SRI SHIVANANJAPPA v. SRI MADAPPA

DATED:10.08.2016 PASSED IN R.A.NO.01/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE AND CJM, CHAMARAJANAGAR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED: 09.12.2009 PASSED IN OS NO.114/2006 ON THE FILE OF THE PRL.CIVIL JUDGE, (JR.DN) AND JMFC, CHAMARAJANAGAR. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT This is the plaintiffs second appeal challenging the concurrent judgments and decrees passed by the Courts below, whereby the suit of the plaintiff has been dismissed.

2. Heard the learned counsel for the appellant and the learned counsel for Caveators/Respondents 1 and 2. Perused the judgments and decrees passed by the Courts below.

3. Sri. Showri H.R., learned counsel for the appellant submits that the first defendant ought not to have sold the suit land in favour of the second defendant ignoring the conditions stipulated under the partition deed, according to which, all the parties to the partition deed have got right to share the income derived from leasing the black granite deposited in the suit land in the event of first defendant leasing the suit land in favour of any third party for the purpose of extracting the granite deposited in the suit land, the Courts below without considering this aspect of the matter have committed error in holding that there is no restriction under the partition deed Ex.P3 to alienate the suit land. Learned counsel further submits that father of second defendant is none other than the maternal uncle of the first defendant who stood as guardian for the first defendant while effecting partition, as first defendant was minor at the time of partition, taking advantage of the same, the first defendant sold the suit land along with the granite deposited in the land in favour of the second defendant for a meager sum of Rs.61,000/-, which would show that it is a sham document with an intention to deny the valuable rights of the plaintiff over the value of granite deposited in the suit land as such there are substantial questions of law arise in the appeal for consideration and therefore, he prays for admitting the appeal for considering those substantial questions of law.

4. Whereas, Sri. Nanjunda Swamy N., learned counsel appearing for Caveators/Respondents 1 and 2 submits that the judgments and decrees passed by the Courts below are based on the proper appreciation of oral and documentary evidence on record and there are no illegalities or infirmities in the said judgments warranting interference of this Court. He further submits that there are no substantial questions of law, which require admission of the appeal and therefore, he prays for dismissal of the appeal.

5. Facts leading to this appeal are that defendant Nos.1 and 3 are the sons of the plaintiff. Defendant No.1 is the son of plaintiff from his first wife and defendant No.3 is also the son of plaintiff from his second wife. Second defendant is first defendants maternal uncle. There was a partition effected between the plaintiff and his sons defendant Nos.1 and 3 as per Ex.P3. Under the said partition deed Ex.P3, the suit survey No.237 measuring 3 acres 30 guntas situated at Kothalwadi village, Harave Hobli, Chamarajanagara Taluk and District was allotted to the share of the first defendant. The suit land measuring 2 acres 30 guntas was a portion out of 3 acres 30 guntas allotted to the share of the first defendant under the partition deed Ex.P3. As per the conditions stipulated under the partition deed Ex.P3 in the event of first defendant leasing the suit survey number he has to share the income derived from such lease with the plaintiff and third defendant.

6. The grievance of the plaintiff in the suit is that the first defendant in order to deprive the valuable rights of the plaintiff in the granite deposited in the suit land, has intentionally sold the suit land in favour of the second defendant for a meager sum of Rs.61,000/- ignoring the conditions stipulated under the partition deed Ex.P3. Therefore, he contends that the sale deed executed by the first defendant in favour of second defendant under Ex.P2 is a sham document. Hence, plaintiff has filed a suit in O.S.No.114/2006 against defendants seeking the following reliefs: (a) Declaring that the plaintiff is entitled for benefit arising out of excavation of black stones or other valuables in the land in question, as per the deed of partition. (b) Directing the defendant to furnish details of transaction of agreement and terms of extractions agreed between defendant No.1 and defendant No.2. (c) Directing defendant Nos.1 and 2 to open common account to facilitate the maintaining account where the plaintiff is signatory. (d) Cost of the suit. (e) Any other relief incidental to or consequential or both in the above said circumstances of the case and thereby render justice in terms of equity.

7. As could be seen from the prayer, the plaintiff has not sought for a declaration to declare the sale deed Ex.P2 executed by the first defendant in favour of the second defendant as null and void. On the other hand, his claim is that he has got right in the granite deposited in the suit land and in the event of first defendant leasing the suit land for extraction of granite, the plaintiff is entitled for his share of income in the lease amount. The Courts below on careful perusal of the partition deed Ex.P3 have concurrently held that the restriction imposed under the partition deed is only in respect of lease of suit land and there is no restriction as such for alienation of suit land. The Courts below have further held that such a restriction imposed under the partition deed Ex.P3 amounts to interfering with the rights of the first defendant in the matter of allotment of the suit land in his favour and hence, it is bad in law. The Courts below have also held that perusal of partition deed Ex.P3 does not show that the plaintiff has got preferential right in the event of sale of suit land and he is not entitled for the right of pre-emption available under the partition deed Ex.P3. Defendant No.3 is none other than the son of the plaintiff from his second wife and brother of defendant No.1 and he has not filed the written statement and he has not supported the case of the plaintiff. The plaintiff, who was examined as PW.1 during his cross-examination has clearly admitted that defendant No.1 was the absolute owner of the suit schedule property and he was enjoying the same. PW.2 during his cross-examination has admitted that as per the partition deed, defendant No.1 was allotted 3 acres

30 guntas of land in the suit survey number, but extent of land mentioned in the plaint schedule is only 2 acres

30 guntas. Therefore, the case of the plaintiff is that he has got right in the land allotted to the share of the first defendant, is not correct. The plaintiff is not laying any claim in the remaining one acre of land in the suit survey number. Admittedly, the first defendant is the son of plaintiff from his first wife. After the death of the mother of the first defendant, the plaintiff has taken second wife and from his second wife, he has given birth to defendant No.3. Which appears to be the cause for instituting the present. As such there is no merit in the suit.

8. I have carefully gone through the judgments and decrees passed by the Courts below and do not see any illegality or infirmity warranting my interference. Apart from that there is absolutely no substantial questions of law which arises for consideration and warrants admission of this appeal. Accordingly, the appeal is dismissed as devoid of merits. SD/- JUDGE