Sri. Kenchappa, Smt. Narasamma, Kum. Omkaramma and Sri. Revanna vs Smt. Rangamma

K.N. Keshavanarayana

The appellants 1 to 4 were defendants 1 to 4 while respondent was the plaintiff in O.S.No. 125/2007 on the file of Civil Judge (Jr.Dn.) and JMFC, Challakere. The respondent / plaintiff filed the said suit for partition and separate possession of her one half share in all the suit schedule properties. The subject matter of the suit are four agricultural lauds.

According to the case of the respondent / plaintiff, her husband late Donappa and Sri. Ningappa, father of defendant Nos. 1 to 4 are brothers being sons of one Sannakenchappa; that item No. 1 of the suit schedule properties measuring about 6 acres 35 guntas was the property owned by Sannakenchappa and after the death of Sannakenchappa, the same was succeeded by his two sons Ningappa and Donappa; that subsequently, from out of the income derived from item No.1, item Nos. 2 to 4 were acquired as such all the suit schedule properties are joint family properties. It was further alleged by the respondent / plaintiff that her husband died about 30 years prior to the date of the suit while Ningappa, father of the defendants died subsequently. According to her, she and her children have been in joint possession of the suit schedule properties along with the defendants and she is entitled for one half share to which her husband was entitled to.

The defendants contested the suit inter alia contending that soon alter the death of Sannakenchappa there was an oral partition between Ningappa and Donappa whereunder the only joint family property existing at that time, namely item No. 1 was divided among two brothers each getting about 3 acres 17 guntas and since then each of them were enjoying their respective shares. They further contended that after such partition Ningappa purchased item No.2 from his own income as such item No.2 was not a joint family property. It was their further case that item Nos.3 and 4 were subsequently granted by the Government in favour of Ningappa as such item Nos.3 and 4 are separate properties of Ningappa over which the husband of the plaintiff had no right. Therefore, they sought for dismissal of the suit. On the basis of the pleadings of the parties, the trial Court framed as many as 10 issues. The parties led oral and documentary evidence in support of their respective contentions.

The trial Court on assessment of the oral and documentary evidence answered issue regarding prior partition set up by the defendant in the negative and held that the defendants have tailed to prove the prior partition. The trial Court further held that item No. 1 which was admittedly joint family property was available to the family and therefore acquisition of item No.2 in the year 1963 was from out of joint family income derived from item No.1 as such item No.2 also acquired the characteristic of joint family property. However in the light of the evidence on record, the trial Court held that item Nos.3 and 4 are not joint family properties. The trial Court also held that the plaintiff being the wife of Donappa is in joint possession of item Nos. 1 and 2 and she is entitled for the share to which her husband was entitled. The contention of the defendants that the suit is not maintainable for not impleading the son and daughter of the plaintiff was also negatived since the plaintiff had specifically pleaded that the suit has been filed both for herself and on behalf of her children as the manager of her family. In that view of the matter, the suit was decreed in part directing partition of item Nos. 1 and 2 of the suit schedule and that the plaintiff is entitled for one half share in item Nos. 1 and 2, However, the claim of the plaintiff in so far as it relates to item Nos.3 and 4 was dismissed. Aggrieved by the said judgment and decree, the appellants / defendants preferred appeal before the Lower Appellate Court in P.A.No. 106/08. The Lower Appellate Court on reassessment of the oral and documentary evidence concurred with the finding of the trial Court and consequently dismissed the appeal. It is against these concurrent judgment of the courts below the appellants/defendants have presented this appeal,

I have heard the learned counsel appearing for the appellants. Perused the judgments under appeal.

Having heard the learned counsel for the appellants and after going through the judgment of the courts below. I am of the considered opinion that the appeal does not involve any question of law much less substantial question of law.

As noticed supra, even the defendant does not dispute the fact that item No. I viz., land bearing survey No.39/2 measuring 6 acres 35 guntas situated in Gopanahalli Village. Kasaba Hobli of Challakere Taluk belonging to the joint family of Sannakenchappa and his two sons viz., Ningappa and Donappa. There is no dispute that item No.2 viz., survey No. 180 measuring 5 acres situated in Devaramarikunte Village of Challakere Taluk was acquired under a registered sale deed dated 18.11.1963 in the name of Ningappa, father of the appellants/defendants. To deny the right of the plaintiff over item No.2, the defendants put forth a plea of prior partition. According to the defendants there was an oral partition between Ningappa and Donappa in the year 1955 itself. As the defendants put forth a plea of prior partition, the burden of proving the said fact was rightly cast on the defendants. The defendants in order to prove their contention examined first defendant as DW.1 and one Sauna Ramaiah as DW.2. Both the courts below on assessment of this oral evidence have held that the evidence led by the defendants in this regard is not acceptable. DW.2 is none other than the maternal uncle of the defendants. Though according to DW.2 he was present at the time of oral partition between Ningappa and Donappa whereunder they said to have divided item No. 1 of the suit schedule into two portions and started, enjoying their respective shares separately, in the cross-examination he has admitted that there were no change in the revenue entries. The first defendant examined as DW. 1 in the cross-examination has admitted that even now khatha in respect of survey No.39/2 (item No. 1) of the suit schedule continuous in the joint name of the plaintiff and defendants. If really there was an oral partition as far back as in the year 1955, the katha of item No.1 should have been bifurcated and the names of the two brothers ought to have been separately entered in respect of two portions. Thus the defendants have not been able to produce any acceptable evidence to substantiate the plea of prior partition. Therefore, the courts below have rightly held that the defendants have failed to prove the prior partition set up by them. If the case of the defendants as to the prior partition is held to be not established then it has to be held that the family continued to be joint, DW. 1 in his cross-examination has admitted that item No.2 was acquired from out of the income generated from item No. 1 of the suit schedule. In 1963, Ningappa father of the defendants was the kartha of the family as he was the eldest member. The family had extensive property in item No.1 which was measuring about 7 acres. DW. 1 in categorical terms has admitted that item No.2 was acquired from out of the income generated from item No. 1 In the light of these admitted facts, the courts below are justified in holding that item Nos. 1 and 2 are joint family properties and that, the plaintiff is entitled for partition and separate possession of one half share in item Nos. 1 and 2. The findings recorded by the courts below being questions of fact and having been recorded after proper appreciation of oral and documentary evidence, this Court sitting in second appeal cannot reappreciate the evidence and record a different finding of fact. In this view of the matter, I find no question of law much less substantial question of law in the appeal for consideration by this Court. In this view of the matter, the appeal is dismissed.