K Ramesh S/O Sri K Krishnaswamy ... vs Smt G K Premakumari W/O N K ...
2022 Latest Caselaw 4803 Kant

                              1


       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 15TH DAY OF MARCH, 2022

                          BEFORE

    THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                R.F.A NO.228 OF 2007 (DEC)

BETWEEN:

K. RAMESH
S/O SRI. K KRISHNASWAMY NAIDU
AGED ABOUT 53 YEARS
R/AT NO.1455, PIPELINE, VIJAYANAGAR,
BANGALORE - 560 040.

                                               ...APPELLANT
(BY SRI. C G GOPALASWAMY, ADVOCATE)

AND:

1. SMT.G.K.PREMAKUMAR,
W/O SRI.N.K.GANGADHARA GOWDA,
RESIDING AT BHAIRESHWARA NILAYA,
NARASIMHA CIRCLE, MAGADI,
BANGALORE RURAL DISTRICT
SINCE DEAD BY LRS.

1(a). N.G. YATISH
S/O OF LATE N.K. GANPADHA GOWDA
AGED ABOUT 42 YEARS
RESIDING AT NO.227, BYRESHWARA NILAYA
KALYA GATE, MAGADI
RAMANAGARA DISTRICT - 562 120.

AMENDED AS PER ORDER 5.2.21
                              2


2. H P RAMAIAH
S/O LATE SRI. PUTTAIAH
MAJOR, R/AT NO.28/4/1
NEW NO.16, 1ST CROSS
CHOOLARAPALYA, BEHIND GANESHA TEMPLE
MAGADI ROAD, BANGALORE - 560 023.

3. BOREGOWDA
S/O SRI MANCHEGOWDA
MAJOR

4. ESHWAR
S/O SRI MANCHEGOWDA
MAJOR

BOTH R/AT OLD NO.19, NEW NO.15
CHOOLARAPALYA, 1ST CROSS,
BEHIND GANESHA TEMPLE
MAGADI ROAD, BANGALORE-23.

(RESPONDENT NO.3 & 4 DELETED
AS PER ORDER DATED 28.11.2011)
                                            ....RESPONDENTS

(BY SRI. K S NARAYANASWAMY, ADVOCATE FOR R-1;
R-2 SERVED; V/O DTD 28/11/2011 R-3 AND R-4 ARE DELETED)


     THIS RFA IS FILED U/S 96 R/W ORDER XLI RULE 1 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 30.10.2006 PASSED
IN O.S.NO.5620/1993 ON THE FILE OF THE 11TH ADDL. CITY CIVIL
JUDGE, CITY CIVIL COURT, BANGALORE, DECREEING THE SUIT
FOR PERMANENT INJUNCTION AND DECLARATION.


     THIS APPEAL COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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                          JUDGMENT

The captioned regular first appeal is filed by unsuccessful

defendant No.1 who has questioned the judgment and decree

dated 30.10.2006 passed in O.S.No.5620/1993 by the XI

Additional City Civil Judge, Bengaluru.

2. For the purpose of convenience, the parties are

referred to as per their rank before the trial Court.

3. The facts leading to the case are as under:

(a)The plaintiff filed a suit for bare injunction in

O.S.No.5620/1983 against the defendants. After the

defendants appeared and filed written statement, the plaintiff

by way of amendment sought the relief of declaration and also

possession from defendants. The subject-matter of the suit is

a site bearing Corporation No.19 totally measuring 15 x 48 ft.

The plaintiff is asserting absolute right and title in the suit

schedule property on the basis of the registered sale deed

dated 28.2.1974. The plaintiff claims that one Narasimhaiah

was the owner of the suit schedule property and the said

Narasimhaiah sold the same in her favour under registered

sale deed dated 28.2.1974. The plaintiff claims that after

execution of the registered sale deed, her vendor delivered

possession and since then, she claims to be in exclusive

possession and enjoyment of the suit schedule property

without any interruption. The plaintiff further contended that

having acquired right and title over the suit schedule property

she has alienated half portion measuring 15 x 48 in favour of

One P. Ramaiah on 12.03.1981, who is none other than

defendant No.2 in the suit. The plaintiff specifically contended

that on 9.9.1993, defendant No.1 high handedly asserted right

over Schedule 'A" property and attempted to lay foundation

without any semblance of right and title. It was only on

verification, the plaintiff found that defendant No.1 is

asserting right and title to an extent of half portion in the suit

schedule property on the basis of the registered sale deed

executed by Chikkanarasimhaiah dated 11.8.1993. The

plaintiff specifically pleaded that the vendor of defendant No.1

had no manner of right and title over the suit schedule

property.

(b)At Para 7 (a) of the plaint, the plaintiff further

contended that defendant No.2, who is in possession of

western portion was taking care of eastern portion of the

property as the plaintiff was residing at Magadi. The plaintiff

claimed that she had authorized defendant No.2 to take care

of suit schedule property and not to induct any body.

However, the plaintiff when visited the site during the first

week of October 1988, found that defendants 3 and 4 had put

up small structures and when questioned, she was informed

that it was defendant No.2 who inducted them into the suit

schedule property on the premise that defendants 3 and 4 had

no place to reside and were inducted under permissive

possession. The plaintiff specifically averred that portion,

which is in occupation of defendants 3 and 4 is referred in

Schedule 'B' property. On these set of pleadings, the plaintiff

sought declaration to declare that she is the absolute owner of

the suit schedule property and consequently, sought

possession from defendants 3 and 4.

(c)On receipt of summons, defendant No.1 tendered

appearance and filed written statement. The defendant No.1

stoutly denied the entire averments made in the plaint.

Defendant No.1 specifically contended that litigation was

pending in O.S.No.630/1974 between the vendors of

defendant No.1 and plaintiff, which was later transferred to

Court at Magadi and the same was dismissed on 15.2.1980.

Defendant No.1 further contended that the plaintiff vendor

Narasimhaiah did not take any steps to seek restoration of the

suit and later the said Narasimhaiah along with his brother

Chikkanarasimhaiah and other members effected partition in

all the suit schedule properties belonging to the joint family.

Defendant No.1 further claimed that in the said partition deed

dated 9.3.1980, the suit schedule property fell to the share of

Chikkanarasimhaiah and Sri.Lakshmipathy, who in turn sold

the same in favour defendant No.1 under registered sale deed

dated 11.8.1993 for valuable sale consideration. On these

defences, defendant No.1 claimed to be the bonafide

purchaser and therefore, sought for dismissal of the suit.

(d)Defendant No.1 also filed additional written statement

and claimed that plaintiff cannot seek relief of declaration as

he is not in possession of both A and B schedule properties.

Defendant No.1 specifically averred in the additional written

statement that even defendants 2 and 4 are not at all in

possession of Schedule A and B properties. On these set of

defence, defendant No.1 sought for dismissal of the suit.

(e)The trial Court on the basis of the pleadings framed

the following issues:

"1. Whether plaintiff proves that she is in lawful and physical possession of suit property on the date of the suit?

2. Whether the plaintiff proves interference by the defendant?

3. Whether plaintiff proves that she is entitled for decree against defendants directing them to deliver possession of suit schedule property?

4. What order or decree?"

(f)The plaintiff in support of her contention examined one

witness as P.W.1 and relied on documentary evidence vide

Exs.P1 to P8A. Defendant No.1 in support of his contention

examined himself as D.W.1 and examined three independent

witnesses as D.Ws.2 to 4 and relied on documentary evidence

vide Exs.D1 to D18.

(g)The Trial Court having assessed the oral and

documentary evidence let in by the rival parties answered the

issues in the affirmative by holding that plaintiff has

succeeded in establishing right and title over the suit schedule

property and consequently, directed the defendants to hand

over vacant possession of suit schedule property. The Trial

Court having examined the rebuttal evidence let in by the

defendants has recorded a categorical finding that the entire

claim of defendant No.1 is inadmissible in evidence and

therefore, the consequent sale deed in favour of defendant

No.1 executed by Chikkanarasimhaiah under registered sale

deed dated 11.8.1983 as per Ex.5 would not create any right

and title in favour of defendant No.1. The Trial Court having

examined the title documents in favour of plaintiff which is

dated 28.2.1974, has come to the conclusion that the plaintiff

has succeeded in proving her title to the suit schedule

property. On these set of reasoning, the Trial Court has

proceeded to decree the suit.

(h)Being aggrieved by the judgment and decree of the

trial Court, defendant No.1 has preferred this appeal.

4. The learned counsel for the appellant-defendant

No.1 would vehemently argue and contend before this Court

that plaintiff's vendor had no authority to sell the entire extent

when admittedly the suit property is the joint family ancestral

property and therefore, the plaintiff's vendor had only half

share in the suit schedule property. Placing reliance on

Ex.D10 he would further contend that even if said partition

deed is not registered, the same can be looked into for

collateral purpose which clearly indicates that there was

severance in the family and consequently Chikkanarasimhaiah

who had legitimate share in the suit schedule property and

was not a party to the earlier sale deed dated 28.2.1974 had a

pre-existing right and he had rightly transferred his half share

which is the present suit property. Therefore, he would

contend that the Trial Court grossly erred in declaring plaintiff

as the absolute owner of the entire extent without examining

the registered sale deed which is dated 11.8.1993. He would

also further submit that the evidence on record would clearly

establish that suit schedule property is the joint family

property and therefore, the elder brother of first defendant's

vendor namely Narasimaiah would have asserted exclusive

possession as well as exclusive ownership over the suit

schedule property. Therefore, the sale deed executed by

Narasimhaiah in favour of plaintiff under registered sale deed

dated 28.2.1974 would be valid only to the extent of

Narasimhaiah's share and therefore, the remaining half share

which was owned by Chikkanarasimhaiah is purchased by

defendant No.1 under registered sale deed dated 11.8.1993

and therefore the Trial Court erred in declaring the plaintiff as

the absolute owner and the judgment and decree of the trial

Court suffers from serious infirmities and therefore, would

warrant interference by this Court. He would further contend

that the Trial Court was not justified in directing the present

appellant-defendant No.1 to hand over possession of schedule

'B' property. He would conclude his arguments by contending

that the sale deed in favour of defendant No.1 is not at all

challenged by any body and without questioning the sale deed

either by the present plaintiff or his vendor, the Trial Court

was not justified in granting decree for possession and

therefore, would warrant interference at the hands of this

Court.

5. Per contra, the learned counsel for plaintiff refuting

the arguments canvassed by the learned counsel for

defendant No.1 would submit that the sale deed executed by

Narasimhaiah in favour of plaintiff is much earlier in point of

time. Placing reliance on Ex.P4, he would contend that the

sale deed in favour of plaintiff is dated 28.2.1974 therefore,

the alleged partition deed dated 9.3.1980 could not have

included the property which was already dealt by the elder

brother in the family. Even otherwise, he would submit that

Ex.D10 which is the partition deed is not at all admissible in

evidence. He would contend that the Trial Court has rightly

declined to look into this document as it is inadmissible in

evidence for want of registration. He would further contend

that unregistered partition deed would not create any right

and therefore, consequent sale deed executed by

Chikkanarasimhaiah on the strength of Ex.D10 would not

create any right and title in favour of defendant No.1 and

therefore he would submit that the judgment and decree of

the Trial Court is based on legal evidence let in by the plaintiff

and therefore, would not warrant any interference at the

hands of this Court.

6. Heard the learned counsel for the plaintiff and

defendant No.1. Perused the trial Court records.

7. The following points would arise for consideration:

"(1)Whether the trial Court was justified in declaring the plaintiff as the absolute owner of the suit schedule property?

(2)Whether the trial Court was justified in discarding Ex.D10 and consequently directing defendant No.1 to handover possession of schedule 'B" property?"

8. Regarding Points 1 and 2:

The plaintiff has filed the present suit seeking the relief of

declaration to declare that he is the absolute owner of the suit

schedule property. To establish his title, the plaintiff has

produced certified copy of the sale deed dated 28.2.1974 as

per Ex.P4. The plaintiff asserts that he has purchased this

property from one Narasimhaiah. Per contra, defendant No.1

is also asserting right and title over the suit schedule property

which is western half portion of the site purchased by the

plaintiff. The site bearing No.19 totally measures 30 x 48 ft.

The schedule 'B' property is the disputed portion over which

the defendant No.1 is claiming title on the basis of the sale

deed executed by one Chikkanarasimhaiah on 11.8.1983.

From the material on record, this Court would find that the

suit schedule property is the joint family ancestral property

and there is no dispute about it. If Narasimhaiah who is

admittedly the elder member in the family dealt with the suit

schedule property by selling the same in favour of plaintiff on

28.2.1974, it goes without saying that the alienation by the

elder brother would not bind his younger sibling i.e. vendor of

defendant No.1 namely Chikkanarasimhaiah. It is surprising

to note in the present case on hand that vendor of defendant

No.1 i.e.Chikkanarasimhaiah has not taken any steps pursuant

to alienation by his elder brother Narasimhaiah in favour of

plaintiff which is of the year 1974. Defendant No.1 has set up

a partition by contending that in his vendor's family, there was

partition and in that partition, western portion of the present

site was allotted to his vendor's share who in turn has sold the

same to present defendant No.1 under registered sale deed

dated 11.8.1993. Though alienation by Narasimhaiah in

favour of plaintiff does not bind Chikkanarasimhaiah who had

half share in the suit schedule property, but the said

Chikkanarasimhaiah did not approach the Court seeking

appropriate remedy, if he really felt aggrieved by the

alienation by his elder brother in 1974. Though it is a trite

that in case of alienation of a co-parcenary property, it is

sufficient for a non-alienating co-parcener to file a mere suit

for partition and separate possession without questioning the

alienation, this exercise is not done by defendant No.1's

vendor Chikkanarasimhaiah. The alienation made by his elder

brother was never challenged by Chikkanarasimhaiah.

Therefore, an interesting question that would arise for

consideration before this Court is that if the entire property

was dealt with by Narasimhaiah way back in 1974, whether

defendant No.1 would acquire any right and title pursuant to

the registered sale deed executed by Chikkanarasimaiah on

11.8.1993, that to based on an unregistered partition deed.

Though it is a trite law, that under Hindu Law, oral partition is

the best mode of partition and it is practiced in villages more

particularly in agricultural family, but if a co-parcener opt to

effect partition by reducing the said partition in writing, then

the provisions of Section 17 of the Registration Act would

eventually come into play and therefore, if the partition deed

is not registered, the same is inadmissible in evidence and

cannot be looked into even for collateral purpose. If the

partition, as set up by defendant No.1 under Ex.D10 is

ignored, then the sale deed in favour of the plaintiff which is of

the year 1974 has gone unchallenged. Therefore, as on 1993,

Chikkanarasimhaiah who could have sought partition in the

suit schedule property and without seeking partition in the suit

schedule property could not have straight away alienated half

portion and even if there is alienation in favour of defendant

No.1 without getting the earlier sale deed set aside by a

competent Court, defendant No.1 who is the subsequent

transferee unfortunately would not acquire any right and title

based on the registered sale deed dated 11.8.1993. Section 8

of the Transfer of Property Act clearly contemplates that a

transferor can only transfer what is capable of passing in the

property and the legal incidents thereof. If the property was

already dealt with by his elder brother Narasimhaiah and if

possession was lost by the family in 1974, the sale deed

executed by Chikkanarasimhaiah after 19 years in favour of

defendant No.1 would not create any right and title. The

recitals in the sale deed as per Ex.P4 clearly indicates that

Narasimhaiah delivered possession to plaintiff. Therefore, the

vendor of defendant No.1 ought to have filed the suit for

partition within 12 years, as possession was already lost.

Therefore, the right, if any, of vendor of defendant No.1 stood

extinguished under Article 109 read with Section 27 of the

Limitation Act. If the vendor of defendant No.1 had lost his

right under Article 109 read with Section 27 of the Limitation

Act,1963, the registered sale deed executed by

Chikkanarasimhaiah in favour of defendant No.1 on 11.8.1993

would not create any right and title. In that view of the

matter, the points formulated by this Court are answered in

the affirmative.

9. The Trial Court having examined the title

documents vide Ex.P4 which is a registered sale deed dated

28.2.1974 has rightly held that the plaintiff has acquired valid

right and title. Therefore, the Trial Court was of the view that

the subsequent partition deed dated 9.3.1980 between the

vendors of the plaintiff and vendor of defendant No.1 would

not create any right in favour of defendant No.1. The Trial

Court was justified in discarding Ex.D10 which is an

unregistered partition deed and the same is inadmissible in

evidence. Having declared the plaintiff as absolute owner of

the suit schedule property, the Trial Court rightly decreed the

suit thereby directing defendant No.1 to hand over possession

of Schedule 'B' property. The judgment and decree of the

Trial Court is based on clinching evidence adduced by the

plaintiff and therefore, the same does not suffer from any

infirmities and would not warrant any interference at the

hands of this Court.

10. Hence, the appeal is devoid of merits and is

accordingly dismissed.

Sd/-

JUDGE

*alb/-