Yallappa Revappa Pidai vs Balappa Revappa Pidai and Others

B. Veerappa, J.—This is an unsuccessful plaintiffs regular second appeal against the judgment and decree dated 19.04.2012 made in R.A. No. 289/2008 on the file of the Senior Civil Judge, Raibag, confirming the judgment and decree dated 17.11.2006 made in O.S. No. 250/1998 on the file of the Additional Civil Judge (Jr. Dn.) JMFC, Raibag, dismissing the suit for partition and separate possession filed by the plaintiff.

The brief facts of the case are as under:

According to the plaintiff that suit properties are ancestral joint family properties of the plaintiff and defendant Nos. 1 to 4. The name of defendant Nos. 5 to 13 were appearing in the record of rights of land R.S. Nos. 128, 129. So they were made as formal parties in the suit. Further it is case of the plaintiff that the name of plaintiff is alone appearing in the record of rights of the suit lands R.S. Nos. 128 and 129. The plaintiff and defendant Nos. 1 to 4 have purchased other properties which were shown in the schedule ''B'' property. But the name of present plaintiff is not appearing in the record of rights of ''B'' schedule properties which were purchased with the aid of joint family derived from ancestral joint family properties. All the suit schedule properties were joint family properties of plaintiff and defendants and they were in joint peaceful possession and cultivation of the suit schedule properties. The plaintiff further states that defendant Nos. 1 and 2 have filed false complaint against the plaintiff and his sons on 22.06.1998 and by colluding with Police personnel and the defendants have obtained thumb impression of plaintiff and got mutated bogus waradi to enter the names of defendant Nos. 1 and 2 in respect of land R.S. Nos. 128 and 129 with an intention to deny the valuable right of the 1/3rd share of the plaintiff over ''B'' schedule properties which were standing in the name of defendant Nos. 1 to 4. The defendant Nos. 1 to 4 were disturbing the plaintiffs joint possession over ''B'' schedule properties. Inspite of several requests also the defendants were not heed the words of plaintiff and also defendants were denied to allot the plaintiffs share in the suit schedule property. Therefore, the plaintiff filed the suit.

Defendant Nos. 1 to 4 filed written statement. Defendant Nos. 5 to 13 remained ex parte. Defendant Nos. 1 and 2 died during the pendency of the suit and their LRs. were brought on record.

Defendant Nos. 1 to 4 filed written statement and denied the plaint averments and contended that the suit filed by the plaintiff is false, frivolous, vexatious and untenable and contended that the father of the plaintiff, defendant Nos. 1 and 2 by name Revappa had gone in adoption to family of Doddayallappa and land R.S. Nos. 128, 129, 93/4, 93/8, 133/4, 134/11, 134/15, 134/16, 134/21 of Katakabhavi Village were all the ancestral lands of plaintiff and defendant Nos. 1 and 2. In the ancestral properties, the father of plaintiff and defendant Nos. 1 and 2 had got 1/3rd share. The plaintiff and defendant Nos. 1 and 2 had got effected mutual partition by metes and bounds in the presence of elders of their village in the year 1965 in all the ancestral properties equally 1/3rd share. Accordingly, in all the ancestral properties equally 1/3rd share were allotted to plaintiff and defendant Nos. 1 and 2. Since from the date of partition, they were in exclusive possession and enjoyment of their respective shares in the ancestral properties. There was a severance in the family of plaintiff and defendants in the year 1965 itself. Plaintiff and defendant Nos. 1 and 2 have separately residing with their respective family cultivating the properties. The defendant Nos. 1 and 2 were illiterate and innocent persons. After partition, the defendants were under impression that their names will be entered and accordingly in the record of right as per mutual partition so they were kept mum for so many years. Recently defendants came to know that the names of plaintiff and defendant Nos. 1 and 2 were not entered properly in their respective shares and necessary mutation of partition has been effected in the year 1965 under M.E. No. 1346 of Katakabhavi Village etc. Thereafter, both the plaintiff and defendant Nos. 1 and 2 appeared before the village elder for necessary rectification of the records as per the partition effected in the year 1965 and submitted a fresh waradi on 03.07.1998. Accordingly, mutation was effected in M.E. No. 4189 of Katakabhavi Village etc. Therefore, the defendants sought for dismissal of the suit.

Based on the rival contentions, the Trial Court framed the following issues:

"1. Does the plaintiff proves that, ''A'' and W suit schedule properties are ancestral and joint family properties of plaintiff and defendants?

Does the defendants No. 1 and 2 proves that, the there was already mutual partition between plaintiff and defendants No. 1 and 2 as alleged in para No. 11 and 12 of written statement?

Does the plaintiff proves that, the defendants No. 1 and 2 created bogus waradi in respect of R.S. No. 128 and 129?

Does the plaintiff is entitled for relfs, as sought for?

What order or decree?"

In order to establish his case, plaintiff examined as P.W. 1 and witnesses as P.Ws. 2 and 3 and marked the documents as Exs. P-1 to P-56. The defendant examined as D.W. 1 and witnesses as D.Ws. 2 and 3 and marked the documents as Exs. D-1 to D-32.

After considering the entire material on record, the Trial Court held that the plaintiff proved that ''A'' and ''B'' schedule properties were joint family properties of plaintiff and defendants and defendants proved that there was a partition between plaintiff and defendant Nos. 1 and 2 as alleged in paragraph Nos. 11 and 12 of the written statement. Accordingly, the Trial Court dismissed the suit.

Aggrieved by the said judgment and decree of the Trial Court, the plaintiff filed an appeal before the Lower Appellate Court in R.A. No. 289/2008 on the file of the Senior Civil Judge, Raibag, who after hearing both the parties by the impugned judgment and decree dated 19.04.2012 dismissed the appeal and confirmed the judgment and decree of the Trial Court. Against the said concurrent findings of fact, the present regular second appeal is filed.

I have heard the learned counsel for the parties to the lis.

Shri Vijay K. Naik, learned counsel for the appellant has raised solitary contention that both the Courts below erred in dismissing the suit holding that there was a partition in the year 1965 only on the basis of waradi or mutation entry as proof and that cannot be basis for partition in the absence of any other material. Therefore, he sought to set aside the judgment and decree of the Courts below.

Per contra, Shri Sachm S. Magadum, learned counsel for the respondent Nos. 1 to 5 sought to justify the impugned judgment and decree of the Courts below and contended that joint family property was divided as long back as 1965 and in terms of the partition, the revenue entries were affected separately in respect of the properties allotted each of the brothers i.e., plaintiff and defendants and they were residing separately and they are cultivating the properties allotted to them from the year 1965 till today. Therefore, learned counsel for the respondent Nos. 1 to 5 sought to dismiss the regular second appeal.

I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties to the lis and perused the entire material no record.

On considering the oral and documentary evidence of P.Ws. 1 to 3 and Exs. P-1 to P-56 and D.Ws. 1 to 3 and Exs. D-1 to D-32, the Trial Court recorded a finding that in view of the admission made by the son of plaintiff, P.W. 1 that the suit schedule properties were divided in the year 1965 and the RTCs. entered the name of all the persons in terms of the partition as per Exs. P-48 to P-52 which clearly depicts that there was a partition among the joint family members and they were residing separately. The Trial Court also recorded a finding that the names of the plaintiff and defendants appearing in the record of rights as per actual partition effected in the year 1965. Till today, plaintiff and defendants are in exclusive possession of the respective properties. After partition, both the properties have purchased number of properties out of their self-earnings. Therefore, those properties have not been purchased from the nucleus of joint family. After the partition in the year 1965, there was no joint family status consisting between plaintiff and defendant Nos. 1 and 2. Therefore, based on the oral and documentary and evidence on record, the Trial Court came to definite conclusion that there was a partition in the year 1965 between the plaintiff and defendants. Accordingly, the suit came to be dismissed.

On re-appreciation of the entire material on record, the lower Appellate Court concurring with the findings of fact recorded by the Trial Court has held that the partition took place in the year 1965 between the plaintiff and defendants in the presence of Panchas and consequently on the basis of joint waradi filed by the parties, mutation entry was effected in M.E. No. 3046 of Katakabhavi Village. As an effect of said mutation entry, the separate entries were made in the revenue records, but while writing the extent and survey numbers some mistake was committed in waradi and the same was rectified by filing a fresh waradi on 03.07.1998. The plaintiff had not ventured to enter the witness box and had chosen to examine his son Siddappa Yallappa Pidai as his general power of attorney. It is interesting that though P.W. 1 reiterates the plaint averments in the examination-in-chief by way of affidavit, he destroys the case of the plaintiff during the course of cross-examination by giving some material admissions which cannot be sidelined or brushed aside as stray admissions. The Trial Court had drawn the attention of the various admissions touching the point made by P.W. 1. At the first instance, P.W. 1 admits that before his birth plaintiff, defendant Nos. 1 and 2 were living separately and their names were found separately in the electoral list, they were having separate ration cards. He further admits the separate source of income of defendant No. 2 by admitting that the sons of defendant No. 2 are earning their separate income by making a job and contract work. He also admits that defendant No. 1 is having separate income from sheeps. He further categorically admits that defendant Nos. 1 and 2 have separately purchased some of the properties, but he aids that his father also has given the money for which there is no corroborative evidence. He also states that his father has also purchased some properties. Now it is very material to note that P.W. 1 categorically admits that about 60 years back his father, defendant Nos. 1 and 2 got divided the joint family ancestral properties. He further specifically admits that they have got divided their 1/3rd share each and they are in separate possession and enjoyment of their shares.

The lower Appellate Court also recorded a finding that another important aspect that cannot be sidelined is the copy of complaint, notice etc., given by plaintiff Yallappa himself against the defendants marked at Exs. P-48 to P-52. Ex. P-48 is the notice given by plaintiff to defendant Nos. 1 and 2, wherein P.W. 1 categorically states that Sy. Nos. 128 and 129 had fallen to his share in the partition between himself and defendant Nos. 1 and 2 and he was in possession of the same and defendants were interfering with his possession. Similarly, in Ex. P-51 the complaint given by plaintiff before Tahasildar, he categorically alleges that about 20 to 25 years back there was partition in the landed properties between himself and brother Balappa and Revappa and as per the said partition, he was in possession of R.S. Nos. 128 and 129. The said documents coupled with the admissions given by P.W. 1 is laudable to hold that plaintiff has proved the case of the defendants that there is already partition in the year 1965 itself.

The lower Appellate Court further recorded a finding that both the oral and documentary evidence clearly establishes that there was severance of status in the family in the year 1965 itself coupled with the division of properties, consequent, entries in the revenue records and subsequently independent dealings made by each party to the partition all the circumstances pin pointedly prove that there was partition in the year 1965 itself Therefore, the lower Appellate Court dismissed the appeal and confirmed the judgment and decree of the Trial Court.

It is worthwhile to mention that the plaintiffs son examined as P.W. 1 has categorically admitted in his evidence which reads as under:

Apart from the said categorical admission made on behalf of plaintiff, other revenue records depict that there was a partition in the year 1965. Therefore, the contention of the learned counsel for the appellant that both the Courts have committed en error in relying upon the waradi and entries to come to the conclusion that there was a partition between the brothers in the year 1965 cannot be accepted since the revenue records depicts that they were residing separately and enjoying their respective properties allotted in the year 1965 and the said fact has been also admitted by P.W. 1. Therefore, the said finding of fact recorded by both the Courts below is based on the cogent legal evidence on record. The same is in accordance with law. Appellant has not made out any prima facie case to interfere with the finding of fact recorded by the Courts below exercising of powers under the provisions of Section 100 of the Code of Civil Procedure, 1908. No substantial question of law involved in this appeal. Accordingly, the regular second appeal is dismissed at the stage of admission.