IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM REGULAR SECOND APPEAL NO.1744 OF 2016 BETWEEN:
1. SRI SHIVARAJU S/O LATE NANJAPPA, AGED ABOUT 59 YEARS 2. SRI VENKATESH S/O LATE NANJAPPA, AGED ABOUT 63 YEARS BOTH RESIDENTS OF HIRISAVE VILLAGE, HIRISAVE HOBLI, CHANNARAYAPATNA TALUK, HASSAN DISTRICT - 573 116.
(BY SRI GURUDHATTA.K., ADVOCATE FOR SRI BALARAJ A.C., ADVOCATE) AND:
1. SRI NANJUNDEGOWDA S/O CHOWDEGOWDA, AGED ABOUT 75 YEARS 2. SRI NAGARAJU S/O LATE NANJAPPA, AGED ABOUT 65 YEARS, ...APPELLANTS 3. SMT. MALATHI W/O GANESH, D/O NAJAPPA, AGED ABOUT 40 YEARS 4. SRI KUMAR S/O GANESH, S/O NANJAPPA, AGED ABOUT 36 YEARS 5. SRI GOPAL S/O GANESH, S/O NANJAPPA, AGED ABOUT 34 YEARS RESPONDENTS 1 TO 5 ARE RESIDENTS OF HIRISAVE VILLAGE, HIRISAVE HOBLI, CHANNARAYAPATNA TALUK, HASSAN DISTRICT - 573 116.
6. SRI CHANDRASHEKAR S/O SHIVANNA, AGED ABOUT 67 YEARS, PWD CONTRACTOR, R/O BESIDE CHOWDESHWARI PETROL BUNK, GAYITHRI EXTENSION, CHANNARAYAPATNA TOWN, CHANNARAYAPATNA TALUK, HASSAN DISTRICT - 573 116.
…RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 29.08.2016 PASSED IN R.A.NO.66/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, CHANNARAYAPATNA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 24.06.2014 PASSED IN O.S.NO.531/1995 ON THE FILE OF THE PRL.CIVIL JUDGE AND JMFC, CHANNARAYAPATNA AND ETC., THIS RSA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The defendant Nos.2 and 3 have filed the top noted second appeal questioning the judgment and decree dated 29.08.2016 passed in R.A.No.66/2014 on the file of the Senior Civil Judge and JMFC, Channarayapatna, confirming the judgment and decree dated 24.06.2014 passed in O.S.No.531/1995 on the file of the Principal Civil Judge and JMFC, Channarayapatna.
2. The facts leading to the top noted case is as under:
The first respondent/plaintiff filed a suit in O.S.No.531/1995 seeking declaration of title and for permanent injunction. The case of the first respondent/plaintiff is that the suit property was originally owned by his father Chowde Gowda and accordingly, the first respondent/plaintiff purchased the suit property under registered sale deed dated 20.03.1944. The plaintiff averred in the plaint that the suit property was self acquired properties and insofar as ancestral properties are concerned, there was partition between the plaintiff’s father and late Nanjappa and two other brothers under registered partition deed dated 12.11.1969.
3. On receipt of summons, the present appellants/defendant Nos.2 and 3 and other respondents contested the proceedings and filed written statement and stoutly denied the entire averments made in the plaint. The present appellants and other respondents would contend that there was a family partition on 01.03.1950 and in the said partition, the suit property was allotted to their father Nanjappa. After lapse of 19 years, there was a further partition in the family and under a registered partition deed, all the ancestral properties were divided and substantial shares were allotted to all the four brothers. The contention of the appellants before the Trial Court was that through oversight the property which was allotted to their father in a family partition in the year 1950 was not mentioned in the registered partition deed and as such, the appellants would contend that the present suit seeking declaration is not maintainable. The appellants at paragraph 17 of the written statement have asserted that they had perfected their title by way of adverse possession against the plaintiff and also other brothers and by asserting adverse title, defendants have specifically contended that they are in exclusive possession since 1950 till 1994. In the said circumstances, the defendants would contend in the written statement that plaintiff had no manner of right, title and interest in the suit property. Based on the above said defence in the written statement, the appellants and other respondents would pray to the Court to dismiss the suit.
4. Based on the rival contentions, the Trial Court formulated the following issues:
“1) Whether the plaintiff proves that his father was the absolute owner in possession of the suit lands as averred in the plaint?
2) Whether the plaintiff proves that after the death of his father he has become the absolute owner in possession of the suit land?
3) Whether the plaintiff proves the alleged interference by the defendants?
4) Whether the defendants 1 to 3 prove that the suit land in by oversight and also by mistake not mentioned in the ‘D’ schedule of the partition deed dated 12.11.1969 as alleged?
5) Whether the defendants 1 to 3 prove that they have perfected their title over the suit land by way of adverse possession?
6) Whether the suit is bad for non- joinder and mis-joinder of necessary parties?
7) Whether the plaintiff is entitled for the relief as sought for?
8) What order or decree?”
5. The respondent No.1/plaintiff in support of his contention, examined himself as PW.1 and examined two independent witnesses as PWs.2 and 3. To corroborate oral evidence, the respondent No.1/plaintiff has produced documentary evidence vide Exs.P-1 to P-10. The defendants in support of their contention examined DWs.1 and 2 and have lead in rebuttal evidence at Exs.D-1 to D-8. The Trial Court having examined the material on record and having taken note of the admission given by the defendants in oral evidence, decreed the suit by recording a finding that there is absolutely no evidence produced by the defendants to establish that the suit property was in fact allotted to their father in oral partition deed dated 01.03.1950. The contention of the present appellants/defendant Nos.2 and 3 that the allotment of the suit property was through oversight not mentioned in the registered partition deed dated 12.11.1969 as per Ex.P-1 was also negatived since no convincing explanation has been forthcoming from defendants side. The Trial Court has also taken note of the suggestion made by the learned counsel for the defendants to the plaintiff that the suit property was through oversight not referred to in the partition deed indicating allotment of the same to the father of the defendants was stoutly denied by the plaintiff in cross-examination. Admittedly, the suit property was purchased by the first respondent/plaintiff under registered sale deed dated 20.03.1944 and the said property was not at all put in hotch-pot which can be gathered from the registered partition deed, wherein the suit property is not all the subject matter. On proper appreciation of evidence and in the absence of clinching and rebuttal evidence adduced by the appellants herein and further, the defendants having asserted that they have perfected the title by way of adverse possession and having failed to prove the same proceeded to decree the suit holding that respondent No.1/plaintiff is the absolute owner of the suit property and is in exclusive possession.
6. The present appellants who were arrayed as defendant Nos.2 and 3 preferred appeal in R.A.No.66/2014. Insofar as defendant Nos.1(a) to 1(d) who are respondent Nos.2 to 6 did not challenge the judgment and decree of the Trial Court. Hence, the same has attained finality insofar as other respondents are concerned.
7. The Lower Appellate Court on re- appreciation of evidence, has answered point No.1 in the negative holding that the appellants/defendant Nos.2 and 3 have failed to make out a case and the judgment and decree passed by the Trial Court does not suffer from any perversity or illegality. Being aggrieved by the concurrent judgment and decree of the Courts below, the appellants are before this Court.
8. Heard learned counsel for the appellants.
9. Learned counsel for the appellants would vehemently argue that the suit property was allotted their father Nanjappa in an oral partition deed dated 01.03.1950. He would further contend that the appellants by examining independent witness have established that they are in possession and the properties were in fact owned by their father to whom the said property was allotted in oral partition deed dated 01.03.1950. He would further argue that both the Courts having concurrently erred and the finding of facts recorded being contrary to the clinching evidence on record, would amount to substantial question of law. Hence, would request this Court that this case requires reconsideration and it is a fit case for admission.
10. This Court having examined the judgments rendered by both the Courts below, is of the view that the grounds raised by the appellants and consequential substantial questions of law raised in the appeal memo are not tenable. Admittedly, respondent No.1/plaintiff purchased the suit schedule property under registered sale deed dated 20.03.1944 as per Ex.P-2. There is no dispute that there was a partition in the family among all the four sons and propositus Basave Gowda under registered partition deed dated 12.11.1969 vide Ex.P-3. As per registered partition deed, all the ancestral properties were divided among four sons and accordingly, they became absolute owners in respect of properties allotted to their share. If at all suit property was also ancestral properties, there was no impediment for the father of the appellants either to claim over the suit property if at all suit property was already allotted in 1950 in the oral partition or he should have insisted to include the present suit property in the said 1969 partition. The appellant’s father neither insisted for insertion of the present suit property in the 1969 family partition nor insisted for recitals in the said registered partition indicating the allotment of suit property to him under the alleged oral partition dated 01.03.1950. The father of the appellants having failed to assert his right over the suit property, the present appellants who are the legal heirs cannot now claim that the suit property was in fact allotted to their father in oral partition dated 01.03.1950. The appellants have not adduced any iota of evidence indicating that there was a oral partition on 01.03.1950. Since the father of the appellants herein was a party to the registered partition deed dated 12.11.1969 as per Ex.P-3, the appellants are estopped from claiming any right over the suit schedule property. The plea of oral partition dated 01.03.1950 set up by the present appellants is not supported by any clinching evidence. Even for the sake of arguments, if there were to be some evidence indicating the alleged oral partition, the same stands included in terms of Section 92 of the Indian Evidence Act, 1872, on account of there being a partition among the appellants and respondents under registered partition deed dated 12.11.1969 vide Ex.P-3.
11. Admittedly, the title deed is standing in the name of respondent No.1/plaintiff. Further, the appellants having set up adverse title and having failed to establish that they have perfected title by way of adverse possession, question of non-suiting plaintiff would not arise in the present case on hand. However, it is also evident from the oral evidence wherein it is found that the plaintiff has been successful in eliciting from the cross-examination of defendants that as per registered partition vide Ex.P-3, all the parties are in lawful possession over the properties allotted to them and accordingly, they are in peaceful possession and enjoyment over the respective shares allotted to them. All these material aspects have been dealt with by the Trial Court as well as the Lower Appellate Court. The judgment and decree passed by the Courts below do not suffer from any infirmities. No substantial question of law would arise for consideration in the above case.
Accordingly, the appeal is dismissed. No order as to costs.
I.A.No.1/2016 does not survive for consideration and accordingly, the same is dismissed.
Sd/- JUDGE CA