GOPABAI Vs. GUNDU

JUDGEMENT

(1.) THIS second appeal is filed by the plaintiffs challenging the judgment and decree passed by the Addl. Senior Civil Judge, Jamkhandi in R.A. No. 5/2010 reversing the finding of the trial Court and dismissing the suit filed by the plaintiffs in O.S. No. 43/2008.

(2.) PLAINTIFFS being the wife and children of one Babu Mane filed a suit for partition and separate possession. The property in Survey No. 33/1B measuring 1 acre 26 guntas situated at Todalbagi village of Jamkhandi Taluk was the subject matter of the suit. Plaintiffs No. 1 and 2 are the wife and son of defendant No. 1 i.e., Gundu Mane. During the pendency of the matter, plaintiff No. 1 died. The suit was filed stating that property is in joint possession and enjoyment of defendant No. 2 and as it is ancestral property, the sale made by defendant No. 1 in favour of defendant No. 2 is not binding on them and the sale was not for legal necessity. It is stated that defendant No. 1 in collusion with the village accountant, alienated the suit property for Rs. 1,04,000/ - to defendant No. 2 as per sale deed dated 27.08.2007' which is not binding on the plaintiffs. The matter was contested by both the defendants. According to defendant No. 1, while admitting the relationship, he denied the joint family status and stated that about 35 years ago the plaintiff has left his company and he started living at Jamakhandi in Mahadev temple of Todalbagi village and has taken shelter under one Swamiji and he had been totally neglected. It is stated that plaintiff pressurized to sell entire property and to settle at Jamkhandi. Since defendant No. 1 was not agreeable, they asked their share in the suit schedule property. However, during 1992 the property was divided by way of oral partition between defendant No. 1 and plaintiffs. Defendant No. 1 retained 1 acre 26 guntas and allocated 3 acres 14 guntas in Sy. No. 33 of Savalagi village to the plaintiffs. After oral partition, the plaintiffs have sold their share by putting pressure on defendant No. 1. As the property was standing in the name of defendant No. 1, he had executed the sale deed at the instance of plaintiffs and the plaintiffs have took the entire sale consideration and out of the sale proceeds, acquired the property at Jamakhandi. As such in the year 1992 itself the joint family status was disrupted and hence, plaintiffs have no interest over the suit schedule properties. It is stated that defendant No. 1 sold his share measuring 1 acres 26 guntas in favour of defendant No. 2 for his livelihood with the consent of the plaintiffs. It is further stated that from 1992 plaintiffs were not in possession of the suit schedule property and that there is no cause of action and the suit schedule property acquired by the plaintiffs out of the sale proceeds is not included in the suit.

(3.) IN para 37 of the lower appellate Court judgment, it is noted that according to the evidence of., PW -1, he was the owner of 4 acres of land and 3 acres 14 guntas has fallen to the plaintiffs' share, as admitted by the plaintiffs themselves. The evidence of DW 3 is taken into consideration wherein he has stated that defendant No. 1 sold only 1 acre of land and retained the remaining area. On the other hand, the plaintiffs contention is that defendant No. 1 has sold 1 acre 26 guntas in favour of defendant No. 2 without any legal necessity. What is being noted is that lower appellate Court without going into the pleadings of the plaintiffs, held that defendant sold the suit property for legal necessity, also noting that plaintiffs have not discharged their burden. Rather taking the evidence of DWs -1 and 3 into consideration that defendant No. 1 was staying in a temple and as he was in need of money for his maintenance and to repay the debts, he sold the property, the said evidence of defendants has been accepted and the stand of the plaintiffs that defendant No. 1 is addicted to bad vices is neither admitted nor proved and accordingly, held that the suit schedule property was sold for legal and family necessity.