Parameshwarappa vs Jayappa S/O. Hanumanthappa & Others

H.P. Sandesh, J

This matter is listed for admission and I have heard the learned counsel for the appellant.

The factual matrix of the case of the appellant/plaintiff before the Trial Court while seeking the relief of partition, separate possession, declaration and injunction is that suit item No.1 of the property is the joint family property of plaintiff and defendant Nos.1 to 5. It is contended that item Nos.2 and 3 of the suit schedule properties were got allotted to plaintiff under oral partition. Hence, he filed the suit and sought for the relief of declaration and permanent injunction.

On the other hand, the defendant No.1 contend that item Nos.2 and 3 were allotted to their father under oral partition and the contention of the plaintiff that sale deed dated 25.06.2014 is not binding on him and it is null and void cannot be accepted. It is further contended that the defendant No.5 is the bonafide purchaser and item No.2 of the property.

The appellant/plaintiff, in order to prove his case that he was allotted item Nos.2 and 3 of the suit schedule properties under oral partition, examined himself as P.W.1 and got marked the documents as Exs.P1 to P18. On the other hand, the defendant No.1 examined himself as D.W.1 and defendant No.6 was examined as D.W.2 and got marked the documents as Exs.D1 to D15.

The Trial Court, having assessed both oral and documentary evidence placed on record, granted the relief in respect of item No.1 of the property and rejected the claim of declaration and permanent injunction in respect of item Nos.2 and 3 of the suit schedule properties, in coming to the conclusion that no material is placed with regard to allotment of said items of the properties and no document is placed for having acted upon on the basis of oral partition. The Trial Court also comes to the conclusion that documents stands in the name of the defendants and possession is established by the defendants by producing the documents.

Being aggrieved by the judgment and decree of the Trial Court, an appeal is filed before the First Appellate Court in R.A.No.58/2021. The First Appellate Court, having considered the grounds urged in the appeal memo, formulated the point whether the plaintiff established with regard to allotment of item Nos.2 and 3 of the properties in his favour on the basis of oral partition and whether the Trial Court has not considered possession of the plaintiff over item Nos.2 and 3 of the suit schedule properties. The First Appellate Court, on re-appreciation of both oral and documentary evidence placed on record, answered the point as ‘negative’ and concurred with the judgment of the Trial Court. Hence, the present second appeal is filed before this Court.

The main contention of the learned counsel for the appellant/plaintiff before this Court is that both the Courts committed an error in appreciating both oral and documentary evidence placed on record and have wrongly believed the documents at Exs.P3 to P13 as well as Exs.D1 to D11 to come to a wrong conclusion that defendant No.1 and his family members are in possession of item Nos.2 and 3 of the suit schedule properties and the very approach of both the Courts is erroneous. Learned counsel for the appellant in his argument would vehemently contend that this Court has to admit the appeal and frame substantial question of law whether both the Courts were justified in not granting the relief of declaration and permanent injunction in respect of item Nos.2 and 3 of the suit schedule properties.

Having heard the learned counsel for the appellant and also on perusal of the material available on record, no doubt, it is the claim of the appellant that item Nos.2 and 3 are allotted in his favour in the oral partition, in order to prove the factum of oral partition and acted upon based on the oral partition, nothing is placed on record. On the other hand, the defendants have produced the documents and even the documents which is produced by the plaintiff i.e., Exs.P3 to P8 is taken note by the Trial Court and the First Appellate Court that possession vests with the defendants. It is settled law that when the plaintiff seek for the relief of declaration, he has to prove the case on his own strength and not on the weakness of the defendants. Both the Courts have taken note of the documents, particularly the document at Ex.P3-M.R.No.14/2010-11 and Exs.P4 and P5-RTC Extracts, Exs.P6 to P8 C/c. of hand written RTC extracts and also taken note of documents at Exs.D1 to D15.

Having considered both oral and documentary evidence placed on record, nothing is placed on record before the Trial Court with regard to item Nos.2 and 3 are allotted to the share of the plaintiff. Apart from that, with regard to the claim of oral partition also, none of the witnesses have been examined before the Trial Court. Hence, I do not find any error committed by the Trial Court and the First Appellate Court and it is the burden on the appellant/plaintiff to prove the oral partition. On the other hand, the defendants have placed the documents and the said documents are standing in the name of the defendants. When such being the case, I do not find any error in the findings of Trial Court and the First Appellate Court in dismissing the suit, particularly in respect of item Nos.2 and 3 and the Trial Court has granted the relief in respect of item Nos.1 of the suit schedule properties. The grievance of the appellant is that item Nos.2 and 3 of the suit schedule properties belongs to him and both the Courts have committed an error and the same cannot be accepted, in the absence of any material to prove the oral partition. Hence, no grounds are made to invoke Section 100 of CPC to admit the appeal and frame any substantial question of law.

Accordingly, the regular second appeal is dismissed.