IN THE HEGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 18"' DAY OF NOVEMBER, 20:0
BEFORE '
THE HON'BL,E MR. JUSTICE H.N. NAGAMOH'A.-N?'BASE" %
BETWEEN :
VSRINIVASA
S/O vENKB"i'2AMA1AH
30 YEARS, D.NO.2/1,
HIRD MAIN ROAD,
PALACE GUTTAHALLE, S _ A =
BANGALOREWOBJ":;._T' : ...APPELLANT
(By Sri. B.R1_;DRA A1§'v..) ~ I
AND:
1 Sn Vi._N'~AR ASJMHA RA;-U'
S/OLATE VENKATARAMAIAH
' AGED .AjBO1;T 37 "YEARS
NO.?~?82«, 8T""1»4A1.1§2S;"2ND CROSS,
BArT_ASHA.N'1<AR1 1*" STAGE,
V . HANUM:\_N'1"HANAGAR,
=BANOA1,O:RE A 560 050.
"'S1r~aV.KR_'1«SHNA MURTHY
. S'/'O LATE VELNKATARAMAIAH
'V AGED ABOUT 32 YEARS
:--_....
fly
No.482, 87" MAIN, 2"" CROSS,
BANASHANKARI 13"" STAGE,
HANUMANTHANAGAR,
BANGALORE -- 560 050.
3. S00: MUNILAKSHMAMMA
W/O LAKSMINARAYANAPPA
AGED ABOUT 52 YEARS , _
NO. 1089, 73"" MAIN, SRINIVASA "
NAGAR, BANGALORE -- 560 050.
4. Sm: v.sAYALA1<SIIM1
W/O SRIDHAR MURTHY
AGED ABOUT 47 YEARS
No.1089, 77" MAIN, SRINIy*ASA_«'O M _
NAGAR, BANGALORE _ 560 G5(}.__ } .RESFONDENTS
(By Sri T.SESHAGIRI_RA__O_, /--*:.'i3'V'.,' 'V Z
OTHERS FEES P;'('V:.;\.i,'_'_'?::fi._.";-Ir" g'._mr,; E
THIS'-._RFA--1S FILEDVDNIDER SECTION 96 OF CPC R/w/O
4.1 R1 OF ICPC AGAiNST'vTH--E JUDGMENT AND DECREE
DATED 07.11.2000 PASSED ..11'\A_O.S.No.4421/87 ON THE FILE
OF THE XXII 'IADDL;c1'T*.y"~~--cIV1L & SESSIONS JUDGE,
BANGAL;ORE. ANDETC. V
0 , 'vTIIIS RTFA,COMING ON FOR HEARING THIS DAY, TEE
COI_JRT_ PASSED FOLLOW1NG;
JUDGMENT
This”apDea1 is directed against the judgment and decree daied
407;1jL200t3 in O.S. NO. 442:/E987 passed by the XXII Additional
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City Civil and Sessions Judge, Bangalore, dismissing the suit for
partition.
2. Appellant is the plaintiff and respondents are._”=t.h_’e.._i”‘–_
defendants before the Trial Court. For conveniencegiin
judgment, the parties are referred to their _status beforell
Court.
3. Defendant No. 1 is the fathe.r,,W’cle_fendant’No.2 the
mother and defendant Nos. 3 “;u~.cli.n.. la_r_effthe plaintiff.
Defendant Nos. 5 tolp8iareV._the. tenan’tvs__in certain portions of the plaint
schedule properti.es.iPlaii:tiff eontends that plaint schedule properties
are the joint family properlties. ii’-‘laintiff and defendant Nos. 1 to 4 are
‘the joiiitv family. After the marriage of plaintiff there
came tolhey«soinejdifferences among the members of the joint family
and as sueh they were residing separately. Despite repeated requests
lbly the plaintiff, the defendants refused to partition the
p.laint’..sehedu1e properties. Having no other alternative the plaintiff
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filed O.S. No. 4421/1987 for partition and separate possession of his
1/4″” share in the plaint schedule properties. Plaint A schediil.e’*..
properties are immovable properties, Plaint B and C
properties are movable properties.
4. Defendant No. I filed written”‘;staternent
contending that item No. l in plaint A schedulelproperty’ his V
acquired property, item Nos. 2 and 3’~a:re..properti.es’ “to
defendant No. 2. Item No. 4 of plaint Ai’sciie_d1ille” property’ is not the
joint family property and the same lisla Go’l}e;’nn_1peii1.t.Vi’iand._ It is further
contended that sornelpof’.the_v’moVabllev–.p1ioperties described in plaint B
and C schedule»tproper’ties° .arefii1at’ available and the remaining
inovablesjbeleng to l”de_fendan:; Nos. 1 and 2. On the basis of
lpleaclirigsl the .iT1fi.al«-..VCourt framed the following issues for its
conslidera.ll\3in’;” T ..
i. Whether the plaintiff proves that he and defendants _l_
to 4 together form a joint Hindu family and it owned
10 acres of agricultural lands in Udayapura village,
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iii.
Bangalore North Taluk and that was the only source of
income of the family as alleged?
Whether the plaintiff proves that the 1″ defead–ar1tV’.as’ll.I’
the kartha of the family purchased item..No:.’*l.Vv
name item Nos. 2 and 3 of A lscheduyle. ‘ri–ame’a__f A f
his wife (mother of the.4__.plaintifll)l” and
purchased out of incomelllfroei ‘r]..g1’lC’1l]'[L’lf\\Q:]’l]:211’1.lC:llVi%:3 and
sale proceeds of incomeland joint
labour of family
Whether’ l l_:pl.air1tiff V lthat*”‘the movables in
the joint family and the
jewelsi and”~mo’va’olelS** described in schedule C belong to
d if him exeiusiylely presents in his marriage and are left
_vlv.tith’tlie defendants as alleged’?
plaintiff proves that he is entitled to 1/4″‘
‘s:hai’e.llin A and B schedule properties?
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v. Whether the plaintiff proves that the defendants are
collecting rents from defendants 5 to 8 to the tune’tl,_of.
Rs.l,35–/– p.m. as alleged?
vi. Whether the defendants prove that it .did4_:’1’iot”–have
agricultural lands and incomeizand it has étinlhg/._’/§«.ac”ruevvof f
waste land of the Cx’overnntent”‘ given”‘V’d-or1.1:y. for if
cultivation and the ‘-pgtopverties are
purchased by defeiiitiantgl grout offtheir own
income from hence they are
theitfp
vii. pdefendants prove that C schedule
not available as the plaintiff
l V atook:tliefiiavvavibylcommitting theft as alleged?
V. thxe«..p1’aintif’f entitled to the reliefs and what decree or
A
‘ Dutiingthe pendency of the suit defendant Nos. 5 to 8 who
are the tefiantis in occupation of the plain: scheduie properties are
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deleted. Before the Trial Court the plaintiff examined three
witnesses r>.w.1 to P.W.3 and got marked Ex.P.l to ax.P.36.W1’i;e’»e._
defendants examined one witness D.W.l and got rrtarl<e_d"'li':'7.'x…'lj}.._1_i: ;_. é
to Ex.D.l4. The Trial Court after hearing both the
appreciation of the pleadings, oral and docurrtentar}/Aevidertcepasaled .'
the impugned judgment and decree suit 0fV'h'pla:intit'f_E§
Hence, this appeal.
6. During the pendency of this and 2
died. Plaintiff and deefe’a:da~nt ;md..4’e’r’_e_;he i§0l1S of deceased
were already 0n__recV0rd,V dat;:g’l:.t;e_-i’s or the deceased are brought
on record as thedwrenilainireg tegat repreaentatives of the deceased.
7. Heard argurnentsf_0n–._both the side and perused the entire
. Dttring ‘pendency of this appeal and after the demise of
def’elndarit_VNCV)§.:\l_”_»a1ndi:;.2’ene of the legal representatives filed P & SC
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No. 9/2007 for grant of succession certificate in respect of some of
the movables described in plaint B and C schedule properties. To
this P & SC No. 9/2007 plaintiff is also a party. The said P & __S__C
No. 9/2007 came to be disposed on 21.01.2010 by recordjii1§j”ai”‘–Vv
settlement. Therefore the suit in respect of plaint B and i *
movabies is liable to be dismissed. »
9. Further it is not in dispute that daring the j.pendeac’y of
appeal and after the demise of defendant Nos’.._l’and 2,.the plaintiiff.
and the defendants entered into a registered partition deed on
04.10.2o0s,_e1iv:difigVttenji’Ne;..2″‘*e,r_ plaiint A schedule and therefore
the suit is liahleptorbe cii–sni’isse.d for as this property.
“I Learned counsel on both the side submits that item No. 3
orpplaiiatii A.””Ascl’1edule ieselid and the same is not available for
partition. the’i’iite..i:si_:seen from the record that the purchaser of item
No.3 Aofuupiaint. is-chedule is not made a party to the proceedings.
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ll. The Trial Court in the impugned judgment held that itehhrng
No. 4 of plaint A schedule is a agricultural land measuring ”
survey no. 50 situated at Udayapalya is a Government 1and”the’same
do not belong to the joint family of plaintiff defendants. ‘V J
counsel for the plaintiff submits that item No.44.ofp1aintgrX’.l_schedule’: .
property is in unauthorised occupation fami’ly: and
the same is not granted to the’: :f%a;nil)_=’;fw{§I’V1* learned
counsel for the defendants are
not in possession of this if the plaintiff is
in possession of the Government for
grant of this;gland.A the defendants have no
objection. Recording this su’o..nri.ssi0’n’ of the learned counsel for the
defendants; it to be heldthat the plaintiff is entitled to work out his
:’rernVe:dy.yuith Goyernment for grant of item No. 4 of plaint A
schedule-fprop’ertyv.,in accordance with law, if he is so entitled and for
H which the”‘defendant’s have no objection.
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12. The only property that remains for consideration in this
appeal is item No. l. of plaint A schedule property. Plain-tiff
contends, that this property is acquired in the name of first detendantsr, .,
out of the income from the agricultural lands belonging to__uth.e’joi1it =
‘family. The Trial Court noticed the fact tl,iatMin”thpe”–.year
property was acquired by defendant _No. lender a regi:ate1’ed’~
deed as per Ex.D.4. On one had P.VV:ll’*i,and that
defendant No. 1 had agricultural .lan’dsiVs.:’and’sAhouse’property at
Udayapalya. On the other ‘l–:’Vwif:’_3lV”ofV.defendant No. l
deposed before the§Tria_lpl_Cour:t that her did not had his own
house native place Udayapalya. As
against this orallevidence”‘the,re’~~.islno document proof produced by
_v the plaintiff in proof, the fact that his father owned joint family
v’¥_prop’crties;t the oral evidence of P.W.l. and P.W.3 specify that
delfendanti some land in his village «- Udayapalya and they
V have not statiedvthe survey numbers, extent of land and the income
frornthe lands. These two witnesses P.W.l and P.W.3 do
that the lands owned by defendant No. 1 were joint family
{my
properties. In the absence of any documentary evidence, the Trial
Court rightly refused to accept the contention of plaintiff that itern~,p
No.1 of plaint A schedule property was acquired out of ”
from the joint family agricultural lands. Except the
testimony of P.W.l there is no other evidence onre’cord._ to ‘p-rohve.
theory that defendant No.1 had agricultural laridsin his land: 0
out of that income he had acquired plain:.Vschedulef”iteni’ E-‘J-o. lip The
finding of the Trial Court is accorriance “law and find no
justifiable ground to interfere with the
13. see.rifduring the pendency of this
appeal defendant No. schedule item No. l in favour
of defendant’ No. 40 tmd_},-‘r”a registered gift deed dated 29.09.2007.
Learned foiothe plaintiff contends that the alleged gift deed
is an .outconie.o~f__l’ra;tid., misrepresentation and coercion. E do not
propose to godinto ‘this controversy since the same is not the subject
0’ rnatterre cf__thisfsuit. However, the plaintiff is entitled to work out his
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remedy in accordance with law before the appropriam forum if heisud.
desires.
14. Accordingly and for the reasonsflétatedéy’ab{j–,{e,iappeeilH _
is hereby dismissed.
LRS/191I2010.