing the suit.

In the light of the aforesaid submission, the point that arises for our consideration in this appeal is:

"whether the plaintiff is entitled for reopening of the partition and thereafter, partition and separate possession, of his share in the property?

The pleadings in the case make it clear, suit is one for partition and separate possession on the ground that schedule properties are all ancestral/joint family properties and there is no partition in the family. If there was no partition in the family, the plaintiff being one of the sons of Manjegowda and all other sons would have been entitled to equal share in the land. However, defence set up was the schedule properties were all ancestral properties and after the death of the father, on the advise of their mother all the joint family members effected a partition on 28.2.1996 and Palupatti was made. Plaintiff is a party to the said Palupatti as he has affixed his signature which is admitted by him. The plaintiff was working as a teacher. Therefore, in the said partition, valuable properties were given to him and the share given to him is less when compared to the defendants. This was done on the advise of the mother. Having taken his share in the year 1986, he being a teacher, probably was unable to cultivate the land as he was not dependant on the income of the land whereas, the defendants were agriculturists who were completely depending on the land having improved the land cultivating the land, 15 years after the partition, the plaintiff has brought the suit for partition. Suppressing these facts, he has filed suit. It is not his case that partition is not effected on 28.2.1996. But it is unjust, unequivocal and therefore, it requires to be reopened giving him legitimate share equal to that of other defendants.

It is not in dispute that in the said partition, mutation entries have been made in the name of plaintiff in respect of the properties which are allotted to him. Similarly, mutation entries are made in the name of defendants in respect of the properties which are allotted to them. Copies of the mutation entries are produced and marked which are not in dispute. It is only when the 8th defendant purchased a portion of the property from the sharer, probably, the plaintiff has brought the suit. The claim is not a bona fide one. When once all the joint family properties are partitioned by metes and bounds and mutation entries are made on that basis, the defendants have enjoyed their respective properties for over 15 years and have improved the properties by their hard labour, it is too late in the day for the plaintiff to contend that the suit schedule properties are joint family properties. He has kept quite for nearly fifteen years and now put-forth his claim for partition or re-opening of the partition. As the plaintiff is a party to the palupatti, the suit for re-opening of the partition ought to have been filed within three years from the date of such partition. The plaintiff is the only educated man in the family. He has affixed his signature. On that basis, he has got khatha transferred into his name in respect of the property which fell to his share and therefore, nearly after fifteen years, the plaintiff has filed this suit. It is certainly barred by time.

Under the circumstances, we do not see any merit in this appeal. The trial Court, on proper appreciation of the oral and legal evidence on record, has rightly held that the plaintiff is not entitled to any share in the schedule properties and suit for partition is not maintainable as all the schedule properties are already partitioned. The finding of the trial Court that the suit is barred by time is in accordance with law.

For the aforesaid reasons, we do not see any merit in this appeal.

Accordingly, the appeal is dismissed.