IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE H.P.SANDESH R.F.A.No.96/2012 (PAR) BETWEEN:
1. THIMMAIAH @ ARETHIMMAIAH (B.R. THIMMAIAH) S/O. BASAVAIAH AGED 66 YEARS R/O. No.124, SY.NO.2/3 ITTAMADU VILLAGE UTTARAHALLI HOBLI BENGALURU.
2. A.B. BASAVAIAH S/O. THIMMAIAH AGED 42 YEARS R/O. No.124, SY.NO.2/3 ITTAMADU VILLAGE UTTARAHALLI HOBLI BENGALURU.
3. A.B. LOKESH S/O. THIMMAIAH AGED 41 YEARS R/O. NO.124, SY.NO.2/3 ITTAMADU VILLAGE UTTARAHALLI HOBI BENGALURU.
4. A.B. RAMESH S/O. THIMMAIAH AGED 39 YEARS R/O. NO.124, SY.NO.2/3 ITTAMADU VILLAGE UTTARAHALLI HOBI BENGALURU. … APPELLANTS (BY SRI. AJAY KUMAR M., ADVOCATE FOR SRI. M. RUDRAIAH, ADVOCATE) AND:
1. SMT. A.B. MANULA W/O. SRI. A. SHEKHAR AGED 36 YEARS D/O. THIMMAIAH No.7, PRABHU NILAYAM FIRST FLOOR, 10TH MAIN VIVEKANANDANAGAR KATHRIGUPPE MAIN ROAD BENGALURU-85.
2. SMT. PUTTAMMA W/O. THIMMAIAH R/O. No.12/7, II CROSS KATHRIGUPPE MAIN ROAD ITI LAYOUT, BSK III STAGE BENGALURU-85.
3. A.B. SURESH S/O. THIMMAIAH AGED 39 YEARS R/O. No.12/7, II CROSS KATHRIGUPPE MAIN ROAD ITI LAYOUT, BSK III STAGE BENGALURU-85. ... RESPONDENTS (BY SRI. PARAMESHWARAPPA C, ADVOCATE FOR R1) THIS RFA IS FILED UNDER SECTION 96 OF CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND DECREE DATED 10.10.2011 PASSED IN O.S.8186/2008 ON THE FILE OF THE V-ADDITIONAL CITY CIVIL JUDGE, BENGALURU, DECREEING THE SUIT FOR PARTITION, SEPARATE POSSESSION AND PERMANENT INJUNCTION.
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 challenging the judgment and decree passed in O.S.No.8186/2008 dated 10.10.2011 on the file of V Additional City Civil Judge, Bengaluru City decreeing the suit granting 1/7th share in the suit schedule properties in favour of the plaintiff by metes and bounds and also for separate possession.
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.
3. It is the case of the plaintiff that suit schedule properties i.e., Site No.7, formed in Survey No.12/1 situate at Kathriguppe Village, Uttarahalli Hobli and Site No.124 formed in Survey No.2/3 of Ittamadu Village, Uttarahalli Hobli are the joint family properties of the plaintiff and the defendants. The first defendant is the father and the fifth defendant is the mother of the plaintiff. The defendant Nos.2 to 4 and 6 are the brothers of the plaintiff and thus, the plaintiff and the defendants form the Hindu Undivided Joint Family Members. They are in joint possession of the suit schedule properties. The defendant Nos.4 to 6 have filed the suit in O.S.No.37/2001 against the defendant Nos.1 to 3 for partition and separate possession. All the parties have colluded together and got compromised the suit on 02.04.2001 and divided the suit schedule properties as per the compromise petition. The plaintiff being the sole daughter of defendant Nos.1 and 5 is not made a party and no share is allotted to her, inspite of they themselves contending that the suit schedule properties are the joint family and all are in joint possession and all have got equal share. Therefore, the judgment and decree passed in O.S.No.37/2001 is not binding on the plaintiff. The plaintiff demanded her legitimate share over the suit schedule properties from the defendant Nos.1 and 5. They have refused to effect partition and hence, she has filed the suit for partition and separate possession of her 1/7th share in the suit schedule properties.
4. In pursuance of the suit summons, the defendant Nos.1 to 4 have appeared and contested the matter. Defendant Nos.5 and 6 remained absent and they are placed exparte.
5. The defendant Nos.1 to 4 in the written statement have denied that the suit schedule properties are not the joint family properties of plaintiff and the defendants. However, the relationship is admitted and have admitted the earlier proceedings in O.S.No.37/2001 and the partition, but denied the allegations made in the plaint that the suit is collusive in nature. It is contended that the plaintiff is not entitled to any share, much less 1/7th share as claimed in respect of the suit schedule property. It is further contended that after marriage of the plaintiff, she is residing in her husband’s house. With joint efforts of the defendants, they have constructed a house and that there is no any contribution from the plaintiff as she is only the daughter of defendant Nos.1 and 5. The suit is filed at the instance of the persons, who are having enmity against the defendants. Hence, the question of granting any share to the plaintiff does not arise and there is no cause of action.
6. Based on the pleadings of the parties, the Court below has framed the following issues and also additional issues for consideration:
1. Whether the plaintiff proves that the suit schedule properties are the joint family properties of plaintiff and defendants ?
2. Whether the plaintiff proves that the Compromise Decree in O.S.No.37/2001 is null and void and the same is not binding on plaintiff ?
3. Whether the plaintiff is entitled for the relief claimed in the suit ?
4. What order or decree ?
Additional issues:
1. Whether the plaintiff proves that she is in possession of the suit schedule properties at any time ?
2. Whether the plaintiff proves that the suit has been valued properly and the Court fee paid is sufficient ?
7. In order to prove the case of the plaintiff, the plaintiff examined herself as P.W.1 and got marked the documents Exs.P1 to P3 i.e., certified copy of the plaint in O.S.No.37/2001, certified copy of the compromise petition in O.S.No.37/2001 and certified copy of the order sheet in O.S.NO.37/2001.
8. It is pertinent to note that P.W.1 was not cross-examined by the defendants, though she filed her chief examination on 02.08.2008 and the defendants have not chosen to lead any evidence. The Court below, considering the material on record, answered issue No.1 as ‘affirmative’ and arrived at the conclusion that the suit schedule properties are the joint family properties and the plaintiff is entitled for a share as claimed in the suit and answered additional issues as ‘affirmative’. Hence, the present appeal is filed challenging the judgment and decree.
9. The main grounds urged in the appeal memorandum by the defendants is that the Court below has committed an error in granting the share as claimed in the suit. The Trial Court has not properly appreciated the contentions taken by the defendants that the suit schedule properties are self-acquisition of the first defendant herein. Due to misunderstanding between the first defendant and his wife i.e., the defendant No.5 herein, both were residing separately and with vengeance, the wife of the first defendant had filed a suit alleging that she is entitled for a share in the suit schedule properties and just to maintain cordiality and also to respect her right, the defendants herein have agreed to give certain properties to the defendant No.5 herein, who is none other than the wife of the first defendant and mother of other defendants and have entered into compromise decree. So it cannot be said that the properties are the joint family properties and the plaintiff is entitled for a share. The Trial Court has failed to appreciate that first defendant has purchased the site in the name of the plaintiff out of love and affection and the same has not been taken into consideration. It is also further contended that the defendants have taken a specific contention in their written statement that the first defendant has purchased the site in the name of the plaintiff and the same has not been rebutted by the plaintiff in her evidence. This aspect has also been lost sight by the Trial Court and hence, the judgment and decree of the Trial Court is liable to be set aside.
10. Learned counsel appearing for the defendants in his argument vehemently contends that the Court below has committed an error in answering issue Nos.1 and 2 in ‘affirmative’ and has come to the conclusion that the suit schedule properties are the joint family properties and has erroneously granted 1/7th share in favour of the plaintiff.
The Court below has committed an error in relying upon the compromise petition filed in O.S.No.37/2001 which is marked as Ex.P2 and the said compromise as entered between the parties is only to maintain cordiality in the family and mere filing of a compromise petition itself is not sufficient to come to the conclusion that the suit schedule properties are the joint family properties and hence, the impugned judgment of the Trial Court is liable to be set aside.
11. Per contra, learned counsel appearing for the plaintiff in his argument vehemently contends that the Court below has not only considered the evidence of P.W.1 and has also considered the documents at Ex.P1 to P3 and decreed the suit, based on the contents of Ex.P2. It is also evident that the evidence of P.W.1 is not challenged. In spite of an opportunity being given to the defendants, they have not cross-examined the P.W.1 and also have not led any evidence before the Court below and now they cannot contend that no opportunity is given to the defendants.
Hence, the question of either remand or setting aside the judgment does not arise.
12. Having heard the arguments of learned counsel appearing for the defendants and the learned counsel appearing for the plaintiff and keeping in view the contentions urged in the appeal, the points that arise for consideration of this Court are:
1. Whether the Court below has committed an error in decreeing the suit in favour of the plaintiff granting 1/7th share in respect of the suit schedule properties and it requires interference of this Court?
2. What order ?
Point No.1:
13. The main contention of the plaintiff in the suit is that she is the daughter of defendant Nos.1 and 5 and in the suit in O.S.No.37/2001, decree was obtained excluding the plaintiff and in the compromise petition filed in the said suit, it is specifically mentioned that suit schedule properties are the joint family properties. But, however, the defendants neither have given any share to the plaintiff and nor impleaded her in the suit. Hence, she is entitled for the relief of partition.
14. The defendant Nos.1 to 4 in the written statement have contended that the suit schedule properties are not the joint family properties and the first defendant had purchased the property in the name of the plaintiff out of love and affection and hence, the same cannot be a ground to contend that the suit schedule properties are joint family properties. It is further contended that the suit schedule properties are self- acquired properties of defendant No.1 and in the earlier suit in O.S.No.37/2001, the matter was compromised, in order to maintain cordiality between the family. Hence, the plaintiff has to prove that the suit schedule properties are the joint family properties. The plaintiff, in order to substantiate her claim, examined herself as P.W.1 and relied upon the documents Exs.P1 to P3. On perusal of the order sheet of the Trial Court, it is evident that the plaintiff had filed her chief examination and examined on 02.08.2010 and a request was made by the learned counsel for the defendants to defer the cross-examination on that day and the same was considered by the Trial Court. Thereafter, several opportunities were given to cross-examine P.W.1 and however, the P.W.1 was not cross-examined for a period of one year. Hence, the Court below taking note of the fact that though more than a year has elapsed, the defendants have not chosen to cross- examine P.W.1 and hence, deemed that there is no cross- examination of P.W.1 and an opportunity was also given to the defendants to adduce evidence. But, the defendants failed to adduce any evidence before the Court below and therefore, heard the learned counsel appearing for the plaintiff and passed the judgment.
15. The learned counsel for the defendants would further contend that the compromise was effected in O.S.No.37/2001 in the year 2001 and the same cannot be questioned. The said contention also cannot be accepted for the reason that the plaintiff has not been arrayed as party to the proceeding and excluding her, the said compromise was entered inter-se between the parties.
16. Having considered the order sheet of the Trial Court and also on perusal of the evidence of P.W.1, it is evident that P.W.1 has reiterated the averments of plaint in the affidavit in lieu of her chief examination and the same has not been challenged by the defendants, in spite of sufficient opportunity being given. Now, the main contention of the defendants in this appeal is that, the Court below has not given reasonable opportunity to cross- examine the plaintiff. On perusal of the order sheet, the said contention cannot be accepted, since for a period of more than a year, the defendants have not cross- examined the P.W.1. Further, though the defendants have filed the written statement denying the fact that the properties are not the joint family properties, the same are not substantiated by adducing any evidence and no effort was made either to recall the witness P.W.1 or to adduce any evidence before the Court. Hence, the defendant now cannot contend that no opportunity was given to cross- examine the plaintiff.
17. The Court below while considering the case, in Para No.8 of the judgment while answering issue Nos.1 to 3 considering the evidence of P.W.1 has observed that the defendants have failed to disprove the contention taken by the plaintiff and her evidence is not challenged. The defendant have not stepped into the witness box to prove their defence. As per their own admission in the previous case, the suit schedule properties were acquired by joint efforts of all the joint family members, that means including the plaintiff also, the male members of the family intelligently left out the plaintiff and obtained compromise decree which is contrary to Hindu Succession Act. When the plaintiff was not made a party to the previous proceedings in O.S.No.37/2001, the defendants, behind the back of the plaintiff has obtained the decree and the same is not binding on the plaintiff. The Court below, also considering the additional issue Nos.1 and 2 with regard to possession, has come to the conclusion that the plaintiff is in constructive possession of the suit schedule properties. No doubt, in the evidence it is stated that she is married and residing separately along with her husband and children, no effort has been made by the defendants to prove the defence which they have taken in the written statement.
18. On perusal of Ex.P2, the compromise petition filed in O.S.No.37/2001, it is seen that, in terms of condition No.1 of the compromise petition, the defendants themselves have categorically admitted that the suit schedule properties are joint family properties and have entered into a compromise among themselves in the suit and decree was also drawn. The main contention of the learned counsel for the defendants is that the said compromise was entered only in order to maintain cordiality in the family and hence, the same cannot be a ground to come to a conclusion that the suit schedule properties are the joint family properties. The said contention of the defendants cannot be accepted since, in one breath, it is contended that the properties are the joint family properties while entering into a compromise in the earlier suit and in another breath, it is stated before this Court that those properties are not joint family properties, the defendants cannot blow hot and cold. The Court below while answering issue Nos.1 to 3, not only considered the contentions of the parties, but also referred the contents of Ex.P2 and specifically mentioned that the evidence of P.W.1 is not challenged. When the defendants did not substantiate their claim adducing any evidence or by cross-examining P.W.1, the very contention that the properties are not available for partition cannot be accepted.
19. The other contention that the Court below has not given reasonable opportunity also cannot be accepted when the order sheet of the Court below discloses that for a period of one year, P.W.1 was not cross-examined and even though the opportunity was given to adduce evidence, the defendants have not contested the matter and did not choose to lead any evidence. Hence, I do not find any merit in the appeal to set aside the judgment of the Court below. Hence, this Court can re-appreciate the evidence and consider the material available on record both with regard to question of fact and question of law. Accordingly, I do not find any merit to reverse the findings of the Trial Court.
20 In view of the discussions made above, I pass the following:
ORDER (i) The appeal is dismissed. No cost.
Sd/- JUDGE ST