RAMA NAGAPPA MAHAR Vs. NAGAPPA MALLAPPA MAHAR

JUDGEMENT

(1.) THIS appeal by the first defendant is directed against the judgment and decree passed by the learned II Additional District Judge, Belgaum, in R. A. No. 21/99, dated 17-6-2003, confirming the judgment and decree passed by the learned i Additional Civil Judge (Sr. Dn), Belgaum, in O. S. No. 76/1987, dated 6-4-1999, decreeing the suit of the plaintiffs in part for partition and separate possession of their half share in the Schedule I-A and Sched-ule-II properties.

(2.) THE essential facts of the case leading up to this appeal with reference to the rank of the parties before the trial Court are as follows :-The plaintiffs filed a suit O. S. No. 76/87 seeking for partition and separate possession of their half share in the suit schedule properties by metes and bounds. Schedule i consists of two portions, Schedule I-A comprises of 4 items of agricultural lands and schedule 1-B comprises of tenanted lands and Schedule II consists of three household properties and two open sites as described in the Schedule. It is the case of the plaintiffs that one Nagappa, the propositor of the family had three sons viz. , Kallappa, Rama (defendant No. 1) and Mallappa. Plaintiffs 1 to 3 are the sons and plaintiff 4 is the wife of Mallappa. It is averred that Nagappa died about 50 to 60 years next before filing of the suit. Kallappa was given in adoption to one Nagawwa, W/o. Omya Mahar in the year 1923. Mallappa died on 8-12-1960 leaving behind the plaintiffs i. e. , his sons and wife as his heirs. It is averred that after the death of Mallappa, all the plaintiffs were maintained and looked-after by Ramappa (first defendant) and they have lived as members of an Undivided Hindu Family. The family was all along residing at Bambarage. Therefore, Ramappa thought that it was inconvenient to cultivate and look-after the family lands at Kadoli and therefore, he disposed of three family lands bearing R. S. Nos. 513/18, 113/19 and 192 in between 1966 and 1970 and out of the sale proceeds, he purchased R. S. No. 113/2 at Bambarge which is Item No. 1 in Schedule 1a of the Schedule to the plaint. After purchase of the said land, it was all along treated and wahivated as joint family property and also blended with the other family properties at bambarge, bearing R. S. Nos. 106/2, 106/3 and 72 described at SI. Nos. 2, 3 and 4 of schedule 1a to the plaint. The lands described in Schedule IB are the tenanted lands and these lands have been cultivated by the family of the plaintiffs and defendant no. 1 during the life time of Nagappa. These lands were all along treated and wahiwated as family tenanted lands. It is averred that the first defendant is a shrewd and a cunning man. The plaintiffs, on the other hand, are illiterates and gullible persons. The plaintiffs had full trust and faith in Ramappa and acted at his behest by lending their signatures to the documents as desired by him. Defendant No. 1 tried to create dissension and rift between the plaintiffs inter se and the name of Nagappa continued to appear as Kabjedar in the record of rights to the family lands bearing R. S. Nos. 72, 106/2 and 106/3 though Nagappa had died long back. Defendant No. 1 purported to give wardi to the Village Officer, Bambarge on or about 24-8-1984 for entering his name and the name of the second plaintiff in the kabjedar's column and the said wardi was duly mutated at Mutation Entry No. 1192 and certified on 30-9-1984. Subsequently, defendant No. 1 seems to have entered the name of Nagappa i. e. , plaintiff No. 1 to one of the household properties and he played mischief and filed only one application regarding R. S. No. 157/47 described at S;. No. 3 of Para I-B of the schedule in the name of nagappa and filed another application for occupancy rights regarding the other lands described in Schedule I-B in his name. Since the dispute arose among the parties and defendant No. 1 started appropriating the entire landed income for himself without even providing for the bare necessities of the plaintiffs, the plaintiffs requested him to hand over their share to which they are entitled and since the first defendant did not pay head to their request, the suit was filed for partition and separate possession of half share 4n the schedule properties by metes and bounds. The suit was resisted by the first defendant by filing his written statement. Defendant No. 2 is the daughter of mallappa and she was impleaded by order dated 22-9-93 as the contention of non-joinder party was taken. In the written statement, the first defendant admitted the relationship among the parties and that he was also called as Rama Nagappa Myageri. It is further averred that Nagappa died in 1935 and thereafter, there was a oral partition in the year 1937 between him and Mallappa in respect of the ancestral undivided family properties i. e. , the lands bearing R. S. Nos. 106/2, 106/3 and 72, each having half share out of 4 annas share coming to propositor Nagappa i. e. , the first defendant having 2 annas and Mallappa having two annas and thus, the first defendant and mallappa, since partition, separately cultivated these lands of their own portions as these lands cannot be separated by metes and bounds because of fragmentation. It is further averred that Item No. 1-A i. e. , the land comprising in R. S. No. 113/2 measuring 5 acres 9 guntas of Bombarge is the self-acquired property of the first defendant which was purchased on 4-5-70 out of the money given by his son Bharma Rama kamble who was working as a Lecturer at aurangabad since about 4 years prior to 1970 and hence, the averments made in the plaint that the suit properties were purchased out of the sale proceeds of R. S. No. 513/18, 513/19 and 192 in between 1960 to 1970 is false and the said sales have no nexus regarding acquisition of the suit properties. It is further averred that the averments made in the plaint that 'b' schedule properties, Schedule 1a and 1b properties are ancestral lands of joint undivided Hindu family, is false. Similarly, the contention that the house and open sites mentioned in s1. No. 2 of the schedule are undivided joint family properties is false and only House nos. 32/1, 140 and open site 145/1 were the undivided Joint Hindu Family properties and it is averred that open site Nos. 130 and 148 are the self-acquired properties of the first defendant and the house built by the defendant is out of the loan taken from the Housing Society of Belgaum and they are not the joint family properties. It is further averred that after partition, House No. 140 and open site 145/1 went to the share of the plaintiffs and house No. 32/1 of Kadoli went to the share of the first defendant and since they are living in their own separate portions continuously, the averment made in the plaint to the effect that the defendant being seniormost member of the family, assumed management of the family properties and tried to create rift among the plaintiffs inter se and several averments made in the plaint making allegations against the first defendant were denied as false. It was further averred that the suit is not properly valued and therefore, the suit is liable to be dismissed. Defendant No. 2 filed the written statement admitting para Nos. 1 to 5 of the plaint and further averred that she has not chosen to claim any share in the suit properties and given up her claim and if the court comes to the conclusion that she is also entitled to claim a share, then her share may be allotted to the plaintiffs only. The first defendant also filed additional written statement denying that Ratnawa has given up or has relinquished any share in the property left behind her father in favour of the plaintiffs and that the suit is barred by time. Having regard to the pleadings of the parties, the trial Court framed issues and additional issues. On behalf of the plaintiffs, plaintiff No. 1 was examined as P. W. 1 and he got marked exhibits P1 to P39. On behalf of the first defendant, defendant No. 1 was not examined, his son was examined as d. W. 1 and D. Ws. 2 and 3 were also examined and Exhibits D1 to D16 were got marked.

(3.) THE trial Court after considering the contentions of the learned Counsel appearing for the parties and the material on record, by its judgment and decree dated 6-4-99, held that the suit filed by the plaintiff is in time and that oral partition as alleged by the first defendant has not been proved and the first defendant has failed to prove that Item No. 1 in Schedule 1-A and Item nos. 1 to 3 in Schedule II of the plaint are the self acquired properties of the first defendant and further held that the plaintiffs have failed to prove that 1-B schedule properties are the joint family properties and accordingly, decreed the suit of the plaintiffs for lh share in suit Schedule 1-A and schedule II properties. Being aggrieved by the said judgment and decree, the first defendant preferred R. A. No. 21/99 on the file of the learned II Additional District Judge, belgaum and the first appellate Court by its judgment dated 17-6-2003, dismissed the appeal and confirmed the judgment and decree passed by the trial Court. Being aggrieved by the said judgment and decree, the first defendant has preferred this second appeal which was admitted on 17-10-2003 for consideration of the following two substantial questions of law :-