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Judgment
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 plaintiffs before the Trial Court is that plaintiff Nos.1 to 3, defendant Nos.1 and 2 are the children of Late Thimmegowda and late Mallamma and suit schedule properties are ancestral properties of the father of the plaintiffs. The father of the plaintiffs has no male issues. He during his life time was in possession and enjoyment of the suit schedule properties. After his death, the plaintiffs and the defendant Nos.1 and 2 are in possession and enjoyment of the suit schedule properties. The defendant No.1 by colluding with the revenue officials got mutated her name in the revenue records of the item Nos.3 to 5 properties. Then, she sold the said properties in favour of the defendant No.3 without consent of the plaintiffs through registered sale deed dated 24.05.2014. The said sale deed is not binding on the right of the plaintiffs in the suit schedule properties. The defendant No.3, in order to deprive the legitimate share of the plaintiffs in the suit schedule properties, is making efforts to sell the suit schedule item Nos.3 to 5 properties. Hence, filed the suit for the relief of partition contending that the suit schedule properties are ancestral joint family properties.
The defendants took the specific contention that plaintiffs have given up their right in the suit schedule properties by executing panchayath document and in order to discharge the loan raised towards marriage of the plaintiffs and to provide maintenance to the plaintiffs, item Nos.3 to 5 of the properties are alienated.
The Trial Court, having considered both oral and documentary evidence placed on record, answered issue No.1 as ‘partly affirmative’ granting the relief of partition in respect of item Nos.1 and 2 and dismissed the claim of the plaintiffs in respect of item Nos.3 to 5. The same is challenged before the First Appellate Court. The First Appellate Court on re-appreciation of both oral and documentary evidence placed on record, confirmed the judgment of the Trial Court. Hence, this second appeal is filed before this Court.
The main contention of the learned counsel for the appellant is that both the Courts failed to consider the material available on record that the respondents/plaintiffs had given up their right in respect of item Nos.1 and 2 also and the Court has committed an error. Learned counsel also would vehemently contend that there is a panchayath document with regard to giving up of right of the plaintiffs and the same has not been considered.
Having heard the learned counsel for the appellant and also on perusal of the material available on record, particularly the pleadings of the parties and also the defence, the very defence of the defendant Nos.1 to 3 is that plaintiffs have given up their right by executing panchayath document. Admittedly, the said document is not a registered document and no dispute with regard to the relationship between the parties and the defendants have produced the document of Exs.D1 to D8 i.e., RTC Extracts and certified copy of Mutation Register Extract i.e., Ex.D9 and Mutation Register Extract as Ex.D10. Though the defendants took a specific defence that plaintiffs have given up their right by executing panchayath document, the said panchayath document is not placed before the Trial Court and apart from that the same is not a registered document. When there is no dispute with regard to the relationship between the parties and properties belong to late Thimmegowda and in respect of giving up of right also, no such document is placed and it is not the case of the appellant that no share is given in respect of the suit schedule properties in favour of the plaintiffs. When such being the case, in the absence of any legal document to prove that the plaintiffs have given up their right, I do not find any error committed by the Trial Court and First Appellate Court in granting share in respect of item Nos.1 and 2 of the suit schedule properties in favour of the plaintiffs. Hence, there is no merit to admit the appeal and frame substantial question of law by invoking Section 100 of CPC.
In view of the discussion made above, I pass the following:
ORDER
The regular second appeal is dismissed.