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Karnataka High Court
Yamanavva - Appellant
Versus
Chandrawwa - Respondent
Decided On : 03-10-05
R.S.A. : 890 of 1993
LIMITATION ACT, 1963 - Article 110 - Limitation - Defendant s father refused plaintiff s right and interest in the schedule land in 1969 itself - Defendant s father thereafter cultivated the land as sole owner - But, plaintiff did not file any suit then and there itself or atleast within twelve years - Suit filed in 1981 - Barred by limitation.
[V. G. Sabhahit, J]: The facts elicited in his deposition in the cross examination at para-8 is that, it is true that his brother Ramappa refused his interest in the suit land in the year 1969 itself by saying that he had no right, title or interest in the suit land. It is also true that Ramappa thereafter started cultivating the suit land by excluding him as a sole owner and he did not feel it necessary to file a suit against Ramappa at that time only and he did not take any legal action till filing of the suit. Wherefore, the evidence of the plaintiff himself would show that he was ousted from the joint family in the year 1969 itself. The suit is filed by the plaintiff against the defendant in O.S. 181/81 on 19.6.1981. The courts below have also held that even after the starting point for limitation is counted from the date of regrant i.e. 6.3.1969 when the right to suit for partition accrued, the suit ought to have been filed within 12 years from the said date 19.3.1981 and the suit filed of the plaintiff is on 19.6.1981, beyond 12 years is barred by time. Wherefore, viewed from any angle the findings arrived at by the courts below that the suit of the plaintiff is barred by limitation as it is filed beyond time prescribed under Article 110.
Cases Referred: 1983 (1) KLJ 482; 201 (6) SCC 652; AIR 2004 SC 1913.
Claim of joint family property
PARTITION - Claim of joint family property - Courts below held, there was partition between plaintiff and father of defendant before filing of suit for partition - Plaintiff admitted the fact in earlier proceedings - He also had admitted the fact of defendant s father being in possession, that the family is no more joint and that, the grant was exclusively made in favour of defendant and hence, it would not enure to the benefit of his family - In view of oral and documentary evidence, plaintiff is not entitled to the relief.
[V. G. Sabhahit, J]: It is not in dispute that the regrant order was passed in favour of Ramappa father of defendant on 6.3.1969 and in view of the settled position of law, it is clear that the said regrant would enure to the benefit of the plaintiff also if he is able to prove that himself and Ramappa were the members of the joint family on the date of regrant and mere fact that the order has been passed in favour of Ramappa would not preclude the plaintiff from claiming his share in the property if he is able to prove that he was living jointly as member of the undivided family with Ramappa. Both the courts below have held that, in view of the earlier partition proved by the defendant, the regrant made in the present case on 6.3 .1969 in favour of Ramappa father of the defendant would not enure to the benefit of the plaintiff as he has failed to prove that he is the member of the joint family and there was already severance of status of the family about 35 years next before filing of the suit itself and even if the property is held to be partible only after the order of regrant.
Cases Referred: 1983 (1) KLJ 482 ; 201 (6) SCC 652; AIR 2004 SC 1913.
( 1 ) THIS appeal is directed against the judgment and decree passed by the Court of Prl. Civil Judge, Bijapur, in RA. No. 84/1988 dated 25. 6. 1993 confirming the judgment and decree passed by the Court of Prl. Munsiff, Bijapur, in O. S. 181/81 dated 16. 8. 1988.
( 2 ) THE material facts of the case leading upto this appeal with reference to the rank of the parties before the Trial Court are as follows: the plaintiff filed the suit O. S. 181/81 seeking for a declaration that plaintiff has half share in the suit properties and for partition of his share by metes and bounds and to direct defendants to put plaintiff in possession of the said share and for mesne profits and costs. The suit schedule property comprises of land bearing Sy. No. 4 measuring 15 acres 37 guntas, situate at Babalad village in Bijapur Taluk and a house as per the description given in para-2 of the plaint situated in Babalad village in Bijapur District.
( 3 ) IT is averred that the suit schedule property was the Walikarki sites in the land and it is partible. Walikarki has been abolished by the village offices Watan Abolition Act, 1961, which come into force from 1. 2. 1963. It is averred that Yellappa was the propositus. He had two sons Ramappa and Bhimappa. Ramappa died in 1978. He had two wives Gangawa who died in 1971 and Somawa died in 1965. The defendant-Chandrawa is the daughter of Ramappa though the first wife-Gangawa. Shantawa-second wife died in 1965 leaving behind Yellappa who died in 1990. It is averred that Yellappa died undivided from the plaintiff and on his death is son Ramappa succeeded to half share in Yellappas interest by survivorship and in additional 1/4th share by succession. The defendant and Ramappas interest by succession on the death of Yellappa, the defendant succeeded to his interest. Thus, on the date of the suit, plaintiff is entitled to half share and defendant is entitled to half share in the suit schedule property. It is averred that family of the plaintiff and defendant all along joint and said properties are joint ancestral properties. The suit properties have all along been in joint undivided interest of Ramappa, the plaintiff claims that he is having half share in the suit properties. The suit land being Walikerki inam land was resumed by the vested in the State and it has been regranted to Ramappa as he was Manager of the joint family. That regrant enures to the benefit of the plaintiff as Ramappa and the plaintiff were the undivided members of Hindu Mithakshara family. It is further averred that one Laxman the son of paternal cousin of Ramappa and plaintiff had filed O. S. 168/67 and claimed partition arid possession of his alleged half share in the suit properties. Rarnappa, was defendant No. 1 and plaintiff was defendant No. 2 in the said suit. The said suit was compromised and compromise decree was passed and the suit is dismissed against plaintiff and it was decreed that Laxman had no right, title or interest and is entitled to be paid Rs. 250/- per year from Ramappa during his lift time and Laxmari died 3 years next before filing of the suit. Since the said suit is dismissed against the plaintiff, the terms of the compromise decree between Ramappa and Laxman would not in any was affect the undivided interest of the plaintiff in the suit property. The plaintiff demanded all the defendants that he be given his half share by partition and separate possession in the suit properties, defendants are evade to give share of the plaintiff and therefore it has become necessary to file a suit seeking half share in the suit schedule property. The cause of action in the suit arose in April, 1981 when the plaintiff demanded separate possession of his share which was not complied with the defendant.
( 4 ) THE suit was resisted by the defendants averring that plaintiffs suit is false, contentions in the plaint are all false and they are specifically denied except those which are specifically admitted to be true. Th
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