Hon'ble Mr. Justice Uday Umesh Lalit
1
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1632 OF 2007
BYRASETTY (D) BY LRS. and ANR. APPELLANT(S)
VERSUS
VENKATARAMANAPPA (D) BY LRS. RESPONDENT(S)
O R D E R
Delay condoned in filing application for
substitution to bring on record the legal
representatives of deceased appellant No. 1(a).
Abatement, if any, is set aside. The substitution
application is allowed.
In 1980, a civil suit was filed by
plaintiff-Venkataramanappa against his brothers Byra
Setty and Subbanna seeking partition and separate
possession of ancestral properties set out in
Schedules to the plaint. Schedule 'A' to the plaint
comprised of six items of agricultural land while
Schedule 'B' comprised of house properties where the
parties had been living. Schedule 'C' dealt with
certain movables. The suit was re-numbered in 1984 as
O.S. No. 134/1984. Schedule 'A' to the plaint is set
out hereunder for facility:
2
"�A� SCHEDULE
1. S. No. 241 dry land 5.15 ass Rs. 5.35
2. � 115/5 Wet land 0-18 ass. Rs. 0-85
3. � 116/1 Garden 0-17 � 0-73
4. � 109/2 Wet 0-03 � 0-24
5. � 91/2 Wet 2-00 � 3-58
6. � 102/3 Wet 0.06 � 0-26
7. � 108/3 Wet 0.05 � 0-39
8. � 133/1 Dry 4.04 � 5-42
Items 1 to 8 are situate at Thorahalli, Malur
Taluk."
The defendants took up the plea that soon
after the death of their father in the year 1944,
there was a partition amongst the brothers and each
of the brothers was enjoying agricultural lands
separately. It was also pleaded that the house
properties were also divided amongst the brothers and
the respective branches were living separately.
The plaintiff did not examine himself but his
son was examined as PW-1 and an acquaintance was also
examined as PW-2. Defendant No. 1 examined himself
and in his cross examination he accepted that the
plaintiff was in possession of one-third area from
Survey No. 102/3 and Survey No. 133/1, namely, Item
Nos. 6 and 8 in Schedule 'A'. It was the case of the
defendants that originally Item Nos. 3 and 8 were
ancestral properties but the parties had partitioned
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the holding and they were in separate possession of
their respective shares.
The defendants had also filed original Civil
Suit No. 172 of 1986 seeking injunction in respect of
two items from Schedule 'B' properties. Both the
suits were heard together and disposed of by a common
judgment by the trial court. The suit filed by the
plaintiff-Venkataramanappa was dismissed and that
filed by Byra Setty and Subbanna for injunction was
decreed.
The decision of the trial court was challenged
by way of Regular Appeal Nos. 26/1993 and 27/1993 by
Venkataramanappa. During the pendency of the appeal,
the original plaintiff died and was substituted by
his heirs. The lower appellate court concurred with
the findings rendered by the trial court and
dismissed both the appeals vide its judgment and
order dated 27.10.1999.
The matter was carried further by heirs of
deceased Venkataramanappa by filing Regular Second
Appeal Nos. 176/2000 and 177/2000. The High Court
accepted the second appeals and reversed the judgment
and order rendered by the courts below. It was found
that the oral and previous partition alleged by the
defendants was not proved. The High Court observed
that Item Nos. 3 and 8 were admittedly ancestral
properties and once the theory of previous partition
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was not accepted, the plaintiff was entitled to
succeed. With this view, the High Court accepted the
second appeals and decreed the suit insofar as it
related to Schedule 'A' and Schedule 'B' properties.
In this appeal by special leave filed by the
original defendants, we heard Mr. S.N. Bhat, learned
counsel for the appellants and Mr. Srinivasan,
learned counsel for the respondents. In the
submission of Mr. Bhat, the High Court was not
justified in setting aside the findings of fact
rendered by both the courts below. He relied upon the
decisions of this Court rendered in Bhagwan Dayal (D)
through Lrs. vs. Mst. Reoti Devi (D) through Lrs. ,
AIR 1962 SC 287 and Mst. Kharbuja Kuer vs.
Jangbahadur Rai , AIR 1963 SC 1203 to submit that the
issues whether the parties had separated and the
properties were partitioned were essentially issues
of fact and as such the findings rendered by both the
courts below ought not to have been interfered with
by the High Court.
On the other hand, Mr. Srinivasan, learned
counsel for the respondents, invited our attention to
the decision of this Court in Chinthamani Ammal vs.
Nandagopal Gounder & Anr. , 2007 (4) SCC 163, to
submit that, in law, there exists a presumption in
regard to continuance of a joint family amongst
Hindus and it is for the party which raises the plea
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of partition to prove the same. He further invited
our attention to the extracts of record of rights
with respect to all the items in Schedule 'A'. All
these properties in Schedule 'A' are shown in the
name of defendant No. 1 namely Byra Setty as Khatedar
and the nature of possession is described as
"ancestral".
We find from the record that the house
properties had been completely partitioned and each
of the branches has been living separately. There,
however, appears to be force in the contention that
insofar as agricultural properties are concerned, the
status of the members continued to be joint. This is
well reflected by the entries in the records of
rights. As admitted by Defendant No. 1, though the
properties item Nos. 4 and 6 from Schedule 'A' were
in his name, part of those properties were also in
cultivating possession of the plaintiff. In the
totality of the circumstances, in our considered
view, the High Court was justified in interfering in
its second appellate jurisdiction. We, therefore,
affirm the view taken by the High Court in respect of
properties mentioned in Schedule 'A'. In our view,
the properties in Schedule 'B' must be left alone and
if the parties are holding separate shares, there is
no need to disturb the same.
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In the circumstances, the suit for partition
as filed by Venkataramanappa (since deceased) is
decreed in respect of the properties mentioned in
Schedule 'A' alone. The parties, namely, the
plaintiff and defendant Nos. 1 and 2 are entitled to
one third share in said properties in Schedule 'A'.
Schedules 'B' and 'C' properties shall, however,
remain undisturbed. The High Court decree is modified
to that extent.
While effecting the partition and allocating
separate shares to each of the three parties,
endeavour shall be made to maintain the possession of
the parties with respect to the areas/lands in their
occupation.
The appeal is disposed of in aforesaid terms.
No costs.
...�.�................J.
(UDAY UMESH LALIT)
...�.�................J.
(ASHOK BHUSHAN)
NEW DELHI,
SEPTEMBER 13, 2018
7
ITEM NO.101 (PH) COURT NO.5 SECTION IV-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s). 1632/2007
BYRASETTY (D) BY LRS. AND ANR. Appellant(s)
VERSUS
VENKATARAMANAPPA (D) BY LRS. Respondent(s)
(IA No.95317/2017-I/A ON BEHALF OF THE APPLICANTS TO COME ON RECORD
AS THE LRS and IA No.95320/2017-CONDONATION OF DELAY IN FILING)
Date : 13-09-2018 This appeal was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE UDAY UMESH LALIT
HON'BLE MR. JUSTICE ASHOK BHUSHAN
For Appellant(s) Mr. S. N. Bhat, AOR
Mr. Priyank Jain, Adv.
Mr. Ravi P., Adv.
For Respondent(s) Mr. Balaji Srinivasan, AOR
Mr. Siddhant Kohli, Adv.
Ms. Garima Jain, Adv.
Ms. Pallavi Sengupta, Adv.
UPON hearing the counsel the Court made the following
O R D E R
The appeal stands disposed of in terms of the signed order.
Pending applications, if any, stand disposed of.
(SUSHIL KUMAR RAKHEJA) (RAJINDER KAUR)
AR-CUM-PS BRANCH OFFICER
(Signed order is placed on the file.)
