Sri P. Dharmapalaiah vs Smt. N. Kamala

K.L. Manjunath, J.—There is a delay of 108 days in preferring the appeal. Accepting the cause shown by the appellant, the delay is condoned. IA II/2012 is allowed accordingly. The appeal is taken up for hearing by consent and disposed of by this judgment. The appellant is questioning the legality and correctness of the judgment and decree dated 30-11-2011 in OS No. 251 of 2010, on the file of Additional City Civil Judge, Bangalore. The appellant was defendant in the suit.

For the sake of convenience, the parties would be referred to as per their status before the trial court.

The plaintiff has filed the suit for her half share in the suit schedule property by metes and bounds. It is her specific case that under a registered sale deed dated 27-2-2002, the suit schedule property was purchased jointly by the plaintiff and the defendant and a portion of the sale consideration has been contributed by the plaintiffs father M. Narayana Gowda. According to her, in the ground floor the defendant and his family members are residing and first and the second floors are let out and tenants are) residing there. The khata of the property stands in joint names of plaintiff and the defendant. It is her further case that in September, 2008, the plaintiffs husband P. Udayashankar deserted the plaintiff and sent her along with their children away from the matrimonial house. Therefore, the plaintiff and the children have already filed a petition for grant of maintenance against her husband Udayashankar. A suit is also filed by the plaintiff and the defendant against strangers to protect the suit schedule property in OS No. 6162 of 2003 and the same is pending decision. Since the relationship between the plaintiff and the defendant is strained, the present suit is filed claiming her half share in the suit schedule property by metes and bounds.

The defendant appeared before the court and engaged the services of an advocate. However, the suit was not contested. In the circumstances, the plaintiff got herself examined as PW 1 and marked Ex. P1 to 25. The trial court formulated the following points for its consideration:

(1) Whether the plaintiff is entitled for decree as prayed for?

(2) What order?

On appreciation of evidence let in by the plaintiff, the trial court held the point in the affirmative and accordingly the plaintiff is declared as owner of half share in the suit schedule property by metes and bounds and a preliminary decree to this effect is passed.

Challenging the legality and correctness of the judgment and decree, the present appeal is filed.

We have heard the learned counsel for both parties.

The main contention of learned counsel for the appellant is that the plaintiff-respondent after securing the possession of the suit schedule property may dispose of her share and in such an event, there will not be anything left to her children and so in the interest of children of the respondent-plaintiff, the suit has been filed. It is also the case of the appellant that the suit schedule property cannot be divided by metes and bounds.

Both grounds cannot be considered by this court. Admittedly, the suit schedule property stands jointly in the names of plaintiff and the defendant. Each of them is having half share in the property. On account of difference between the plaintiffs husband and herself, if she is residing separately, the same cannot be a ground for the defendant to deny the valuable rights of the plaintiff. Admittedly, the defendant is none other than the brother of husband of plaintiff. When the appellant is not disputing the ownership of the plaintiff, this court cannot find any fault with the judgment and decree of the trial court in holding the plaintiff is entitled for half share in the suit schedule property by metes and bounds. In the circumstances, this appeal is dismissed. Parties to bear their own costs.