Karnataka High Court
Maheshwarappa vs Ganeshappa on 28 November, 2023
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RSA No. 1850 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO. 1850 OF 2023 (PAR)
BETWEEN:
MAHESHWARAPPA
AGED ABOUT 64 YEARS,
S/O LATE HALAPPA,
R/O SHYAGALI VILLAGE,
DAVANAGERE TALUK AND DISTRICT-577002.
...APPELLANT
(BY SRI. CHIDAMBARA G S, ADVOCATE)
AND:
1. GANESHAPPA
AGED ABOUT 59 YEARS,
S/O LATE HALAPPA,
Digitally R/O SHYAGALI VILLAGE,
signed by DAVANAGERE TALUK AND DISTRICT-577002.
CHAITHRA A
Location:
HIGH 2. ONKARAPPA
COURT OF AGED ABOUT 57 YEARS,
KARNATAKA S/O LATE HALAPPA,
R/O SHYAGALI VILLAGE,
DAVANAGERE TALUK AND DISTRICT-577002.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 24.08.2023.
PASSED IN RA.NO.46/2022 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE AND CJM, DAVANAGERE, ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE
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RSA No. 1850 of 2023
DATED 26.11.2021 PASSED IN O.S.NO.169/2013 ON THE FILE
OF THE ADDITIONAL CIVIL JUDGE, DAVANAGERE.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by defendant
No.1 assailing the divergent findings of the Courts below
wherein the appellate Court has allowed the appeal and
the plaintiff's suit seeking relief of partition is decreed
granting 1/3rd share in the suit schedule properties.
2. For the sake of convenience the parties are
referred to as per their rank before the trial Court.
3. The family tree is as under:
B.HALAPPA
(Dead)
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Maheshwarappa Ganeshappa Onkarappa
(D1) (Plaintiff) (D2)
4. The plaintiff filed the suit for partition and
separate possession against his two brothers who are
arrayed as defendants 1 and 2. Plaintiff and defendants 1
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and 2 are the children of one B. Halappa. Plaintiff has
contended that during the life time of his father, there was
a partition in the ancestral properties and the said
partition was effected under the registered partition deed
31.1.1998. The plaintiff has specifically pleaded that in
Survey No.101 totally measuring 9 acres, the father of
plaintiff was allotted 2 acres in the southern side block and
one acre in the Northern side block. Plaintiff contended
that as per the registered partition deed, the plaintiff and
defendants 1 and 2 along with their father Hallappa agreed
that in Survey No.101, the coconut garden land measuring
half acre shall be allotted to plaintiff. It was further
agreed that all the three sons of Halappa i.e. plaintiff and
defendants 1 and 2 would get the ancestral properties
distributed equally. The plaintiff alleges that after the
death of Hallappa, the plaintiff is in peaceful possession
and enjoyment of half acre i.e. coconut garden land in
Survey No.101 and when he requested his brothers to
effect partition in terms of the arrangement made in the
registered partition deed dated 31.1.1998, the defendants
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tried to sell the suit schedule properties with a view to
deprive plaintiff's share. Since defendants failed to heed
to the request made by the plaintiff, the present suit is
filed.
5. The defendants on receipt of summons though
admitted the partition, however, disputed the allotment of
half acre of coconut garden land in Survey No.101
exclusively to plaintiff. Defendants on the contrary
contended that after the death of their father Hallappa,
plaintiff and defendants have effected partition in all the
suit schedule properties and hence, prayed for dismissal of
the suit.
6. The trial Court having examined the pleadings
and oral and documentary evidence has dismissed the
suit.
7. The plaintiff feeling aggrieved by the judgment
and decree of the trial Court preferred an appeal in
R.A.No.46/2022. The appellate Court as a final fact
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authority has independently examined the admitted
registered partition deed dated 31.1.1998 which is
produced and marked at Ex.P1. Having examined the
recitals in the registered partition deed, the relevant
portion which is now undisputed, is culled out by the
appellate Court at para 29. The appellate Court having
culled out the relevant portion of the recitals and having
examined the recitals, disagreed with the reasons assigned
by the trial Court. The appellate Court referring to the
recitals found that under the registered partition deed to
which defendants 1 and 2 are signatories have accepted
the terms of the registered partition deed wherein father
of defendants 1 and 2 agreed that half acre of coconut
garden land is exclusively allotted to plaintiff and all the
three sons have further agreed that after the death of
their father Halappa, they would take equal share in all
other ancestral properties. Taking cognizance of this
relevant recital, the appellate Court found that the trial
Court has not properly appreciated the evidence. The
appellate Court was also of the view that defendants have
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not produced any rebuttal evidence that after the death of
their father all the three sons have effected partition. The
appellate Court has also taken cognizance of the
suggestions made by the learned counsel appearing for
defendants wherein a specific suggestion is made that the
contents of partition deed are true and correct to which
the plaintiff has acknowledged and accepted that the
recitals indicated in the partition deed are true and
correct. Referring to this evidence, the appellate Court
has reversed the findings and conclusions recorded by the
trial Court.
8. The contention of the learned counsel appearing
for defendants that a clause in the partition deed violates
Section 10 of Transfer of Property Act has no application
to the present case on hand. If plaintiff and defendants 1
and 2 have not disputed the registered partition deed vide
Ex.D1 and if they are signatories to the registered
partition deed then they are bound by the terms and
conditions incorporated in the partition deed. If during the
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life time of Hallappa, all the three sons had agreed to give
half acre of coconut garden land exclusively to plaintiff
under registered partition deed with an agreement that
the remaining properties will be divided into three parts
after the death of Halappa, the defendants cannot retract
from the terms and conditions and any defence let in by
defendants pursuant to the registered partition deed are
inadmissible as per Sections 91 and 92 of the Indian
Evidence Act. It is also worth to note that defendant No.1
has not challenged the registered partition deed. On the
contrary, he has accepted the registered partition deed.
In that view of the matter, the findings and conclusions
recorded by the trial Court suffers from perversity and
serious infirmities. The trial Court has not properly
appreciated the recitals of the admitted document while
deciding the controversy between the parties. The finding
of the trial Court that plaintiff is bound to seek relief of
declaration insofar as half acre of coconut garden land is
concerned is misconceived. If a document is not disputed
and if a party to the registered partition deed has acquired
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right over the property, the plaintiff need not seek relief of
declaration as his rights have stood crystallized insofar as
half acre of coconut garden land is concerned. The fact
that defendants have not questioned the partition deed,
there was no need for the plaintiff to seek relief of
declaration. No substantial question of law arises for
consideration.
Accordingly, the appeal is dismissed.
Sd/-
JUDGE
ALB
