Shivarajappa and Others vs Gangubai and Others

S.N. Satyanarayana, J.—The 1st defendant in O.S. No. 17/1998, on the file of Civil Judge (Jr.Dn.), Ranebennur, has come up in this second appeal challenging the partial divergent finding rendered by the lower appellate Court, wherein the dismissal of the original suit for partition is modified to the effect that though the plaintiffs are not entitled to the relief of partition, the defence raised by the 1st defendant with reference to, a portion of the property having come to his possession under the sale deed said to have executed by the 1st plaintiff in favour of husband and father of defendants 2 to 4, is not accepted.

Per contra, the lower appellate Court has given a finding that the portion of property which was allotted to the share of 1st plaintiff Bhimappa, the title to the share of the property allotted to the 1st plaintiff has not flown to his elder brother Yallappa, who is husband of 2nd defendant and father of defendants 3 and 4. As such the defence raised by the 1st defendant that he has succeeded to the said property through Yallappa is set aside and consequently the relief is granted in favour of 1st plaintiff in the original suit to the effect that the property allotted to the share of 1st plaintiff has remained with him and the title has not flown to the 1st defendant. The aforesaid divergent finding of the lower appellate Court is subject matter of this second appeal.

Heard the learned counsel for the appellant, who is the 1st defendant before the trial Court and respondents, who are plaintiffs and other defendants before the trial Court. On going through the judgments rendered by both the Courts below, it is seen that, the lower appellate Court while re-appreciating the pleadings and evidence available on record has rightly observed that the 1st defendant though has set up an inconsistent defence to the effect that he has succeeded to the share of 1st plaintiff through his eldest brother Yallappa, who has acquired title to 1st plaintiff''s share under the sale deed, which has subsequently been relinquished in his favour is not properly established, more particularly the transaction of flow of title from 1st plaintiff to deceased Yallappa and consequently flow of title in respect of that share from Yallappa to 1st defendant. In the absence of any material to demonstrate such flow of title, the lower appellate Court is justified in holding that the property allotted to the share of 1st plaintiff in an earlier partition, which has taken place in the family of propositus Basappa appears to be just and proper. Merely because that there is no specific prayer in the plaint for such declaration, the title of 1st plaintiff cannot be denied.

In fact the appellant herein, who is 1st defendant in the trial Court tried to rely upon the judgment rendered in the matter of Aralappa son of Sri Aralappa Vs. Sri Jagannath and Others, and tried to demonstrate that the finding of a coordinate bench of this Court in the said judgment is referred with granting of relief without prayer is inappropriate, more particularly with reference to proviso to Section 42 of the Specific Relief Act. When the said judgment and relevant provision of the Specific Relief Act, viz., Section 42 is looked into, Section 42 of the Act deals with the injunction to perform negative agreement. The relevant portion of the judgment which is relied upon, which is at para No. 27 deals with the judgment said to have rendered by the Apex Court in the matter of Vinay Krishna Vs. Keshav Chandra and another, . While discussing in the said judgment, a reference to Section 42 is taken. That provision has got no relevancy to the point for consideration in this second appeal.

In that view of the matter, this Court find that the finding of the lower appellate Court in giving a divergent finding to the extent that the land measuring 30 guntas, which is said to be the share of the 1st plaintiff Bhimappa in the original suit appears to be just and proper. Therefore question of admitting this second appeal to look into the correctness or otherwise of the said finding does not arises. Accordingly this second appeal is hereby dismissed.

In view of the appeal being dismissed, the application in I.A. No. 2/2015 filed for production of additional document stands disposed of as having become infructuous.