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Judgment
B. Sreenivase Gowda, J.—This first appeal is by defendant Nos. 1, 3 and 5 in the suit challenging the finding of the trial Court, whereby the trial Court has decreed the suit of the plaintiff holding that she is entitled for 1/12th share in respect of the properties shown at Sl. Nos. 1 and 2 of the schedule-A. I have heard the learned Counsel for the parties and perused the judgment of the trial Court.
It is not in dispute that one Mariambi Abdul Latif Chikodi had two sons and four daughters namely, Mazahar, Bashir, Mubarak, Naima, Nasir Ahmed and Farahat. Her first daughter Naima filed a suit in O.S. No. 115/1994 against her two brothers and three sisters for partition and separate possession of her 1/12th share in the suit properties.
It is the case of the plaintiff that the suit properties belonged to her mother Mariambi Abdul Latif Chikodi, which she had acquired by inheritance from her mother. The plaintiff''s mother was serving as a teacher in Urdu Primary School, Jalal Galli, Gokak and on her death, the plaintiff and defendant Nos. 1 to 5 have become the owners of the suit properties. She contended that her mother had kept money from her service in Muslim Bank, Belgaum and also in Canara Bank, Fort Road, Belgaum and out of the said money, the Gold as well as Mini Truck described in the schedule-B of the plaint were acquired and they are also the joint family properties of the plaintiff and defendants. She has further contended that inspite of her repeated request and demand, the defendants joining together, in order to deny her legitimate share in the suit property, have refused to effect partition and to give her share in the suit properties. Hence, she was constrained to file the suit for partition and separate possession of her share in the suit properties.
In response to the summons issued to the defendants in the suit, only defendant Nos. 2 to 4 entered appearance and filed their written statement contending that the description of the suit property as given by the plaintiff is wrong, admitting the relationship between the parties and denying that their deceased mother had kept amount acquired out of her service in the Muslim Bank as well as in the Canara Bank and out of that Mini Truck and gold has been purchased by them. They denied that the plaintiff is entitled for the share in the suit properties and they contended that the plaintiff is not in joint possession of the suit properties, mere entry of the name of the plaintiff in the CTS extract will not give rise to any right in favour of the plaintiff over the suit properties.
It is contended that the vehicle described in the schedule-B properties was purchased by defendant No. 4 out of his money, which he earned by serving in Gulf and as far as gold ornaments is concerned, there is no mention in the schedule-B properties.
The trial Court on the basis of the above pleadings of the parties, framed the following issues for its consideration:
Does the plaintiff prove that she and the defendants 1 to 5 have inherited the suit properties, which were belonging to the deceased Mariambi?
Does the plaintiff further prove that she is entitled for share in the suit properties to the extent of 1/12th?
Does the plaintiff further prove that she is also entitled for the share in the income of mini truck and the defendants 2 to 4 are liable to render the accounts in respect of the said truck?
Whether the plaintiff is entitled for mesne profits?
Whether the defendants 2 and 4 prove that the description of the suit properties given in the suit plaint is not correct?
Whether the court fee paid by the plaintiff is insufficient?
Whether the suit of the plaintiff is not maintainable as mentioned in para 14 of the whiten statement?
Whether the plaintiff has got no cause of action to file the suit?
To what reliefs plaintiff is entitled?
What order or decree?
The plaintiff in order to prove her case has examined herself as PW 1 and has produced as many as 6 documents, which were marked as Exs. P1 to P6. The defendants on their behalf examined the second defendant as DW 1 and examined two witnesses as DW 2 and DW 3 and produced 5 documents, which were marked as Exs. D1 to D5. The trial Court on consideration of the oral and documentary evidence available on record, decreed the suit.
The plaintiff in support of her contention that the suit schedule-A property was belonged to her mother Mariambi Abdul Latif Chikodi, which she has acquired through inheritance from her mother has not only pleaded in the plaint'' and has deposed so in her evidence, she has also produced the property register card at Exs. P1 and P2, Original property register card at Exs. P3 and P4. Exs. P1 to P4 disclose that the suit schedule-A property originally belonged to the grand mother of the parties and on her death, it was inherited by the mother of the parties to the suit. The source of title in respect of the A-schedule property has not been seriously disputed by the defendants.
The plaintiff in support of her contention that her mother had kept money in Muslim Bank, Belgaum and also in Canara Bank, Fort Road, Belgaum and from the said money she had purchased the Mini Truck and gold, except repeating the same in her evidence, she has not produced any documents establishing her said contention. The defendants seriously disputed the existence of B-schedule property. The defendants while cross-examining PW 1 have suggested to her that she has taken a sum of Rs. 25,000/- from her brother and relinquished her share in the A-schedule property in favour of her brother. The defendants neither have pleaded this in their written statement nor have produced any registered deed to that effect and Ex. P4 produced by them to that effect is an unregistered document and further it is not proved in accordance with law.
The trial Court considering the fact that the source of acquisition of A-schedule property by the mother of the parties is not denied by the defendants and the defendants have not pleaded in their written statement that the plaintiff by taking a sum of Rs. 25,000/- from her brother has executed the relinquishment deed relinquishing her share in the suit property in favour of her brother and the alleged relinquishment deed produced at Ex. P4 is an unregistered one and no reliance can be placed on such document, is justified in holding that plaintiff has got 1/12th share in the suit A-schedule properties.
Since the plaintiff has failed to produce any material to show that mother of the parties had kept money in Muslim Bank and Canara Bank and out of the said amount she has purchased mini truck and gold, which has been seriously denied by defendants, the Trial Court is justified in dismissing the suit in respect of B-schedule property. The trial Court after appreciation of the entire oral and documentary evidence on record, decreed the suit of the plaintiff.
I have carefully gone through the judgment of the trial Court and I do not find any illegality or infirmity warranting my interference in the judgment impugned. Accordingly, the appeal is dismissed being devoid of merits. No order as to costs.
ORDER ON ''FOR BEING SPOKEN TO''
The appeal is listed today for being spoken to correct the following typographical mistakes crept in the Judgment dated 12.11.2013:
1) In page-2 cause-title portion, though R2 and R3 are served, it is not shown as such. Hence, the same may be may be incorporated.
2) In the first line of Page. 2 of the Judgment, it is wrongly mentioned as ''second'' appeal instead of ''first'' appeal. In the same paragraph, the word ''concurrent'' has to be deleted and further, instead of ''Courts below'', it should be ''Trial Court''.
3) In page-3, the words ''which was confirmed by the lower appellate Court'' have to be deleted.
4) In page-3 para. 2, the words ''judgments of the courts below'' should be replaced by the words ''judgment of the trial court''.
5) After completion of para. 2 and before para. 3, the paragraph starting from ''It is not in dispute.......in the suit property'' has to be numbered as para. 3 and consequent paragraph numbers have to be changed suitably.
6) In page-3 at para. 2, the year of Original Suit No. is wrongly typed as 2001 instead of 1994.
7) In page-4 in 6th line instead of word ''plaint'', it is wrongly typed as ''paint''
8) In para. 4 page. 5, at 4th line, the ''accrued'' should be replaced by the word ''acquired''.
9) In page-10 at para. 11, the last four lines starting from ''the lower appellate Court... upto the trial Court'' have to be deleted.
10) In page. 10 para. 11, the last four lines starting from ''the lower appellate court........by the trial court'' should be deleted and the following words to be inserted:
the trial court, after appreciation of the entire oral and documentary evidence on record, decreed the suit of the plaintiff.
11) In page. 11 at para. 12, the words ''the judgments of both the courts below'' have to be replaced with the judgment of the trial Court''. Further, in third line, instead of words ''judgments impugned'' they should be ''judgment impugned''. Similarly, the sentence starting from ''Moreover.......up to this appeal'' has to be deleted.
In view of more corrections in the Judgment dated 12.11.2013, learned counsel for the appellants submits that the entire Judgment may be ordered to be retyped afresh incorporating the above corrections and a fresh copy of the Judgment may be ordered to be issued.
Learned counsel for the respondents does not oppose the said request.
Hence, the office is directed to re-type the Judgment dated 12.11.2013 incorporating the aforesaid corrections and issue fresh certified copy of the Judgment.