Aruna vs Sri. V. Muniyappa
2023 Latest Caselaw 626 Kant

                              1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 10TH DAY OF JANUARY, 2023

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                  R.S.A.NO.328/2017 (PAR)

BETWEEN:

1.     ARUNA,
       D/O KRISHNAPPA,
       W/O SRINIVAS,
       AGED ABOUT 33 YEARS,

2.     AMBIKA,
       D/O KRISHNAPPA AND
       WIFE OF SRINIVAS,
       AGED ABOUT 32 YEARS.

       BOTH ARE RESIDENT OF 1ST MAIN,
       1ST CROSS, GANDHINAGAR,
       KOLAR CITY - 563 101.
                                            ...APPELLANTS

            (BY SRI G.B. MANJUNATHA, ADVOCATE)

AND:

SRI V. MUNIYAPPA,
S/O ROWTH VENKATAPPA @ VENKATAPPA,
AGED ABOUT 78 YEARS,
R/O 1ST MAIN, 1ST CROSS,
GANDHINAGAR,
KOLAR CITY - 563 101.
                                            ...RESPONDENT

        (BY SRI G. BALAKRISHNA SHASTRY, ADVOCATE)
                                  2



      THIS R.S.A. IS FILED UNDER SECTIN 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 24.10.2016
PASSED IN RA NO.74/2011 ON THE FILE OF THE I ADDL.
DISTRICT AND SESSIONS JUDGE, KOLAR, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED
27.11.2010 PASSED IN OS NO.223/2005 ON THE FILE OF THE
III ADDL. SENIOR CIVIL JUDGE AT KOLAR.

    THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

This matter is listed for admission today. Heard the

learned counsel for the appellants and the learned counsel for

the respondent.

2. This appeal is filed challenging the judgment and

decree dated 24.10.2016, passed in R.A.No.74/2011, on the file

of the I Additional District and Sessions Judge, Kolar.

3. The factual matrix of the case of the plaintiffs in

O.S.No.223/2005 before the Trial Court is that the suit schedule

properties are the joint family properties and the same belongs

to their father Venkatappa and he was the manager and kartha

of the family and in some of the suit schedule properties,

Venkatappa cultivated the lands as a tenant. Accordingly,

Venkatappa filed Form No.7 before the Land Tribunal, Kolar in

LRF No.538/1974-75. After enquiry, the said land was granted

by the Land Tribunal, Kolar in favour of the defendant, who is

the elder member of the family. After the death of Venkatappa,

some of the properties acquired out of joint family funds, the

same was registered in the name of the defendant, who is the

manager of the family. Due to woman folk, plaintiff No.1 and

defendant are having separate messes for the past ten years and

the suit schedule properties are in joint possession and

enjoyment of the plaintiffs and the defendant and there is no

division or demarcation between them. It is contended that in

respect of some of the properties, khatha stand in the name of

the defendant and plaintiff No.1 and in respect of some of the

properties, khatha stand in the name of Venkatappa and some of

the properties khatha remained in the name of vendors of

Venkatappa. Plaintiff No.1 has been suffering from paralysis for

past two years and not in a position to speak and walk freely.

For that reason, plaintiff Nos.2 to 5 joined with plaintiff No.1 to

file this suit. The plaintiffs and the defendant are in joint

possession and enjoyment of the suit schedule properties and

the defendant was managing the family affairs for all these

years. The defendant's attitude changed and he was misuing

the funds of the joint family properties with the instigation of

wife and children and the same has been questioned by the

plaintiffs, hence their relationship was strained. The panchayat

was convened for partition for granting half share and the same

ended in vain. Lastly in the month of July 2005, the plaintiffs

demanded their share with the defendant, but the defendant

refused and hence without any other option, the plaintiffs filed

the suit.

4. In pursuance of the suit filed by the plaintiffs before

the Trial Court, the defendant appeared and filed the written

statement, wherein he contended that the plaintiffs got issued

the notice on 05.01.1994 and the same was replied. There was

already a partition in the year 1978 itself and consequent of the

partition also, he had executed the sale deed in the year 1982 in

favour of the defendant, wherein he categorically admitted that

already there was a partition between them and acted upon and

also one more suit in O.S.No.51/1994 was filed and in the said

suit, the plaintiffs and the defendant have filed a memo stating

that the matter is settled out of Court and hence took the

defence that law of respondent-judicata is applicable. Based on

the pleadings, the Trial Court framed six issues at the first

instance and also recasted the issues while delivering the

judgment invoking Order 14 Rule 5 of CPC and answered all the

issues in the negative and dismissed the suit. The same was

challenged by the plaintiffs before the Appellate Court in

R.A.No.74/2011.

5. The Appellate Court considering the grounds urged in

the appeal, framed the issues for consideration whether the Trial

Court is justified in holding that the plaintiffs have failed to prove

that the suit schedule properties are joint family properties of

themselves and the defendant and are available for partition and

whether the plaintiffs have suppressed the material and relevant

facts while filing the suit and whether the Trial Court is justified

in recasting the issues during the course of delivering the

judgment and disposing of the suit without hearing the parties

and whether the judgment requires interference. The Appellate

Court taken note of the grounds urged in the appeal and having

re-appreciated both oral and documentary evidence available on

record and also the provisions of Order 6 Rule 2 of CPC, comes

to the conclusion that the plaintiffs have not made out any case

for granting of relief as sought in the suit and comes to the

conclusion that the Trial Court has not committed any error in

dismissing the suit. Hence, the second appeal is filed by the

plaintiffs before this Court.

6. The main contention of the learned counsel for the

appellants is that the judgment passed by the Trial Court is

contrary to the principles of natural justice and no opportunity is

given to the appellants after recasting of issues. It is the further

contention of the learned counsel that inspite of the properties

are joint family properties and belonged to one Venkatappa,

both the Courts have committed an error in holding that the

plaintiffs are not entitled for any share in the suit schedule

properties. The learned counsel would vehemently contend that

even though the joint memo was filed before the Trial Court in

O.S.No.51/1994, the suit schedule property share was not given

to the plaintiffs. The learned counsel would contend that Ex.D.3

was executed i.e., only to the extent of 7½ guntas of land and

there was no earlier partition as contended by the learned

counsel. Hence, substantial question of law has to be framed.

7. Per contra, the learned counsel for the

respondent/defendant would vehemently contend that there was

a partition in the year 1978. There is no dispute with regard to

the fact that the suit schedule properties belong to the family of

Venkatappa. In the year 1994, notice was given in terms of

Ex.D.1 and the same was replied in terms of Ex.D.2 on

24.01.1994 stating that there was already a partition between

them and inspite of it, suit was filed in O.S.No.51/1994 by the

plaintiffs. In the said suit, both plaintiff No.1 and the defendant

filed a memo stating that the matter has been settled out of the

Court and hence the suit was withdrawn. Inspite of it, one more

suit was filed in 2005 i.e., the present suit and the learned

counsel would contend that in order to prove the factum of

earlier partition in the year 1978, the very plaintiff had executed

a sale deed in favour of the defendant in the year 1982, wherein

a recital is made that already there was a partition between

them and the same clinches the evidence that already there was

a partition. The learned counsel would contend that in the

present suit, the plaintiffs have suppressed the fact that they

had filed O.S.No.51/1994 in respect of the very same suit

schedule properties and the same has been taken note of by the

Appellate Court invoking Order 6 Rule 2 of CPC and in detail

discussed in paragraph Nos.10 to 14 and confirmed the

judgment of the Trial Court. The learned counsel submits that

for some mistake on the part of the Trial Court in considering the

pleadings and evidence on record, that cannot be a ground to

reverse the finding of the Trial Court and there is no any glaring

error on the part of the Trial Court. The Appellate Court taken

note of in detail and formulated the point with regard to the

grounds urged in the first appeal and hence it does not require

interference of this Court to frame the substantial question of

law and to admit the appeal and hence the second appeal

requires to be dismissed.

8. Having heard the respective learned counsel and also

on perusal of the material available on record, it is not in dispute

that the suit schedule properties originally belonged to one

Venkatappa i.e., father of plaintiff No.1 and the defendant. The

main contention of the defendant before the Trial Court is that

already there was a partition in the year 1978 and no averment

is made with regard to the plaint in the earlier suit in

O.S.No.51/1994 in O.S.No.223/2005. It is important to note

that when the suit was filed in O.S.No.223/2005, the plaintiffs

have not whispered anything about the filing of O.S.No.51/1994

seeking the relief of partition. It is important to note that before

filing of O.S.No.51/1994, a legal notice was issued in terms of

Ex.D.1 on 05.01.1994 and reply was given in terms of Ex.D.2

dated 24.01.1994, wherein also set up a defence that there was

a partition in the year 1978 and subsequently after the receipt of

reply, the suit was filed. It is not in dispute that the said suit

was withdrawn by filing a memo in terms of Ex.D.7 on

16.11.1994 as settled out by the Court. Hence, it is clear that

the plaintiffs have suppressed the very fact of filing of

O.S.No.51/1994. The First Appellate Court taken note of the

document of Ex.D.3, which was executed by the plaintiff in

favour of his own brother in the year 1982 to the extent of 7½

guntas of land, wherein he has recited that there was a oral

partition between him and his brother and the said document

clearly discloses that there was a partition as contended by the

defendant in the written statement. The suit was filed in the

year 1994 and subsequently it was withdrawn and after lapse of

11 years, one more suit was filed in 2005 suppressing the very

fact of filing of earlier suit. The defendant placed the material

before the Court for having issued the notice and execution of

sale deed in terms of Ex.D.3 by the plaintiff in favour of the

defendant which clearly discloses that there was partition

between him and the plaintiff and all these factors are taken

note of by the First Appellate Court.

9. It is important to note that the learned counsel

brought to the notice of this Court the judgment of the Trial

Court in paragraph No.20 and no doubt, the Trial Court has

observed considering the document Exs.D.1 to 7 and taken note

of admission that all the suit schedule properties are ancestral

property and denied several suggestions took by the learned

counsel for the plaintiffs. But this will not take away the case of

the defendant and the defendant not disputed that the suit

schedule properties are not ancestral properties, but his

contention is that already there was a partition in the year 1978.

The material discloses that in pursuance of the said partition, the

plaintiff executed a sale deed in favour of the defendant in the

year 1982 and the document of Ex.D.3 discloses with regard to

half share was fallen to his share and out of it, he had sold the

property to the extent of 7½ guntas in favour of his own

brother/defendant and all these materials are considered by the

Trial Court and the Appellate Court. The Appellate Court

R.A.No.74/2011, formulated point Nos.1 to 4 and answered point

Nos.1 to 3 as affirmative in coming to the conclusion that the

Trial Court has not committed any error in recasting the issues

and even if the issues are recasted, if the parties have

understood the issues between the parties and met the case of

each of the parties before the Trial Court, the same cannot be an

error in recasting of the issues and the same is for the

convenience of the Court for framing of the issues at the time of

passing of the judgment. Hence, I do not find any error

committed by the First Appellate Court in considering the

material on record.

10. It is an admitted fact that the properties are the joint

family properties of the plaintiffs and the defendant, but the

properties are not available for partition since there was already

a partition in the year 1978 and the parties have acted upon in

terms of the partition and hence I do not find any error

committed by the Appellate Court in formulating the point and

answering the same as affirmative. The Appellate Court in detail

discussed in paragraph Nos.10 and 11 regarding the contention

of the plaintiffs and also the defendant and apart from that,

considered the documentary evidence on record i.e., Exs.D.1 to

7 as well as extracted the proviso of Order 6 Rule 2 of CPC with

regard to the suppression of facts in not stating anything in the

original suit filed by the plaintiffs in O.S.No.51/1994. The

learned counsel for the appellants contend that though joint

memo was filed in O.S.No.51/1994 and accordingly he has not

given that share and that was not the pleading before the Trial

Court when the suit was filed. Only in the second appeal, the

said contention is raised by the learned counsel for the

appellants. A reasoned order has been passed by the Appellate

Court with regard to the grounds urged in the first appeal and

also the Trial Court also taken note of the claim made by the

plaintiffs before the Trial Court and when both the Courts have

applied their mind and given anxious consideration to both oral

and documentary evidence placed on record, I do not find any

ground to admit the second appeal and to invoke Section 100 of

CPC to frame substantial question of law.

11. In view of the discussions made above, I pass the

following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE MD