Karnataka High Court
Sri L T Ravi Kumar vs Sri Thimmaiah on 2 January, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA No. 1405 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 1405 OF 2018 (PAR)
BETWEEN:
1. SRI L T RAVI KUMAR
AGED ABOUT 39 YEARS,
S/O SRI THIMMAIAH,
NO 15, GIRIYA BOVIPALYA,
2ND CROSS, T NARASIPURA ROAD,
MYSURU - 570011.
...APPELLANT
(BY SRI. Y K NARAYANA SHARMA.,ADVOCATE)
AND:
1. SRI THIMMAIAH
AGED ABOUT 73 YEARS
S/O SRI PUTTA BOVI
Digitally RESIDING AT NO. 34,
signed by GIRIYA BOVIPALYA,
SUMA B N
2ND CROSS, T NARASIPURA ROAD,
Location:
High Court of MYSURU - 570011.
Karnataka
2. SRI L T MAHESH KUMAR
AGED ABOUT 37 YEARS
S/O SRI THIMMAIAH
RESIDING AT NO. 34,
GIRIYA BOVIPALYA,
2ND CROSS, T NARASIPURA ROAD,
MYSURU - 570011.
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RSA No. 1405 of 2018
3. SRI RAMESH KUMAR
AGED ABOUT 33 YEARS
S/O SRI THIMMAIAH
RESIDING AT NO. 34,
GIRIYA BOVIPALYA,
2ND CROSS, T NARASIPURA ROAD,
MYSURU - 570011.
4. SMT SUKANYA
AGED ABOUT 35 YEARS
D/O SRI THIMMAIAH
W/O SRI BALARAJU
RESIDING AT NO. 34,
GIRIYA BOVIPALYA,
2ND CROSS, T NARASIPURA ROAD,
MYSURU - 570011.
5. SRI A S SOMESH
AGED ABOUT 58 YEARS
S/O SRI SIDDEGOWDA
RESIDING AT NO. 144,
23RD MAIN, 2ND STAGE,
D BLOCK, JAYANAGAR,
MYSURU - 570014.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 R/W ORDER 41
RULE 1 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED
22.09.2017 PASSED IN R.A.NO.298/2012 ON THE FILE OF THE
III ADDITIONAL DISTRICT JUDGE, MYSURU AND THE
RECORDS IN O.S.NO.141/2005 ON THE FILE OF III
ADDITIONAL DISTRICT JUDGE, MYSURU AND ETC.,
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 1405 of 2018
ORDER
Accepting the cause shown in the affidavit
accompanying the application, delay is condoned.
2. Appeal is taken up for admission.
3. Present appeal is filed by the plaintiff/appellant
being aggrieved by the judgment and decree dated
14.06.2012 passed in O.S.141/2005 on the file of III
Additional Senior Civil Judge, Mysuru (hereinafter referred
as 'Trial Court') by which suit for the partition filed by the
plaintiff has been dismissed. Aggrieved by the same
plaintiff preferred a regular appeal in R.A.No.298/2012 on
the file of III Additional Senior Civil Judge, Mysuru
(hereinafter referred as 'First Appellate Court') by the
judgment and decree dated 22.09.2017, the First
Appellate Court dismissed the regular appeal with cost.
Being aggrieved by the same plaintiff is before this Court.
4. The brief facts of the case are:
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4.1 That plaintiff is the son of the defendant No.1
and defendant Nos.2, 3 and 4 are the other sons and
daughter of the defendant No.1 and the defendant No.5 is
the purchaser of the land in Sy.No.133 measuring 4 acres,
Sy.No.81 measuring 2 acres and 2 guntas, Sy.No.82
measuring 1 acre and 36 guntas of Chatnahalli Village,
Varuna Hobli, Mysuru Taluk which has been described as
item No.II(a) and (b) of the schedule to the plaint. In the
suit for partition plaintiff had also included two more items
of the properties namely house property bearing No.34
situated at Giriya Bovi Palya, 2nd Cross, Mysuru and also
land in Sy.No.4 measuring 10 acres of Kumbarahalli,
Mysuru Taluk, the said two properties has been described
as item No.I (a) and (b) of the schedule to the plaint.
4.2 In the written statement filed by the defendant
No.5, the claim of the plaintiff has been denied. The Trial
Court framed the issues and recorded the evidence and
having found that the plaintiff has failed to prove that the
suit properties are joint family properties and that the
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deed of sale executed by the defendant No.1 in favour of
defendant No.5 in respect of item No.II of the properties
to be valid and subsisting, dismissed the suit of the
plaintiff. In the reasoning assigned to hold that the
plaintiff failed to prove the suit properties to be the joint
family properties, the Trial Court has appreciated the fact
inextenso at paragraph 20 of the judgment. The Trial
Court has dealt with the issue with regard to the nature of
the property whether being the joint family or ancestral
property. The Trial Court has also taken note of the fact
that the plaintiff during the pendency of the suit had filed
an application seeking deletion of item No.I (a) and item
No.I (b) of the schedule property from the array of the
joint family properties. Thus, the plaintiff has himself had
admitted that item No.I (a) and item No.I (b) of the
schedule properties are not joint family properties. As
regards the Item No.II of the suit schedule properties are
concerned, though the plaintiff had contended said four
acres of land in Sy.No.133 was granted in favour of the
mother of the defendant No.1, who is the grandmother of
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the plaintiff, it was contended that the same formed part
of ancestral and joint family properties. The Trial Court
having taken note of the said contentions and also the
revenue records produced in support of the same has
come to the conclusion that the said property could not be
considered as joint family properties or ancestral
properties. Though item No.II (b) of the suit schedule
property bearing Sy.No.81 measuring 2 acres and 2
guntas and Sy.No.82 measuring 1 acre and 36 guntas of
Chatnahalli Village, Varuna Hobli, Mysuru Taluk is sought
to be included, the plaintiff has not produced the
documents or the material under which the said property
was acquired as a joint family property. Taking note of
these aspects of the matter the Trial Court has come to
the conclusion that the plaintiff failed to prove that the suit
properties more particularly item No.II (a) and item No.II
(b) are the joint family properties. The other grounds on
which the Trial Court has come to the conclusion is found
at para 25 of the impugned judgment. In that the Trial
Court has taken note of the fact that the plaintiff was aged
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26 years when the suit was filed and the sale deeds under
which item No.II of the suit properties were sold is of the
year 1993. The Trial Court has thus come to the
conclusion that when the deed of sale executed conveying
items of the properties in favour of defendant No.5,
plaintiff was aged about 14 years and he attained the age
of majority during the year 1997. Thus taking note of the
delay in filing the suit, the Trial Court came to the
conclusion that suit was also barred by limitation.
5. Aggrieved by the same an appeal was filed before
the First Appellate Court, the First Appellate Court having
framed the points for consideration and re-appreciating
the evidence has confirmed the reasoning and findings of
the Trial Court and has accordingly dismissed the appeal
with cost.
6. Sri. Y.K.Narayana Sharma, learned counsel for the
appellant/plaintiff reiterating the grounds urged in the
memorandum of the appeal submits that though the
plaintiff himself had sought to exclude item No.I of the
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property from the array of the suit schedule properties
from the nature of joint family property, the Trial Court
ought to have appreciated that the item No.II (a) and II
(b) are the joint family properties. On a specific query by
this Court learned counsel for the plaintiff submitted that
item No.II (a) of the property was granted in favour of
mother of the defendant No.1 and same was treated as
joint family property. He further submits that item No.II
(b) is concerned except the revenue records there is no
other document to prove the nature of the suit schedule
property. However, he insists that since the properties are
joint family ancestral properties and the Trial Court and
the First Appellate Court ought to have taken into
consideration provisions of Article 109 of the Limitation
Act, which prescribes period of twelve years for
challenging the sale deed. He submits that the Trial Court
and the First Appellate Court without referring to the
provisions of Article 109 of the Limitation Act have erred in
dismissing the suit of the plaintiff. Thus he submits that
aforesaid factual and legal aspect of the matter would give
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raise to the substantial question of law requiring
consideration at the hands of this Court.
7. Heard. Perused the records.
8. Issue No.1 framed by the Trial Court and point
No.1 framed by the First Appellate Court are specific with
respect to plaintiff requiring to prove that the suit
scheduled properties are the joint family properties of
himself and defendant Nos.1 to 4 and that he was entitled
for 1/5th share in the suit scheduled properties. As noted
above, the plaintiff himself had filed an application seeking
to delete item No.I (a) and item No.I (b) of the suit
properties claiming that they are not joint family
properties. According to the case of the plaintiff property
in item No.II (a) was granted in favour of mother of the
defendant No.1 and plaintiff is not able to produce any
documentary evidence with regard to property in item
No.II (b) to be the joint family properties. Taking note of
these factual aspect of the matter and oral and
documentary evidences produced by the plaintiff the Trial
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Court and the First Appellate Court has come to the
conclusion that the plaintiff has failed to prove the said
properties are the joint family properties.
9. Learned counsel for the appellant/plaintiff however
insists that there is an admission by the defendant No.1
with regard to the nature of the properties being the joint
family properties. Thus he submits when the defendant
No.1 has admitted the nature of the properties to be the
joint family properties, there was no requirement of the
plaintiff have to be proved that the suit schedule
properties as joint family properties. He further submits
that framing of the issues in that regard by the Trial Court
and the First Appellate Court was unnecessary.
10. The said submission cannot be countenanced for
two reasons. Firstly, it is the case of the plaintiff suit
schedule properties are the joint family properties and the
issues have been framed based on the pleadings of the
plaintiff and defendants. If at all the plaintiff was
aggrieved by framing of the issues, he ought to have
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sought for necessary orders in that regard and same
cannot now be retracted by the plaintiff at this stage.
Secondly, in the light of the pleading and non production
of material evidence by the plaintiff to establish his
contentions of the suit properties being either ancestral
properties or the joint family properties, any admission by
defendant No.1 is of no consequence. Though there can be
a presumption regarding existence of a joint family, there
cannot be a presumption of joint family property. The
same has to be established by leading cogent and
acceptable evidence. As noted above the Trial Court and
the First Appellate Court having adverted to issue No.1
and point No.1 respectively and having elaborately
appreciated the oral and documentary evidences produced
by the plaintiff has come to conclusion that the plaintiff
failed to prove the suit scheduled properties to be the joint
family properties/ancestral properties. The said findings
being based on the pleading and the facts warrants no
interference.
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11. The second aspect of the matter canvassed by
the learned counsel for the appellant/plaintiff is with
regard to the non-application of provisions of Article 109 of
the Limitation Act.
12. The Article 109 of the Limitation Act, 1963 reads
as under:
109. By a Hindu Twelve years. When the alienee
governed by Mitakshara
takes possession of
law to set aside his
father's alienation of the property.
ancestral property.
13. Thus, condition precedent for application of
provisions of Article 109 of the Limitation Act is the
existence of the ancestral/joint family properties. Since
the Trial Court and the First Appellate Court based on
documentary evidence have come to conclusion that the
plaintiff has failed to prove the properties to be the joint
family/ancestral properties, there is no requirement of
application of Article 109 of the Limitation Act. In that
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view of the matter no substantial question of law would
arise for consideration in this appeal.
Accordingly, appeal is dismissed.
Sd/-
JUDGE
RL
