TMI Blog2007 (3) TMI 804X X X X Extracts X X X X X X X X Extracts X X X X ..... father of the plaintiff was working as a school teacher and therefore he had served in different places, but unfortunately he died when the plaintiff was a minor. Later the plaintiff also joined the service as a school teacher and he was serving in different places. However he has been in. joint possession and enjoyment of the schedule properties alongwith the defendant and his father. Even the marriage of the plaintiff was also performed by the defendant's father Chikkasiddappa Shetty in the year 1963. The khatha of the properties stood in the name of Chikkasiddapoa Shetty, the father of the defendant. After lds death, it was made out in the name of the defendant. Taking advantage of the same, he tried to encumber the properties and mismanage the joint family income. Plaintiff who retired from service in the year 1981 wanted to settle down at Chikkathotulukere. Therefore when he went and requested the defendant to partition the schedule properties and allot his half share in the joint family properties, he did not comply with the same. He got a legal notice issued which was duly served on the defendant. The defendant did not comply with the same. Therefore be filed a suit for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atives have succeeded to the same. Neither the plaintiff nor any member of his family are entitled to any share in the suit schedule properties. Therefore, they sought for dismissal of the suit. The trial Court based on the above pleadings, framed the following issues : ISSUES: 1. Whether the plaintiff proves that the suit schedule properties are the ancestral and joint family properties of the plaintiff and defendants and they are in joint possession of the same ? 2. Whether the plaintiff further proves that the defendant has unlawfully got the revenue entries of the suit schedule property to his own name, with ulterior motive and refused to allot the half share to the plaintiff in the suit schedule property? 3. Whether the plaintiff further proves that he is entitled for half share in the suit schedule property and mesne profits ? 4. Whether the defendant proves that this Court has no pecuniary jurisdiction and the suit is not maintainable? 5. What orders the parties are entitled ? ADDIIONAL ISSUES: Does the defendant proves that the suit schedule properties are absolute properties of T.C, Nanjappa ? 3. The plaintiff examined himself as PW.1 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cedure Code at this stage is necessary for just adjudication of the suit/appeal? 4. Whether the trial Court was not justified in decreasing the suit of the plaintiff, filed for the relief of partition and separate possession by metes and bounds in the suit schedule properties against the defendants aa per the impugned Judgment and decree under appeal ? 5. What order? 3A. The lower appellate Court heard the appeal on merits, considered the aforesaid three applications along with the case on merits and rejected all the three applications filed holding that the parties have not made out a case for allowing the same. It also considered the entire evidence on record and held that no case for interference with the Judgment and Decree of the trial Court is made out. Accordingly, it dismissed the appeal and affirmed the Judgment and Decree of the trial Court. Aggrieved by these two concurrent findings, the defendants are in second appeal. This appeal was admitted on 7.12.2006 to consider the following substantial questions of law: 1. Whether the Courts below were justified in holding that the recital in the mortgage deed Ex.D1 which is of the year 1922 which came into existenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t DW.1 Sarvamangala has in categorical terms admitted that her husband T.C, Nanjappa was looking after the entire joint family properties as the plaintiff was working as a teacher elsewhere. He submitted that the mortgage deed Ex.D1 though contains recitals showing that Mallappa, other member of the family had been allotted a share, that by itself would not spell out partition and therefore he submits whether there was a joint family and whether the suit schedule properties are the joint family properties being purely questions of facts and when two fact finding authorities have by a considered judgment recorded a finding thereon, no case for interference is made out under section-100 of Civil Procedure Code. 6. After hearing the learned counsel and after going through the pleadings, the evidence and the documents on record, in addition to the aforesaid two substantial questions of law which are formulated at the time of admission, I am satisfied that the appeal involves following additional substantial question of law also: Whether the Courts below were justified in holding that there exists a joint family and the suit schedule properties are joint family properties in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. All the properties were enjoyed by them jointly. In the year 1981, he retired from service. After his retirement, he was staying at Tumkur for the sake of his children education. Thereafter he sought for partition and when it was refused, he filed this suit. In support of the contention that the suit schedule properties are joint family properties, he has produced Ex.F1 to P5. Ex.P1 to P5 are the record of rights in respect of Sy.Nos.197/3, 203/3 and 203/6. In the column No.9, the name of Chikkasiddappa Shetty i.e., father of the defendant is mentioned. In column Ne.12 the name of the defendant is mentioned. These documents pertain to the period from 1988-89 to the date of filing of the suit. These documents do not in any way show that the suit schedule properties area the joint family properties and the plaintiff has any semblance of right in the said properties. Ex.P6 an endorsement issued by the Tahsildar, Taurakur taluk informing the plaintiff that they are unable to give the certified copies of IL and RR, that in no way helps the plaintiffs case. Ex.P7 is a certified copy of the Tax demand register extract in respect of the house property which stands in the name of the def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in the evidence of DW-1. In her evidence, to a suggestion that her husband was looking after the joint family properties ae the plaintiff was working as a teacher and working in different places, she has stated that it is true. It is on the basis of this statement, the learned counsel contends that there exists a joint family and the joint family properties are established. In the first place, DW.1 is the widow of Nanjappa. She has given evidence after her husband's death. The answer given is in the nature of a suggestion made in the cross-examination. immediately after the said answer, she has stated that it is false to say that suit schedule properties are the joint family properties. In fact one sentence thereafter a suggestion has been made to the effect that the plaintiff's father was also a teacher and during his time, the properties were partitioned, for which she has denied. In the context in which these questions are put and answers were given, the said lady being an outsider to the family in the sense she is not a member of the coparcenary, a stray sentence in her evidence cannot be construed as a conclusive proof of the existence of the joint family and joint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in the cross-examination that eighty years back there was a partition between grand- father and his younger brother and the fact that both of them mortgaged the properties which has fallen to their share, in which share of the other brother is also mentioned as lying to West and North would lead to an inference that prior to this document there was a partition among the family members. That apart, survey number mentioned in the mortgage deed is 197. In that 197, there were two portions and those two portions were mortgaged by the executants of the said document and it also contains one more portion which belongs to Mallappa, the other brother. Suit schedule property is not Sy.No.197, Suit schedule property is Sy.No.197/3 measuring 1i acres 22 guntas. It supports the case of the defendant that in the partition, three portions were culled out. First two portions come to the share of Channabesappa and Revarma and the 3 rd portion has come to the share of Mallappa, which is now given the number 197/23. 11. in this context, it is useful to refer to a judgment of the Privy Council in the case of YELLAPPA RAMAPPA .VS. TIPPANNA reported in AIR 1929 PC 8. Onus probandi applies to a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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