IN THE COURT OF II ADDL.
DISTRICT AND
SESSIONS JUDGE, KODAGU-MADIKERI
SITTING AT VIRAJPET
Present :: Sri S.R.Dindalkopp,B.Sc.,LL.B.,(Spl.,)
II Addl.District and Sessions Judge,
Kodagu-Madikeri, Sitting at Virajpet.
DATED THIS THE 10th DAY OF JUNE 2021
R.A.No.5008/2019
Appellant : Sri Col. M.M.Aiyanna (Retd) S/o Late
Sri M.Muthanna, Aged 72 years,
Kolathodu - Bygodu Village, Ammathi Nad,
Virajpet Taluk, Kodagu District.
(In person)
V/s
Respondents::1) Sri M.M.Bheemaiah S/o Late Sri M.M.Muthanna,
Aged 75 years, Kolathodu - Bygodu Village, Ammathi
Nad, Virajpet Taluk, Kodagu District-571218.
Presently at:
No.63, Wheeler Road Extension,
G.K.Gardens, St.Thomas Town Post Office,
Bengaluru - 560 084.
2) Sri M.M.Muddappa S/o Late Sri M.Muthanna,
Aged 80 years, Kolathodu - Bygodu Village,
Ammathi Nad, Virajpet Taluk, Kodagu District.
Presently at:
Eranna Colony, Behind Cauvery College,
Kaikeri village & Post Via Gonikoppal,
Kodagu-571216.
3) Sri M.M.Pemmaiah S/o Late M.M.Muthanna,
Aged 70 years, Ponnumuthu Estate,
Nalvathoklu Village & Post, Virajpet
Taluk-571218, Kodagu.
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4) Sri M.K.Devaiah (Deceased) S/o Late
Sri.M.M.Kuttappa, Kolathodu - Bygodu Village,
Hathur Post-571218, Virajpet, Kodagu District.
Since died by his legal representatives
4 (a) Smt.Vani Devaiah W/o Late M.K.Devaiah,
Aged 60 years.
4 (b) Sri M.D.Mandanna S/o Late M.K.Devaiah,
Aged 35 years.
4 (c) Sri M.D.Kushalappa S/o Late M.K.Devaiah,
Aged 35 years.
4 (d) Sri M.D.Chinnappa S/o Late M.K.Devaiah,
Aged 33 years.
All are residing at Kolathodu - Bygodu Village,
Hathur Post - 571218, Virajpet Taluk, Kodagu District.
5) Sri M.M.Thammaiah S/o Late Muthanna,
Kolathodu - Bygodu Village, Hathur Post - 571218,
Virajpet Taluk, Kodagu District.
(Since deceased)
5 (a) Smt.M.Swathi Thammaiah W/o Late
M.M.Thammaiah, Aged about 66 years.
5 (b) Sri M.T.Suraj Uthappa S/o Late
M.M.Thammaiah, Aged 45 years.
5 (c) Sri M.T.Sachin Appachu S/o Late
M.M.Thammaiah, Aged 44 years.
For service Address is same as of Respondent-5.
6) Sri M.M.Mandanna S/o Late M.M.Muthanna,
Aged about 66 years, Kolathodu - Bygodu Village,
Hathur Post - 571218, Virajpet Taluk, Kodagu District.
Since deceased by LRs
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6 (a) Smt.M.Beena Mandanna W/o Late
M.M.Mandanna, Aged about 60 years.
6 (b) Smt.M.M.Kaveeramma D/o Late
M.M.Mandanna, Aged about 34 years
6 (c) Sri M.M.Hari Aiyappa,
Aged about 32 years.
Address of all are same as that of Respondent-6.
7. Sri M.M.Suresh S/o Late M.M.Muthanna,
Aged about 61 years, Kolathodu - Bygodu
Village, Hathur Post - 571218.
Now Residing at:
No.304, 9th main near Home Shop,
1st stage, (Block) Kalyananagar Post
(HRBR Layout), Bengaluru - 560 043.
(R1 & 2 (a) to 2 (c) By Sri K.M.Madappa,
Advocate, Virajpet) (R3 By Sri M.K.Poovaiah,
Advocate, Virajpet) (R4 (a) to (c), R5 (a), R6
(a) to (c) (R7- Absent)
Nature of the Judgment : Against the Judgment and
Decree in O.S.No.50/2006
dated 22-11-2018 by Senior
Civil Judge, Virajpet.
Date of Institution of
Appeal : 24-1-2019
Date of Judgment
Pronounced : 10-6-2021
Total Duration : Year/s Month/s Day/s
02 04 16
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:: JUDGMENT ::
The appellant being aggrieved by the portion of Judgment
and Decree passed in O.S.No.50/2006 dated 22-11-2018 passed
by the Senior Civil Judge, Virajpet, preferred this appeal under
Order 41 Rule 1 R/w Section 96 of CPC, on the following among
other grounds:-
2. It is the contention of appellant that, he has filed suit for
partition against Respondent No.1 for partition of properties
jointly allotted to them in the partition held in the family on 12-1-
1981. Similarly he also claims his share as per agreement dated
5-8-1987. After hearing both sides and also on perusal of
evidence and documents on both sides passed Judgment on 22-
11-2018 by partially allowing the suit claim. The trial court
dismissed the partial claim of plaintiff. As such the appellant
challenged the Judgment and Decree with respect to dismissal of
his partial claim.
3. The appellant further contend that, the Hon'ble Trial Court
has not properly appreciated the evidence produced by plaintiff.
The trial court also not considered the principles involved in the
citations relied by the plaintiff and dismissed the partial claim of
the plaintiff.
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4. The trial court has failed to appreciate the facts admitted
by the defendants. Eventhough defendant No.4 denied the sale
transaction., the trial court has granted relief to him in
Sy.No.49/5 of Kalathmadu village. As such trial court erred in
giving relief to a party which he neither proved with formidable
evidence nor deposed before the court.
5. The appellant further contend that, the trial court ought to
grant relief to the parties to end the litigation, but it should not
create multiplicity of litigations.
6. The appellant further contend that, though the trial court
allowed amendment to the plaint as per I.A's but not considered
the same while passing the Judgment.
7. The trial court also not considered the point that the suit
involved rectification of clerical and unintended errors in the
survey number and extent of areas allotted to plaintiff,
eventhough it is mentioned in the Judgment.
8. The trial court also failed to consider the errors in 12-1-
1981 partition deed has been admitted by the defendant. The
plaintiff/appellant not able to rectify the said errors before
revenue authority or before Sub-Registrar where the deed is
registered.
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9. The appellant further contend that, the land granted to
Defendant No.2 in the partition deed dated 12-1-1981 i.e., 2
acres in Sy.No.15/1 in Schedule 'B'. But through oversight the
survey number written as 15/2 instead of 15/1, which required
rectification of survey number in the partition deed dated 12-1-
1981.
10. Similarly it is contend that the defendants have no
objections to allot 0.18 acres in Sy.No.11/2, 2.15 acres in
Sy.No.170 and 2.10 acres in Sy.No.15/2 in favour of plaintiff which
was not considered by the trial court and suit is dismissed with
reference to the same.
11. The appellant further contend that, the trial court not taken
into consideration regarding amendment sought as per
I.A.No.XXIV as it is allowed. In which it is mentioned that, an area
of 3.48 acres in Sy.No.170 was allotted to plaintiff and defendant
No.1 as per item No.4 of Ex.P-1. But during reshuffle through
Ex.D-3 an area of 0.40 acres out of 3.48 acres allotted to
defendant No.5 M.M.Thimmaiah at item No.1 of first schedule in
Ex.D-3. Hence the remaining extent of 3.08 acres remains
for appellant plaintiff and defendant No.1. But in Ex.D-3 it is
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mentioned as 2.93 acres instead of 3.08 acres, which required to
be rectified as defendants not disputed the same.
12. It is further contend that, the trial court not allotted
schedule 'B' property entirely in favour of plaintiff as it is
admitted by defendant No.1. But the trial court wrongly came to
the conclusion that the 'B' schedule property is to be shared
equally between plaintiff and defendant No.1.
13. The appellant further contend that, in the true spirit of
partition the extent of 38.02 acres in schedule 'B' pf appeal is to
be divided equally between the plaintiff and defendant No.1.
Similarly the land Sy.No.11/2, 15/2 and 170 as mentioned in 'B'
schedule property of O.S.50/2006 is to be allotted equally among
plaintiff and defendant No.1.
14. Hence from all these aspects the appellant prays to allow
the appeal and modify the decree passed by trial court by
allotting 19.62 acres of 'B' schedule property in favour of
plaintiff/appellant.
15. On the contrary the Respondents appeared through their
counsels and disputed the appeal.
16. Hence the following Points arise for my consideration:-
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1) Whether the appellants made out a ground that
the Judgment and Decree passed by the Senior
Civil Judge, Virajpet in O.S.50/2006 dated 20-11-
2018 is partially not correct, which requires
interference by this appellate Court?
2) What Order?
17. Heard the arguments of both appellant who argue in
person and also heard the arguments of Respondents. The
appellant relied some of the citations in support of his case.
Hence, I answer the above points as under:-
Point No.1 : In the Affirmative
Point No.2 : As per final order
For the following:-
:: REASONS ::
18. Point No.1 :- On perusal of the pleadings, evidence and
documents produced by the plaintiff and defendants as well as
contention of appellant in the appeal memo, it shows that the
Plaintiff is not satisfied with the portion of judgment and decree
passed by the trial court in O.S.No.50/2006 dated 22-11-2018.
The plaintiff appellant seeking share in Sy.No.9/1, 11/2, 15/2 and
170 which were not granted to plaintiff by the trial court.
Similarly he also disputes regarding granting of relief
to defendants in Sy.No.311/3, 311/4 and 49/5 a even there is no
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evidence and documents from defendant side. With respect to
these aspects we have to see what are the materials produced
by the parties before the trial court.
19. Hence in order to clear understanding of the parties, we
have to address the parties as addressed in trial court as plaintiff
and defendants.
20. The plaintiff filed suit by claiming his half share alongwith
defendant No.1 in the 'A' schedule properties of the plaint.
According to plaintiff there are six sons and two daughters to
their father. During the life time of their father one of the son
took his share in the family property and separated from the
family. Their father died in the year 1976. After the death of their
father the brothers were partitioned their joint family property in
the year 1981. The partition deed is registered. At the time of
partition the share of plaintiff is allotted alongwith elder brother
defendant No.1 jointly in schedule 'B' of the properties.
21. At the time of partition in the year 1981 there are some
discrepancies in the properties mentioned in the schedule. As
such all of them have entered rectification deed with respect to
partition in the year 1987. This aspect is admitted by both the
parties in the suit.
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22. The plaintiff was in military service, he mainly served in
the Northern India. He could not visit the native place regularly.
Even if he comes in the vacation/holiday he use to stay only for
short period. As such he could not concentrate over the
properties allotted to him. In the year 2004 he retire from the
service and return back to his native place. Then he demanded
his half share from the defendant No.1. But the defendant No.1
postponed the same in one or the other reason. Finally plaintiff
issued lawyers notice to defendant No.1 and then filed suit for
partition.
23. The plaintiff further sought to get rectify the survey
numbers mentioned wrongly in partition deed dated 12-1-1981
and also in the rectification deed dated 5-8-1987. Though in the
year 1987 the rectification deed was executed by them for
correcting the mistakes in survey number of the properties in the
partition deed dated 12-1-1981, still certain discrepancies
remained in the rectification of partition deed.
24. Considering the contention of appellant and also on
perusal of the Judgment and decree of trial court it is noticed that
the appellant dispute the portion of decree with respect
to Sy.No.9/1, 11/2, 15/2 and Sy.No.170. There is no dispute
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regarding share of the parties as mentioned in the Judgment and
Decree with respect to other survey number.
25. Hence as per the version of the appellant the defendant
No.1 in his written statement page 4 para 16 and at page 4 para
15 of Affidavit as well as at page 14 line 8 of the cross-
examination dated 20-11-2014 clearly stated that 'B' schedule
properties can be allotted to plaintiff appellant.
26. So with respect to the same if we perused the written
statement dated 29-11-2006 it shows that the defendant No.1 in
para 16 of the written statement stated that the 'B' schedule
properties except Sy.No.15/2 measuring 1.60 acres may be
allotted to the share of plaintiff.
27. Then on perusal of evidence of Defendant No.1, who is
examined himself a DW-1. In the chief examination affidavit he
admitted the relationship and also admitted that the joint family
properties were partitioned in the year 1981 between 6 sons
including plaintiff and defendant No.1 as well as defendant No.2
under registered partition deed. It is also stated that the 'D'
schedule properties were jointly allotted to plaintiff and himself.
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28. It is further contended in the written statement that the
property bearing Sy.No.15/1 and 15/2 were allotted to the share
of 2nd defendant. He further stated that during August 1987 the
sons of Muthanna excluding defendant No.3 were made some
minor adjustments between the parties and the 'B' schedule
properties were allotted to the share of plaintiff except
Sy.No.15/2 of 1.60 acres in para 9 of the written statement. As
such the plaintiff is in possession of 'B' schedule properties
except Sy.No.15/2 as per the oral partition between them.
29. Hence the defendant No.1 clearly stated in the affidavit
para 15 that the 'B' schedule properties except Sy.No.15/2 of
1.60 acres may be allotted to the share of plaintiff. Similarly on
perusal of the cross-examination he clearly admitted that he has
no objection to allot 'B' schedule properties except Sy.No.15/2.
30. So from the contention of both plaintiff and defendant No.1
except Sy.No.15/2 in 'B' schedule were to be allotted to the share
of plaintiff. On perusal of 'B' schedule of the plaint out of ten
properties the item No.2 Sy.No.15/2 measuring 2.10 acres the
remaining nine items are to be allotted to the share of plaintiff.
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31. With respect to this aspect if we perused the Judgment of
trial court it clearly shows that the operative portion of Judgment
and Decree is silent with respect to 'B' schedule properties.
Considering this aspect the Judgment of trial court is not correct.
Which required interference.
32. Then with respect to Sy.No.15/2 if we perused the
contention of the parties the plaintiff claiming Sy.No.15/2
measuring 2.10 acres of bane land and where the cattle shed
and Thrashing Yard is located as mentioned in item No.2 of 'B'
schedule. When it is disputed by defendant No.1 then it is the
duty of plaintiff to establish the same.
33. On perusal of the plaint the plaintiff contend that as per
the arrangement between plaintiff and defendants the plaintiff is
in physical possession and enjoyment of the land in which the
cattle shed and Thrashing Yard is situated, which is in Sy.No.15/2.
But with mistaken impression of all the brothers the survey
number of that area is shown as Sy.No.9/1 and in the partition
deed dated 11-1-1981 an area of 2.00 acres shown in Sy.No.15/2
as it is allotted to Defendant No.2.
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34. The defendant No.1 in his reply to notice accepted the
said mistake. The second defendant is not in possession of the
said area in Sy.No.15/2, which is actually much less than that
mentioned. The Sy.No.15/1 measuring 2.02 acres is exactly
matching the description and measurement of the property in
physical possession and enjoyment of second defendant. He has
cultivated th same with ginger crop. The second defendant under
the impression that his land bearing Sy.No.15/2 instead of 15/1.
35. In the partition deed dated 11-1-1981 Sy.No.15/1 is not
shown to any of the schedule.
36. With respect to this aspect if we perused the Ex.P-23 and
Ex.P-45 RTC of Sy.No.15/1 and 15/2 it shows that for the year
2005-06 it measures totally 0.80 acre. Whereas in Col.No.9 it is
shown as 2.50 acres. Similarly Ex.P-42 Jamabandhi shows
Sy.No.15/2 is 0.80 acres and Ex.P-43 shows it is 2.00 acres.
Which version is to be believed.
37. Whereas the partition deed dated 7-10-1933 shows that
Sy.No.15/2 measures 2.80 acres and 15/1 measuring 2.02 acres
which belongs to father of plaintiff and defendants. But the said
Sy.No.15/1 and 15/2 is not mentioned in the original partition
between brothers held on 5-1-1981. But even the plaintiff while
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issuing second notice by mentioned Sy.No.15/2 measuring 2.00
acres is in his possession. For that the defendant No.1 replied by
contending that his brother Muddappa is in possession of land in
Sy.No.15/2 with cattle shed and thrashing yard since 25 years as
per partition deed dated 1-1-1081.
38. With respect to this aspect if we perused the partition deed
dated 12-1-1981 it shows that schedule 'B' property fallen to the
share of M.M.Mandanna. On perusal of schedule E there is no
mention regarding survey number of the property i.e., 15/2 is in
possession of Mandanna. But only it is mentioned that half
portion is cattle shed and thrashing yard is allotted to him.
39. With respect to this aspect if we peruse the evidence of
DW-1 who deposed that plaintiff is in possession of 'B' schedule
properties except Sy.No.15/2. Further in the cross-examination he
admitted that though as per the partition dated 5-1-1981 they
took their respective properties, they have not conducted survey.
Only as per oral partition they are in possession of their
respective share. Similarly they are not particular about the
entries in the RTC.
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40. Further as per their version since some of the survey
numbers were not mentioned and some of the survey numbers
and extent were written by mistake. They rectified some of them
in the partition effected in the year 1987, which is not in dispute.
41. Similarly from the cross-examination it shows that
defendant No.1 sold some of the properties in favour of 4th
defendant after the partition i.e., on 22-10-1990. He also does
not know regarding change of Katha on the basis of sale.
42. Further DW-1 admitted that in the partition deed
Sy.No.15/2 is not mentioned in the joint name of plaintiff and
himself.
43. Hence from all these aspects it clearly goes to show that
during the partition held in the year 1981 the shares of plaintiff
alongwith survey numbers. None of the defendants were also not
claiming any right over the property allotted to plaintiff.
44. Considering all these aspects as plaintiff retired from
military service he is entitle his properties allotted in the
partition. Similarly his name to be mutated separately from
defendant No.1 in the revenue records.
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45. On perusal of the Judgment and decree the trial court not
granted entire relief claimed by the plaintiff, which is not correct,
as it required interference. More over a admitted by the parties
they have to demark their shares compared to the corresponding
survey number according to their possession in the Final Decree
Proceedings.
46. However the appellant seeks additional prayer of remand
of the case for further trial. But looking to the evidence and
documents only the property allotted jointly between plaintiff
and defendant No.1 are to be allotted separately. Hence I don't
think the remand of the case will not serve any purpose. The
possession can be rectified in Final Decree Proceedings.
47. The appellant relied plenty of citations in support of his
case.
1) As per the citation reported in AIR 2002 SUPREME
COURT 2369 (Sampath Kumar V/s Ayyakannu and
another)
It is held that amendments can be allowed as it would
curtail multiplicity of legal proceedings. So as per the principle
involved in the citation it shows that by way of amendment all
the properties to be added for claiming relief in the partition suit.
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Accordingly trial court allowed I.A's and permitted plaintiff to
amend the plaint. But while passing decree these properties
were not considered. Naturally which amounts to multiplicity of
proceedings which is not correct as per the citation.
In view of the same appellant/plaintiff is entitle an area of
0.15 acres in Sy.No.170 as per the partition deed between the
brothers. Similarly appellant plaintiff is entitle 0.18 acres in
Sy.No.11/1 as it is part of 'B' schedule property, as already he i in
possession of the same. Further appellant is entitle share of 2.10
acres in Sy.No.15/2 as it is wrongly shown in the possession of
Defendant No.2 in the partition dated 5-1-1981.
2) The appellant also relied citation of Apex Court reported
in (2010) 10 Supreme Court Cases 512 (MAN KAUR (DEAD)
BY LRS. V/S HARTAR SINGH SANGHA)
Which held where the party to the suit does not appear in
witness box and state his case on oath and does not offer himself
to be cross-examined by the other side, a presumption would
arise that case set up by him is not correct.
Similarly it is held that general power of attorney holder
cannot be allowed to appear as a witness on behalf of the party
in the capacity of the party.
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The Attorney holder cannot depose or give evidence in
place of his principal for the act done by the principal of which
the principal alone has personal knowledge.
Hence in view of the principle involved in the citation is
very much applicable to the case of appellant.
The appellant further contend that the trial court wrongly
held that it i not mandatory that all parties should enter the
witness box. It is the plaintiff who approached the court has to
establish his case. Looking to the same, the version of appellant
is wrong. Naturally the person approached to court by seeking
certain relief against defendants, then it is his duty to establish
the case with cogent evidence. He should not rest his claim on
the weakness of the defendants. If defendants have any claim
against plaintiff, then he ought to establish his version. More
over in the case on hand the defendant though denied the
version of plaintiff not claimed any relief either in their written
statement nor by leading evidence. Hence as per the principle
involved in the citation the defendant not entitle for any relief.
As contended by the appellant as per Section 5 of Specific
Relief Act (a) Possession by itself is an indication of title.
Ofcourse possession by itself is a substantial right relinquished
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by law. The plaintiff has to establish the same. Looking to the
cross-examination of defendant No.1 as he admitted that 'B'
schedule property excluding Sy.No.15/2 fallen to the share of
plaintiff. But not produced any evidence to show to whom
Sy.No.15/2 belongs. As per the version of plaintiff though he is in
possession of extent of 15/2. But while in the partition deed it is
not mentioned as 15/2 etc., Since there is no sufficient material
from defendant side then naturally version of plaintiff is to be
believed to be true.
48. The appellant further contend in the written argument that
as per Section 25 of Specific Relief Act the appeal is in
continuation of suit. As such appellant can admit additional
evidence under Order 41 Rule 27 (b) R/w Section 107 of CPC. But
here the appellant though contend that he want to examine
defendant No.1. But defendant No.1 already examined. Hence
there is no need to examine defendant No.1. Because as per
written statement defendant No.1 admitted that plaintiff is
entitle for his share as mentioned in 'B' schedule properties
except Sy.No.15/2 etc.,
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49. The appellant relied so many citations in support of their
case. But many of them does not applicable to facts in issue.
Accordingly I don't think the discussion on those citations is
required. Accordingly I answered the above Point No.1 in the
Affirmative.
50. Point No.2:- In view of the discussions made to Point
No.1, I proceed to pass the following:-
:: ORDER ::
Appeal is hereby allowed.
The Judgment and decree passed by Senior Civil Judge,
Virajpet in O.S.No.50/2006 dated 22-11-2018 is hereby modified
to the extent of plaintiff's share allotted in 'B' schedule
properties.
The appellant plaintiff is entitled share in item No.3
measuring 0.15 acres in Sy.No.170, item No.8 measuring 2.10
acres in Sy.No.15/2, item No.14 measuring 0.18 acres in
Sy.No.11/2 respectively.
The relief granted to defendant No.4 in Sy.No.49/5 is
hereby dismissed.
Accordingly draw Preliminary Decree.
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Send the trial court records along with copy of the
Judgment for reference.
(Dictated to the Judgment Writer, transcribed and
computerized by him and after correction pronounced by me in
the open Court on this the 10th day of June 2021).
Sd/-xxxxx
(S.R.DINDALKOPP)
II Addl.District and Sessions Judge,
Kodagu-Madikeri, Sitting at Virajpet.
AB*
