Uthamma and Others vs R. Venugopala Reddy and Others

S. Abdul Nazeer, J.—This appeal is directed against the judgment and decree in R.A. No. 202/2009 dated 8.6.2012 on the file of the Principal Senior Civil Judge & CJM at Kolar.

The appellant/plaintiffs filed a suit O.S. No. 33/2007 against the respondent/defendants for partition, separate possession of the suit schedule properties. It is the case of the plaintiffs that late Kothur Muneppa was the propositus of the family. He had two sons, namely, late Byrappa and late Narayanappa and one daughter late Chinna Papamma. Chinna Papamma is the mother of plaintiff No. 1. The second plaintiff is the son of the first plaintiff Late Byrappa had a son by name Venugopala Reddy, who is the first defendant. Narayanappa and his wife are no more. According to the plaintiffs, themselves and defendants are joint family members and are undivided. Their demand for partition of the suit schedule property has not been acceded to by the defendants. Item Nos. 2 to 9 of the plaint schedule properties are joint family properties. Item No. 1 of the plaint schedule property was granted in favour of Narayanappa on behalf of the family.

The defendants have filed their written statement contending that the husband of defendant No. 3 and father of defendant Nos. 4 to 6 had filed a suit in O.S. No. 65/1988 seeking a decree directing Narayanappa, son of Kolatur Muniyappa and second defendant R.C. Papireddy to execute a sale deed in respect of schedule item No. 1 of the property in his favour. The suit was contested by the defendants therein. It was decreed on 29.8.1991. The appeal filed by the second defendant in R.A. No. 79/1991 was dismissed on 8.10.1993 confirming the decree of the trial Court. The said decree was executed in Ex. No. 105/1998. The instant suit has been filed to knock off item No. 1 of the suit schedule property as instigated by the second defendant. Item No. 1 of the suit schedule property is not an ancestral property. It was the exclusive property of Narayanappa. The plaintiffs have no right, title or interest whatsoever in respect of the suit schedule property.

On the basis of the pleadings of the parties, the trial Court has framed the relevant issues. The parties have let in evidence and documents were marked. The trial Court on appreciation of the materials on record has decreed the suit in so far as item Nos. 2 to 9 of the suit schedule property is concerned and dismissed the suit in respect of item No. 1 of the suit schedule property. The trial Court held that plaintiffs are entitled for their share in suit item Nos. 2 to 9.

The plaintiffs challenged the said decree by filing an appeal in R.A. No. 202/2009 only in so far as dismissal of their suit in respect of suit schedule item No. 1 of the property. The appeal was contested by the respondents herein. The first appellate Court has again re-appreciated the entire evidence on record and has dismissed the appeal. The appellants/plaintiffs have challenged the said decree of the first appellate Court in this appeal.

The contention of the learned Counsel for the appellants is that the suit schedule property was granted to Narayanappa for and on behalf of the family. Therefore, the courts below are not justified in dismissing the suit of the plaintiffs in respect of item No. 1 of the suit schedule property. Thus, the challenge is only in respect of item No. 1 of the suit schedule property.

P.W1 in his evidence has stated that he does not have any document to show that item No. 1 of the suit schedule property is the joint family property. He has admitted that item No. 1 was granted to Narayanappa by the State Government. It is not in dispute that on 13.7.1987, Narayanappa had executed an agreement to sell the property in favour of the husband of the defendant No. 3. Since Narayanappa did not execute the sale deed, a suit was filed for specific performance of the said agreement in O.S. No. 65/1988, which was decreed by the trial Court. The said decree was confirmed by the first appellate Court in R.A. No. 79/1991. P.W1 in his evidence pleads ignorance of filing of this suit and the decree passed therein. However, he has admitted that the application filed by his mother to implead her in the said suit has been rejected. It is thus clear that P.W1 was aware of the proceedings in O.S. No. 65/1988 in relation to item No. 1 of the suit schedule property.

As noticed above, no documents have been produced to show that suit schedule item No. 1 of the property was granted in favour of Narayanappa for and on behalf of the joint family. Admittedly, the said property was granted to Narayanappa. The evidence of P.W1 to P.W3 also do not indicate that the said property has been granted to the joint family. Therefore, the trial Court has observed as under:

"12. On going through the oral evidence of P.W1 to P.W3, the plaintiffs have failed to prove that the item No. 1 property is the joint family property. It is admitted by all the witnesses that the item No. 1 property is granted to one Kolathur Narayanappa. But the case of the plaintiffs is that the same has been granted to him on behalf of all the family members. The plaintiffs have failed to prove that the item No. 1 property has been granted to Narayanappa on behalf of joint family. No document has been produced in that regard. More over it is the duty of the plaintiffs to show to the Court by producing documentary evidence that the item No. 1 property has been granted in favour of Narayanappa on behalf of their family."

The first appellate Court has again re-appreciated the entire evidence on record to come to a conclusion that item No. 1 of the suit schedule property did not belong to joint family. No materials whatsoever have been produced to show that item No. 1 of the suit schedule property was granted to joint family. It was the absolute property of Narayanappa. I do not find any merit in this appeal. It is accordingly dismissed.

In view of the dismissal of the appeal as above, I.A. No. 2/2012 does not survive for consideration. It is accordingly dismissed. No costs.