Subraya M.N. v. Vittala M.N.

The Judgment of the Court was delivered by

V.G Sabhahit, J.:— This appeal by the defendants in O.S No. 80/96 on the file of Civil Judge (Sr.Dn) Virajpet, is directed against the judgment and decree dated 30.10.1998 wherein the suit filed by the plaintiffs 3 and 4 has been decreed by holding that plaintiffs 3 and 4 are entitled to 1/3rd share each in the suit schedule properties.

2. The essential facts of the case leading upto this appeal with reference to the rank of the parties before the trial court are as follows:

Plaintiffs 1 to 4 filed O.S No. 80/96 on the file of Civil Judge (Sr.Dn) Virajpet seeking for decree for partition and separate possession of 1/5th share each of the plaintiffs and for mesne profits in respect of schedule properties. Schedule property comprises of Kula No. 58 in Sy. No. 69/69.

3. It is averred in the plaint that plaintiffs and defendant are the sons of late Narayana. The defendant is the second son of late Narayana. The father of the plaintiffs and the defendant was possessing and enjoying the schedule property as his self-acquired property. Narayana had two daughters by name M.N Gangamma and M.N Poovamma who are married and living in their husband's place. The father of the plaintiff and defendant developed the schedule property and cultivated the coffee. The schedule property is unredeemed sugu land in Kanur village and acquired by late Narayana out of his own funds and he vastly improved the same. The defendant has not contributed anything towards the family income. During the life time of late Narayana an area of 1 acre of land in Sy. No. 69/5 (c)2 was in possession and enjoyment and since it was a paisary land it was not granted in his name and the income out of the said land was contributed towards the family fund. All the lands and other properties are the self-acquisition of late Narayana who is the father of the plaintiffs and defendant. Plaintiffs 3 and 4 were working in Army and plaintiff No. 3 is retired from the Army in the year 1988 and fourth plaintiff retired from the Army in the year 1989. The mother of the plaintiffs and defendant died in the year 1987. The third and fourth plaintiffs were sending money to the joint family and joint family affairs were run by the defendant. Hence, the third and fourth plaintiffs were contributing from their salaries towards improvement of joint family schedule property. Accordingly, a tiled new house was constructed in the year 1980 and towards construction of the new tiled house on amount of Rs. 80,000/- was spend. The defendant was managing family property in the absence of the plaintiffs. The first plaintiff was staying in the same village and he was working as a coolie, second plaintiff is also residing in the same village separately and contributing income towards the welfare of the joint family business. The defendant taking advantage of the absence of the plaintiffs filed an application for grant of one acre of land in Sy. No. 69/5C2 to the Tahsildar, the plaintiffs opposed the said application and sent an registered legal notice on 1.6.96 to plaintiffs 3 and 4. The plaintiffs are in and are deemed to be in joint possession of the aforesaid properties. The defendant taking advantage of the absence of the brothers and sisters are trying to grab the entire plaint schedule properties and income thereof in wasting and mismanaging them and he has been trying to create false account diverting the profits from elsewhere. In such an event, the plaintiffs will not get their due share in the plaint schedule properties. It is further averred that defendant is trying to alienate the plaint schedule property and remove the movables therefrom. It is further averred that plaintiffs 3 and 4 are entiled to 1/5 share each in the suit schedule property with the defendant and decree may be passed to that effect and plaintiffs are entitled to mesne profits.

4. The suit was resisted by the defendant by filing the written statement. The relationship between the plaintiffs and the defendant was admitted. It is averred in the written statement that it is utter false to suggest that during the life time of his father Narayana he owned an area of 1 acre of land in Sy. No. 69/5C2 and it was in possession and enjoyment. It is also false to suggest that the income derived out of the said land was contributed towards the family fund. It is incorrect to suggest that all the properties are self-acquired properties of late Narayana. Plaintiffs are put to strict proof of the same. It is further averred that neither third or fourth plaintiffs nor any plaintiff ever contributed any amount to the construction of the house and defendant aloe put-up construction by spending 1 1/2 lakhs of rupees and plaintiffs used to come and stay during their vacations and spend a few days and go away like a customer staying in a hotel. It is the defendant who performed the marriages of plaintiffs 3 and 4 in the house constructed by him. The averment that defendant in taking advantage of the absence of the plaintiff and filed an application for grant of one acre in Sy. No. 69/5C2 to Tahsildar is denied. It is averred that the said land has been allotted to the defendant on merits and it is not subject matter of the case and plaintiffs have not got any right, title or interest in the said land. It is further averred that plaintiffs have acquired their properties from and out of the amounts spent by the defendant and as such, plaintiffs properties must be subject to partition. It is also averred that as per the sale deed dated 28.4.76 the first and second plaintiffs have sold 0-50 acre of land to the defendant and the third plaintiff thereby the first and second plaintiffs have forfeited their right in the first and second schedule properties. It is further averred that thereafter as per the sale deed executed by the first and second plaintiffs both have given up their right over the first and second items of the properties. Regarding the property at item No. 3, it is further averred that he out of his own toil and sustained efforts encroached an are of 1.25 acres bearing Sy. No. 59/5C2 in the year 1962 and convened the same into wet land and applied to the Government for regularisation. The revenue authorities after enquiry have granted patta and hence the same cannot be a subject matter of this case as it is the self-acquired property of the defendant and it is further averred that plaintiffs have filled the suit only to wreck vengeance against the defendant and make wrongful gain and the plaintiffs never bothered for he development of first and second items of property and the defendant improved them out of his toil and sweat. The defendant has invested huge amount in improving the suit schedule properties at item Nos. 1 and 2 and in view of the various document executed by the plaintiffs, they have forfeited the right of the properties mentioned in item Nos. 1 and 2 of the plaint schedule.

5. Having regard to the above pleadings, the following issues were framed by the trial court:

1) Whether the plaintiffs prove that item No. 3 of the plaint schedule was in the possession and enjoyment of late Narayana?

2) Whether the defendant proves that the suit item is granted to him and it is his self-acquired property?

3) Whether he proves that plaintiffs have forfeited their right to items 1 and 2?

4) Whether the plaintiffs are entitled to the reliefs prayed for?

5) What decree and order?

6. On behalf of the plaintiffs, plaintiff No. 3 was examined as PW.1 and plaintiff No. 4 was examined as PW.2 and plaintiffs also examined PWs.3 and 4 and got marked Exs.P1 to P36. On behalf of the defendants, defendant was examined as DW.1 and also examined DWs.2 to 6 and got marked Exs.D1 to D35. Plaintiffs 1 and 2 are examined as PWs.3 and 4. The trial court after considering the contention of the learned counsel appearing for the parties and appreciating the oral and documentary evidence adduced by them by judgment dated 30.10.98 answered the above issue as follows:

No.1: Affirmative.

No.2: Partly affirmative and partly negative.

No.3: Negative.

No.4: Affirmative.

No.5: As per final order and accordingly, decreed the suit of the plaintiffs 3 and 4 only and held that each of them are entitled to 1/3 share in all the suit schedule properties and division of properties shall be made in accordance with law. Being aggrieved by the said judgment and decree, defendant has preferred this appeal.

7. I have heard the learned counsel appearing for the appellant-defendant and the learned counsel appearing for the respondents 3 and 4-defendants 3 and 4. Respondents 1 and 2 who are plaintiffs 1 and 2 before the trial court have not chosen to appear before this court though they were served with notice.

8. The learned counsel appearing for the appellant-appellant submitted that the trial court has erred in holding that the plaintiffs 3 and 4 are entitled to 1/3 share in suit schedule properties. The learned counsel submitted that material on record including the evidence of the defendant and his witnesses would clearly show that item No. 3 of the schedule i.e Sy. No. 69/5C2 to the self-acquired property of the defendant. The said property has now been granted in favour of the defendant and since the defendant was unauthorisedly cultivating the said land and the father of the plaintiffs and defendant was never in possession of the said land, plaintiffs are not entitled to any share in the said property. Further, the learned counsel submitted that the plaintiffs 3 and 4 are not entitled to any share in item Nos. 1 and 2 in schedule property also as the material on record shows that they have given up their share in favour of the defendant by accepting money in lieu of their share and the trial court without looking into the oral and documentary evidence adduced by the defendant has wrongly answered the issues in favour of the plaintiffs and therefore, the judgment and decree passed by the trial court is liable to be set aside and the suit is liable to be dismissed.

9. However, the learned counsel appearing for the plaintiffs 3 and 4-respondents 3 and 4 in the appeal submitted that plaintiffs 1 and 2 who have been examined as CWs.1 and 2 have stated that they have no interest in claiming any share. Defendanthas admitted that item Nos. 1 and 2 are schedule properties. However, his contention that plaintiffs have given up their share in the said items 1 and 2 of the schedule property in favour of the defendant in lieu of the amount received by them has not been proved. The material on record also shows that father of the plaintiffs and defendant-Narayana was also in possession of item No. 3 of schedule property also and the contention of the defendant that the said property comprised in Sy. No. 69/5C2 is the self-acquired property of the defendant has not been substantiated and therefore, the trial court has rightly held that the plaintiffs 3 and 4 are entitled to 1/3 share in all the suit schedule properties and wherefore, the judgment and decree passed by the trial court is justified and does not call for interference in this appeal.

10. Having regard to the contentions urged, the points for determination in this appeal are:

“1. Whether the finding of the trial court that the plaintiffs have proved that item No. 3 of the plaint schedule property was in possession and enjoyment of late Narayana and defendant has failed to prove that the said property is the self-acquired property is justified?

2) Whether the finding of the trial court that the defendant has failed to prove that plaintiffs have forfeited their right to item Nos. 1 and 2 of the schedule property is justified?

3) Whether the finding of the trial court that plaintiffs 3 and 4 are entitled to 1/3 share each in all the suit schedule properties is justified?

4) Whether the judgment and decree passed by the trial court calls for interference in this appeal?

11. And I answer the above points as follows:

Point No. 1: In the affirmative.

Point No. 2: In the affirmative.

Point No. 3: In the affirmative.

Point No. 4: In the negative for the following:

REASONS

12. POINTS No. 1 TO 4: These points are considered together since they ore interconnected and to avoid repetition. The ambit of dispute among the parties lies in a narrow compass. The suit schedule properties comprises of three items of land situate in Kannur village, Virajpet taluk Sy. No. 69/69 measuring 1 acre, Sy. No. 69/70 measuring 0.25 acres and Sy. No. 69/5C2 measuring 1 are. The relation among the parties is not in dispute. The plaintiffs and the defendant are the sons of Narayana. That having regard to the defence taken by the defendant it is also clear that defendant does not dispute that item Nos. 1 and 2 of the schedule property belong to the father of the plaintiffs and the defendant and they are joint family properties. However, it is the contention of the defendant that plaintiffs 3 and 4 have forfeited their right in respect of items 1 and 2 of schedule properly as they were paid cash in lieu of share to which they are entitled. So far as item No. 3 of the schedule property is concerned, it is the contention of the plaintiffs that said property was also in possession of their father and in the absence of the plaintiffs, defendant was cultivating the said land whereas it is contended by the defendant that item No. 3 of the schedule property Sy. No. 69/5C2 measuring 1 acre was not in possession of his father that he had cultivated the said land unauthorisedly and the wise has been granted to him and the TT fine imposed for the grant of such land has been paid by him out of his own personal income and not out of income of the joint family. Both the parties-plaintiffs 3 and 4 and defendant have lead defendant to substantiate their respective contention. So far as plaintiffs 1 and 2 are concerned, they have been examined as CWs.1 and 2 by the court and they have stated that they are not interested in any share in the schedule properties.

13. On behalf of the plaintiffs, plaintiff No. 3-Lingappa is examined as PW. 1. He has reiterated the everments made in the plaint in his examination-in-chief and has stated in his evidence that his father-Narayan was in possession of all the three items of the schedule property and land comprised in item No. 3 bearing Sy. No. 69/5C2 was converted into paddy land. Fourth plaintiff was in Army and he retired on 30.9.88 and fourth plaintiff retired in the year 1989. The lands comprised in item Nos. 1 and 2 being granted in favour of their father, item No. 3 has not been granted in favour of any person when the suit was filed. Plaintiffs 1 and 2 are doing coolie work. Their father died in 1963-65 and he was looking after the lands and after the death of his father, defendant is looking after the lands on behalf of the plaintiffs and himself. The sisters are married. He has further deposed in his evidence that all of them have cultivated the land and he has also contributed towards the development of the land belonging to the family. The house in the suit schedule property was constructed in the year 1990 and he has also made contribution towards the construction of the said house and application for grant of land comprised in item No. 3 was given by himself, plaintiff No. 4 and the defendant and in the jamabandi name of himself, fourth plaintiff and defendant is shown. They have sent notice to the plaintiff before filing the suit as per Ex.P1 He has produced Ex.P2-jamabandi extract. Ex-P3-postal acknowledgement regarding service of notice and he has also produced Exs.P8 to P29-MO receipts and acknowledgement cards for having received the amount sent under money order in the name of the defendant. It is elicited in his cross-examination that when his father died, fourth plaintiff was aged 11 years. He does not know as to wether his father was suffering from epilepsy and was unable to work. It is further elicited that he has studied upto 7 standard. He has denied the suggestion that his father has encroached upon the suit land and he does not know the date on which item Nos. 1 and 2 were granted in favour of his father. It is further elicited in his cross-examination that it is not true to suggest that his mother was not well and she died due to illness Plaintiffs 1 and 2 are residing separately at Brahmagiri since 13-14 years. They have not executed any document relinquishing their share. He was married in the year 1991. He was receiving salary of Rs. 900/- per month after deduction while he was in Army. Fourth plaintiff was married in 1992. He has denied the suggestion that he is sending the amount through MO through his mother and wife and not towards cultivation of the suit schedule lands and that since it would be difficult for his wife and mother go to and collect the money order from Post Office he was sending the amount in the name of the defendant. He has denied suggestion that his wife is not well and therefore. he was sending the amount to meet the expenses of treatment of his wife and mother. It is further elicited in his cross-examination that his wife is working in Social Welfare Department as a warden. He is working as Security in State Bank of Mysore at Hunsur. His wife joined service in the year 1994 and she was not employed at the time of marriage. It is also elicited that fourth plaintiffs wife is working in Nedakecheri as a clerk. He has denied the suggestion that after he retired from Army there was a panchayathi and that he had received a notice to attend the panchayathi. He has admitted that the land is now granted in favour of the defendant and it is true that himself and fourth plaintiff have filed objections for grant of land in favour of the defendant. It is further elicited in his cross-examination that he had sent a notice stating that land at item No. 3 should be allotted in favour of plaintiffs 3 and 4 and the defendant and not exclusively in favour of the defendant. It is further elicited in his cross examination that the land comprised in item Nos. 1 and 2 yield 35-40 bags of coffee and not 5-6 bags of coffee as suggested. It is further elicited in his cross-examination that it is true that item No. 3 is a paisari land, there was mandal panchath at Kanur village. He dies not know as to whether the defendant has made an application for grant of land comprised in item No. 3 on 12.8.91 He has denied the suggestion that since the extent of land to which he is entitled to himself and plaintiff No. 4 given up their share by receiving amount of Rs. 50,000/- by agreeing to receive Rs. 50,000/- in respect of their share in the schedule properties at item Nos. 1 and 2. He has denied the suggestion that they have forfeited their right in item Nos. 1 and 2 of the schedule property. He has also denied the suggestion that himself and fourth plaintiff had received Rs. 20,000/- from him and executed received and that compromise entered into on 18.3.95 and balance amount of Rs. 20,000/- was paid for which he has not executed the receipt and that plaintiff No. 4 has also received Rs. 30,000/- subsequently. The amount paid to plaintiff No. 4 was not paid in his presence. He has denied the proceedings on 18.3.95 It is further elicited in his cross-examination that himself and plaintiff No. 4 consented for granting item No. 3 land comprises in favour of the defendant after receiving the amount in lieu of the share in the family properties. He has also denied the suggestion that the land was being cultivated unauthorisedly and he evicted the trespasser and started unauthorised cultivation of item No. 3 and has given application for grant of said land to him. He has denied suggestion that plaintiffs 1 and 2 have sold their share I them Nos. 1 and 2 in favour of the defendant. It is further elicited in his cross-examination that it is not true to suggest that himself and plaintiff No. 4 have forfeited their right in the family properties and they have given-up their right in respect of family properties by accepting the amount in lieu of the share. It is further elicited in his cross-examination that his father came in possession of the schedule land about 10-15years before his death.

14. PW-2 is plaintiff No. 4-Gopal. He has corroborated the evidence of PW.1 and has deposed that he was also sending the amount for cultivation of the schedule lands and that schedule properties are the joint family properties in which himself, plaintiff No. 3 and defendant have got shares and he has also produced Exs.P30 and P31-receipts regarding purchase of building material and he was also sending the amount to the defendant for cultivation of the land and that his mother was receiving Rs. 150/- per month. He has produced receipts as per Exs-P33 to 36. The land comprised in item No. 3 has not been allotted to his father, it was in possession of himself, plaintiff No. 3 and the defendant and the land comprised in item No. 3 was converted into a paddy land and now there is a coffee plant in the said land. It is elicited that he cannot identify the signature in the sale deed executed by plaintiff 1 and 3 as per Ex.D13 It is further elicited that he was aged ten years when his father died. He was studying in third standard at that time. It is true that his father was suffering from epilepsy and his mother suffered paralysis. He has admitted that his wife is working in Nadakacheri it is further elicited in his cross-examination that it is true that item No. 3 was a paddy land. He has denied suggestion that land was being cultivated by Poovaiah and his father and that since they could not cultivate the land for scarcity of water they had left land barren and defendant started cultivating the said land and made an application for grant of land and that it was defendant who developed item No. 3 and that it is granted to him absolutely as owner. It is further elicited in his cross-examination that it is true that land comprised in item No. 3 was allotted to the defendant that they have preferred appeal before the Assistant Commissioner against the said grant. It is further elicited that it is not true to suggest that since he gets meager extent of land he has paid Rs. 50,000/- as per the compromise and that he has executed receipt for Rs. 30,000/- and that he has forfeited his right in respect of item Nos. 1 and 2 of schedule properties. He has also denied the suggestion that apart from Rs. 20,000/- he has received an amount of Rs. 30,000/- in cash from the defendant and he has forfeited their right to claim their share in item Nos. 1 and 2 of the schedule properties and item No. 3 of the schedule property with the self-acquired property of the defendant.

15. PW.3 is a retired teacher and he has deposed in his evidence that he knows the plaintiffs and the defendant. Schedule properties were the properties in possession of Narayana father of plaintiffs and the defendant. Plaintiffs 3 and 4 joint military and thereafter they retired from service and they have returned. Land comprised in items 1 and 2 of the schedule property yield 30 to 40 bags of coffee seeds and paddy was grown by father of plaintiffs and the defendant. It is elicited in his cross-examination that he was working as teacher in the school situated by the side of pisari land of item No. 3 of the schedule property. It is also situated that plaintiffs 3 and 4 are students and he has denied the suggestion that he is deposing falsely to help plaintiffs 3 and 4. It is further elicited in his cross-examination that since 15 years next before the date of deposition Narayan-father of the plaintiffs was cultivating the schedule properties. It is further elicited in his cross-examination that item No. 3 was a barren land and plaintiffs and defendant's father cultivated that land in the paddy land. He has denied the suggestion that plaintiffs 4 and 5 forfeited their right on items 1 and 2 of schedule properties after receiving cash in their share in respect of the schedule properties.

16. PW. 4- Poovaiah has deposed in his evidence that he is a resident of Kanur village and he knew father of plaintiffs and defendant-Narayan. Narayan was his uncle. Narayan was in possession of the schedule properties. Sy. No. 69-5C measuring 1 acre and was paddy land and was in possession of Narayana-father of plaintiffs and the defendant. Narayana died in 1962 and he had come to the schedule property about 40 years next before his death. Plaintiffs 3 and 4 joined Army and they returned after retirement and they have also invested in development of the schedule property. It is elicited in his cross-examination that he is cordial with plaintiffs 3 and 4. It is further elicited that defendants has converted land comprised in item No. 3 into a coffee land since two years next before the date of his deposition (3.4.1998). He has denied suggestion that he has made an application for grant of land comprised in item No. 3 of the schedule property. He has admitted that plaintiff No. 3 is staying in Thithimathi and plaintiff No. 4 is staying in Kallubani.

17. Defendant is examined as DW. 1 and he has reiterated the averments made in the written statement in his examination-in-chief and has stated that items 1 and 2 of the schedule properties were in possession of his father and item No. 3 of the schedule property is his self-acquired properly. It was a forestland and he has converted the same into paddy land and hereafter it was converted into coffee land. His father was suffering from epilepsy since ten years. himself, his mother and elder sister-Poovamma were looking after the affairs of the family. Plaintiff No. 2 was not well plaintiff No. 3 was aged 11 years and plaintiff No. 4 was aged nine years on the date of death of his father and after the death of his father, himself and his mother are looking after the lands. He has further deposed that since the income of the joint family properties-items 1 and 2 were not sufficient he was working in the land of others on contract basis and he gave education to plaintiffs 3 and 4 and constructed a new house in the schedule property. Plaintiffs 3 and 4 joined Army, they did not make any contribution for the management of the family lands or for the development of the same. He has further deposed that plaintiffs 3 and 4 agreed to receive amount of Rs. 50,000/- in lieu of their share in items 1 and 2 of the schedule property as the extent of land that would be allotted to their share would be meager and that though they have stated that they have executed document in their behalf, they have not executed any document. He has further deposed that on receiving the amount from the defendant, plaintiffs 3 and 4 have constructed house in the land which was allotted to them as ex-serviceman. Fourth plaintiff has been allotted land in Sulya and he constructed the house in 20 cents of land out of Rs. 50,000/- paid by him and plaintiff No. 3 has also constructed the house after receiving Rs. 50,000/- from him in lieu of his share in item Nos. 1 and 2 of the schedule property and plaintiffs 1 and 2 have executed sale deed as per Ex.D13 selling 50 cents of land which would fall to their share in items 1 and 2 in his favour. Wife of plaintiff No. 3 was not well, his mother was also not well, the amount was sent by plaintiff No. 3 to meet the expenses of medicine by his wife and mother. Item No. 3 is a forestland, Poojari Kalapathaiah was in possession of the said item of land and left it barren for want of water and he encroached upon the said land got cultivated and item No. 3 of the schedule property is the self-acquired property and he has grown coffee in item No. 3 of the schedule property and plaintiffs 3 and 4 have not contributed any amount for acquisition of the said land or towards the cultivation of the said land and they have filed objections for granting item No. 3 of the schedule property in favour of the defendant. His father had not cultivated item No. 3 of the schedule property and plaintiffs have not right in the said item No. 3 of the schedule property measuring 1 acre. He has produced receipt executed by plaintiff No. 3 for Rs. 20,000/-. He has produced the sale deed executed by plaintiffs 1 and 2 as per Ex.D13 and receipt executed by plaintiff No. 4 as per Ex.D23 in view of their share in the joint family properties. He has further deposed that he was getting land of others cultivated on vara basis and on contract basis and he was also getting the land belonging to Seva Sahakara Sangha. Exs.D23 and 14 were executed on the same day. Survey numbers of the land has not been mentioned in Exs.D14 and 23. It is elicited in his cross-examination that land in Kallubani was purchased by plaintiff No. 4 in 1987-88. He paid Rs. 30,000/- in the year 1996 and he has no receipt evidencing the same. His brother-in-law was present when the amount was paid. He has denied the suggestion that he concocted the document for the purpose of this case.

18. DW.2 - C.D Annaiah has deposed in his examination - in - chief that he knows the plaintiffs and the defendant and their father Narayana. He came to the said land about 50 to 60 years in the year 1959 and stated cultivating Item Nos. 1 and 2 of the schedule properties and he died about 2 to 3 years after coming to Kanur. Defendant was cultivating the land of others on contract basis and item No. 3 has been allotted in favour of the defendant. He has further deposed that in para-7 of his examination-in-chief that item No. 3 was a paisari land, earlier it was forestland. Narayana converted various lands into paisari land since there was no source of water he had left it barren and the said land was cultivated by Poovaiah for one year and thereafter it was cultivated by Devaiah for one year. He could not continue cultivation of land for want of water and defendant has started cultivation of item No. 3 and has developed it into a coffee land and plaintiffs have no right in the unit schedule property. He has further deposed that plaintiffs 3 and 4 have been paid Rs. 15,000/- each and has already paid Rs. 20,000/- to the plaintiff and executed receipt in that behalf. It is elicited in his cross-examination that it is not true to suggest that item No. 3 is not the property acquired by the defendant. It is further elicited that he does not know as to whether plaintiffs 3 and 4 have also purchased the building materials for construction of the house in schedule land. It in specifically elicited in his further cross-examination that in 1959 item No. 3 of the schedule property was in possession of Narayann and he had grown ragi in the said land and thereafter he left it barren and had not fenced the said land. There was no partition of the property before amount was paid to plaintiffs 3 and 4. It was agreed that balance amount of Rs. 30,000/- should be paid to plaintiffs 3 and 4 towards their share in items 1 and 2 of the schedule property.

19. DW.3-Belliyappa is the brother-in-law of plaintiffs and defendant as he is the husband of Poovamma second daughter of Narayana and sister of plaintiffs and defendant. He has deposed in his examination-in-chief that after the death of Narayana defendant managed the family properties, he gave education to plaintiffs 3 and 4 and performed the marriage of sisters. There was no cultivation in 1 acre 25 cents of land during the life time of Narayana and family was managed by the defendant and defendant has put-up a house in item Nos. 1 and 2 of the schedule property by spending amount and that item No. 3 is his self-acquired property. Land in item No. 3 which has been granted to the defendant was also forestland and the same has been converted by the defendant into paddy land and thereafter to coffee land. He has further deposed that plaintiffs 3 and 4 said that they do not want their share in the family properties and the land is to the defendant and they have paid amount in lieu of their share and defendant paid Rs. 25,000/- to plaintiffs 3 and 4 Plaintiff No. 3 signed the receipt and plaintiff No. 4 has not signed the receipt and thereafter panchayati was held stating that balance amount of Rs. 30,000/- each should be paid to plaintiffs 3 and 4 in lieu of their share in the family properties. It is elicited in his cross-examination that all the three items of the schedule properties have a common fence. It is further elicited in his cross-examination that plaintiffs 3 and 4 when they were in Army, were sending amount to their mother and wife. He has denied suggestion that Narayana was not in possession of item No. 3 of the schedule property. It is further elicited in his cross-examination that agreement between plaintiffs 3 and 4 was not reduced to writing.

20. DW.4-C.B. Muthappa has deposed in his examination in chief that he is working as Secretary of the Seva Sahakara Sangha, Kannur village. He has further deposed that panchayati held among the plaintiffs and the defendant regarding dispute in respect of the schedule property has been recorded in the proceedings book maintained and he has produced the same as per Ex.P33 and relevant entry is marked as Ex.D33(a) and 33(b) is the entry showing that defendant has paid Rs. 1,000/- to the temple and Ex.D33(c) is the signature of the President of the Society. It is elicited in his cross-examination that paisari land is not mentioned in Ex.D33(a) extent of land is also not mentioned. He has denied the suggestion that no such proceedings took place.

21. DW.5-Basavaraju was working as President of Grama Panchayat, Kanur and he has deposed in his evidence that he knows plaintiffs and the defendant and there was a panchayati among the plaintiffs and the defendant which was been recorded as per Ex.D34(a) from page Nos. 73 to 75 regarding partitioning of the property. It is elicited in his cross-examination that he does not know the number of pages in Ex.D34 There was no discussion regarding payment of amount in the panchayat proceedings. It is further elicited that no proceedings took place in the panchayat and that he is deposing falsely.

22. DW-6-Ganesh was working as SDA., in Taluk Kacheri and he has produced the papers pertaining to item No. 3 of the schedule property as per Ex.D35 and got marked Ex-D35(a) to (r). It is elicited in his cross-examination that defendant had given an application for grant of land on 29.6.1990 and plaintiffs 3 and 4 objected for grant of land in favour of the defendant. He has admitted that as per Ex.D35(b) it is reported by the Village Accountant that item No. 3 of Sy. No. 69/5C had been encroached by plaintiffs 3 and 4 and the defendant and land in item No. 3 was granted to the defendant and was found to be in possession of the same. Ex.D13 is the sale deed executed by plaintiffs 1 and 2 in favour of plaintiff No. 3 and the defendant giving up their share 50 cents in the schedule property to their favour by plaintiffs 1 and 2 as the share which they received is meager. Exs.D14 and 23 are the receipts alleged to have been executed by plaintiffs. In Exs.D14 and D23 survey numbers have not been stated and Ex.D33 is not signed by defendant No. 4 and revenue stamp is affixed and cancelled and Ex.D14 bears signature of plaintiff No. 3 and said that Rs. 20,000/- has been received from the defendant. In the said receipt also, description of the survey number and the land is not mentioned.

23. It is clear on appreciation of the above said material on record that though the defendant contended that Narayan-father of the plaintiffs and defendant was in possession of items 1 and 2 and not item No. 3 of the schedule property and item No. 3 is his self-acquired property, the same has not been substantiated. On the other hand, the witnesses examined on behalf of the defendant must have admitted that land comprised in item No. 3 of Sy. No. 69/5C measuring 1 acre was also in possession of Narayana-the father of the plaintiffs and defendant as DW2 has admitted in his examination-in-chief itself in para-7 of his deposition that item No. 3 was a paisari property earlier, it was forestland and Narayana converted it into paddy land. In his cross-examination it is elicited that Narayan was in possession of item No. 3 of schedule property since 1959 and he had grown ragi in the said land. The contention of the defendant that land comprised in item No. 3 of Sy. No. 69/5C measuring 1 acre was not in possession of Narayana has not been substantiated. The suggestion made to PWs.1 and 2 as also the witnesses examined on behalf of the plaintiff that land was being cultivated by one Poovainh and that defendant tresspassed into the land and started cultivating by entering said land and the land is granted to the defendant in his own right has also not been substantiated. Further, the evidence of PWs.1 and 2 and the evidence of the witnesses as referred to above in consistent and cogent which is corroborated by the evidence of DWs.2 and 3 examined on behalf of the defendant. The further contention of the defendant that the land comprised in item No. 3 was granted to him and he has paid TT amount of Rs. 3,489/- out of his own income has also not been substantiated though he has stated in his existence that he was cultivating the land of others on a contract basis and was having his own income. He has nowhere stated in his evidence that the amount deposited for grant of item No. 3 of the schedule property in his favour was paid out of his separate income. It is clear from the perusal of the material on record that on the date of filing of the suit 11.12.1996 land in item No. 3 had not been allotted in favour of the defendant and the allotment made in favour of the defendant was only on 19.6.97 after filing of the suit. On the other hand, it is clear from the perusal of the material on record that plaintiffs 1 and 2 have left the village and they are not living the defendant and plaintiffs 3 and 4 joined military and it was the defendant who was in possession of the family properties and apart from the income of the family properties, the defendant has failed to show that he had any independent income of his own to pay Rs. 3,489/- for grant of land. The material on record shows that the said land was in possession of father of plaintiffs and defendant in 1959 itself and therefore, it is clear that the finding of the trial court that item No. 3 is also property which was in possession of father of plaintiffs and the defendant has failed to prove that it is his self-acquired property is justified. So far as the kinds comprised in item Nos. 1 and 2 of the schedule property are concerned. defendant admits that they are the properties belonging to Narayana. He also admits that plaintiffs have share in the said properties. However, according to him plaintiffs 1 and 2 executed a sale deed in his favour and sold their share in item Nos. 1 and 2 of the schedule property it is the further case of the defendant that plaintiffs 3 and 4 have also forfeited their right in respect of their share in respect of item 1 and 2 of the schedule property as they agreed to receive an amount of Rs. 50,000/- in lieu of their share in items 1 and 2 having regard to the meager extent of land which they receive as their share. The said contention is not at all substantiated. It is also clear from the perusal of the registered sale deed produced by the defendant as per Ex.D13 dated 28.4.1976 that said sale deed is not executed exclusively in favour of the defendant and that sale deed is executed by plaintiffs 1 and 2 in favour of plaintiffs No. 3-second son of Narayan and not exclusively in favour of the defendant. The trial court has rightly held that plaintiffs 3 and 4 and defendant is entitled to 1/3 share in the schedule properties as plaintiffs 1 and 2 were examined before the court as CWs. 1 and 2 and they have stated that they are not interested as defendant has share in the schedule properties and wherefore, the finding of the trial court that plaintiffs 3 and 4 and defendant are entitled to 1/3 share in the schedule property is justified. In any view of the matter, since plaintiffs 1 and 2 have stated that they are not as CWs.1 and 2 and they have stated that they are not interested in any share of the schedule properties and Ex.D13 does not confer any title in favour of the defendant in respect of the share of plaintiffs 1 and 2 exclusively in respect of their share in items 1 and 2 of the schedule property. It is clear that the said document is not helpful to the defendant to contend in the present case. The further case of the defendant that plaintiffs 3 and 4 having regard to the meager share which they receive in items 1 and 2 of family properties agreed to receive Rs. 50,000/- each in lieu of their share is also not substantiated, though defendant contended that he paid Rs. 20,000/- as per receipt Exs.D14 and 23 to plaintiffs 3 and 4 and balance of Rs. 30,000/- was paid subsequently for which the plaintiffs 3 and 4 did not produce any receipt and said that they would execute the conveyance deed. The material on record shows that plaintiffs 3 and 4 have not executed any conveyance deed. The material on record also shows, even according to the defendant he has not executed any receipt in respect of Rs. 30,000/- alleged to have been paid by the defendants to plaintiffs 3 and 4. Further, the receipts Exs.D14 and 23 is also not helpful to the defendant in the present case to contend that PWs.3 and 4 have forfeited their right in respect of items 1 and 2 of the properties as EX.D23 does not bear the signature and Ex.D14 bears the signature of plaintiff No. 3 which does not say that the amount have been received in lieu of their share in items 1 and 2 of the schedule property and the specific case of the defendant that plaintiffs 3 and 4 have agreed to give up their share in items 1 and 2 of the schedule property for Rs. 50,000/- each and not Rs. 20,000/- and wherefore, mere production of Exs.D14 and receipts are also not helpful to the defendant to contend that plaintiffs 3 and 4 have forfeited their right in respect of their share in items 1 and 2 of the schedule property as it is well settled that any relinquishment of share by a co-owner can be made in favour of another co-owner only by way of registered document and admittedly. there is no such document in the present case and therefore, it is clear that the defendant has failed to substantiate the contention that plaintiffs 3 and 4 have forfeited their right in respect of items 1 and 2 of the schedule property and accordingly, the lands comprised in items 1 and 2 of the schedule property have to be held as joint family properties in which plaintiffs 3 and 4 and the defendant have got their share. The trial court on appreciation of the above said material on record has rightly arrived at the conclusion that defendant has failed to substantiate that plaintiffs 3 and 4 have forfeited their right in respect of their share in items 1 and 2 of the schedule property which are the joint family properties and that plaintiffs have proved that item No. 3 of the said property is also in their possession and defendant has failed to prove that plaintiffs 3 and 4 have forfeited their right in respect of their share in items 2 and 3 of the schedule property. The said findings are justified having regard to the said material on record and the finding arrived at by the trial court cannot be said to be suffering from error apparent on the face of the record so as to call for interference in this appeal. Accordingly, I answer the points for determination and pass the following order:

24. The appeal is dismissed with costs. The judgment and decree passed by the Court of Civil Judge (Sr.dn) Virajpet in O.S No. 80/96 is confirmed.