IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT R.S.A.No.1396/2013 (PAR) BETWEEN:
SRI Y T SHIVANNA REDDY S/O YERRA THIMMAPPA, AGE:51 YEARS R/AT NEAR SHARADAMMA RUDRAPPA KALYANA MANTAPPA HOLALKERE ROAD CHITRADURGA-577 558.
... APPELLANT (BY SRI.H RAMACHANDRA, ADV.) AND:
1. G T KANTA REDDY S/O. LATE YYERRA THIMMAPPA AGE:41 YEARS R/AT. SINGAPURA KAVAL HATH VILLAGE CHITRADURGA DISTRICT-577 558.
2. SRI. Y T GOVINDA REDDY S/O. LATE YYERRA THIMMAPPA AGE:36 YEARS R/AT. SINGAPURA KAVAL HATH VILLAGE CHITRADURGA DISTRICT 3. SMT. KAMALAMMA W/O. KODANDARAMAIAH SINCE DEAD BY HIS LRS.
3(a). SRINIVASA S/O.KODANDARAMAIAH 3(b). DINESH S/O.KODANDARAMAIAH BOTH ARE MAJORS R/AT.NAGARURU COLONY DASANAPURA HOBLI BANGALORE NORTH DISTRICT-560 258.
4. SMT. PREMAKKA W/O. MOTHKAR SHIVANNA REDDY AGE: 39 YEARS R/AT. NAGARURU COLONY DASANAPURA HOBLI BANGALORE NORTH DISTRICT-560 258.
5. Y T AJJAPPA REDDY W/O.LATE YYERRA THIMMAPPA AGE: 46 YEARS R/AT MARADIHALLI VILLAGE HIRIYUR TALUK CHITRADURGA DISTRICT-577558.
6. SMT. SHARADAMMA W/O. POOJARI CHANDRA REDDY SINCE DEAD BY HER LRS.
6(a). RAVINDRA REDDY S/O.CHANDRA REDDY AGE:36 YEARS R/AT MARADIHALLI VILALGE HIRIYUR TALUK CHITRADURGA DISTRICT-577558.
7. SUNDARAMMA W/O. MOTHKUR RAMA REDDY AGE:60 YEARS R/AT.MOTHKRU HATHI KYADIGERE VILLAGE CHITRADURGA TALUK-577558.
(BY SRI. S B TOTAD, ADV. FOR R2 SRI. SPOORTHY HEGDE, ADV. FOR R1 SRI. A SHARANABASAVESHWARA, ADV. FOR R3(a & b), R4, R5, R6(a) & R7) …RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT & DECREE DATED 25.09.2012 PASSED IN R.A.NO.8/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE & CJM, CHITRADURGA, DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED 16.02.2012 PASSED IN O.S.NO.355/2008 ON THE FILE OF THE II ADDL.CIVIL JUDGE & JMFC., CHITRADURGA AND ETC.
THIS RSA COMING ON FOR FURTHER HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The first plaintiff is in appeal under Section 100 of CPC against the concurrent findings of the courts below under the judgment and decree dated 16.02.2012 passed in O.S.No.355/2008 on the file of the II Additional Civil Judge (Jr.Dn.), Chitradurga and the judgment and decree dated 25.09.2012 passed in R.A.No.8/2012 on the file of the Principal Civil Judge (Sr.Dn.) and CJM, Chitradurga.
2. The plaintiffs and defendants 1, 2, 4 and 6 are the children of one late Yerra Thimmappa who died in the year 1993. Late Yerra Thimmappa had four daughters and four sons. The plaintiffs filed a suit for partition and separate possession of the suit schedule properties and mesne profits. The plaintiffs contended that the suit schedule properties are ancestral and joint family properties of the plaintiffs and defendants and they are in joint constructive possession of the suit schedule properties. It is stated that the first plaintiff went to Tumkur in search of work and resided at Tumkur. When the plaintiffs demanded their shares in the suit schedule properties, defendants 1 and 2 refused to give the shares in the suit schedule lands stating that, the plaintiffs have no right over the property. Hence, the plaintiffs filed the suit. It is further contended that the plaintiffs are entitled to 2/8th share in the suit schedule properties. The defendants 1 and 2 have no absolute right to partition the joint family properties in their names, leaving others.
3. On issuance of summons, the defendants appeared before the Court and defendants 1 to 6 filed their written statement. Defendants 1 and 2 denied the plaint averments and also denied that the suit schedule properties are ancestral and joint family properties. They also denied the possession of the plaintiffs over the suit schedule properties. It is the case of the defendants 1 and 2 that the suit schedule properties were granted to their father by the Government on 26.08.1968 on upset price. As such, it is the exclusive self-acquired property of their father. The suit schedule properties are neither ancestral nor joint family properties. The lands were granted to the father of the plaintiffs and defendants, as he was a freedom fighter. It is also contended by defendants 1 and 2 that father of plaintiffs and defendants had given portion of the land out of the suit schedule properties under the registered partition deed dated 28.06.1984 and they are enjoying their respective shares as shown in the partition deed.
4. Based on the pleadings, the trial Court framed the following issues:
(i) Whether the Plaintiffs prove that suit schedule properties are the ancestral and joint family properties of their father?
(ii) Whether the plaintiffs prove that partition dated 28.06.1984 is not binding on them?
(iii) Whether the defendants 1 and 2 prove that suit schedule properties are self-acquired properties of their father?
(iv) Whether the plaintiff’s are entitled to 2/8th share in the suit schedule properties?
(v) What order or decree?
5. The first plaintiff got examined himself as P.W.1 and also examined one more witness as P.W.2 apart from marking the documents Ex.P1 to Ex.P8. On behalf of the defendants, defendants 1 and 2 got examined as D.W.1 and D.W.2 and also examined D.W.3, apart from marking 32 documents as Ex.D1 to Ex.D32. The trial Court, answered issues 1, 2, 4 in the negative and issue No.3 in the affirmative and dismissed the suit holding that the suit schedule properties are self-acquired properties of the father of the plaintiffs and defendants. Further, it also held that the suit schedule properties are neither ancestral nor joint family properties of the plaintiffs and defendants. Aggrieved by the dismissal of the suit, the plaintiffs preferred appeal under Order 41 Rule 1 read with Section 96 of the Code of Civil Procedure in R.A.No.8/2012. The Appellate Court on hearing the parties to the appeal and on perusal of the records considered the following points:
(i) Whether the plaintiffs prove that suit schedule properties are the ancestral and joint family properties of their father?
(ii) Whether the plaintiffs prove that partition dt.28.06.1984 is not binding on them?
(iii) Whether the defendant No.1 and 2 prove that suit schedule properties are self-acquired properties of their father?
(iv) Whether the plaintiffs are entitled for 2/8th share in the suit schedule properties?
(v) What order or decree?
6. The Appellate Court, answered points No.1, 2, 4 and 5 in the negative and point No.3 in the affirmative and dismissed the appeal. While dismissing the appeal, the Appellate court recorded that the lands were granted to the father of the plaintiffs and defendants by the Government and it is not a grant of occupancy rights. It was granted in recognition of service as freedom fighter. As such, it was observed that the suit schedule properties are self-acquired properties of Yerra Thimmappa, father of plaintiffs and defendants. Aggrieved by the concurrent findings of the courts below, the plaintiffs are before this Court in this appeal, under Section 100 of CPC, suggesting the following substantial questions of law:
(i) Whether both Courts impugned judgments and decree passed are sustainable in law? And (ii) Whether both the Courts reasonings in not considering the admitted facts in the affidavit of D.Ws.1 and 2 is proper?
7. Heard the learned counsel for the appellants and perused the material on record.
8. Learned counsel for the appellants would submit that the courts below have failed to look into Ex.D2 and Ex.D3 wherein it is specifically noted that it is a granted land as per Government Order dated 16.09.1997 and as such, the plaintiffs had right over the suit schedule property. Further, the learned counsel would submit that the first Appellate Court failed to appreciate the material on record and simply confirmed the judgment and decree passed by the trial Court. It is his submission that the lands in question were orally allotted to the share of the plaintiffs during 1969 in front of the witnesses has not been proved by the defendants and the defendants have not examined any witnesses to the said partition.
9. On hearing the learned counsel for the appellants and on perusal of the material on record, I am of the view that no substantial question of law would arise for consideration in this appeal.
10. Under Section 100 of CPC, the appeal would be maintainable only if the appeal involves substantial question of law. No second appeal would lie disputing the facts. The suit of the plaintiffs was for partition and separate possession of the suit schedule properties on the ground that the suit schedule properties are ancestral and joint family properties of the plaintiffs and defendants. Issue No.1 was with regard to whether the plaintiffs prove that the suit schedule properties are ancestral and joint family properties of their father. The plaintiffs failed to prove that the suit schedule properties are ancestral and joint family properties. It is on record that father of the plaintiffs and defendants was a Freedom Fighter and in recognition of his service to the Society, the lands were granted to him. It is a grant made to a person in recognition of his service to the society. It is not like the grant of occupancy right to a tenant to become joint family property. With regard to the contention that land was granted under Ex.D1 in the year 1997, it is to be noted that the land in question in Sy.No.61 was given to their father along with 30 others in year 1968 itself. Since then the father of the plaintiffs was cultivating the land. The father of the plaintiffs and defendants land 2 died in the year 1993. Ex.D1 order dated 16.09.1997 indicates that as the other grantees violated the terms of grant, Government cancelled the grant in respect of others except 3 persons. Ex.D1 confirmed the grant to only 3 person out of 30. One among 3 persons was late Yerra Thimmappa, the father of the plaintiffs and defendants. But as contended, Ex.D1 is not a grant order.
11. The second issue was with regard to whether the plaintiffs prove that the partition effected in the year 1984 was not binding on them. Issue No.3 whether the defendants prove the suit schedule properties are self-acquired properties of their father. The trial Court held that the plaintiffs failed to prove that the partition is not binding on them. The defendants have proved that the suit schedule properties are self-acquired properties of their father. When such being the case and the plaintiffs have failed to prove their case by producing cogent evidence, the trial Court has rightly dismissed the suit. Ex.D32 is the registered partition deed among defendants 1 and 2 and father of plaintiffs and defendants. The father, in whose favour land was granted appears to have distributed the land among defendants No.1 and 2. Admittedly, the first plaintiff had left father’s house long before 1984 and was living at Tumkur. Father had absolute right to dispose of the property as he likes. During the life time of the father, he has distributed the suit schedule property among defendants 1 and 2, which the plaintiffs cannot question that too after more than 25 years. The Appellate court, on re-appreciation of evidence on record has confirmed the judgment and decree passed by the trial Court holding that the plaintiffs have failed to prove that the suit schedule properties are ancestral and joint family properties. The grounds urged and suggested substantial questions of law are on facts and not based on law.
12. The grounds raised by the appellants/plaintiffs would not constitute substantial question of law, but are on facts. The appellants have failed to point out any substantial question of law in the appeal. The appeal would not merit any consideration. Accordingly, the same is dismissed.
Sd/- JUDGE mpk/-* CT:bms