SHEKARAPPA KUSANURU Vs. HANUMANTHAPPA

JUDGEMENT

(1.) This matter is listed for admission. Heard the learned counsel appearing for the appellants.

(2.) The counsel for the appellants would contend that both the Courts have committed an error in granting the relief of partition that is granting of half share in respect of the suit schedule properties. The counsel would vehemently contend that there is no material before the Court to show that the suit schedule properties are the ancestral properties and item Nos.2, 3, 5 and 7 are the self acquired properties of late Channegowda as the plaintiffs and defendant Nos.3 and 4 were married long back and they have no right over the suit schedule properties. The suit is also barred by limitation. The counsel also would vehemently contend that both the Courts have committed an error in putting the burden on the appellants to prove the case instead on the respondent. The counsel would vehemently contend that this Court has to frame the substantial question of law that both the Courts have committed an error in granting equal share to the plaintiff and defendants by holding that they were entitled to half share and the First Appellate Court not considered the material facts and it requires interference.

(3.) Having heard the learned counsel for the appellants and also on perusal of the material on record particularly, though the witness denied the relationship, in the cross-examination he admitted regarding the relationship of the parties and apart from that both the Courts have taken note of the fact that in the written statement they have not denied that suit schedule properties are not the ancestral properties. In paragraph 25 of the order, the First Appellate Court taken note of the fact that defendant No.1(d) has categorically admitted that his father has inherited the suit schedule properties from his ancestors and they are the ancestral properties. The Trial Court also taken note of the fact that the plaintiff being the brother of the deceased defendant is entitled for definite share in the suit schedule properties. It is also the case of the plaintiff that he himself and deceased defendant has only inherited the ancestral properties of the family and in the cross-examination of DW1, he has not disputed and admitted that the daughters of Sannappa Kusanuru by name Yellamma and Basavva are no more. Having taken note of the admission that the properties are ancestral properties and considering the documents particularly, Ex.P3 to 8 - RTCs and Ex.P9 - Index of land and Ex.P10 - copy of RR and considering the both oral and documentary evidence placed on record both the Courts have granted the relief of partition that is half share each to the plaintiff and defendant No.1(a) to (g) in the suit schedule properties. Now the appellants cannot contend that the properties are not the ancestral properties and the same has not been proved. Having considered both oral and documentary evidence placed on record particularly Ex.P3 to P10, both the Courts came to the conclusion that the plaintiff has established the relationship between the plaintiff and his deceased brother and also taken note of the admission given by defendant No.1(d). When such being the case, the very contention of the appellants that both the Courts have committed an error in not considering the material on record cannot be accepted and there are no substantial questions of law to frame the same and both the Courts have rightly comes to the conclusion that the plaintiff and the defendants are entitled for half share in respect of the suit schedule properties. Hence, the appellants have not made out any grounds to invoke Sec. 100 of CPC to admit the appeal and to frame substantial question of law. Accordingly, the appeal is dismissed.