Sri Muniyappa Since Dead by Lrs. (Sri. Sonnappa and Others) vs Sri Pillappa and Others

S.N. Satyanarayana, J.—Defendants 1(a) to 1(g) and defendant No. 3 in O.S. No. 283/2000 on the file of Civil Judge, Devanahalli, have come up in this second appeal impugning the concurrent finding of both the courts below in decreeing the suit of plaintiff for the relief of partition.

The fact that plaintiff and defendants are the descendants of propositus Munivenktappa is not in dispute. It is further not in dispute that there appears to be an oral partition between them in the year 1965. It is also seen that said partition is not acted upon though shares in some of the suit schedule properties is shown to have been allotted to the shares of some of the children of propositus Munivenkatappa. It is further seen that earlier to filing of O.S. No. 283/2000, another suit in O.S. No. 28/1986 was filed by some of the parties to the suit for the relief of partition, wherein a defence was taken regarding earlier oral partition. It is seen that said O.S. No. 28/1986 came to be dismissed on the ground that suit is not maintainable in view of earlier oral partition of 1965-1966. Though earlier suit was dismissed as not maintainable, it is not in dispute that no finding was given regarding the oral partition having taken place in the year 1965-66 and shares being allotted to the children of deceased Munivenkatappa and said partition being acted upon.

However, subsequent to dismissal of O.S. No. 28/1986, the present suit in O.S. No. 283/2000 is filed by one of the sons of Munivenktappa, namely Pillappa on the ground that oral partition of the year 1965-66 is unequal partition and it was not acted upon. Therefore, all the properties continued to be in joint possession and enjoyment of the members of joint family of Munivenkatappa. As such, he is entitled to have a share in all the joint family properties. In said suit, defendants took up a contention that earlier suit being filed in O.S. No. 28/1986 by some of the children of Munivenktappa and the same being dismissed in view of earlier partition, the present suit in O.S. No. 283/2000 could not have been filed for the same relief, as it would act as res judicata. The trial Court after framing issues based on the pleadings has given a considered opinion to the effect that partition of the year 1965-66 was not acted upon and in spite of said partition having taken place, suit schedule properties continued to be in joint possession and enjoyment of the members of joint family. However, insofar as the issues, which were specifically framed on the basis of defence raised by defendants, they are all answered in negative holding that they have failed to establish earlier partition being acted upon and each of the members of Munivenkatappa''s family being put in possession of their respective shares and they being in enjoyment of the same. The said view is confirmed in R.A. Nos. 26/2010 and 27/2010, which is filed by some of the defendants in O.S. No. 283/2000. As against the concurrent finding rendered by both the courts below in O.S. No. 283/2000 as well as R.A. No. 26/2010, this second appeal is filed by defendants 1(a) to 1(g) and defendant No. 3 in O.S. No. 283/2000.

Heard the learned Counsel for appellants. Perused the judgment and decree of both the courts below. On going through the same, it is clearly seen that defendants have failed to establish before the trial court that suit in O.S. No. 28/1986 filed by some of the members of joint family of Munivenkatappa is dismissed with reasoned finding on the issue to the effect that in fact there was an oral partition in the year 1965-66 and pursuant to which the parties to partition have been put in possession and enjoyment of their respective share. Instead, it would indicate that merely on the basis of defence raised in the written statement filed in O.S. No. 28/1986, said suit is dismissed as not maintainable. Since there is no finding in respect of the claim of plaintiff in O.S. No. 28/1986, mere dismissal of original suit in O.S. 28/1986 as not maintainable would not act as res judicata in Pillappa filing O.S. No. 283/2000 on the ground that alleged oral partition of 1965-66 is not acted upon, no share is passed on to any of the members of joint family and suit properties continued to be in joint possession and enjoyment of the members of joint family.

Hence, this Court find that the finding given by the trial court and confirmed by the lower appellate court on re-appreciation of the material available on record appears to be just and proper. In that view of the matter, the defence raised in the present suit i.e., O.S. No. 283/2000 is not maintainable, is without any basis and consequently, the judgment and decree passed by the trial court and confirmed by the lower appellate court in decreeing the suit of plaintiff identifying his specified share in suit schedule properties and also that of defendants therein, is just and proper. In view of the concurrent finding on facts by both the courts below holding that suit schedule properties are joint family properties and the same are available for partition between plaintiff and defendants, no grounds are made out for admission of this appeal, inasmuch as, no substantial question of law arises for consideration as against the concurrent finding of both the courts below. Accordingly, this second appeal is dismissed.