Sri Narasimhappa vs Sri Chikkanarasimhappa
2022 Latest Caselaw 3314 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 25th DAY OF FEBRUARY, 2022

                        BEFORE

          THE HON'BLE MR.JUSTICE M.G.S.KAMAL

          R.S.A.NO.2720 OF 2006 (DEC/INJ)

BETWEEN:

SRI. NARASIMHAPPA
AGED ABOUT 50 YEARS
S/O MUTHAYALAPPA
R/O NEDUVENAHALLY VILLAGE
SOMENAHALLY HOBLI
GUDIBANDA TALUK - 563 101.
                                     ... APPELLANT

(BY SRI. K.K. VASANTH, ADVOCATE)

AND:

SRI. CHIKKANARASIMHAPPA
ALIAS NARASIMHAPPA
AGED ABOUT 53 YEARS
S/O MUTHAYALAPPA
R/O NEDUVENHALLY VILLAGE
SOMENAHALLY HOBLI
GUDIBANDA TALUK
KOLAR DISTRICT - 563 101.
                                      ... RESPONDENT

(BY SRI. RAVI KUMAR M, ADVOCATE FOR RESPONDENT)

     THE REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC AGAINST THE JUDGEMENT AND DECREE
DATED 19.09.2006 PASSED IN R.A. NO.24/2003 ON THE FILE
OF THE CIVIL JUDGE (SR.DN) & JMFC, CHICKBALLAPUR,
ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT
AND DECREE DATED:26.11.2002 PASSED IN OS.NO.152/2000
ON THE FILE OF THE CIVIL JUDGE (JR.DN) & JMFC,
GUDIBANDA.
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     THIS APPEAL BEING HEARD AND RESERVED, COMING
ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:



                       JUDGMENT

Present Regular Second Appeal is filed by the

appellant/defendant aggrieved by the Judgment and

Order dated 19.09.2006 passed in Regular Appeal in

R.A.No.24/2003 on the file of Civil Judge (Sr.Dn.) and

JMFC, Chickballapur (hereinafter referred to as 'the

First Appellate Court'), in and by which, the First

Appellate Court while allowing the appeal filed by the

respondent/plaintiff set aside the Judgment and

Decree dated 26.11.2002 passed in O.S.No.152/2000

on the file of Civil Judge (Jr.Dn.) and JMFC at

Gudibanda (hereinafter referred to as 'the Trial

Court'), which had dismissed the suit of the

respondent/plaintiff for the relief of declaration and

permanent injunction.

2. Parties are referred to as per their original

rankings before the Trial Court.

3. Brief facts of the case leading to the filing of

this appeal are that the plaintiff filed the above suit

claiming to be the absolute owner in possession of the

land bearing Survey No.112 measuring 28 guntas

situated at Uppakuntahally village (hereinafter

referred to as 'the suit schedule property'), having

purchased the same in terms of a registered deed of

sale dated 02.09.1985. That ever since the date of

purchase, he has been in actual physical possession of

the same carrying on the agricultural activities. That

the revenue records have been mutated in his name

and he has been paying the land revenue thereof.

That the defendant who is none other than his brother

was making hectic attempts to interfere with his

peaceful possession and enjoyment of the suit

schedule property. That the defendant impersonating

himself as plaintiff had obtained mutation of revenue

records in his name which the plaintiff learnt later and

challenged the same before the Court of Assistant

Commissioner which stayed the order of the Deputy

Tahsildar. That the defendant having no manner of

right, title and interest over the suit schedule

property, was trying to harvest and cut the crop

existed on the land and was trying to dispossess the

plaintiff from the peaceful possession and enjoyment

of the suit schedule property. That the plaintiff under

the circumstances was constrained to file the above

suit seeking relief of declaration of his title and

consequent relief of permanent injunction restraining

the defendant and any person claiming under or

through him from interfering with the peaceful

possession and enjoyment of the suit schedule

property by the plaintiff and causing any damage or

loss to the schedule property.

4. Defendant in his written statement, admitted

plaintiff being his brother, however denied the claim

of the plaintiff to be the absolute owner in possession

of the schedule property having purchased by him

under the deed of sale dated 02.09.1985. The

allegations of he attempting to interfere with the

plaintiff's peaceful possession and enjoyment of the

suit schedule property and mutation of the revenue

record by he impersonating the plaintiff are denied.

It is specifically contended by the defendant that suit

schedule property was the joint family property of the

plaintiff and the defendant which was purchased for

and on behalf of the joint family in the name of the

plaintiff under the registered deed of sale dated

02.09.1985. That the plaintiff and defendant had

partitioned the family properties including the suit

schedule property under an oral partition dated

28.03.1981 dividing into 'A' and 'B' schedule

properties. In terms of the said partition, properties

described as 'B' schedule were allotted to the share of

the defendant. Suit schedule property is one of the

items of the properties forming part of 'B' schedule

property. The properties described as 'A' schedule

properties were allotted to the share of the plaintiff.

That the name of the defendant was mutated in the

revenue records in respect of the suit schedule

property on the basis of the said partition dated

28.03.1981. As such, the suit of the plaintiff was not

maintainable and was liable to be dismissed. The

Trial Court, based on the above pleading, framed the

following issues:

1. "Whether the plaintiff to proves that he is the owner in title of the suit schedule property?

2. Whether the plaintiff further proves that he is in lawful possession over the suit schedule property?

3. Whether the plaintiff proves that the interference made by the defendant on suit schedule property?

4. Whether the defendant to prove that the plaintiff and defendants have partitioned their joint family properties under oral partition dated:23.08.81 and it was reduced into writing as A and B schedule?

5. What relief parties are entitled?

6. What decree or order?"

5. Plaintiff examined himself as P.W.1. In

addition, two witnesses have been examined as

P.Ws.2 and 3 and exhibited six documents as Ex.P1 to

Ex.P6, while defendant examined himself as D.W.1

besides examining four witnesses as D.Ws.2 to 5 and

exhibited five documents marked as Ex.D1 to

Ex.D5(A).

6. The Trial Court, by its Judgment and Decree

dated 26.11.2002, dismissed the suit of the plaintiff

holding that the suit schedule property is the joint

family property fallen to the share of the defendant in

terms of the earlier oral partition dated 28.03.1981.

Aggrieved by the same, plaintiff filed regular appeal in

R.A.No.24/2003 on the file of the First Appellate

Court. Considering the grounds urged in the appeal

memorandum, the First Appellate Court framed

following points for its consideration:

1. "Whether the impugned judgment of the trial court, to be set aside or modified?

2. What order?"

7. On re-appreciation of pleadings and evidence,

the First Appellate Court set aside the Judgment and

Decree passed by the Trial Court and consequently,

decreed the suit in O.S.No.152/2000 as prayed for by

the plaintiff. Aggrieved by the same, the defendant

has filed the present Regular Second Appeal.

8. This Court, by order dated 22.11.2006,

admitted this appeal to consider the following

substantial question of law:

"Whether the First Appellate Court rightly appreciated the evidence on record while reversing the Judgment and Decree of the Trial Court?"

9. Sri.K.K.Vasanth, learned counsel for the

appellant/defendant reiterating the grounds urged in

the appeal memorandum, submitted that:

a) The First Appellate court grossly

erred in relying upon the deed of sale

dated 02.09.1985 without adverting to

the oral partition at Ex.D4 and other

revenue documents produced by the

defendant duly supported by the

evidence of the defendant witnesses,

more particularly of D.W.5 Sri.Bhaskar

Reddy, who is the vendor of the suit

schedule property.

b) The First Appellate Court erred

in not noticing the entries in the revenue

documents at Ex.D1, Ex.D2 and Ex.D3

with regard to the possession and

enjoyment of the land by the defendant

right from the year 1981 based on the

oral partition at Ex.D4 which carry

statutory presumption under Section 133

of the Karnataka Land Revenue Act.

c) That the First Appellate Court

ought to have taken into consideration of

the fact that the suit schedule property

was agreed to be sold jointly in favour of

the plaintiff and defendant much prior to

1981 and that D.W.5, the earlier owner of

suit schedule property had delivered the

possession accordingly which made the

plaintiff and defendant to enter into 1981

partition in which the suit schedule

property was allotted to the share of the

defendant. The First Appellate Court

ought to have taken these surrounding

circumstances into consideration instead

of solely relying upon the deed of sale

dated 02.09.1985. Therefore, the

question of delivery of possession of the

suit schedule property only and in terms

of deed of sale dated 02.09.1985 was

misconceived.

10. On the other hand, Sri.Ravikumar, counsel

for respondent justifying the Judgment and Order

passed by the First Appellate Court, submitted that:

a) The Trial Court had erroneously

dismissed the suit relying upon

unregistered deed of partition of the year

1981 at Ex.D4 while the suit schedule

property was purchased by the plaintiff only

on 02.09.1985 much subsequent to the

said Partition.

b) That even according to the

defendant family properties having been

partitioned in the year 1981, the question

of family remaining in joint possession and

enjoyment would not arise.

c) That revenue entries which was

obtained by misrepresentation cannot be

the sole ground for dismissing the suit of

the plaintiff.

d) That the First Appellate Court taking

into consideration of all the aspects of the

matter, has justifiably allowed the appeal

granting the decree as prayed for wherein

no interference is called for and hence,

prays that the substantial question of law

be answered in favour of the plaintiff and

dismiss the appeal.

11. Heard the learned counsel for the parties

and perused the records.

12. It is the case of the plaintiff that he

purchased the suit schedule property under a

registered deed of sale dated 02.09.1985 from

Bhaskar Reddy. That the defendant who is his

brother, had impersonated and obtained mutation of

his name in the revenue records and on the basis of

the same, apart from interfering in his possession, is

threatening to dispossess him.

13. Defendant at Paragraph 9 of the written

statement, has specifically pleaded as under:

"9. The defendant submits that the suit schedule property is the joint family property of the plaintiff and defendant, who has been purchased for and on behalf of the joint family in the name of the plaintiff under registered sale deed as referred by the plaintiff. Thereafter the plaintiff and defendant have partitioned the suit schedule property and other

family properties under order partition dated: 28.03.1981, which has been reduced into writing as "A'' and "B'' schedules. In the said partition "B" schedule properties fallen to the share of the defendant. The suit schedule property is one among the other properties allotted to the share of the defendant ("B' schedule) under said oral partition. Accordingly in the said partition "A'' of said partition the khata has been transferred into the name of the defendant. The defendant is herewith producing RTC, Mutation extract, partition schedule and other documents for kind perusal of this Hon'ble court".

14. Thus it is the specific case of the defendant

that the suit schedule property was purchased in the

name of the plaintiff for and on behalf of the joint

family and was subject matter of the Panchayath

Parikhat dated 28.03.1981.

15. Admittedly, deed of sale in respect of the

suit schedule property has been executed and

registered by Bhaskar Reddy in favour of the plaintiff

on 02.09.1985 and under law, right, title and interest

in respect of the suit schedule property has been

created for the first time in favour of the plaintiff by

virtue of the aforesaid deed of sale dated 02.09.1985.

That being the case, the contention of the defendant

that the suit schedule property was purchased in the

name of the plaintiff for and on behalf of the joint

family and was made subject matter of the

Panchayath Parikhat on 28.03.1981 cannot be

countenanced. The defendant has not produced any

cogent material evidence to justify his case of suit

schedule property having been purchased in the name

of the joint family prior to 1981. Therefore, neither

the plaintiff nor the defendant had any pre-existing

right over the plaint schedule property to make it

subject matter of Panchayath Parikhat in the year

1981 admittedly about four years prior to execution of

deed of sale.

16. It is trait law that "Partition is in fact a

redistribution or adjustment of pre-existing rights

among co-owners/co-parceners resulting in a division

of land or other properties jointly held by them into

different lots or portions and delivering thereof to

respective allottees. The effect of such division is that

the joint ownership is terminated and the respective

shares vest in them in severalty. A partition of a

property can be only among those having a share or

interest in it. A person who does not have a share in

such property cannot fairly be a party to a partition

(SHUB KARAN BUBNA @ SHUB KARAN PRASAD

BUBNA vs. SITA SARAN BUBNA & OTHERS

(2009(9) SCC 689).

17. The plaintiff claiming ownership over the suit

schedule property by virtue of registered deed of sale

dated 02.09.1985. Execution, registration and

validity of the said deed of sale is not disputed or

challenged till date.

18. Though the defendant has examined

Bhaskar Reddy, the vendor of the plaintiff as a

witness to buttress his case of property having been

purchased for and on behalf of the joint family, in

view of the sale deed being a registered document

and in the absence of any other material discrediting

the validity or otherwise of the deed of sale and in

view of the provisions of Sections 91 and 92 of the

Evidence Act, any oral evidence stands excluded.

19. It is the case of the defendant that his

name has been entered into in the revenue records in

respect of the suit schedule property on the basis of

the oral partition dated 28.03.1981 and that the said

entries in the revenue records carry presumption of

defendant being in continuous possession of the suit

schedule property.

20. Section 133 of the Land Revenue Act

provides as under:

"133. Presumption Regarding entries in the records. - An entry in the Record of Rights and a certified entry in the Register of Mutations shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor."

21. The Trial Court has solely relied upon the

Panchayath/oral partition effected between the

plaintiff and the defendant on 23.08.1981 and has

taken the said document to be a basis to the extent

excluding the registered deed of sale from its

consideration, which as rightly appreciated and

observed by the First Appellate Court, is erroneous

and contrary to the provisions of Sections 91 and 92

of the Evidence Act. The Trial Court while dismissing

the suit, has held that the very fact that original deed

of sale was produced from the custody of the

defendant and the oral evidence of D.Ws.1 to 5, more

particularly of Bhaskar Reddy, was sufficient enough

to hold that there was a partition effected and original

documents were handed over to the defendant as the

suit schedule property had fallen to the share of the

defendant. The aforesaid reasoning of the Trial Court

do not stand scrutiny of law. Admittedly, no title and

interest in the property was transferred from Bhaskar

Reddy in favour of the joint family of the plaintiff and

defendant as in the year 1981. The right, title and

interest was created in the name of the plaintiff

admittedly, in terms of the aforesaid deed of sale in

the year 1985. As rightly taken note of by the First

Appellate Court, assuming original deed of sale was

handed over to the defendant, the same would not

create any right, title and interest in favour of the

defendant distinguishing the same from the plaintiff.

This has to be done only in the manner known to law.

22. The suit being one for declaration and

possession, having established the execution and

registration of deed of sale by Bhaskar Reddy in his

favour has proved his right, title and interest over the

suit schedule property. The entries in the revenue

records carry rebutable presumption and that entry of

the name of the defendant in the revenue records

have been disputed by the plaintiff to have been

obtained by impersonating him, in view of the deed

of sale in the name of the plaintiff which is valid and

subsisting till date, establishing the right and title of

the plaintiff, the possession should follow the title.

The First Appellate Court has taken note of the

aforesaid factual and legal aspects of the matter and

has rightly allowed the appeal, setting aside the

Judgment and Decree of the Trial Court and has

consequently, decreed the suit of the plaintiff as

prayed for.

23. For the aforesaid reasons and analysis, the

substantial question of law framed is answered

accordingly. Appeal is dismissed. Judgment and

order dated 19.06.2006 passed in R.A.No.24/2003 on

the file of the Civil Judge (Sr.Dn.) and JMFC,

Chikkaballapur, is confirmed.

Sd/-

JUDGE

bnv*