Misapplication of partition law: A court must consider probative evidence of family arrangements in partition suits; dismissal led to miscarriage of justice.

JUDGMENT :

V.SRISHANANDA, J.

Heard Sri Ravi G. Sabhahit, and Sri B.K. Chandrasekhar, learned counsel for the parties.

2. Unsuccessful plaintiff is the appellant challenging the dismissal of his suit in O.S No.82/1995 dated 29.09.2006 filed on the file of the Additional Civil Judge (Senior Division) and JMFC, Sagar.

3. Parties are referred to as plaintiff and defendant for the sake of convenience as per their original ranking before the Trial Court.

4. Facts in brief which are utmost necessary for disposal of the present appeal are as under:

Plaintiff filed a suit for partition and separate possession with the following prayer in respect of following properties hereinafter referred as ‘suit properties’.

As per the plaint averments genealogical tree of the family reads as under:

5. Plaintiff contended that children of Srinivas Naik, viz., Ramanath, Upendra, Babanna died and there were no issues for them. Senior uncle of plaintiff by name Vaman Naik died about 20 years earlier without any issues. But he left behind his wife Smt.Padmavathamma who has taken the elder brother of plaintiff by name Ratnakar Naik in adoption. Father of the plaintiff viz., Panduranga Naik passed away in the year 1972 leaving behind plaintiff, defendant Nos.2 and 3, and four daughters.

6. Plaintiff contended that marriage of the four daughters had taken place long ago. Vaman Naik and Pandurang Naik continued as joint family members and they were enjoying the properties left behind by Srinivas Naik.

7. It is further contented that to the share of plaintiff's family, lands situated in Chandraguthi, Honnavara and Kundali Village had fallen. Few of the properties are purchased by the defendants from out of the joint family income.

8. Plaintiff further contended that plaintiff and defendants resided in Chandraguthi Village and suit items mentioned in Schedule A and B are joint family properties of plaintiff and defendants and they are in joint possession of the same.

9. Plaintiff also contended that in the year 1989 there was misunderstanding between plaintiff and defendants and there was a tentative partition and parties started living as per the said partition enjoying the properties.

10. A year later, there was a panchayath convened and in such panchayath, land in Sy.Nos.112/2 and 112/3 totally measuring 2 acres 28 guntas had been given to the plaintiff and from the year 1994 plaintiff is enjoying the same.

11. As the differences in the joint family arose, defendants did not grant the share to the plaintiff in a proper manner resulting in filing of the suit.

12. Pursuant to the suit summons issued, defendants filed written statement admitting the relationship between plaintiff and defendant Nos.2 and 3, being the children of Panduranga Naik.

13. Relationship of the father of the plaintiff with Srinivas Naik is also admitted and other children of Srinivasa Naik, namely Ramanath, Upendra and Babanna, having died without issues, is also admitted.

14. However, in the written statement it is contented that there was a partition between Vaman Naik and Panduranga Naik on 26.04.1972, which was registered in the Sub-Registrar Office. As per the said partition, Panduranga Naik and Vaman Naik obtained their respective shares.

15. However, the share of the plaintiff as is contended in the plaint is denied by the defendants and contended that only items mentioned in the B schedule is correct.

16. Based on the rival contentions, learned Trial Judge raised the following issues and additional issues:

“(i) Whether the plaintiff proves that the suit schedule A, B and C are the joint family properties?

(ii) Whether the plaintiff proves that the suit D schedule property is his self acquired propert