IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE H.P.SANDESH REGULAR FIRST APPEAL NO.1443/2013 BETWEEN:
K.B. DODDACHENNAPPA SON OF LATE K.M. BUDDANNA AGED 75 YEARS No.172, ANCHEKERI KENGERI BENGALURU-560 060. ... APPELLANT (BY SRI. M.S. JITHENDRA, ADV. FOR SRI. B.S. PRASAD, ADV.) AND:
1. RAMADAS S/O. LATE K.M. BUDDANNA AGED 52 YEARS R/O. No.336, EWS 5TH MAIN KENGERI SATELLITE TOWN BENGALURU-560 060.
2. K.M. MUNIKRISHNAPPA S/O. LATE K.M. BUDDANNA AGED 64 YEARS R/O. No.395, 1ST FLOOR 9TH MAIN HANUMANTHANAGAR BENGALURU-560 019.
3. P. LAKSHMAN PRAMOD KUMAR S/O. B. PRASANNAIAH AGED ABOUT 34 YEARS R/O. No.26 KARMIC SHANKARAPURAM BENGALURU-560 004. ... RESPONDENTS (BY SRI. K.S. NARAYANASWAMY, ADV. FOR R1 – ABSENT SRI. B.S. RAGHU PRASAD, ADV. FOR R2 – ABSENT R3 SERVICE HELD SUFFICIENT) THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 14.08.2013 PASSED IN O.S.NO.5662/2004 ON THE FILE OF THE XVIII ADDL. CITY CIVIL JUDGE, BENGALURU, DISMISSING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.
THIS RFA COMING ON FOR FURTHER ARGUMENTS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is filed by the appellant/plaintiff challenging the judgment and decree of dismissal passed in O.S.No.5662/2004 dated 14.08.2013 on the file of XVIII Additional City Civil Judge, [CCH. No.10], Bengaluru City.
2. The parties are referred to as per their original rankings before the Court below to avoid confusion and for the convenience of the Court.
Brief facts of the case:
3. It is the case of the plaintiff that suit in O.S.No.5662/2004 was filed against the defendants for partition and separate possession of his 1/3rd share in respect of land bearing Sy.No.115/7a measuring 17 guntas at Kengeri Village, Bengaluru South Taluk which is morefully described in the suit as schedule property. It is his further case that the grand father of the plaintiff and defendant Nos.1 and 2 by name Muniyappa had three sons by name K.M. Buddanna, K.M. Dasappa and K.M. Chennappa. Muniyappa died in the year 1958. K.M. Buddanna had three wives by name Muniyamma, Chennamma and Thimmakka. The plaintiff is the son of K.M. Buddanna through first wife Muniyamma. Defendant Nos.1 and 2 are sons of K.M. Buddanna through second wife Chennamma and third wife Thimmakka respectively. It is also the case of the plaintiff that there was a registered partition deed dated 08.12.1948 in between K.M. Buddanna, K.M. Dasappa and K.M. Chennappa. In the said partition deed, suit schedule property was given for maintenance of the plaintiff’s grand mother Muniyamma measuring 1 acre, 11 guntas. Muniyamma was exclusively in possession and enjoyment of the said property.
4. The plaintiff got divided from his father by taking separate properties. Muniyamma died about 15 years back. After the death of Muniyamma. Plaintiff’s father and two brothers by name Dasappa and Chennappa have orally partitioned 1 acre, 7 guntas of land in Survey No.115/7A. In the said partition, present suit schedule property fall to the share of father of the plaintiff, K.M. Buddanna. The land of plaintiff in Survey No.115/7d is abutting to the suit schedule property which is given to his grand mother Muniyamma. Plaintiff was cultivating 1 acre, 11 guntas given to Muniyamma and he was giving half share to his grand mother Muniyamma by means of crop. After the death of Muniyamma, plaintiff was cultivating 17 guntas of land which is allotted to his father i.e., suit schedule property. The father of the plaintiff died in the year 1987. After his death, plaintiff continued cultivation in the suit schedule property. After the death of his father, plaintiff had demanded for partition and separate possession in respect of the suit schedule property and the defendants refused for the same and hence, he filed the suit for the relief of partition.
5. In pursuance of the suit filed by the plaintiff, summons were issued to the defendants. The second defendant appeared before the Court and filed written statement admitting the case of the plaintiff and also claimed 1/3rd share in the suit schedule property.
6. The defendant No.1 in his written statement contended that the suit of the plaintiff is not maintainable and the same is bad for non-joinder of necessary parties. The suit is hopelessly barred by limitation as Muniyamma died in the year 1988. Rest of the case of the plaintiff has also been denied and contended that plaintiff has no right, title and interest over the suit schedule property, question of demand for partition does not arise. The plaintiff is not entitled for any share. The plaintiff has separated from his father as early in the year 1962 by means of registered partition deed. The plaintiff has made illegal claim to take money by executing document in favour of his father stating that he has no right, title and interest over the suit schedule property. Hence, the suit of the plaintiff is not maintainable.
7. Defendant No.3 is the purchaser of the suit schedule property during the pendency of the suit. Though summons has been served, he remained absent and placed exparte.
8. The Court below, based on the pleadings of the parties framed the following issues:-
1. Whether the plaintiff proves that the suit property was given for maintenance of the plaintiff’s grandmother Muniyamma under the Partition Deed dated 8.12.1948?
2. Whether the 1st defendant proves the partition referred to in paragraph 14 of the Written Statement?
3. Whether the plaintiff is entitled to 1/3 share in the suit property?
4. To what extent?
9. The Court below also framed the additional issue with regard to limitation as follows:-
1. Whether 1st defendant prove that the suit is barred by limitation?
10. Plaintiff in order to substantiate his claim, examined himself as P.W.1 and got marked the documents at Exs.P1 to 17. Defendant No.1 examined himself as D.W.1 and defendant No.2 examined himself as D.W.2 and got marked Exs.D1 to D4. The Court below considering both oral and documentary evidence answered issue No.1 in the affirmative, issue No.2 as partly affirmative, issue No.3 in the affirmative and the additional issue No.1 with regard to limitation in the affirmative and dismissed the suit on the ground of limitation. Hence, the present appeal is filed before this Court.
11. In spite of affording an opportunity to the respondents, they did not choose to address their arguments. Hence, it is taken as no arguments on behalf of the respondents. Considering the grounds urged in the appeal memorandum and also the arguments of the appellant’s counsel, the points that arise for consideration of this Court are:-
1. Whether the Court below has committed an error in answering the additional issue No.1 in the affirmative and committed an error in dismissing the suit of the plaintiff and it requires interference of this Court?
2. What order?
12. Point Nos.1 and 2:- There is no dispute with regard to the fact that the suit schedule property was given for maintenance of the plaintiff’s grand-mother Muniyamma under partition deed dated 08.12.1948 and also the Court below, while considering the material on record, answered issue No.1 in the affirmative. The second defendant also supported the case of the plaintiff but defendant No.1 contested the suit stating that there was already a partition in the year 1962 between the plaintiff and his father Buddanna and the plaintiff is residing separately. The document at Ex.D1 shows that on 12.10.1962 itself the plaintiff has got his share by means of registered partition deed. It is also the specific case of the plaintiff that he has separated from his father taking share by way of partition and residing separately. Defendant No.1 relied upon Ex.D4 executed by the plaintiff. The Court below considering the material on record partly answered issue No.2 in the affirmative stating that there was a partition in the year 1962 and the plaintiff got separated from the joint family by taking his share as per Ex.D1. The Court below while answering issue No.3 held that the plaintiff is entitled for 1/3rd share in the suit schedule property and answered the said issue in the affirmative and formed the definite opinion that plaintiff and defendants are entitled for 1/3rd share in the suit schedule property. However, while considering the additional issue No.1, the Court below held that plaintiff was out of the joint family in the year 1962 itself. When the registered partition was taken place in terms of Ex.D1, the question of constituting joint family does not arise at all. The Court below while considering the additional issue No.1 failed to take note of the fact that the grand-mother died in the year 1985 and father died in the year 1987. In terms of partition deed dated 8.12.1948, the suit schedule property was allotted in favour of the grand-mother and also there is no dispute with regard to the said fact. It is also important to note that in the said partition, a life interest was created in favour of the grand-mother Muniyamma and after her death, it should be devolved upon sons i.e., Buddanna, Dasappa and Channappa and accordingly, after the death of the grand-mother, property was devolved upon all of them. Father of the plaintiff died in the year 1987 and the same is also not in dispute. The Court below fails to take note of the fact that as on the date of partition among the brothers in the year 1962 in terms of Ex.D1, the property which is involved in the suit was not available for partition. Since the grand-mother was alive in the year 1962 and she died in the year 1985 and in spite of the other family members got separated from the family in respect of other properties, the father who died in the year 1987 did not execute any testamentary document in favour of his children in respect of the said schedule property which came to him after the death of his mother.
13. When such being the case, the Court below ought not to have come to the conclusion that suit was filed after 12 years and since the mutation was made and effected in the year 1992 itself and suit is barred by law of limitation and the very approach of the Trial Court is erroneous.
14. In the cross-examination of D.W.1, it has been categorically admitted that each of his father’s brothers got 17 guntas including 2 guntas of kharab land and also admitted that 17 guntas of land fell to the share of his father was changed into his name in the year 1992. No notice was served on the plaintiff while changing the khatha of the said land into his name. He also categorically admits in the cross-examination that when there was partition between the father of the plaintiff and the plaintiff, the property of Muniyamma was not available for partition since she was very much alive during that period. In spite of all these admissions elicited from the mouth of D.W.1, the Court below fails to take note of both the oral and documentary evidence and proceeded in an erroneous manner in coming to the conclusion that suit is barred by law of limitation. The very approach of the Trial Court is erroneous and the reasons assigned by the Trial Court is opposed to law and the same is not sustainable in the eye of law.
15. The Court below while considering the additional issue No.1 committed an error in ignoring the material evidence available on record and also the question of law involved in the matter since the father did not execute any testamentary document during his lifetime. The fact that his father has received the share to an extent of 17 guntas in respect of property of the grand- mother, which was given to her for maintenance as life interest is not in dispute. When there is no such testamentary document and also no notice was given to the plaintiff while changing the revenue documents in favour of the defendant, the question of limitation does not arise at all. The Court below ignored the materials on record and committed an error in answering the additional issue No.1 in the affirmative. Hence, it requires interference of this Court. Accordingly, I answer point No.1 in the affirmative.
16. In view of the discussions made above, I pass the following:-
ORDER (i) The appeal is allowed.
(ii) The impugned judgment and decree dated 14.08.2013 passed in O.S.No.5662/2004 on the file of XVIII Additional City Civil Judge (CCH.No.10) Bengaluru City is hereby set aside.
(iii) The suit filed by the plaintiff is decreed as prayed for.
(iv) The parties to bear their own costs.
Sd/- JUDGE ST/PYR