Kashawwa and Others vs Shobha and Others

S. Sujatha, J—This second appeal is directed against the judgment and decree of the lower appellate Court partly allowing the appeal and modifying the operative portion of the judgment and decree passed by the trial Court.

The facts in brief are that the original propositus Ningappa Basappa Totagi died and his son Gangappa succeeded to the properties. The plaintiffs are the daughters of Gangappa. The plaintiffs instituted the suit against the defendants for partition and separate possession claiming 1/4th share in the suit properties and also sought for saddling the loan obtained by defendant No. 1 as debts of defendants 3 to 6. The defendants 1 and 2 appeared through their counsel, filed the written statement admitting the claim of the plaintiff. The defendants 3 to 6 have not filed any written statement. After appreciating the evidence on record, the trial Court decreed the suit in part, allotting half share jointly and separate possession thereof in the suit properties to the plaintiffs. The prayer of saddling the debts of the joint family to the share of the defendants 3 to 6 was rejected. The defendants preferred appeal challenging the judgment and decree of the trial Court and the same was partly allowed by modifying the operative portion of the judgment and decree of the trial Court. Being aggrieved by the said judgment and decree of the lower appellate Court, the present appeal is filed by the defendants.

The learned counsel for the appellants contended that no opportunity was granted to the appellants for filing the written statement and the appellants have not led any evidence to rebut the evidence adduced by the plaintiffs. It was a collusive suit between the plaintiffs and the defendants 1 and 2. The lower appellate Court without appreciating these aspects partly allowed the appeal.

Per contra, the learned counsel for the respondents contended that after appreciating the evidence on record, the trial Court decreed the suit. In the absence of determination of the rights made by the trial Court, the lower appellate Court determined the rights of the appellants, modified the operative portion of the judgment and decree of the trial Court, which cannot be found fault with.

After hearing the parties and perusing the material on record it is noticed that the plaintiffs, daughters of defendants 1 and 2 have instituted the suit for the relief of partition and separate possession. There is no dispute regarding the relationship between the parties and the nature of the properties. Though the appellants appeared, failed to file the written statement nor adduced any evidence. It appears, the appellants were sitting on a fence and watching the result of the proceedings before the trial Court whether it would be to their advantage or not. After the decree being passed by the trial Court, the same was challenged alleging no opportunity was provided to put forth their case, contrary to the material on record. It was also contended before the lower appellate Court that the matter requires to be remanded to the trial Court for fresh consideration.

The lower appellate Court after re-appreciating the evidence on record and noticing that the shares of the defendants has not been determined in the suit instead of driving the parties to one more round of litigation thought it fit to determine the rights of the appellants in the appeal, since there is no dispute regarding the nature of the properties nor the relationship between the parties. Accordingly specific share of the appellants are determined by the lower appellate Court modifying the judgment and decree of the trial Court. Well considered judgment passed by the Courts below does not call for any interference by this Court. In my opinion, no substantial question of law arises for consideration in this second appeal. Accordingly, the appeal stands dismissed.

In view of dismissal of the appeal, I.A. No. 2/2015 filed for stay does not survive for consideration. Accordingly the same is also dismissed.