S.R. Nayak, J.
1. This regular first appeal is preferred by the defendant in the suit and directed against the judgment and decree dated 20th October, 1997 passed in Original Suit No. 27 of 1993 on the file of the Court of the Civil Judge (Senior Division), Gadag.
2. The respondents herein are the plaintiffs. They filed the above suit for partition of the suit schedule property by metes and bounds and for mesne profits.
3. The case of the plaintiffs in brief is as follows:
The father of the plaintiffs and the defendant had three sons and five daughters as reflected in the genealogy produced at Appendix A. The father of the plaintiffs and defendant expired on 16-12-1953 at the native place called Holealur Village. Before his demise, the father had performed the marriage of all his daughters except the youngest one by name Kumuda. The plaintiffs and the defendant together performed the marriage of Kumuda. At the time of the death of the father, the plaintiffs were minors and the defendant was the only major son. After demise of the father, the defendant entered his name and the names of the plaintiffs in the revenue records of the properties of the joint family as legal heirs of the deceased Shri Raghavendra Rao. The plaintiffs and the defendant constituted a joint hindu family and defendant is the manager of the Hindu Undivided Family (HUF). The defendant being the Manager of the HUF has been managing the family properties from 4-2-1954 till date. Plaintiff 2 is working in Post and Telegraphs Department since 30-11-1962 and plaintiff 1 is also working in a private service at Bangalore since May 1961. The School Board Committee of Ron, and A.P.M.C., Holealur have acquired the agricultural lands bearing R.S. Nos. 5/3B and 5/4 measuring approximately 12 acres 22 guntas through the Land Acquisition Officer-cum-Assistant Commissioner and the defendant received compensation of Rs. 18,657.24 ps. Likewise, the compensation due to the HUF under the Karnataka Land Reforms Act was also received by the defendant. Totally the defendant received more than Rs. 3,00,000/- as compensation. The plaintiffs demanded for the share in the said compensation money. The defendant refused to pay any amount to the plaintiffs. The plaintiffs demanded for partition of the HUF property which was also refused by the defendant despite legal notice issued by plaintiff 1.
4. The suit was contested by the defendant. In the written statement filed by the defendant, it was contended that the suit is not maintainable; the suit properties are not the joint family properties; the plaintiffs and the defendant are not the members of the joint family; the plea of the plaintiffs that the plaintiffs and defendant together performed the marriage of Kumuda is false; the suit is barred by limitation; the defendant alone has performed the marriage of Kumuda by raising loan; the defendant also raised a loan of Rs. 1,00,0007- for the purpose of education and marriage of the plaintiffs; the residential building raised on the Site No. 55, II stage, Gunddalahalli Postal Colony, Bangalore-24 with the financial help of the defendant is not included in the hotchpot of the joint family properties; House No. 71 shown in Schedule B is not the family property of the plaintiffs and the defendant; House Nos. 73, 74 and 75 were in dilapidated condition and the defendant repaired the same by spending more than Rs. 20,000/-; the defendant also spent Rs. 5,000/- for providing water-tap, electricity connection; when there was a dispute regarding the family debts, the plaintiffs realising that they were not in a position to pay or share the family debts, relinquished their shares in the joint family properties in favour of the defendant and therefore the plaintiffs are not entitled to any share in the joint family properties; the defendant spent more than Rs. 40,0007- to effect improvement in the land comprised in R.S. No. 115; the defendant gave considerable sum of money to plaintiff 1 out of his income at the time of his starting the business in the year 1982; since the defendant has been in possession and enjoyment of the suit properties for more than 12 years openly without any objection from the plaintiffs, he perfected his ownership right by adverse possession.
5. The Court below on the basis of the above pleadings framed the following issues and additional issues for trial:
“(1) Do plaintiffs prove that suit house bearing No. 71 and properties mentioned in “C” Schedule are joint family properties?
(2) Does defendant prove to be the absolute owner/possessor of suit House No. 71 on the basis of the purported Will executed by Smt. Ramabai Jahagirdar as contended in para 10 of W.S.?
(3) Does defendant prove the oral partition of 1962, as carved in para 22 of W.S.?
(4) Does defendant prove to have incurred expenses of over one lakh towards viz., the marriage of Kumuda, education, etc., as contended in para 7 of W.S.?
(5) Does defendant prove the expenses referred to in paras 11, 12, 17 and 19 of W.S.?
(6) If so, (a) does he prove his exclusive title and possession over suit House No. 72 and land R.S. No. 115 as contended in para 11 of W.S.? (b) what is the liability of each plaintiff? (7) Does defendant prove his right over site No. 55 of Bangalore and the contentions in para 9 of W.S.? (8) If so, is suit bad for having not included said property in this suit? (9) Is suit barred by limitation, vide para 13 of W.S.? (10) Does he prove to have perfected title by way of adverse possession, vide para 22 of W.S.? (11) Are plaintiffs entitled to share? If so, what is share of each plaintiff and in which of the suit properties? (12) Whether Court fee paid is insufficient? If so, what is the Court fee payable? (13) Reliefs? Additional Issue No. 1.--Whether the plaintiffs prove that defendant has receiving Rs. 2,00,000/- as compensation amount, as contended in para 4 of the plaint? Additional Issue No. 2.--Whether the plaintiffs prove that defendant has received occupancy price and liable for accounts?"
6. On behalf of the plaintiffs, plaintiff 1 and two others were examined as P.Ws. 1 to 3 and 57 documents, Exs. P. 1 to P. 57 are marked. On behalf of the defendants, the defendant examined himself as D.W. 1 and examined 5 others as D.Ws. 2 to 6 and marked 24 documents as Exs. D. 1 to D. 24. The Court below on appreciation of oral and documentary evidence answered Issue Nos. 1, 3, 4, 5, 6(a), 7, 9, 10 and 12 and Additional Issue Nos. 1 and 2 in the negative and Issue Nos. 2 and 11 in the affirmative. As regards Issue No. 8, the Court below held that that issue could not survive for consideration in view of the findings recorded on the other issues.
7. In the result, the Court below decreed the suit in part in the following terms:
“2. Plaintiffs are entitled to 1/3rd share each in R.S. No. 115 of Holealur and House Nos. 72 to 75 of Holealur.
3. Plaintiffs are entitled to mesne profits from the date of suit and a enquiry to be held regarding the mesne profits.
4. Draw up preliminary decree”.
8. Hence this regular first appeal by the defendant under Section 96 of the CPC.
9. I have heard Sri Ravi G. Sabhahit, learned Counsel for the appellant and Sri H.R. Ananth Krishna Murthy, learned Counsel for respondents 1 and 2 and Sri Aravind M. Negalur, learned Counsel for the impleaded respondents 3 to 5. At this stage itself, it needs to be noticed that respondents 3 to 5 are the sisters of the plaintiffs and the defendant and they were not impleaded as party to the suit. However, in this appeal, they impleaded themselves as respondents 3 to 5 by order of the Court dated 13-9-2001.
10. Sri Ravi G. Sabhahit would strenuously contend that the findings recorded by the Court below are perverse, inasmuch as such findings are not at all possible having regard to the evidence laid before the Court below. Sri Ravi G. Sabhahit also contended that the suit itself was not maintainable for non-joinder of necessary parties and the necessary parties are the five sisters of the plaintiffs and the defendant. Sri Ravi G. Sabhahit also contended that nothing substantial was elicited in the cross-examination of the witnesses of the defendant to discredit their evidence in regard to relinquishment of the shares of the plaintiffs in the joint family properties, in regard to the defendant, borrowing sums of money for educating the plaintiffs 1 and 2 and performing the marriage of Kumuda. The thrust of the argument of Sri Ravi G. Sabhahit is that the Court below did not appreciate the evidence on record in the way it was expected to do so and as a result it has arrived at wrong conclusions on issues which were set down for trial.
11. Sri H.R. Ananth Krishna Murthy, learned Counsel appearing for the plaintiffs-respondents 1 and 2 herein, on the other hand, would fully support the findings recorded by the Court below and would maintain that having regard to the evidence lead before the Court below in the trial of the suit, no other findings are possible and the findings recorded by the Court below are the only permissible findings. The learned Counsel would also highlight the inconsistencies in the plea and evidence lead before the Court below by the defendant.
12. Having regard to the rival contentions urged before the Court the following points arise for consideration and decision in this regular first appeal:
Point No. 1.–Whether the suit should have been dismissed by the Court below for non-joinder of necessary parties?
Point No. 2.–Whether the findings recorded by the Court below on the issues and additional issues suffer from vice of perversity as contended by the learned Counsel for the appellant?
Point No. 1.–At the threshold, it needs to be noticed that the plea that the suit filed by the plaintiffs is not maintainable for non-joinder of necessary parties was not taken in the written statement filed by the defendant. The argument of Sri Ravi G. Sabhahit is that in the plaint itself it was averred by the plaintiffs that the plaintiffs and the defendant had five sisters and therefore the Court below ought to have taken note of the said fact and dismissed the suit as not maintainable because the plaintiffs did not implead them as parties to the suit. The contention of Sri Ananth Krishna Murthy is that it has come in the evidence that, of the five sisters, four were married even before the Hindu Succession Act was enacted and brought into force. The learned Counsel also contended that if the defendant has failed to take such a plea in the Court below, he cannot be permitted to raise that plea in this appeal. Sri Aravind M. Negalur, learned Counsel for the impleading respondents 3 to 5 who are the sisters of the plaintiffs and the defendant drawing the attention of the Court to the pleading filed by respondents 3 to 5 in this Court would contend that none of the sisters are claiming any right in the suit schedule properties of HUF and therefore, non-impleadment of them as parties to the suit is of no legal consequence. In my considered opinion, if the defendant wanted to non-suit the plaintiffs on the ground of non-impleadment of necessary parties, he ought to have raised that plea in the written statement and the Trial Court in that event would have framed necessary issue in that regard and recorded its finding. The question whether the plaintiffs and defendant at the date of institution of the suit, had five sisters and whether all the five sisters were alive and whether they were married before the Hindu Succession Act was enacted and brought into force etc., are pure questions of fact. Since necessary plea was not raised in the written statement of the defendant in that regard, it is not permissible at this stage to hold that the suit is not maintainable for non-joinder of necessary parties. Be that as it may, having regard to the specific stand taken by the sisters, respondents 3 to 5 in this appeal by filing their affidavit relinquishing their rights in the suit schedule HUF properties, I do not find any substance in the contention now raised by Sri Ravi G. Sabhahit.
Point No. 2.–Before dealing with this point, it needs to be noticed that if the findings recorded by the learned Trial Judge on the issues could be sustained on the basis of the evidence on record, simply because another view is possible from the same evidence on record, it may not be appropriate for the Appellate Court to disturb the findings of the Trial Court substituting its own findings.
13. I have carefully perused the findings of the learned Trial Judge on each of the issues framed for trial. The relationship between the parties is not in dispute and the burden cast on the defendant to prove that the plaintiffs in the year 1962 relinquished their shares in the properties of the HUF, is not at all discharged satisfactorily by the defendant. Oral evidence of the defendant himself bristles with inconsistencies as well as improbabilities. Even according to the defendant, the relinquishment took place in the year 1962 in the presence of panchas and it took place after the plaintiffs were educated and they secured jobs. When the suit was instituted, the age of first plaintiff was shown to be 50 years and that of plaintiff 2 was shown as 47 years. The age of the plaintiffs shown in the plaint is not disputed. If that is so, in the year 1962, the age of the first plaintiff was either 17 or 18 years and the age of the second plaintiff was either 15 or 16 years. Therefore, this circumstance itself clinchingly falsifies the claim of the defendant that in the year 1962 in the presence of panchas, the plaintiffs relinquished their shares in the properties of the HUF. It is also relevant to notice that at the age of 15/16 and 17/18, the plaintiffs 1 and 2 respectively, in the normal course, ought not to have completed their matriculation and secured the job.
14. The evidence in regard to the claim, of the defendant that he borrowed money for education of the plaintiffs and performing the marriage of Kumuda is very scanty and improbable and highly incredible. In sequence of things as pleaded by the defendant himself, loans should have been borrowed from D.W. 4 and others obviously before 1962 when the plaintiffs 1 and 2 were 17 years and 15 years of age respectively. It is highly incredible that during those period, the first defendant living in a remote village would spend sum of Rs. 20,000/- to Rs. 25,000/-. Similarly, the evidence of the first defendant that he recently repaid loans borrowed for performance of the marriage of Kumuda is also incredible because he did not state in his evidence as to how he could raise such big money. Although D.W. 4 during the cross-examination spoke about the defendant borrowing loans not only from him but also certain others named therein, suggestion was made to the witness that he was making false statement to help the defendant. It is also brought in evidence that D.W. 4 is a tenant of a residential premises under defendant for number of years. It is highly incredible that D.W. 4 having advanced a sum of Rs. 10,000/- to Rs. 12,000/- to the defendant well before 1962 would keep quiet for nearly 30 years without taking any steps, legal or otherwise, to recover the same. It is also relevant to notice that though D.W. 4 in his evidence stated that the defendant repaid the loan, that fact is not pleaded by the defendant in the written statement filed by him. There was every reason for the learned Trial Judge not to accept the evidence of D.W. 4 in the absence of any corroborating evidence.
15. The plea of the defendant that he borrowed monies for educating the plaintiffs, for performing the marriage of Kumuda, for helping the plaintiffs in acquiring the property in Bangalore and starting business in Bangalore is not established by any substantive legal evidence. It is not the case of the defendant that he was earning some income apart from the income from the nucleus of the properties of the HUF. Admittedly, the appellant was not in any service or avocation. In that view of the matter, it is highly incredible that he borrowed sums of monies from others and repaid the loans to the concerned without disclosing the source of income or mobilization of the monies needed to discharge loans. This single circumstance itself clinchingly falsifies the plea taken by the defendant that he raised loans for the purpose of educating the plaintiffs and performing the marriage of Kumuda and to help the plaintiffs in acquiring the property and starting business in Bangalore. Taking into account the totality of the evidence on record, it could not be said that any of the findings on facts recorded by the learned Trial Judge is perverse.
16. In the result, appeal is dismissed with costs throughout.