At, High Court of Karnataka Circuit Bench At Dharwad
By, THE HONOURABLE MR. JUSTICE B.S. PATIL & THE HONOURBALE MR. JUSTICE K.S. SOMASHEKAR
For the Appellant: Anant R Hedge, Neeralgi, Patil, Advocates. For the Respondents: R2A, R2B & R3, Ravi Hedge, R1A to R1C, Dinesh M. Kulkarni, Advocates.
(Prayer: This RFA is filed under Section 96 of CPC, against the judgment and decree dated 12.12.2011 passed in O.S.No.1/2009 on the file of the Senior Civil Judge, Sirsi, dismissing the suit filed for declaration, Injunction, Partition.)
B.S. Patil, J.
1. This is a plaintiff’s first appeal. He is challenging the judgment and decree dated 12th December 2011 passed by the learned Senior Civil Judge, Sirsi, thereby dismissing the suit in O.S.No.1/2009 filed for partition and separate possession of some of the joint family properties.
2. The specific case of the plaintiff is that defendant No.1 is his father and defendant Nos.2 and 3 are his elder brothers and one other brother by name Mahabaleshwar who was not impleaded as defendant had separated from the family by taking his share in the family properties as back as on 22.05.1987. Thereafter, the plaintiff and the defendants lived together till 1989 as members of the joint family. During the year 1989, a partial partition took place in respect of some of the family properties, whereudner Sy.No.1, measuring 20 guntas, situated at Kudegod village, Siddapur Taluk along with Sy.No.27, measuring 19 guntas, Sy.No.113/1 measuring 0.58 guntas, Sy.No.19/2 measuring 23 guntas and Sy.No.18/2 measuring 20 guntas were allotted to the share of the plaintiff. According to the plaintiff, the said partition was an oral partition. An application seeking mutation of the names of the respective parties in respect of the properties that were allotted to the shares of the respective parties was moved before the revenue authorities by the 1st defendant, wherein Sy.No.1 measuring 20 guntas was clearly shown as having fallen to the share of the plaintiff. It is further stat
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d that based on the said vardhi given by the 1st defendant, mutation entry No.451 of Kudegod village was certified. However, name of the plaintiff was not recorded in respect of 20 guntas of land comprised in Sy.No.1 described in schedule ‘A’ to the plaint and also in respect of schedule ‘B’ properties which were betta lands. They were not the subject matter of partition. So also, the house property described in schedule ‘C’ and the movables belonging to the family described in schedule ‘D’ to the plaint were not partitioned and were continued as joint family properties.3. It is further case of the defendants that in the month of December 2008, when defendants asserted that they would harvest crop from schedule ‘A’ property and started claiming exclusive right in respect of all the suit schedule properties, plaintiff obtained record of rights of the suit schedule ‘A’ property and learnt that his name did not appear in the record. It is thereafter, plaintiff realized that mutation entry No.451 was wrongly recorded, in as much as, name of the plaintiff was not mutated in respect of schedule ‘A’ property.4. Plaintiff claims to have also learnt that defendants 2 to 4 had managed to get income from ‘B’ schedule properties with an intention to defeat the right of the plaintiff, therefore, plaintiff was constrained to file the suit seeking a declaration that plaintiff was the absolute owner of suit ‘A’ schedule property and that defendants had no right whatsoever to interfere with his possession and enjoyment of the same. He also sought for a decree for partition and separate possession of 1/4th share in the suit ‘B’, ‘C’ and ‘D’ schedule properties apart from seeking a direction for holding an enquiry into the mesne profits payable to the plaintiff.5. Defendant No.1/father of plaintiff and father of defendants 2 and 3 filed written statement denying the plaint averments. He admitted the status of the plaintiff as his son. He also admitted the fact that Mahabaleshwar, the eldest son had separated from the family on 22.05.1987 by executing a registered relinquishment deed. The 1st defendant also admitted the fact that in the year 1989, there was a partition of the family properties, but he asserted that it was not a partial partition but was a regular total partition of the properties of the family. He denied the assertion made by plaintiff that as per the partition of the year 1989, 20 guntas of land in Sy.No.1 was allotted to the share of the plaintiff. On the other hand, he asserted that there was a partition earlier in the year 1966 between himself, his brothers and his mother whereunder 4 guntas of land in Sy.No.1 was allotted to 1st defendant and the remaining 20 guntas of land was allotted to the share of his mother and later on, he acquired the said 20 guntas from his mother and by virtue of the same, he was in possession of 24 guntas in Sy.No.1. It is, therefore, contended by him, that in the partition of the year 1989 between himself and his sons, the said area of 24 guntas was retained by 1st defendant for which his sons had indeed consented.6. First defendant further states in paragraph 13 of the written statement that he had even executed a registered Will in the name of Sadanand Subray Hegde, the 3rd defendant in respect of the said property bearing Sy.No.1. He, therefore, asserted that plaintiff did not have any kind or right over the land bearing Sy.No.1. It was further asserted by him that partition of the year 1989 was acted upon by the plaintiff and defendants as they were residing separately and enjoying their respective portions of the lands. This written statement filed by 1st defendant was adopted by defendants 2 and 3.7. Based on the pleadings, the trial Court framed the following issues:1. Whether the plaintiff proves that he is exclusively enjoying the A schedule property and he is the absolute owner of the same?2. Whether the plaintiff further proves that he is having 1/4th share in the B and C schedule properties as they are the joint family properties?3. Whether the defendant No.1 proves that there was a partition in the year of 1966 between himself and his mother and his brothers and 4 guntas in S.No.1 being allotted to his share then he acquired 20 guntas. So now he is enjoying 24 guntas as per the partition in the year 1989 between himself and his sons with consent of the plaintiff?4. Whether the defendant No.1 proves that there was a partition in the year of 1989 between the plaintiff and the defendants they started to reside separately and enjoyed their separate share. Hence the suit is not maintainable?5. Whether the defendant No.1 proves the suit filed by the plaintiff is barred from principles of estoppel?6. Whether the plaintiff is entitled for share as prayed?7. What Order or decree?8. In support of his case, plaintiff examined himself as PW-1 and three other witnesses were examined as PWs-2 to 4. Ex.P.1 to Ex.P.28 were produced and marked. For the defendants, Subray Irappa Hegde/1st defendant examined himself as DW-1. No documents were produced by him.9. On consideration of oral and documentary evidence, the trial Court has held that plaintiff failed to establish that he was exclusively enjoying ‘A’ schedule property being its absolute owner. The Court below has also held that plaintiff failed to prove that he was having 1/4th share in ‘B’ and ‘C’ schedule properties. The trial Court has found that 1st defendant successfully proved that there was partition in the year 1966 between himself and his mother and brothers wherein 4 guntas of land in Sy.No.1 fell to the share of defendants 1 and 20 guntas which had fallen to the share of his mother was later on acquired by him and thus, he was enjoying 24 guntas of land in Sy.No.1. The Court below has also come to the conclusion that by virtue of the partition in the year 1989 between the plaintiff and the defendants, all the parties started residing separately enjoying their separate share, hence, the present suit brought for partition of the family properties was not maintainable. Thus, the Court below has dismissed the suit.10. Learned counsel appearing for the appellant Sri Ananth R. Hegde, contends that Ex.P.5 which is the certified copy of partition deed clearly disclose that 20 guntas of land in Sy.No.1 was allotted to the share of the plaintiff in the partition of the year 1989. This document having been admitted in evidence without any objection and indeed, defendants also having relied on the said document, the trial Court was not right and justified in excluding this document from consideration on the ground that it was an unregistered document.11. It is his next contention that in the partition of the year 1989, neither the ‘B’ schedule properties (betta lands) nor ‘C’ schedule properties (residential house) nor the movables described in ‘D’ schedule to the plaint were subject matter of partition and therefore, 1989 partition between the family was only in the nature of a partial partition.12. It is next contended by him that as per Ex.P.8, relinquishment deed executed in the year 1987 by the eldest son of 1st defendant by name Mahabaleshwar the family properties have been mentioned therein including Sy.No.1 in respect whereof Mahabaleshwar had relinquished his rights. Therefore, Ex.P.8, in the submission of Mr. Ananth Hegde, amply demonstrated that Sy.No.1 and the house property were the joint family properties. At any rate, it is contended by him that Ex.P.8 showed that 1st defendant had treated even item No.1 as part of the joint family property having thrown it into the common hotchpot and therefore, the same was available for partition as joint family property.13. Shri Ananth Hegde takes us through the evidence on record particularly inviting the attention of the Court to the cross-examination of DW-1 wherein Ex.P.5 was confronted to him and he is said to have admitted the fact that the said document was in his handwriting. It is, therefore, contended by the learned counsel that it was not open for DW-1 to urge that Sy.No.1 was not allotted to the plaintiff in the partition of the year 1989.14. Per contra, Shri Dinesh M. Kulkarni, learned counsel appearing for respondents 1(a) to 1 (c) and Sri Ravi Hegde, learned counsel appearing for respondents 2(a) and 2(b) support the findings recorded by the Court below and urge that plaintiff was appointed as a teacher and was staying separately after taking his share in the partition of the joint family properties: he has enjoyed the properties that had fallen to his share separately: the mutation entry effected based on the partition of the year 1989 was acted upon; having enjoyed the benefits and having taken advantage of the mutation entry for a period of nearly 20 years, he filed the suit in the year 2009. It is their contention that Sy.No.1 was never allotted to the share of the plaintiff.15. Having heard the learned for both parties and in the light of the various contentions raised, the points that arise for our consideration are:i) Whether the findings recorded by the trial Court holding that plaintiff was not entitled for partition and separate possession of the suit schedule properties as there was already a partition in the year 1989, suffers from any illegality or perversity warranting interference by this Court in exercise of appeal jurisdiction?ii) What order?16. First of all, the trial Court has found that Ex.P.5, the partition deed dated 19.10.1989 was inadmissible in evidence because it was not registered. In the light of the contention of Mr. Ananth Hegde that Ex.P.5 is a record of previous partition and does not effect partition on the date when the document was executed, we have carefully perused this document.17. Ex.P.5 clearly recites that family properties were being partitioned between the members of the joint family. Therefore, the document was compulsorily registrable. Hence, keeping in mind the provisions contained in Section 17 of the Registration Act and Section 49 of the same and in the light of the judgment of Apex Court in the case of R.C.E. VENKATACHALA GOUNDER VS. ARULMIGU VISWESARA SWAMI AND V.P.TEMPLE (AIR 2003 SC 4548), particularly, the observations made in paragraphs 19 and 20, it has to be held that the document which is compulsorily registrable, if not registered, although the same is marked in evidence without objection, such objection regarding its admissibility can be raised at any time and the Court will be justified in holding that said document has to be excluded from consideration as it was inadmissible in evidence. Hence, we do not find any illegality in the approach adopted by the Court below in this regard while holding that Ex.P.5 being an unregistered document was inadmissible in evidence.18. As the entire case of the plaintiff is based on his assertions that in the partition of the year 1989 as per Ex.P.5, Sy.No.1 had fallen to his share and therefore, he was entitled for a declaration that he was the absolute owner of the same, the relief sought in this regard by the plaintiff cannot be granted in view of our finding that Ex.P.5 is inadmissible in evidence.19. In so far as the contention of plaintiff that the arrangement of the year 1989 whereunder properties were divided was only a partial arrangement resulting in partial partition and plaintiff was entitled for partition in respect of ‘B’ to ‘D’ schedule properties is concerned, it has to be noticed that no material is placed before the Court as to the parties having agreed to keep other properties as joint family properties. There is no evidence adduced by the plaintiff to show that he had asserted any right in respect of schedule ‘C’ and ‘D’ properties after 1989. Schedule ‘C’ property is a house property. The plaintiff was appointed as a government servant/teacher. Apparently, he was staying in different places having regard to the requirement of his service. His case is that mutation entry effected based on the partition itself was illegal, in as much as, the property that fell to his share particularly Sy.No.1 was not included. Admittedly, he has kept quiet without asserting his right either over Sy.No.1 or in respect of the house premises for more than 20 years. If the house property had been set apart as a joint family property to be shared by all the members of the joint family subsequently at a later day then necessarily the plaintiff ought to have placed material to show that the said property was so reserved as a joint family property and he indeed exercised his right as a joint owner being a member of the joint family in respect of the said property. In the absence of any evidence in this regard, it cannot be held that the house property was kept as a joint family property to be divided later.20. In so far as ‘B’ schedule property is concerned which are admittedly the government lands characterised as ‘betta’ lands meant for beneficial enjoyment of the lands belonging to the owners situated abutting the betta lands, they cannot be claimed as part of the family properties. They are the government lands. There is nothing to show that those lands were granted in favour of the family members or atleast in the name of 1st defendant as the head of the joint family. In the absence of any such right of the joint family over these betta lands, plaintiff was not entitled to claim any share in respect of these properties. What rights the parties have over the betta lands is a matter which we are not going to decide in this case. The same, if necessary, will have to be adjudicated before the competent authorities in appropriate proceedings.21. So far as movable properties that are described in schedule ‘D’ to the plaint, the same process of reasoning as we have assigned in respect of ‘C’ schedule property would apply. Therefore, in our view, the plaintiff has failed to establish his case that there was a partial partition and the properties mentioned in plaint schedule ‘C’ and ‘D’ were kept as joint family properties wherein he had a share for partition.22. In so far as Ex.P.8 relinquishment deed is concerned, merely because Mahabaleshwar, the eldest son of 1st defendant while parting ways with the family by taking a sum of Rs.36,000/- relinquished his right in respect of all the other properties, it cannot be said that the said properties mentioned in the said relinquishment deed Ex.P.8 shall be regarded as joint family properties where all the members of the family had right. When the plaintiff has accepted his share as per the partition which was acted upon by virtue of the mutation entry duly certified as back as in the year 1989, it is not open for him to contend that he is entitled for partition and separate possession of other properties of the family. The plaintiff, therefore, has failed to prove his case and the trial Court, in our view, has rightly dismissed the suit. Therefore, we do not find any merit in this appeal. Accordingly, the point raised for consideration is answered against the appellant/plaintiff. The suit is, therefore, dismissed.23. In the circumstances of the case and having regard to the relationship between the parties, both parties shall bear their respective costs.