Nagendra @ Nagesh S/O Ramachandra ... vs Asha W/O Pandurang Ghavale
2022 Latest Caselaw 936 Kant

               IN THE HIGH COURT OF KARNATAKA
                       DHARWAD BENCH

           DATED THIS THE 20TH DAY OF JANUARY 2022

                           BEFORE

      THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                  RSA.NO.100870/2014 (PAR)
BETWEEN

NAGENDRA @ NAGESH
S/O RAMACHANDRA BAILURKAR
AGE: 54 YEARS,
OCC: SERVICE,
R/O. 1078/2, BHICHU GALLI,
SHAHAPUR, BELGAUM-59005

                                                 ... APPELLANT

(BY SRI.SANTOSH D.NARGUND, SRI.SHRIKANT R.SATTIGERI AND,
SRI.ANAND R.KOLLI, ADVS.)


AND

1.    MRS.ASHA W/O PANDURANG GHAVALE
      AGE: 59 YEARS,
      OCC: HOUSEWIFE,
      R/O. NAVASAHINATH CO-OP.HOUSING SOCIETY,
      CHAWL NO.4, ROOM NO.1,
      BHAGWAN NAGAR, BETURKAR WADA,
      THANE- DISTRICT THANE,
      MAHARASHSTRA STATE,

2.    SHRI.MARUTI
      S/O RAMACHANDRA BAILURKAR
      AGE: 55 YEARS,
      OCC: PVT.SERVICE,
      R/O.C/O.NARAYAN VITHAL
      SHAHAPURKAR, BEHIND DR.RAYS
      RESIDENCE, BRAMHALING GALLI,
                                2




     HAWAL NAGAR, MACHE,
     TALUK and DIST: BELGAUM

3.   SHRI.RAJENDRA @ RAJU
     S/O RAMACHANDRA BAILURKAR
     AGE: 49 YEARS,
     OCC: BUSINESS,
     R/O. 1078/2, BICHU GALLI,
     SHAHAPUR, BELGAUM

4.   SHRI.SANJAY
     S/O RAMACHANDRA BAILURKAR
     AGE: 46 YEARS,
     OCC: BUSINESS,
     R/O. 1078/2, BICHU GALLI,
     SHAHAPUR, BELGAUM

                                              ... RESPONDENTS

(BY SRI.SANGRAM S.KULKARNI, ADV. FOR R1 TO R4)


        THIS APPEAL IS FILED UNDER 100 OF CPC, AGAINST THE
JUDGEMENT & DECREE DTD:18.09.2014 PASSED IN R.A.NO.118/2013
ON THE FILE OF THE PRESIDING OFFICER FAST TRACK COURT II AND
ADDITIONAL DISTRICT JUDGE, BELGAUM, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DTD:26.02.2013
AND THE DECREE PASSED IN O.S.NO.117/2004 ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE BELGAUM, DISMISSING THE SUIT
FILED     FOR    PARTITION   AND   SEPARATE      POSSESSION.


        THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
                                  3




                            JUDGMENT

The captioned Regular Second Appeal is filed by the

unsuccessful plaintiff whose suit for partition and separate

possession is dismissed insofar as CTS No.979 situated at

Gade Marg, Belagavi is concerned. The appellant/plaintiff

filed a suit for partition and separate possession in

O.S.No.117/2004 by specifically contending that suit

schedule properties are joint family properties and

therefore, he is entitled for his legitimate share in the suit

schedule properties. The appellant/plaintiff has specifically

contended that house bearing CTS Nos.1078/2 and CTS

No.1078/3A are ancestral properties and appellant/plaintiff

along with respondents/defendants are in joint possession.

The appellant/plaintiff grievance is that he is compelled to

reside in a two room house on the first floor bearing CTS

No.1078/2 and the said space is not sufficient for his family

members and therefore requested the

respondents/defendants to effect partition by metes and

bounds. The appellant/plaintiff also contended that insofar

as property bearing CTS No.979 is concerned, this property

is purchased in the name of defendant Nos.3 and 4 under

registered sale deed dated 06.03.2001. It is specifically

contended that the said property is purchased by investing

the joint family funds and separate earnings. The

appellant/plaintiff has specifically pleaded that he has also

contributed towards the sale consideration of purchase of

CTS No.979. On these set of pleadings, the

appellant/plaintiff sought partition in all the joint family

properties.

2. Respondents/defendants on receipt of summons

contested the proceedings by filing written statement. The

respondents/defendants stoutly denied the entire

averments made in the plaint. Respondents/defendants

specifically contended that, insofar as property bearing CTS

No.1078/2 and 1078/3A are concerned, there was oral

partition between the appellant/plaintiff and

respondents/defendants and respective family members

are in exclusive possession in terms of the allotment of

share. Insofar as property bearing CTS No.979 is

concerned, defendant Nos.3 and 4 specifically contended

that CTS No.979 is their self-acquired property and plaintiff

has no right and title over the property bearing CTS

No.979. The respondents/defendants stoutly denied the

alleged contribution made by the appellant/plaintiff while

purchasing CTS No.979. On these set of defence, the

respondents/defendants sought for dismissal of the suit.

3. The trial court on appreciation of oral and

documentary evidence held that the property bearing CTS

NOs.1078/2 and 1078/3A are ancestral properties and

therefore, appellant/plaintiff is entitled for 1/3rd share. The

contention of the respondents/defendants that there was

oral partition was negatived by the trial court. While

examining the claim of the appellant/plaintiff in CTS

No.979, the trial court on meticulously examining of ocular

and documentary evidence held that it is self-acquired

property of defendant Nos.3 and 4 and appellant/plaintiff

has failed to establish that he has also contributed towards

purchase of CTS No.979. Being aggrieved by the dismissal

of the suit insofar as CTS No.979, the appellant/plaintiff

preferred an appeal before the first appellate court. The

first appellate court on re-appreciation of oral and

documentary evidence has concurred with the finding

arrived at by the trial court insofar as property bearing CTS

No.979 is concerned.

4. The First Appellate Court on re-appreciation of

the oral and documentary evidence, has also examined the

evidence of the appellant/plaintiff who has stated that he

worked as a labourer for 22 years and he has admitted that

he was addicted to vices and in his evidence he has

expressed that in spite of penury, his children were able to

complete their education and he was able to take care of

the household requirements and medicine. Therefore, the

First Appellate Court having taken note of this clinching

evidence on record, has come to the conclusion that there

is absolutely no evidence to indicate that the appellant-

plaintiff has also contributed to purchase the property

bearing CTS No.979. On these set of reasoning, the

Appellate Court has proceeded to dismiss the appeal.

5. It is these concurrent judgments, which are

under challenge before this Court. The present second

appeal revolves around narrow compass. The subject

matter of the property is only property bearing CTS

No.979. The appellant-plaintiff contends that he has also

contributed to purchase the property bearing CTS No.979.

Admittedly, defendant No.3 and 4 have purchased the suit

schedule property under registered sale deed dated

16.03.2001 for a sale consideration of Rs.2,10,000/-.

Defendants 3 and 4 to demonstrate that they have

purchased the property by raising a loan, have relied on

Ex.P10 which is loan account statement maintained by the

Union Bank of India, Shahapur Branch, Belagavi. When this

rebuttal evidence is taken on record, then this Court would

find that there is absolutely no evidence to indicate that

the plaintiff has also contributed to purchase the property

bearing CTS No.979. Having taken note of the specific

contention that he along with his wife contributed to the

tune of Rs.50,000/- to purchase the property bearing CTS

No.979, it was incumbent on the part of the appellant-

plaintiff to prove the said fact by placing on record cogent

and clinching evidence. In the absence of any material

evidence to indicate that he also contributed to purchase

the property bearing CTS No.979, both the courts below

were justified in negativing the claim of the appellant-

plaintiff in respect of property bearing CTS No.979 is

concerned. Admittedly, the family of the appellant and

respondents owned only two ancestral houses. Therefore,

the material on record clearly indicates that there was no

joint family nucleus. Therefore, under the facts and

circumstances of the case, in the absence of any clinching

evidence to indicate that the appellant-plaintiff has also

contributed to purchase the property bearing CTS No.979

both the courts below are justified in dismissing the suit

insofar as CTS No.979 is concerned. No substantial

question of law arises in the present appeal. The appeal is

devoid of merits and is dismissed accordingly.

In view of disposal of the appeal, pending

interlocutory applications, if any, do not survive for

consideration and are dismissed accordingly.

Sd/-

JUDGE MBS/Yan/-