IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM REGULAR SECOND APPEAL NO.201 OF 2017 BETWEEN:
1. SEETHAMMA W/O CHANDAYA GOWDA AGED ABOUT 59 YEARS RESIDING AT BHATTAJE HOUSE KURIYALA VILLAGE BANTWAL TALUK, D.K. 575001 2. HEMAVATHI AGED ABOUT 41 YEARS D/O CHANDAYA GOWDA W/O RAMESH GOWDA RESIDING AT KEMMINJE HOUSE DARBE, PUTTUR PUTTUR TALUK, D.K. 575001 3. YASHODHA.M AGED ABOUT 39 YEARS D/O LATE CHANNDAYYA GOWDA RESIDING AT BHATTAJE HOUSE KURIYALA VILLAGE BANTWAL TALUK, D.K. 575001 4. DINESH AGED ABOUT 37 YEARS S/O CHANDAYYA GOWDA R/AT BHATTAJE HOUSE KURIYALA VILLAGE AND POST BANTWAL TALUK, D.K. 575001 ...APPELLANTS (BY SRI O.SHIVARAMA BHAT, ADVOCATE) AND:
1. CHENNAMMA W/O MONAPPA GOWDA AGED ABOUT 57 YEARS RESIDING AT MIYALU HOUSE RAYEE VILLAGE, BANTWAL TALUK 2. MRS. HARINAKSHI W/O UDAYA GOWDA AGED ABOUT 41 YEARS RESIDING AT MANDADI HOUSE BANTWAL KASBA VILLAGE BANTWAL TALUK 3. MR. SEETHARAMA W/O MONAPPA GOWDA AGED ABOUT 39 YEARS RESIDING AT MEEYALU HOUSE RAYEE VILLAGE BANTWAL TALUK 4. MRS. VINODA D/O MONAPPA GOWDA AGED ABOUT 34 YEARS R/AT MEEYALU HOUSE RAYEE VILLAGE BANTWAL TALUK 5. MRS. JAYAPRABHA @ JAYANTHI D/O MONAPPA GOWDA AGED ABOUT 25 YEARS R/AT MEEYALU HOUSE RAYEE VILLAGE BANTWAL TALUK 6. MR. SHIVARAMA GOWDA S/O KITTAPPA GOWDA AGED MAJOR R/AT MEEYALU HOUSE RAYEE VILLAGE BANTWAL TALUK …RESPONDENTS (BY MS. LAKSHMI DEVI K., ADVOCATE FOR SRI PRASANNA V.R., ADVOCATE FOR C/R6) THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT & DECREE DTD:29.09.2016 PASSED IN R.A.NO.38/2013 ON THE FILE OF THE IV ADDL. DISTRICT AND SESSIONS JUDGE, MANGALURU, DISMISING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DTD:28.02.2013 PASSED IN OS.NO.111/2006 ON THE FILE OF THE SR.CIVIL JUDGE AND JMFC, BANTWAL, D.K. AND ETC., THIS RSA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This is a plaintiffs’ second appeal challenging the judgment and decree dated 15.09.2016 passed by the Court of IV Additional District and Sessions Judge, D.K., dismissing their appeal in R.A.No.38/2013 by affirming the judgment and decree dated 28.02.2013 passed by the Court of the Senior Civil Judge & JMFC, Bantwal, D.K. dismissing the suit in O.S.No.111/2006.
2. Facts leading to the case are as under:
The appellants/plaintiffs filed a suit for partition and separate possession claiming 1/3rd share in the suit schedule properties. The case of the plaintiffs is that the parties to the suit are governed by Hindu Mithakshara Law of inheritance and Hindu Succession Act. It is the specific case of the appellants/plaintiffs that the suit schedule properties were ancestral lease hold properties wherein Kittappa Gowda was the tenant and item nos.1 to 5 of the schedule properties were moola geni properties. After the Karnataka Land Reforms Act, 1961 came into force, the said Kittappa Gowda filed a declaration in Form-7 seeking occupancy rights in respect of item nos.1 to 5 properties. The Tribunal, after due enquiry, conferred occupancy rights by orders dated 04.02.1976 and 30.05.1979 respectively. It is further case of the appellants/plaintiffs that item nos.6 & 7 of the plaint schedule properties were granted to the wife of Kittappa Gowda namely, Lokamma for and on behalf of the family. The said Kittappa Gowda died intestate on 29.01.1995 and the wife of Kittappa Gowda namely, Lokamma is no more. The appellants/plaintiffs further averred in the plaint that the plaintiffs and the defendants are co-owners of the suit schedule properties. A specific averment was made that they are in joint and constructive possession of the suit schedule properties. It is the specific case of the appellants/plaintiffs that all the income derived has been swallowed by the defendants alone. Hence, the appellants/plaintiffs have filed the present suit seeking their legitimate share in the suit schedule properties.
3. On receipt of summons, the respondents/defendants contested the proceedings. Defendant nos.3 & 6 have filed written statements. The written statement filed by defendant no.3 was adopted by defendant nos.1, 2, 4 & 5. The defendants specifically contended that the suit was filed by the appellants/plaintiffs by suppressing true and material facts.
4. Defendant no.3 specifically averred in the written statement that item nos.6 & 7 of the properties were granted to Lokamma who is the wife of propositus Kittappa Gowda and accordingly it is the self acquired property of Lokamma. Defendant no.3 has specifically averred in the written statement that item nos.6 & 7 of the plaint schedule properties, which were granted to said Lokamma, was settled in his favour by way of settlement deed dated 16.07.2014. In this background, defendant no.3 has prayed for dismissal of the suit by contending that item nos.6 & 7 of the plaint scheduled properties are not available for partition.
5. Based on rival contentions, the Trial Court formulated the following issues for consideration:
1. Whether the plaintiffs are entitled for the relief of partition and separate possession of 1/3rd per strip in the ‘A’ schedule properties?
2. Whether the plaintiffs are entitled for accounts of income derived from the plaint ‘A’ schedule properties?
3. Whether the defendant no.3 proves that Item Nos.6 and 7 of the schedule properties belonged to Smt. Lokamma and he has become the absolute owner under the settlement deed dated 16/07/2004?
4. Whether the defendant No.3 proves that there is partition in the year 1995 and the plaintiffs have taken their share as contended?
5. Whether the valuation of the suit made is improper and court fee paid is insufficient?
6. What order or decree?
Issue No.5 will be heard as Preliminary issue.
Addl. Issues:
1. Whether the defendant No.3 proves that the Item Nos.6 and 7 of the plaint schedule property is the absolute darkasth property of Lokamma and he is in possession of the same by virtue of settlement deed dated 16/07/2004?
2. Whether the frame of the suit is proper?
6. The appellants/plaintiffs, in support of their contentions, got examined plaintiff no.1 as PW.1 namely, Seethamma W/o Chandaya Gowda and got marked the documents as Exs.P1 to P7. The defendants, in support of their contentions, got examined defendant no.3 as DW.1, two witnesses as DW.3 & DW.4 and defendant no.6 as DW.5 and by way of rebuttal evidence, produced documentary evidence as Exs.D1 to D51. The Trial Court, after meticulously examining the oral and documentary evidence, has answered issue no.1 in the negative and issue no.4 in the affirmative. The Trial Court has examined the categorical admissions given by PW.1 in cross-examination wherein she has admitted in unequivocal terms that by way of partition she was given 0.35 cents of land in Survey No.5/2, 0.40 cents of land in Survey No.5/4 and 0.15 cents of land in Survey No.6/2. The Trial Court has also taken note of the evidence that pursuant to the partition the other defendants have also proceeded to put up residential houses which is well within the knowledge of the plaintiffs. The Trial Court has drawn adverse inference against the plaintiffs for non-inclusion of the residential houses. The Trial Court has examined the improvements made by the contesting defendants in respect of the properties which were allotted to them in a family partition. The Trial Court having examined the rebuttal evidence vide Ex.D33 which indicates that defendant no.6 has constructed a house in the year 1996-1997 and several receipts vide Exs.D18 to D21, D28 & D29 which were produced for having purchased materials to dig a bore well by the contesting respondents in the properties allotted to them in a family partition has come to the conclusion that there is severance in the family of the plaintiffs and the defendants. In this background, the Trial Court was of the view that the contention of the plaintiffs that they still continue to be in joint possession of the suit schedule properties cannot be accepted. Accordingly, the Trial Court has proceeded to dismiss the suit.
7. The appellants/plaintiffs, assailing the correctness and validity of the judgment and decree of the Trial Court, filed an appeal in R.A.No.38/2013 before the Lower Appellate Court. The Lower Appellate Court, on reappreciation of the evidence on record, has concurred with the findings of the Trial Court by adverting to the documents as well as categorical admissions given by the plaintiff in regard to severance in the family pursuant to oral partition. The Lower Appellate Court has recorded a finding that the judgment and decree of the Trial Court is based on the material on record and the same does not suffer from any infirmity. On this ground, the Lower Appellate Court being a final fact finding authority, on reappreciation of the pleadings of the parties, oral and documentary evidence on record, has proceeded to dismiss the suit by confirming the judgment and decree of the Trial Court. The appellants/plaintiffs being unsuccessful before the courts below have filed the present appeal.
8. Heard learned counsel for the appellants and perused the judgments of the courts below.
9. Learned counsel for the appellants vehemently contended that there cannot be oral partition between the parties and the contention of the defendants that there is severance by way of oral partition in the year 1995 is not tenable. He contended that both the courts below have not examined the evidence of DW.1 who has admitted that entire property is in possession which would thereby presuppose that there is no severance in the family.
10. It is not in dispute that item nos.1 to 5 of the suit schedule properties were enjoyed by Kittappa Gowda as tenant and were moola geni lands. After coming into force of the Karnataka Land Reforms Act, 1961, the said Kittappa Gowda filed Form-7 seeking grant of occupancy rights in respect of item nos.1 to 5. The Tribunal, being the competent authority, has conferred occupancy rights in favour of Kittappa Gowda in respect of suit schedule item nos.1 to 5 properties. Insofar as item nos.6 & 7 properties are concerned, the same were granted to Lokamma who is the wife of Kittappa Gowda and the said Lokamma has allotted the same to defendant no.3 under settlement deed dated 16.07.2004.
11. Both the courts below have examined the cross- examination of PW.1 which would clinch the issue and controversy between the parties. PW.1 has furnished the details of allotment of properties to her share and the same has been taken note of by both the courts below. Clinching rebuttal evidence on record coupled with the cross- examination of PW.1 would clearly establish that there was severance in 1995 pursuant to oral partition. The contention of the learned counsel for the appellants that there cannot be partition unless the members of the family have agreed to get it reduced in writing cannot be accepted. In fact, oral partition is the best mode of partition which is invariably practiced by the joint family members in villages. Merely because the oral partition was not reported to the revenue authorities, that cannot be a ground to disbelieve the partition that has taken place between the parties. It is also evident from the records that defendant no.3 and other contesting respondents have constructed residential houses. The contesting defendants have improved their portion which was allotted to them by digging bore wells by investing huge amount. In that view of the matter, it appears that since the contesting respondents have developed their properties, it is an after thought by the appellants/plaintiffs and probably that might have prompted appellants/plaintiffs to file the present suit seeking partition. If the cross-examination of plaintiffs is meticulously examined, it clearly indicates disruption of joint family status. The presumption as to jointness has been effectively rebutted by defendants by producing cogent and clinching rebuttal evidence. The evidence on record coupled with admission given by PW.1 in her cross-examination clearly establishes that co-owners are in exclusive possession of different portion of joint family property allotted to their share. There is a direct evidence indicating the co-owners asserting exclusive right and title over the shares allotted to them in the oral partition. The cesser of commonality is an element which has to be taken into consideration while deciding severance. This is further strengthened by the conduct of the parties to the suit who have constructed the residential house pursuant to oral partition and have improved the land allotted to their share by digging bore wells.
12. In that view of the matter, the findings of the Courts below in regard to severance in status pursuant to oral partition is based on legal evidence on record. On meticulous examination, there is no misreading of evidence. This Court cannot in a routine and casual manner by substituting its subjective satisfaction interfere with the concurrent findings of the Courts below arrived at after assessing evidence and properly weighing prepondering circumstances.
13. Both the courts below have examined pleadings and oral evidence and have recorded a finding of fact that the material on record indicates that there is already severance between the family members. In that view of the matter, I do not find any perversity in the findings assigned by the courts below. In that view of the matter, no substantial question of law arises for consideration in this appeal. Accordingly, the appeal is dismissed.
Sd/- JUDGE hkh.