IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO R.F.A.No.1889/2005 BETWEEN:
SMT M M KANIKE W/O B C POONACHA AGED ABOUT 47 YEARS, R/AT DOOR NO.1142,1ST CROSS, ASHOK NAGAR, MANDYA -570014 ..APPELLANT (BY SRI G.S.BHAT, ADVOCATE) AND:
1 . MR ACHENDIRA @ MUKKATIRA POONACHA S/O LATE BILLAPPA AGED ABOUT 57 YEARS, R/AT KIRANDADU VILLAGE MADIKERI TQ., KODAGU DISTRICT-580016 2 . MR ACHENDIRA @ MUKKATIRA BEEMAIAH S/O LATE BILLAPPA AGEDABOUT 52 YEARS, R/AT 5TH KSRP D.COY MYSORE NOW AT SHIMOGA -570013 3 . MR ACHENDIRA @ MUKKATIRA KUSHALAPPA S/O LATE BILLAPPA AGED ABOUT 42 YEARS, R/AT KIRANDADU VILLAGE, MADIKERI TQ., KODAGU DISTRICT-580016 4 . MR ACHENDRA @ MUKKATIRA EERAPPA S/O LATE AYANNA AGED ABOUT 67 YEARS, RETD. TEACHER, R/AT NEAR RAJA SEAT TO COLLEGE ROAD, MADIKERI-580016 5 . MR ACHANDIRA @ MUKKATIRA AIAYAPPA S/O LATE AIANNA AGED ABOUT 52 YEARS, R/AT KIRANDADU VILLAGE, MADIKERI TALUK, KODAGU DISTRICT -580016 6 . MR ACHENDIRA @ MUKKATIRA NANAIAH S/O LATE AIYANNA AGED ABOUT 55 YEARS, DISTRICT EMPLOYMENT EXCHANGE OFFICE, MADIKERI, KODAGU DISTRICT-580016 7 . MR ACHENDIRA @ MUKKATIRA THIMMAIAH S/O LATE THIMMAIAH AGED ABOUT 42 YEARS, R/AT KIRANDADU VILLAGE, MADIKERI TALUK, KODAGU DISTRICT-580016 8 . MR ACHENDIRA @ MUKKATIRA BIDDAPPA S/O LATE ANNAIAH, AGED ABOUT 64 YEARS, R/AT KIRANDADU VILLAGE, MADIKERI TALUK, KODAGU DISTRICT-580016 9 . MR ACHENDIRA @ MUKKATIRA MONNAPPA S/O LATE ANNAIAH, MAJOR C/O D A RATNAKAR, R/AT PRIYADARSHINI ESTATE, MOODIGERI POST, CHIKMAGALUR- 580020 10 . MR ACHENDIRA @ MUKKATIRA MADDAPPA S/O LATE KURUMBAIAH AGED ABOUT 61 YEARS, HEAD CONSTABLE SIDDAPUR P.STATION, SIDDAPUR TOWN, VIRAJPET TALUK, KODAGU DISTRICT -580016 11 . MR ACHENDIRA @ MUKKATIRA UTHAPPA S/O LATE KURUMBAIAH AGED ABOUT 55 YEARS, R/AT KIRANDADU VILLAGE, MADIKERI TQ., KODAGU DISTRICT-580016 12 . MR ACHENDIRA @ MUKKATIRA CHINNAPPA S/O LATE SOMAIAH, AGED ABOUT 71 YEARS, R/AT KIRANDADU VILLAGE, MADIKERI TQ., KODAGU DISTRICT-580016 13 . MR ACHENDIRA @ MUKKATIRA POONAPPA S/O LATE SOMAIAH, AGED ABOUT 54 YEARS, R/AT PUNJAD AND SIND BANK BANMAIAH ROAD, MYSORE-570015 14 . MR ACHENDIRA @ MUKKATIRA APPAIAH S/O LATE SOMAIAH, AGED ABOUT 60 YEARS, HEAD CONSTABLE GONIKOPPAL POST, GONIKOPPAL TOWN, GONIKOPPAL TOWN, VIRAJPET TQ., KODAGU DISTRICT-580016 15 . MR ACHENDIRA @ MUKKATIRA PALANGAPPA S/O LATE SOMAIAH, AGED ABOUT 59 YEARS, VSSSN KONDKAMAJULU KONDKAMAJULUL POST, SULIA TQ.,-570019 DAKSHINA KANNADA.
16 . MR ACHENDIRA @ MUKKATIRA POOVAIAH S/O LATE APPACHHA SINCE DECEASED BY LRS 16(a) MUKKATIRA MUTHAMMA AGED ABOUT 64 YEARS, W/O LATE POOVAIAH, KIRANADADU VILLAGE, MADIKERI TQ., KODAGU DISTRICT-580016 16(b) SMT MEENAKSHI VASANTHA AGED ABOUT 39 YEARS, W/O M C VASANTHA, HUNDIKERI VILLAGE, VIRAJPET TQ., KODAGU DISTRICT-580016 17 . SMT M M DHANALAKSHMI W/O D B VASUDEV AGED ABOUT 41 YEARS, R/AT KIRANADADU VILLAGE, MADIKERI TQ., KODAGU DISTRICT-580016 ..RESPONDENTS (BY SRI M S PRAKASH, ADVOCATE FOR R3, NOTICE TO R-
5 AND R-9 ARE DISPENSED WITH VIDE ORDER DATED 18.01.2011, APPEAL AGAINST R-7 DISMISSED VIDE ORDER DATED 02.11.2010, R-1, 2, 4, 6, 8, 10, 11, 12, 13, 14, 15, 16(a) & (b), 17 ARE SERVED) THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND AWARD DATED 12.09.2005 PASSED IN O.S.NO.9/98 BY THE CIVIL JUDGE (SR.DN), MADIKERI, DISMISSING THE SUIT FOR PARTITION, SEPARATE POSSESSION AND FUTURE MESNE PROFITS.
THIS RFA COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Counsel for appellant present. Counsel for respondent No.3 absent. Matter is of the year 2005. It is taken up for final disposal. Heard learned counsel for appellant.
Appeal is directed against the Judgment and decree dated 12.09.2005 passed in O.S.No.9/98 by the learned Civil Judge, Senior Division, Madikeri, Kodagu, wherein suit of the plaintiffs came to be dismissed by the learned trial Judge and being aggrieved by the said Judgment and decree the legal representative of plaintiff No.1-M.M.Kannike is in appeal.
2. In order to avoid overlapping and confusion, the parties are addressed in accordance with the rankings and status as stood in the trial court.
3. The plaintiff claims that she and defendant are the members of the Hindu Joint Family in possession of properties morefully mentioned in Schedule stated to be in joint possession and sought for separate possession and enjoyment of the same. It is stated that the contesting respondents are defendants 1, 3 and 11 and insofar as defendants 4, 6, 8, 10, 12, 14 and 15 have not contested and they endorsed the claim of the plaintiff. The parties are stated to be Hindus and governed by Hindu Mitakshara Law.
4. The learned trial Judge has considered the aspects of joint family, claims and contents of joint possession and pleadings connected to the matter and dismissed the suit holding that there was no partible properties and partition has taken place earlier and the suit of the plaintiffs does not deserve decree in their favour. The contesting defendants claim that there was already a partition in the family and joint family was disrupted.
5. Learned trial Judge was accommodated with the oral evidence of PW-1 –Dhanalakshmi and PW-2 – Kannike and documentary evidence Exhibits P-1 to P- 28 on behalf of the plaintiffs and oral evidence of DW-
1 –Chinnappa, DW-2 –Kushalappa on behalf of defendants.
6. Learned counsel for appellant would submit that the learned trial judge relied upon the stray sentence of PW-2 during cross examination and concluded that the joint nature of the family was disrupted in the earlier partition. As such schedule properties no more belonged to joint family in common possession and enjoyment of the plaintiffs and defendants. Moreover they are in possession of their separate and respective share of the properties. Thus, the solemn ground on which the suit came to be dismissed was that the joint family properties of the plaintiffs and defendants were not available for partition. It is stated thus, earlier in O.S.No.154/96 that was filed by the very father of the plaintiff Sri Machaiah and however the same came to be dismissed for default. Thus, the joint status of the joint family properties continued to be intact and the matter did not see the light of adjudication in the earlier round. The blood relationship or possession of the properties by joint family and other essential element of the blood relationship with parents and that of the plaintiffs and defendants are not disputed. In the context and circumstances the primary and substantial ground relied upon by the learned trial Judge is the cross examination of PW-2 which is as under:
“It is true that there was oral partition effected, but no measurement was made between the parties.”
7. The above reliance by the learned Judge cannot be appreciated.
8. Learned counsel for appellant in support of his submission has relied upon the decision in the case of Puttanna Shetty (deceased) by Lrs and others Vs Padma Shetty(deceased) by LRs and others reported in 2007(3) KCCR 2107.
9. In the context and circumstances and the nature of the case and schedule properties, it was necessary for the learned trial Judge to read every document or pleadings including the one relied upon by him. In the over all context and circumstances and the contentions between the parties coupled with their pre-existing rights, I find the trial Judge erred in jumping to conclusion that the joint family was disrupted and suit schedule properties were not partible. It is necessary to make repetition of what was stated earlier that defendant No.4 never contested against the claim of plaintiff. On the other hand they have submitted no objections for the decree. The termination of joint family in respect of joint family properties would happen when the shares are divided in proportion to the pre-existing undivided right, title, interest, possession and the related of each member.
10. The filing of the suit for partition by the father and thereafter getting it dismissed for non-prosecution is not proper.
11. Even if the evidence was over and the proceedings did not see logical conclusion it cannot be stated that the disposal of the joint family properties are effected in a valid and lawful manner and partition effected and they are all divided by metes and bounds.
12. Any amount of observation in this connection will only be repetition of words stated above. The conclusion being learned Judge erred in coming to conclusion that partition was complete. No documentary evidence regarding mutation or change of records pertaining to the properties stated therein were produced before the court and there was no recognition of separate allotment of the properties to each of the sharers. Even no circumstance is placed to hold partition was effected.
13. In the over all circumstances of the case none of the material aspects tell or show effecting of partition earlier as held by the trial court. I am not inclined to accept appreciation of evidence by the learned trial Judge to hold that the plaintiffs have no case as it is incomplete and a jumping one.
14. Thus, the result Judgment and decree dated 12.09.2005 passed in O.S.No.9/1998 by the learned trial Judge fails and it is liable to be set aside and accordingly it is set aside.
In the result, appeal is allowed. Judgment and decree dated 12.09.2005 passed in O.S.No.9/98 by the Civil Judge (Sr.Dn)., Madikeri, is hereby set aside. As a result suit of the plaintiff is decreed. Draw preliminary decree accordingly.
In the result considering the relationship between the parties, no costs.
Sd/- JUDGE SBN