Thimmappa Gowda and Dayananda vs Derappa Gowda and Others

K.L. Manjunath, J.—Appellants who were defendants 2 and 3 in O.S. No. 18/2000 on the file of Addl. City Civil Judge (Sr. Dn.), Puttur, have challenged the legality and correctness of the judgment and decree passed on 03.03.2008, wherein the suit filed by first respondent has been decreed declaring that he is entitled for half share in plaint ''B'' schedule property. Heard the learned counsels for the parties.

The admitted facts in this appeal are as hereunder:

One Badkagowda was the propositus of the family. He had four sons by name Mailappa Gowda, Ramayya, Sankappa and Monta Gowda and Monta Gowda died issueless. Sankappa Gowda, during the lifetime of Badkagowda, went out of the family by executing a release deed in favour of his father Badkagowda and his two elder brothers Mailappa Gowda and Ramayya. Ramayya had two children by name Bommakka and only son Deerappa Gowda, the plaintiff. After the death of Badkagowda and Ramayya, plaintiff Deerappa Gowda filed the suit for partition and separate possession of half share in plaint ''B'' schedule properties. Plaint ''B'' schedule properties were acquired by Badkagowda, the grandfather of the plaintiff and father of defendant No. 1 after selling the ancestral properties. Contending that after the death of Badkagowda, his two sons Mailappa Gowda and Ramayya are entitled to equal shares and that there is no partition between Mailappa Gowda Gowda and Ramayya. It is further contended that the plaintiff is residing separately under a family arrangement by cultivating 90 cents of land in one of the items of plaint ''B'' schedule properties, filed the suit for partition and separate possession.

Chomakka, Wife of late Mailappa Gowda is defendant No. 1 Mailappa Gowda has two sons Thimmappa Gowda, Raghavendra and three daughters Gangamma, Kamala and Krishnamma. Thimmappa Gowda is arrayed as defendant No. 2. The three daughters of Mailappa Gowda viz., Gangamma, Kamala and Krishnamma are defendants 8 to 10. Defendants 3 to 7 are the children of second defendant Thimmappa Gowda. Defendant No. 11 Smt. Akkayya Hengsu is the daughter of Smt. Bommakka the elder sister of the plaintiff-Derappa Gowda. Defendants 12 and 13 are the two sons of Sankappa Gowda, who has executed a relinquishment deed in favour of Badkagowda, Mailappa Gowda and Ramayya.

The appellants-defendants having admitted the relationship between the parties and admitting the existence of the plaint ''B'' schedule property only contended that there was already oral partition under which 90 cents of land had fallen to the share of Ramayya, the father of the plaintiff and therefore, the suit for partition was not maintainable.

Based on the pleadings, the Trial Court formulated the following issues:

Whether the plaintiff has proved that himself and the defendants No. 1 to 10 are the members of Hindu undivided family and plaint A schedule genealogy is true and correct?

In the event of holding issue No. 1 in affirmative, whether the defendants have proved that there was already a partition as contended in para 7 of the written statement of the 2nd defendant?

Whether the plaintiff has proved that he is entitled for 1/2 a share in plaint B schedule property as prayed for?

What is the annual income of the plaint B schedule property?

Whether the plaintiff is entitled for future mesne profits?

Whether the suit is bad for non-joinder of parties?

Whether the 2nd defendant has proved that in the event of dismissal of the suit he is entitled for compensatory costs?

What order, what decree?

To prove their respective contentions, plaintiff Derappa Gowda has got himself examined as PW 1. He has relied upon Exs. P1 to P18. On behalf of the defendants, elder son of Mailappa Gowda, defendant No. 2-Thimmappa Gowda has been examined as DW 1 and no documentary evidence is relied upon by the defendants.

The Trial Court, after appreciating the oral and documentary evidence let in by the parties, has held issues 1 and 3 in the affirmative and issue Nos. 2 and 6 in the negative, issue No. 7 as does not survive for consideration and separate findings are given on issues 4 and 5. Ultimately the suit filed by the plaintiff came to be decreed holding that he is entitled for half share in plaint ''B'' schedule property towards share of Ramayya and the remaining half share belongs to defendant No. 2 who is appellant No. 1 in this appeal.

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

Though several grounds are urged in the appeal memo, at the time of arguments, the learned Counsel for the appellants has canvassed the following points only:

According to him, the Trial Court has committed an error in holding that the defendants have failed to prove the oral partition set up by them. According to him, the appreciation of evidence by the Trial Court is not proper. He further contends that the share allotted to the plaintiff is also incorrect, since the plaintiff is in possession of 90 cents of land in terms of the earlier partition. He further contends that since Bommakka was the daughter of Ramayya, the plaintiff is not entitled to half share in the plaint ''B'' schedule property. In the circumstances, he requests the Court to re-appreciate the evidence and set aside the findings of the Trial Court by modifying the decree.

Per contra, the learned counsel appearing for the respondent No. 1 submits that none of the grounds urged by the appellants'' Counsel are tenable because the appellants did not prove the earlier partition. According to him, in order to prove the earlier partition the defendants have not let in either oral or documentary evidence. He further submits the evidence of DW 1 conclusively proves that there was no partition and the contentions urged by the defendants in the written statement has not been proved. In the circumstances he requests the Court to dismiss the appeal.

Having heard the learned counsel for the parties, the only point to be considered by this Court in this appeal is:

Whether the appellants have proved that there was an oral partition between the two sons of Badkagowda viz., Mailappa Gowda and late Ramayya?

Whether the judgment and decree of the Trial Court requires to be interfered with?

As stated supra, the existence of plaint ''B'' schedule property is not in dispute. Geneology relied upon by the plaintiff and the relationship between the parties are also not in dispute. The only dispute is as to whether there was an earlier partition and in the earlier petition whether the plaintiff was allotted only 90 cents of land in plaint ''B'' schedule property and whether the allotment of share by the Trial Court is just and proper.

The burden is always heavy on the person who asserts that there was an earlier partition. To prove the earlier partition, except the self-serving testimony of DW 1 no other evidence is let in by the defendants. In order to appreciate whether the oral partition pleaded by the defendants is proved or not, it would be better for us to appreciate the evidence of DW-1.

In the cross-examination DW 1, he has admitted as hereunder:

I do not know what is the relief claimed by the plaintiff in the suit. Out of the suit schedule 90 cents of property is given to the plaintiff. The elders have given the 90 cents of the property orally to the plaintiff long back. Whatever land that is 90 cents given to the plaintiff, that is sufficient and the plaintiff is not entitled more than that. There is a palupatti executed among the father and sons between ourselves. That includes the 90 cents of land which was given to the plaintiff and who is in possession. As per the division in the palupatti the R.T.C. have been also been mutated. And the plaintiff is prevented from entering his name in the R.T.C.

In the further cross-examination DW 1 has admitted as hereunder:

The parties to the suit have got the equal share in the suit properties. There is no partition by metes and bounds and the said 90 cents were given just orally. I do not know whether the said 90 cents of property was given by calculating the shares or not. I do not know who were all present at the time of oral partition. Even I do not know the base for the oral partition.

From the above admissions, it is clear that the appellant who set up the oral partition has failed to prove the burden placed on him. When the burden placed on him is not discharged by proving the earlier partition, it is not possible for any Court to accept the contentions raised by the appellant in the written statement. It would also be useful for us to refer to certain other portions of the cross-examination of DW 1 wherein he has admitted as hereunder:

The suit schedule property has been succeeded by my father in a partition drawn by my grandfather. There is a document to evidence the said partition. The partition has been effected between my father and his brothers. But I do not know in which year the partition took place.

From the above admission, it is also fortified that at one breath, the appellant contends that there was oral partition; in another breath, he contends that there is a documentary evidence to prove the partition. No document is forthcoming before the Court to evidence the earlier partition. Even if no documents are available to prove the earlier partition, there was no difficulty for the appellant to have lead other evidence available to prove the earlier factum of partition. In such circumstances, if the Trial Court has decreed the suit, this Court cannot find fault with the findings on issue No. 2. Having held so, this Court also cannot find fault with the share allotted to the plaintiff, because he is the only son to his father Ramayya, who had half share in the plaint schedule property. If at all, tenth respondent who was defendant No. 11 the daughter of the elder sister of the plaintiff can only question the share claimed by the plaintiff and she has not contested the suit. It is also the case of the plaintiff that his elder sister Bommakka i.e., mother of 11th defendant died prior to 1956. If it is so, respondent No. 10 herein cannot claim any share through her mother. Hence we answer point No. 1 in the negative. In the result, the appeal is dismissed and impugned judgment and decree passed in O.S. No. 18/2000 is upheld. In view of the relationship of the parties, we pass no order as to costs.