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Judgment
A.V. Chandrashekara, J.—Concurrent findings are called in question by the plaintiff of an original suit bearing O.S. No. 214/1999, which was pending on the file of the Court of Principal Civil Judge (Sr. Dn.), Jamkhandi. Suit filed for the relief of partition and separate possession came to be dismissed by a considered judgment dated 25.11.2009 and the said judgment has been affirmed in R.A. No. 192/2009 filed u/s 96 of CPC before the Court of Fast Track Court, Jamkhandi.
The case, as put forth by the plaintiff before the trial Court, was that he had contributed sufficient amount to the deceased 1st defendant - Mallappa to purchase the suit schedule property bearing No. 69/2/1 + 2/12 measuring 5.25 acres in Kumbarhalla village Jamakhandi taluk. It is on this ground, plaintiff had sought 1/4th share. Defendants had specifically denied all the material averments and on the basis of the same, four issues as mentioned below had been framed by the trial Court:
i. Whether the plaintiff proves that, he has contributed the amount for purchasing the suit properties?
ii. Whether the plaintiff further proves that, he has got 1/4th share in the suit properties?
iii. Whether the plaintiff is entitled for the relief sought?
iv. What order or decree?
Plaintiff alone is examined as PW 1 and has got marked as many as 5 documents. Defendant No. 5 - Kamalaxi is examined as DW 1 and 2 witnesses have been examined on their behalf and as many as 13 exhibits have been got marked. All the issues have been answered in the negative and consequently suit came to be dismissed.
In the appeal filed u/s 96 of CPC, it was contended that the defendants had virtually admitted the claim of the plaintiff as put forth in the plaint, more particularly, in the light of not specifically denying the contents of the plaint. But the said contention has not been accepted by the First Appellate Court and appeal has been dismissed by confirming the judgment of the trial Court vide a considered judgment dated 17.12.2011. Hence concurrent findings are called in question before this Court.
As could be seen from the judgments of the Courts below, the evidence adduced by the plaintiff in regard to the contribution of money to the deceased 1st defendant to purchase the property is too feeble and therefore, the trial Court has held that, unless initial burden cast upon the plaintiff is effectively discharged, onus does not shift on the other side, notwithstanding certain inconsistencies hear and there in the case of defendants.
It is also forthcoming from the records that, plaintiff did not have sufficient money to contribute to his deceased brother Mallappa to purchase the property in the name of his wife. What is stated in Section 45 of the Transfer of Property Act is that, where immovable property is transferred for consideration to two or more persons and such consideration is paid out of a fund belonging to them in common, they are, in the absence of contract to the contrary, respectively entitled to interests in such property identical, as nearly as may be. In the absence of evidence as to the interests in the fund to which they were respectively entitled, or as to the shares, which they respectively advances, such persons shall be presumed to be equally interested in the property.
Nothing is placed on record to show that there existed a fund belonging to them in common and amount was paid by the plaintiff out of such common fund. Even if it is accepted that plaintiff had paid some money, there is no acceptable evidence in regard to the amount paid by him to assist his deceased brother Mallappa to purchase the property in the name of his wife. Even if he had paid some amount, the only remedy is to return the same amount. In this view of the matter, the trial Court has rightly appreciated the oral and documentary evidence, that too testing the same on the touch stone of intrinsic probabilities. Both the trial Court and the First Appellate Court have adopted a proper approach to the real state of affairs. No infirmity or perversity is found in the view of the Courts below and hence the appeal is liable to be dismissed.
ORDER
Appeal filed u/s 100 of CPC is dismissed as unfit for admission.
There is no order as to costs.