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Nasruddin Abdul Majid v/s Abdul Gaffar Abdul Majid and Others

    R.S.A. No. 5767/2011 (Partn. & Sep. Possn.)

    Decided On, 28 January 2020

    At, High Court of Karnataka Circuit Bench At Dharwad

    By, THE HONORABLE JUSTICE: ASHOK S. KINAGI
    By, J.

    For Petitioner: K. Raghavendra Rao and V. Vidya, Advocates And For Respondents: Anant Hegde, Advocate



Judgment Text


1. Defendant No. 1 aggrieved by the judgment and preliminary decree dated 22.09.2004 passed in O.S. No. 133/1994 by the Prl. Civil Judge (jr.Dn.), Sirsi confirmed in R.A. No. 37/2004 before the Senior Civil Judge, Sirsi, dated 01.02.2011, this appeal is filed.

2. The case of the plaintiffs is that the suit properties are the ancestral properties of plaintiffs and defendants. The same were granted under Karnataka Land Reforms Act by confirming the occupancy right and it was confirmed that the plaintiffs and defendants are Samahikadars by the Land Tribunal, Sirsi. There was no partition in the family though they were residing separately, cultivating certain portions of land as co-owners. Properties are not being partitioned by metes and bounds. The plaintiffs demanded for partition. The defendant No. 1 did not effect partition. Hence, the plaintiffs constrained to file the suit for partition and separate possession.

3. Defendant No. 1 filed written statement denying the averments made in the plaint but admits that no partition being effected but some properties are cultivating separately by the plaintiffs and defendants. He denied the entitlement of 1/8th share to the plaintiffs and defendants each. It is further contended by the defendant that all the properties belonging to their father are not included in the suit. Hence, the suit for partial partition is not maintainable. Hence, sought for dismissal of suit.

4. Defendant No. 2 filed written statement contending that the description of the suit properties is not correct but he admits that all the properties are ancestral properties granted by the Land Tribunal by confirming the occupancy rights and he further contends that no partition has been effected in between the plaintiffs and defendants. Further defendant No. 2 is having 1/8th share in the suit schedule properties. Hence, prayed to allot equal shares in accordance with law.

5. The trial Court on the basis of the pleadings, framed the following issues for consideration:

1. Whether the plaintiffs prove that they are entitled for partition and separate possession of their share in the suit properties?

2. Whether the defendants prove that the properties in CTS No. 1437 A/1 and CTS No. 1437 A/3 are joint family properties and without including those properties the plaintiffs cannot seek partition?

3. Whether the suit is not maintainable for non-joinder of necessary parties?

4. To what Decree or Order the parties are entitled?

6. The plaintiffs in order to prove their case, plaintiff No. 1 got examined himself as PW-1 and plaintiff No. 5 got examined himself as PW-2 and got marked the documents as Exs. P-1 to P-17. Defendant No. 1 got examined himself as DW-1 and defendant No. 2 got examined himself as DW-3 and two witnesses were examined as DWs-2 and 4 and got marked documents as Exs. D-1 to D-5. The trial Court after considering the material on record and also oral and documentary evidence held that the plaintiffs and defendants No. 1 to 3 are entitled to get 2/17th share each and defendant No. 4 is entitled to get 1/17th share in the suit properties and answered issue No. 1 in affirmative wherein issue Nos. 2 and 3 are concerned, the trial Court has observed that the issues do not survive for consideration since the defendants did not press the said issues. Accordingly, the trial Court decreed the suit.

7. The defendant No. 2 aggrieved by the judgment and preliminary decree passed in the aforesaid suit, filed an appeal in R.A. No. 37/2004. The first appellate Court framed the following points for consideration.

1. Whether the appellant made out the ground the judgment and decree passed by the trial court is without the application of mind and it is not in accordance with law, hence it is liable to be set aside?

2. Whether the appellant made out that the trial court erred in pronouncing the judgment without observation to allot the share to each sharer in which they are in continuing possession by way of equitable partition, hence it called for interference?

3. What Order or Decree?

8. The appellate Court after re-appreciating the evidence on record held that the defendant No. 1 has not made out any ground to interfere with the judgment and decree passed by the trial Court. Further held that the trial Court has erred in pronouncing the judgment without observing to allot the share to each sharer in which they are continued possession by way of equitable partition. Consequently partly allowed the appeal and held that declaration of share of each sharer is concerned judgment and decree passed by the trial Court is confirmed while effecting the partition by metes and bounds. The competent authority shall keep in mind to preserve and protect the possession of each sharer as they are in possession by virtue of the oral settlement. If it is found in possession of excess land by any sharer that excess land shall be allotted to the other sharer where there is short fall. With these observations, the appeal came to be disposed of. The defendant No. 1 aggrieved by the said judgments and decrees passed by the Courts below, filed this appeal.

9. Heard learned counsel for the appellant and perused the impugned and decree.

10. Learned counsel for the appellant submits that the first appellate Court was not justified observing that there is no prohibition for the observation of the same while pronouncing the judgment. Sometime Court Commissioner will take risk to go beyond the decree passed by the Court. In sometime, the other party who developed the land may insist for equal partition in all the properties and the same cannot be ruled out by the Court.

11. The defendant No. 1 has admitted that Sy. Nos. 27 and 28 are in possession of defendant No. 2 and Sy. No. 27B is converted as areca garden. PWs-1 and 2 have contended that Sy. No. 27 and 28 are the fertile lands. Defendant No. 2 has not taken the permission of other members to develop the land, it is admitted that each sharer is continued in a particular survey number that is encroached upon each sharer to get it developed in which they are cultivating. Whenever each sharer is continued in a particular survey number they are very much eager to get more yield from the piece of land, it is not made clear by defendant No. 2 that he is continued in possession of Sy. No. 27 and 28 converted the same as areca garden.

12. According to PW-1, defendant No. 1 is in possession of more excess land, it was requested him to vacate a portion by allotting the some extent of land to other sharers but he has not effected the partition. It is not in dispute that the properties are the ancestral properties of the parties to the suit and relationship is also not in dispute. It is further not in dispute that partition has not been effected by metes and bounds. It is the case of the defendant No. 1 that he is enjoying the property separately i.e., Sy. Nos. 27 and 28. Except the said contention of the defendant No. 1, he does not deny that the suit schedule properties are the ancestral properties and further the trial Court after considering the material on record has held that the suit schedule properties are the ancestral properties and partition has not been effected in between the parties.

13. Learned counsel for the appellant submits that the appellant has challenged the observation made by the appellate Court in the operative portion and the possession of respective parties must be protected in view of oral settlement.

14. From the perusal of the judgment of the first appellate Court, it has made it very clear which reads as follows:

"While effecting the partition by metes and bounds, competent authority shall keep in mind to preserve a

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nd protect the possession of each sharer as they are in possession by virtue of the oral settlement. If it is found in possession of excess land by any sharer that excess land shall be allotted to the other sharer where there is short fall. With these observations appeal is hereby disposed off." 15. It is seen that the interest of the defendant No. 1 has already been protected by the first appellate Court. So the contention of the learned counsel for the appellant/defendant No. 1 does not hold good. In view of the observation made by the first appellate Court directing the competent authority to protect the interest of first defendant as well as plaintiffs, nothing survives for consideration in this appeal. Hence, I do not find any grounds to interfere with the judgment and decree passed by the first appellate Court. Accordingly, the appeal is dismissed.
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