(Prayer: The Regular Second Appeal is filed Under Section 100 of CPC against the judgment and decree dated: 29.01.2016 passed in R.A. No.72/2010 on the file of Principal District Judge, Udupi District, Udupi, dismissing the appeal and confirming the judgment and decree dated:03.11.2010 passed in O.S. No.103/2006 on the file of Senior Civil Judge, A.C.J.M., Karkala.)
1. The present regular second appeal is filed under Section 100 of CPC by the appellant/plaintiff aggrieved by the judgment and decree dated 29/01/2016 passed in RA.No.72/2010 on the file of the Principal District Judge at Udupi (for short 'the First Appellate Court'), in and by which, the first appellate Court while dismissing the appeal confirmed the judgment and decree dated 03/11/2010 passed in O.S.No.103/2006 on the file of the Senior Civil Judge and Additional CJM, Karkala (for short 'the Trial Court).
2. The brief facts leading up to filing of the appeal are that; the plaintiff and defendants are the members of joint family holding plaint 'A' schedule properties as ancestral properties. Some of the properties were granted in favour of the defendant No.1 by the Land Tribunal. That defendant No.1 is her father. That the plaintiff is entitled for 1/9th share in the entire plaint 'A' schedule property. Hence, the suit for partition.
3. Defendants appeared and filed written statement contending that original propositus was one Vaman Bhat, who died leaving behind him his sons namely, Narayana Bhat, Anirudha Bhat and Ganapathi Bhat. That the said Narayana Bhat died leaving behind his children namely, Anantha Bhat, Rama Bhat, Mahadeva Bhat, Vasudeva Marate, the defendant No.1, Purushotham Marate, the defendant No.7, Vigneshwara Marate, the defendant No.8, Yashoda, Varada, Uma @ Gowri and Sharada. Anantha Bhat and Mahadeva Bhat died leaving behind their children. Anirudha Bhat and Ganapathi Bhat died leaving behind their children. Mahadeva Bhat died issueless. All the heirs of Vaman Bhat have constituted Hindu Undivided Family. That there was a suit for partition filed earlier in OS.No.35/1965 on the file of the Principal Munsiff Court, Karkala in respect of the suit schedule properties by Vasantha @ Krishna Marate, son of Anatha Bhat. Against the judgment and decree passed in said suit, an appeal was preferred before the Civil Judge (Senior Division), Udupi in A.S.No.39/1967, wherein a preliminary decree was passed allotting share to the parties and on disposal of the said proceedings, RSA.No.471/1971 was preferred before this Court. This Court, by its judgment and decree dated 17/11/1975 confirmed the judgment of the Civil Judge (Senior Division), Udupi. Thereafter, Final Decree Proceedings was initiated in FDP.No.2/1979. The Preliminary decree was referred to Deputy Commissioner of Dakshina Kannada for division. However, actual partition has not taken place thus for. The defendant No.1 is the father of the plaintiff. The plaintiff being the daughter had filed suit prematurely. Hence, sought for dismissal of the suit.
4. The Trial Court based on the pleadings framed issues and recorded evidence. The plaintiff examined herself as PW.1 and exhibited 15 documents marked as Exs.P1 to P15. On the other hand, defendant No.1, who is the father of the plaintiff examined himself as DW.1, exhibited 3 documents as Exs.D1 to D3. That apart, the Court has also marked 4 documents as Exs.C1 to C4 being the plaint in OS.No.35/1965, judgment and decree in OS.No.35/1965 and revised preliminary decree passed therein.
5. The Trial Court, on appreciation of the pleadings and evidence on record dismissed the suit. Aggrieved by the same, the plaintiff filed Regular Appeal in RA.No.72/2010. The first appellate court by its judgment and decree impugned herein dismissed the appeal confirming the judgment and decree of the trial court. Being dissatisfied with the same, the plaintiff is before this Court.
6. Learned counsel for the appellant/plaintiff reiterating the grounds urged in the appeal memorandum submitted that though the suit schedule properties have been the subject matter of a suit in OS.No.35/1965 wherein a preliminary decree has already been passed and revised preliminary decree has also been passed and Final Decree Proceedings was also initiated, she submits that the plaintiff being entitled for a share in her father's property the decree in her favour in the present suit would have merged with the pending final decree proceedings. She further submits that the since the Final Decree Proceedings have remained inconclusive, she is not in a position to claim her share of properties which have been allotted to the share of her father, but the courts below erred in dismissing the suit holding that the same was not maintainable and pre-matured. Hence, the substantial question of law be involved in the matter for consideration.
7. Heard the learned counsel for the appellant/plaintiff. Perused the records and reasoning given by the trial court and the first appellate court. It is not in dispute that the suit schedule properties were the joint family ancestral properties. That a suit in OS.No.35/1965 had been filed by one of the members of the family for partition of the suit schedule properties. The said proceeding was carried in a regular appeal before the Civil Judge (Senior Division), Udupi in A.S.No.39/1967 and thereafter before this Court in RSA.No.471/1971 resulting in preliminary decree allotting the share to the members of the family. The Preliminary Decree passed in the said OS.No.35/1965 had attained finality and the same has not been reversed. Admittedly, the Final Decree Proceedings have also been initiated and Deputy Commissioner has been appointed to give effect to the Preliminary Decree. The Final Decree Proceedings however have not been concluded dividing the properties by metes and bounds. Be that as it may, in terms of Preliminary Decree, the share of the defendant No.1/father of the plaintiff has been admittedly determined. The plaintiff, if at all is entitled for any share in the suit schedule properties in accordance with law would be entitled for share which has already been allotted to her father. This aspect of the matter has taken note of by the trial court and the First Appellate Court. The trial court at paragraph 16 of its judgment has observed hereinunder:
"16. Although DW.1 in his cross-examination has admitted that some of the joint family members who are enjoying the properties filed declaration, that means to show that there was an arrangement in the family those who are in possession, they have filed declaration before the Land Tribunal, obtained occupancy right. similarly 1st defendant who was in possession of plaint 'A' schedule property filed declaration for and on behalf of entire family. Even though occupancy right granted, properties were also subject matter in O.S.No.35/1965. Once the preliminary decree is passed when there is no actual division by metes and bounds in final decree, plaint 'A' schedule properties are not allotted to the branch of 1st defendant, question of claiming share by the plaintiff from 1st defendant in plaint 'A' schedule properties is not correct since 1st defendant's share itself is uncertain. It is not the case of the plaintiff that even after passing of preliminary decree, though final decree was filed division by metes and bounds, outside the court the parties have orally or by agreement divided the properties in OS.No.35/1965 in which plaint 'A' schedule properties are fallen to the share of defendants No.1, 7 and 8. So when there is no such contention or particulars it cannot be said that the plaintiff is entitled for share in plaint 'A' schedule properties. As rightly contended by the defendants that these plaint 'A' s
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chedule properties are subject matter in OS.No.35/1965 there is also preliminary decree, 1st defendant's share has been declared. When such being the fact, the remedy for the plaintiff is to apply for final decree and get separated the share of 1st defendant and then claim share out of 1st defendant's share. Therefore, present suit claiming partition in plaint 'A' schedule properties from the defendants is not maintainable". The said reasoning cannot be found fault with. In the facts and circumstances of the matter, this Court is of the considered view that no substantial question of law involves in the matter for consideration. Hence, the following: ORDER i) Regular Second Appeal No.648/2016 is dismissed. ii) The judgment and decree dated 29/01/2016 passed in RA.No.72/2010 by the first appellate court is confirmed.