SHIVAMMA Vs. SANGAPPA ANGADI

JUDGEMENT

(1.) This Regular first appeal is directed against the judgment and decree dated 21st August, 2014 passed by the Judge, Family Court at Davanagere in OS No.13 of 2012. This appeal is preferred by the defendants No.1 and 2 before the Court below.

(2.) For the sake of convenience, the parties in this appeal are referred to their status before the Court below.

(3.) The relevant facts of the case in brief are that, defendant No.1 is the wife of the plaintiff as well defendant No.2 and defendants No.6 to 9 are the children of plaintiff and defendant No.1. The plaintiff and defendant No.1 have purchased schedule property jointly on 07th May, 1990 by way of registered sale deed from one Mohammed Haneef Sab and accordingly, the plaintiff and defendant No.1 have become joint owners of the suit schedule property. Pursuant to the execution of sale deed, the names of the plaintiff and defendant No.1 has been mutated in the respective revenue records. The schedule property, admittedly, was a vacant site at the time of purchase made by the plaintiff and defendant No.1 on 07th May, 1990. The case of the plaintiff is that out of his earnings and by investing huge amount, he has put up a residential house in the suit schedule property by constructing a ground floor and the first floor. In the meanwhile, as there was certain dispute between the plaintiff and defendant No.1, the plaintiff had filed suit in OS No.33 of 2001 and thereafter at the intervention of the elders and as the children were minors during the said period, the plaintiff has withdrew the suit on 21st July, 2001. Thereafter, the plaintiff and defendant No.1 had lived together and continued to lead a peaceful life. Since the plaintiff has put up construction on the schedule property by investing huge amount and accordingly he has let out shops in the suit schedule property to defendants No.3 to 5. Thereafter, the defendant No.1 has not shown any respect to the plaintiff and repeatedly she was creating problem in the family and accordingly the plaintiff was thrown out from the house in the month of May, 2012. The defendant No.1 is residing in the ground floor and since the plaintiff was not in the house and as such defendant No.1 has let out the first floor and second floor and she is receiving the rents from the respective premises of the first and second floors, and as such the plaintiff has made a claim for his share in the suit schedule property which came to be refused by the defendant No.1. Accordingly, the plaintiff has filed OS No.13 of 2012 before the Trial Court and sought for partition and separate possession in respect of suit schedule property. Pursuant to the summons issued by the Trial Court, defendants have appeared through their respective counsel. The defendants No.1 and 2 have filed the written statement denying the averments made in the plaint with regard to treating the suit schedule property as a joint family property of the plaintiff. The defendants No.1 and 2 have stated that though the suit schedule property was purchased jointly by the plaintiff and the defendant No.1 through a registered sale deed dated 07th May, 1990, however, defendants No.1 and 2 have denied the averment made by the plaintiff that he has paid the entire sale consideration amount at the time of registration of the said sale deed. The defendants No.1 and 2 have also denied the fact that they are receiving the rents from the premises in the first and second floor as stated by the plaintiff. The principal contention of the defendant No.1 is that the Court has no jurisdiction to entertain and try the suit as the suit is one between the husband and wife and therefore the suit is liable to dismissed on the said ground alone. It is further stated by the defendants No.1 and 2 that the suit schedule property has been purchased out of the earnings of not only the plaintiff but also earnings of defendant No.1 and their children. It is further contended that the contribution made by the children should be taken into account. It is further stated by the defendant No.1 that since the children of the plaintiff have contributed towards the consideration amount in the sale deed at the time of the registration of the sale deed, and as such, the sale deed was executed in the joint name and accordingly the defendant Nos. 1 & 2 have contended that all the sons of plaintiff and defendant No.1 are having equal share in the suit schedule property. It is also averred that the children have contributed towards the construction of the building in the suit schedule property and accordingly defendants No.1 and 2 have stated that the relief sought for by the plaintiff for partition is without any merit and hence, the suit is liable to be dismissed.