Vasant Laman Akalwadi vs Subbaraj Dattaka and Others

B. Veerappa, J.—This is an unsuccessful defendant''s second appeal against the judgment and decree dated 20.01.2010 made in R.A. No. 121/2009 on the file of the II Additional District and Sessions Judge, at Dharwad, confirming the judgment and decree dated 09.10.2002 made in O.S. No. 192/1996 on the file of II Addl. Civil Judge (Sr.Dn.) at Dharwad, decreeing the suit for declaration, perpetual injunction and partition.

The 1st respondent and another filed O.S. No. 192/1996 against the defendants for declaration and consequential relief of perpetual injunction for partition, contending that the plaintiffs and defendants belongs to one and the same family and they are descendants of one Ishwarappa Akalawadi and his brother Bhimappa Akalawadi. The said Ishwarappa Akalawadi and Bhimappa Akalawadi were living jointly. Bhimappa had no issues and as such, he took one of the sons of Ishwarappa in adoption. The name of the adopted son of Bhimappa was Rajgopal. The defendants are the lineal descendants of Ishwarappa Akalawadi. Unfortunately, Rajgopal also had no issues and as such he took plaintiff No. 1 in adoption on 31.5.1962. Plaintiff No. 2 is the wife of said Rajgopal. Even after the death of Ishwarappa and Bhimappa, their sons had continued in joint family till 31.12.1962 and due to the difference in family members, Rajgopal and Laxman son of Ishwarappa, father of defendants 1 to 3 and other brothers of Laxman got divided the joint family properties by a registered partition deed. In the said partition, the suit shop bearing CTS No. 406/1A/1D was allotted to the shares of Rajagopal and as well as Laxman equally. However, Rajagopal and Laxman did not partition the suit shop by metes and bounds and continued to possess it jointly as co-owners. It is the further case of plaintiff that in the year 1995 Rajgopal died leaving the plaintiffs as his legal heirs. Thus, the plaintiffs are the owners and joint possessors of the suit shop to the extent of 1/2 share. In the year 1995, Laxman also died leaving the defendants as his legal heirs. The defendants 1 to 3 are the sons of Laxman and defendant No. 4 to 6 are legal heirs of a pre-deceased son of Laxman. Now the plaintiffs are having half share and the defendants together are having half share in the suit shop. It is in joint possession of plaintiffs and defendants. The plaintiff No. 1, his wife and defendant No. 3 are running a book shop in it as partners. However, quite recently, the defendants denied the title of plaintiffs by putting forth the contention that Sri. Rajgopal has relinquished his half share as long back as in the year 1976 by obtaining Rs. 25,000/- in lieu of his share and had filed a waradi on 30.8.1976 in that regard. Then, the plaintiffs verified the records and to their surprise they found that the name of Rajgopal was deleted on the basis of alleged waradi filed by Rajagopal. The plaintiffs deny that their predecessor-in-title Sri Rajgopal had relinquished his half share in the suit property and had filed a varadi in that regard. Even if it is held that Sri Rajgopal had filed such a waradi, the defendants cannot acquire right or title of Rajgopal does not become extinguished only on the basis of such varadi in the absence of a registered deed of alienation. Thirdly, even it is held that the release or relinquishment is proper, the same was not for the benefit of the family or for the legal necessities of the family and as such the alienation is not binding on the shares of these plaintiffs and in that event said alienation will not be binding on the 1/3rd share of these plaintiffs. In such eventuality, the plaintiffs will be having 1/3rd right, though mainly having title in respect of half share. Hence, the plaintiffs filed the suit for a decree of declaration and consequential relief.

During the pendency of the suit, the 1st defendant was reported to be dead and his five legal heirs were brought on record. The legal representatives preferred to remain absent in spite of service of notice. One of the legal representatives defendant No. 1(e) is minor and plaintiff had proposed his mother defendant No. 1(A) as guardian. Since the said mother remained absent, the plaintiffs moved an application and got appointed an advocate as the guardian of minor defendant No. 1(e). The defendant No. 1 died before filing his written statement. The defendant Nos. 2 to 6 have preferred to remain exparte. Defendant Nos. 1(a) to (d) also preferred to remain exparte. It is only the court guardian appointed for the benefit of minor of defendant No. 1(e) who has filed the written statement by contending that the genealogy shown by the plaintiff and the alleged partition said to have been effected in the family is not disputed. It is also not disputed that the suit shop was allotted to the share of Rajgopal and Laxman equally which is evident from the registered partition deed. Thereafter, Rajgopal had relinquished his half share in the suit shop by receiving the amount of Rs. 25,000/- and evidencing the same had filed a waradi on 30.8.1978 before the city surveyor. Since the, the defendants are the absolute owners and possessors of the suit shop. Hence, it is denied that the suit shop is still the joint property and the property and the plaintiffs are having title in it and are in joint possession of it. As the partition has taken place long back there is no contention of re-opening of partition. Therefore, sought for dismissal of the suit.

Based on the pleadings the trial court framed the following issues:

"a. Whether the plaintiffs prove that they are the joint owners of the suit property and are having 1/2 share in it?

b. Whether the defendants prove that Sri Raja Gopal Akalwadi (Since deceased) had validly relinquished his half share in favour of Sri Laxman Akalwadi (since deceased) in lieu of Rs. 25,000/-?

c. In the alternative, whether the alienation made by Sri. Raj Gopal was not for legal necessity and it is not binding on 1/3rd share of plaintiffs?

d. Whether the plaintiffs prove their joint possession over the suit property?

e. Whether the plaintiffs are entitled to get the declaration sought for?

f. Whether the plaintiffs are entitled to get the injunction sought for?

g. What order or Decree?"

In order to establish their case the 1st plaintiff in all examined P.W. 1 and got marked documents Exs. P1 to P4. The defendant No. 1 has not adduced any evidence. After considering the entire material on record the Trial Court held that the plaintiff prove that they are joint owners of the suit schedule properties and are having half share in it and defendants failed to prove that Sri Raja Gopal Akalwadi (since deceased) had validly relinquished his half share in favour of Sri. Laxman Akalwadi (since deceased) in lieu of Rs. 25,000/- and the Trial Court also held that whether the alienation made by Sri Raj Gopal was not for legal necessity and is not binding for 1/3rd share of plaintiffs and the plaintiff proved their joint possession over the suit property and plaintiffs are entitled to get the declaration as sought for. Accordingly the Trial Court decreed the suit. The Lower Appellate Court on re-appreciating the material fact dismissed the cross objections as barred by limitation against the said judgment and decree the present appeal is filed.

After arguing the matter at great length and after dictation of the matter in part, at that stage, the learned counsel for the appellant filed a memo to withdraw the appeal, with liberty to the appellant to file a Regular Appeal before the First Appellate Court. The memo reads as under:--

"MEMO

The appellant intends to withdraw this RSA with liberty to file a fresh regular appeal by explaining the delay in filing the appeal before Lower Appellate Court, in the ends of justice.

Date: 8.9.2015

Sd/- Advocate for Appellant"

Memo placed on record. The appeal is dismissed as withdrawn. Needless to observe, it is always open for the appellant to file a regular appeal before the Lower Appellate Court, if permissible only in accordance with law.