Karnataka High Court
Timmappa Pursu Naik vs Umesh Pursu Naik on 10 January, 2024
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RSA No. 101111 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 10TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE R.NATARAJ
REGULAR SECOND APPEAL NO.101111/2022(PAR/POS)
BETWEEN:
TIMMAPPA PURSU NAIK,
AGE: 71 YEARS, OCC: AGRICULTURIST,
R/O: ALAGERI, TALUK: ANKOLA,
DT: KARWAR - 581 321.
...APPELLANT
(BY SRI S. V. YAJI, ADVOCATE)
AND:
1. UMESH PURSU NAIK,
AGE: 69 YEARS, OCC: AGRICULTURIST,
R/O: HATTIKERI, TALUK: ANKOLA,
DT: KARWAR - 581 316.
2. MOHAN PURSU NAIK,
AGE: 67 YEARS, OCC: AGRICULTURIST,
R/O: BALEGULI, TALUK: ANKOLA,
DT: KARWAR - 581 334.
Digitally
signed by 3. VAIKUNTA PURSU NAIK,
VINAYAKA AGE: 65 YEARS, OCC: AGRICULTURIST,
BV R/O: BALEGULI, TALUK: ANKOLA,
DT: KARWAR - 581 334.
4. KUMARI W/O. MOHAN NAIK,
AGE: 56 YEARS, OCC: HOUSEHOLD,
R/O: NINGANIBAG, BALEGULI,
TALUK:ANKOLA, DT: KARWAR-581334
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 23.03.2022 PASSED IN
R.A.NO.35/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE,
ANKOLA, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 10.10.2018, PASSED IN
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RSA No. 101111 of 2022
O.S. NO.53/2016 ON THE FILE OF THE CIVIL JUDGE, ANKOLA,
DISMISSING THE SUIT FILED FOR PARTITION AND SEPARATE
POSSESSION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellant has challenged the concurrent finding of
fact recorded by the Civil Judge, Ankola (henceforth referred to
as 'Trial Court') in O.S.No.53/2016 by its judgment and decree
dated 10.10.2018 and the Senior Civil Judge, Ankola
(henceforth referred to as 'First Appellate Court') in
R.A.No.35/2019 by its judgment and decree dated 23.03.2022,
that the appellant and the respondents herein are entitled to
1/5th share in properties mentioned in the counter claim.
2. The parties shall henceforth be referred to as they
were arrayed before the Trial Court. The appellant was the
plaintiff while the respondents were the defendant Nos.1 to 4
before the Trial Court.
3. The suit in O.S.No.53/2016 was filed for partition
and separate possession of the plaintiff's share in the suit
schedule property and for perpetual injunction. The suit
property was the land bearing No.513/8, measuring 39 guntas,
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situate at Alageri Village, Ankola Taluk, Uttara Kannada District.
He claimed that he was the elder brother of the defendants and
that the suit property was inherited from his father. He
claimed that there was an oral partition of the suit property
between the plaintiff and the defendants in terms of which, 9
guntas was given to the share of the plaintiff but there was no
formal partition of the suit property by metes and bounds. He
claimed that he approached the defendants to demarcate the
property as per the oral partition. However, the defendants did
not cooperate for measurement of the property but defendant
No.3 started excavation of the suit land and when questioned,
defendant No.3 did not heed to the words of the plaintiff but
laid a foundation on the suit land. Though he filed objection
before the Panchayat, no action was taken by them. Therefore,
he was constrained to file a suit for partition and separate
possession of the suit property.
4. The defendant No.2 filed his written statement
admitting the relationship and also that the suit property was
inherited from their father. He claimed that the plaintiff and
defendants were the joint owners of the suit property and that
it was not partitioned till date by metes and bounds. He denied
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the oral partition set up by the plaintiff and claimed that the
mutation proceeding initiated in the name of the plaintiff was
not in accordance with law. He also made a counter claim
contending that there were other properties of the family
belonging to the plaintiff and defendants, which were not
included in the suit and they too were the joint family
properties. Consequently, he prayed for dismissal of the suit
and for decreeing the counter claim declaring that the plaintiff
and the defendants were entitled for 1/5th share in not only the
suit schedule property but also in the properties mentioned in
the counter claim.
5. Based on these contentions, the Trial Court framed
the following issues:-
1. Whether the plaintiff proves that suit
property is joint family property of himself
and defendants?
2. Whether defendant No.2 proves that there
are some other Joint family properties of
defendants and plaintiff as contended in
W.S. para No.8?
3. Whether plaintiff is entitled to relief as
claimed in the suit?
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4. Whether defendants entitled any relief as
claimed in counter claim mentioned in
W.S. para No.8?
5. What order or decree ?
6. The plaintiff was examined as PW.1 and he marked
Exs.P1 to P9. The defendant No.3 was examined as DW.1 and
he marked Exs.D1 to D16.
7. Based on the oral and documentary evidence, the
Trial Court held that the plaintiff did not file a suit for partition
in respect of all the properties belonging to the joint family but
selectively proceeded only against the land bearing
Sy.No.513/8 of Alageri Village, Ankola Taluk, Uttara Kannada
District. It held that the plaintiff admitted that the family
possessed other properties, which were mentioned by the
defendant No.2 in the counter claim, which too were inherited
from their father. The Trial Court therefore, dismissed the suit
filed by the plaintiff and decreed the counter claim filed by the
defendant No.2 declaring that the plaintiff and the defendants
were entitled to 1/5th share in the properties mentioned in the
counter claim.
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8. Being aggrieved by the said decree, the plaintiff
filed a composite appeal before the First Appellate Court
challenging the judgment and decree passed by the Trial Court.
The First Appellate Court secured the records of the Trial Court,
heard the counsel for the parties and framed the following
points for consideration:-
1. Whether trial court is right in holding that
partition between plaintiff and defendants
with respect to counter claim schedule
properties, which includes suit schedule
property, has not taken place by metes
and bounds?
2. Whether trial court is justified in
dismissing the suit and decreeing the
counter claim with allotting 1/5th share
each to plaintiff and defendants?
3. Whether appellant has made out ground
to permit him to file written statement to
counter claim?
4. Whether appellant has made out ground
to interfere with the judgment and decree
of the trial court?
5. What order?
9. The plaintiff marked additional documents as
Exs.P10 to P23 on his behalf.
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10. The First Appellate Court after perusing the records
held that Exs.P10 to P23 were disputed by the defendants but a
perusal of the same established an oral partition between the
plaintiff and the defendants. However, since the oral partition
was not complete and there was no document to establish that
there was a partition by metes and bounds and since the suit
filed by the plaintiff was only for partition in respect of one item
of the joint family properties, the First Appellate Court held that
the plaintiff was not entitled to a decree of partition only in
respect of one property. It held that the Trial Court was
justified in decreeing the counter claim and declaring that the
plaintiff and the defendants were entitled to 1/5th share in the
properties mentioned in the counter claim.
11. Being aggrieved by the said judgment and decree,
the plaintiff has filed this regular second appeal.
12. The learned counsel for the plaintiff contended that
at the oral partition, 9 guntas of land in the suit schedule
property was granted to him and since the First Appellate Court
has found that there was adequate proof regarding oral
partition, it must have decreed the suit and must have directed
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demarcating of the property that had fallen to the share of the
plaintiff and must have granted an order of perpetual
injunction. He therefore, contended that the Trial Court could
not have dismissed the suit in its entirety but must have
decreed the suit in respect of the suit schedule property and
must have granted injunction.
13. The fact that the plaintiff had filed a suit for
partition in respect of the entire extent of land in Sy.No.513 /8
is not in dispute. Therefore, when the plaintiff filed a suit for
partition, it was incumbent upon him to not only proceed
against the suit property but also all other properties belonging
to the family. There was no reason assigned by the plaintiff to
justify the suit for partial partition. On the contrary, the
defendant No.2 contended that the suit property was
undoubtedly inherited from their father but claimed that along
with the suit property, there were other properties that were
inherited from their father, which were not included in the suit.
The fact that the properties mentioned in the counter claim
filed by the defendant No.2 were joint family properties, was
not seriously disputed by the plaintiff. Therefore, there is
justification in not decreeing the suit filed by the plaintiff and
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decreeing the counter claim filed by the defendant No.2.
Therefore, no substantial question of law arises for
consideration in this appeal warranting interference with the
judgments and decrees of the Trial Court and the First
Appellate Court.
This appeal lacks merit and is dismissed.
SD/-
JUDGE
PMR
CT-ASC
