Padmaprabhu vs Vasundaramma and Others

P.S. Dinesh Kumar, J.—Appellant is first defendant in O.S. No. 154/2004 instituted by his mother (first respondent herein) seeking partition and separate possession of 1/6th share in the suit schedule property.

For the sake of convenience, parties shall be referred as per their status in the suit.

Plaintiff filed the instant suit for partition and separate possession of 1/6th share contending inter alia that suit schedule property measuring 30'' x 92'' was purchased by her and her husband. The southern portion of the property measuring 30'' x 92'' was purchased in her name on 22.1.1969 for a consideration of Rs. 3,000/-. The northern portion of the property also measuring 30'' x 92'' was purchased in the name of first defendant for a consideration of Rs. 3,000/-. Plaintiff had paid Rs. 1,500/- towards consideration of her site and the balance was paid by her husband. Similarly, in respect of suit schedule property, she had contributed Rs. 1,500/- and her husband had paid the balance of Rs. 1,500/-. It appears that the first defendant had filed a suit in O.S. No. 436/2002 on the file of I Addl. Civil Judge, Tumkur against plaintiff for declaration and mandatory injunction to remove a wall put up by the plaintiff in the suit schedule property and the same was dismissed. The said judgment and decree was unsuccessfully challenged by the appellant before the learned Fast Track Court, Tumkur in R.A. No. 287/2008, which also came to be dismissed by the judgment and decree dated 8.4.2011.

Subsequently, the plaintiff filed the instant suit against first defendant and other children. During trial, plaintiff got herself examined as P.W. -1 and got marked three documents. Three witnesses were examined on behalf of defendants and five documents marked.

The trial court framed following issues for it''s consideration:--

"1. Whether plaintiff proves that she is having 1/6th share in suit schedule property?

Whether defendant No. 4 proves that he is having a share in suit property?

Whether plaintiff proves cause of action?

Whether plaintiff is entitled for the relief as prayed?

What Order or Decree?"

Answering issues No. 1 to 4 in the affirmative, the suit was decreed.

Feeling aggrieved, appellant filed an appeal in R.A. No. 101/2011 on the file of I Addl. District and Sessions Judge, Tumkur. The I Appellate Court framed following four points for its consideration:--

"1. "Whether defendant No. 1 has made out any grounds to allow additional evidence as sought in IA 3?

To resolve the dispute between the parties, whether the additional issues are required to be framed as sought in IA4?

Whether the impugned judgment and decree is arbitrary, perverse, not sustainable in law and needs to be interfered with by this Court?

What Order"?"

and dismissed the appeal vide judgment and decree dated 9.7.2013. Hence, this appeal.

Learned Counsel for appellant vehemently contends that the suit property was his self acquired property which he had purchased from out of his savings under a registered sale deed dated 22.1.1969. At the material point of time, he was a student of engineering. He was also conducting private tuitions and earning some money. He has purchased the suit schedule property from out of his own savings. On this premise, learned Counsel strenuously contends that the suit property belonged to the appellant as is evidenced by Ex-D1 and therefore it is not partible.

These submissions are reiteration of his case before the trial court as also the First Appellate Court.

Learned trial Court while adverting to the stand taken by the appellant in the pleadings has recorded a finding of fact that the appellant had completed his S.S.L.C. in the year 1962 and joined engineering college in the year 1965. Adverting to his admission in the deposition wherein he has stated that he was teaching 10-15 students and collecting Rs. 10/- or Rs. 15/- from each of them, trial Court disbelieved his contentions and came to the conclusion that the suit schedule property could have been purchased by him. The First Appellate Court having framed four points for its consideration has also referred to cross-examination of appellant and dealt the same in extenso. Particular reference is made to his cross-examination to infer that the appellant had no adequate source of income to invest and acquire the suit schedule property and dismissed the appeal.

Assailing the concurrent finding of fact recorded by the trial Court and the First Appellate Court, the learned counsel appearing for the appellant strenuously contends before this Court that two substantial questions of law arise for consideration in this appeal, as to whether the plaintiff had proved her contribution of Rs. 1,500/- and whether the appellant had proved that the sale was absolute in his favour and it is his self acquired property?

Insofar as first question of law advanced by the learned counsel for the appellant is concerned, the same is purely a question of fact. Both the Courts have concurrently held that in view of specific admission by the appellant-defendant No. 1 that he was conducting tuitions and collecting a sum of Rs. 10/- to Rs. 15/- per student, the buying capacity of the appellant has been completely disbelieved. The second question of law advanced by the learned Counsel for the appellant is subsidiary to the first question of law raised by him. In view of the fact that the first question of law raised by the learned counsel for the appellant is not a question of law, but a question of fact as has been concurrently held against him by both the trial Court as also by the First Appellate Court, his endeavor to sustain the second question of law as a substantial question also fails. Both Courts below have concurrently held the question of fact of earning capacity of the appellant against him and disbelieved his capacity to pay the consideration to purchase the suit schedule property and the said finding is based on his admission in the cross-examination. Therefore, in my considered view, no substantial question of law arises for consideration of this Court.

Appeal fails and accordingly stands dismissed. In view of appeal having been dismissed, I.A. No. 1/2013 and I.A. 2/2013 also do not survive for consideration. Accordingly, they stand disposed of as having become unnecessary. Ordered accordingly. No costs.