Karnataka High Court
Malllappa vs Gadigappa on 5 February, 2024
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RFA No. 100321 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 5TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
REGULAR FIRST APPEAL NO. 100321 OF 2016 (PAR/POS)
BETWEEN:
MALLLAPPA S/O. TIMMANNAPPA GABBUR,
AGE:52 YEARS, OCC: AGRICULTURE
R/O: SHIVALLIYAVAR ONI, ANCHATGERI
TQ: HUBBALLI, DIST: DHARWAD
...APPELLANT
(BY SRI. PRAKASH K. JAWALKAR, ADVOCATE)
AND:
Digitally signed
1. LATE. GADIGAPPA
by
SHIVAKUMAR
S/O. TAMMANNAPPA GABBUR
HIREMATH
Date:
2024.02.12
17:18:50 R1.(A) SMT. PARVATI W/O. GADIGAPPA GABBUR,
+0530
AGE: ABOUT 58 YEARS,
OCCUPATION: HOUSEWIFE,
R1.(B) SMT. MANJULA W/O. BASAPPA BETAGERI,
AGE ABOUT 40 YEARS,
OCCUPATION: HOUSEWIFE,
R1.(C) TAMMANNAPPA S/O. GADIGAPPA GABBER,
AGE: ABOUT 38 YEARS,
OCCUPATION: SERVICE,
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RFA No. 100321 of 2016
R1.(D) MANJUNATH S/O. GADIGAPPA GABBUR,
AGE: ABOUT 33 YEARS,
OCCUPATION: PRIVATE SERVICE,
ALL ARE RESIDING AT:
SHIVALLIYAVAR ONI,
ANCHAIGERI VILLAGE,
DISTRICT DHARWAD-580024.
2. SMT. BINAWAL DAS
D/O. SRI. RAM NARAYANADAS,
AFTER MARRIAGE SMT. BIN W/O. DYANIAL KOTI,
AGE: 44 YEARS,
OCC: ASSISTANT SUPERVISOR / MANGER,
R/O: H.NO.57, MANGAL ONI,
KARWAR ROAD, HUBBALLI.
...RESPONDENTS
(BY SRI. U.G. KATTIMANI, ADVOCATE FOR R2;
NOTICE SERVED TO R1(A);
R1(B), R1(C),R1(D) HELD SUFFICIENT)
THIS REGULAR FIRST APPEAL FILED UNDER SEC. 96 R/W
ORDER XLI RULE 1 OF CPC., PRAYING TO IMPUGNED
JUDGMENT AND DECREE DATED:19.10.2016 PASSED IN
O.S.NO.13/2015 ON THE FILE OF THE III-ADDITIONAL SENIOR
CIVIL JUDGE, HUBBALLI, AND SET ASIDE THEREBY
DISMISSING THE SUIT OF THE RESPONDENT NO.1.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, ASHOK S. KINAGI, J., DELIVERED THE FOLLOWING:
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RFA No. 100321 of 2016
JUDGMENT
This appeal is filed by the appellant challenging the
Judgment and Preliminary Decree dated 19.10.2016
passed in O.S.No.13/2015 by the III Additional Senior Civil
Judge, Hubballi.
2. For the sake of convenience, the parties are
referred to as per their ranking before the trial Court.
3. The appellant is the defendant No.1.
Respondent No.1 is the plaintiff and the respondent No.2
is the defendant No.2.
4. The plaintiff filed a suit for partition and
separate possession and claims that, the suit schedule
properties are the ancestral properties and the same were
granted in favour of the plaintiff and the defendant No.1
under KLR proceedings and till date no partition has been
taken place. The defendant No.1 taking undue advantage
of the illiteracy and innocence of the plaintiff, got created
mutation entry. Further it is stated that, the defendant
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No.1 has taken signature on some blank papers and
without the knowledge of the plaintiff, he had executed a
consent deed dated 18.03.2014 and contended that, there
was no partition in respect of the suit schedule properties.
It is contended that, the plaintiff requested the defendant
No.1 to effect partition, but the defendant No.1 has
refused to do so. Hence, cause of action arose for the
plaintiff to file suit for partition and separate possession.
5. The defendant No.1 filed written statement
contending that, the suit schedule properties were already
partitioned on 26.05.1990 and the same reveals as per
mutation entry bearing No.1623, which has been effected
in the revenue records. From the said partition, the
defendant No.1 is the absolute owner and he has been
enjoying the said property since from 1990 and also
contended that the plaintiff had a complete knowledge
regarding execution of the consent deed dated
18.03.2014. It is contended that, all the family properties
are not included in the suit and the suit is bad for non-
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joinder of necessary parties and prayed for dismissal of
the suit.
6. The defendant No.2 filed a written statement
contending that, he is a bonafide purchaser in respect of
the portion of the suit schedule properties. It is contended
that, before purchase of the portion of the suit schedule
properties, he has verified mutation extracts, received no
objection from the interested persons, including plaintiff
and also after taking necessary paper publication, had
purchased the said property. Hence, on these grounds
prayed to dismiss the suit.
7. The trial Court on the basis of the pleadings of
the parties framed the following issues and additional
issue:
(i) Whether the plaintiff proves that
schedule property is in the possession and
cultivation of the plaintiff and defendant?
(ii) Whether the plaintiff proves that
defendant obtained the signature of the plaintiff
on blank papers by misrepresentation and
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created the documents as if plaintiff has given
consent for the partition?
(iii) Whether the defendant proves that there
was oral partition and the plaintiff voluntarily
executed the consent deed dated 18.03.2014 in
this regard?
(iv) Whether the plaintiff is having half share
in the schedule property?
(v) Whether the plaintiff is entitled for the
reliefs claimed in the suit?
(vi) What order or decree?
Additional issue:
(i) Whether the court fee paid is insufficient?
(ii) Whether the suit is bad for partial
partition?
(iii) Whether defendant No.2 proves that she
is the bonafide purchaser of suit property for
valid consideration?
8. The plaintiff in support of his case has
examined himself as P.W.1 and got marked 16 documents
as Ex.P.1 to Ex.P.16. The defendant No.1 examined
himself as D.W.1 and defendant No.2 examined himself as
D.W.4 and other two witnesses as D.W.2 and D.W.3.
Defendants got marked Ex.D.1 to Ex.D.33.
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9. The trial Court on assessment of oral and
documentary evidence answered issue Nos.1, 2, 4 and 5 in
the affirmative, issue No.3 in the negative and additional
issue Nos.1 to 3 in the negative and issue No.6 as per final
order. The suit of the plaintiff was partly decreed. It is
ordered and decreed that, the plaintiff was having half
share in the suit schedule property. The defendant No.1 is
having half share in the suit schedule properties to the
extent that the sale deed dated 12.12.2014 executed by
the defendant No.1 in favour of the defendant No.2 holds
good.
10. The defendant No.1 aggrieved by the Judgment
and Preliminary Decree passed by the trial Court, filed this
appeal.
11. Though notice was issued to the plaintiff, none
appeared for the plaintiff. Hence, the plaintiff was placed
absent.
12. Heard the learned counsel for the defendant
No.1 and the learned counsel for the plaintiff.
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13. Learned counsel for the defendant No.1 submits
that, there was a prior partition between the plaintiff and
the defendant No.1. He submits that, only the said portion
of the suit schedule property was fallen to the share of the
defendant No.1 and he submits that, the plaintiff also
admits that, there was a prior partition in the suit schedule
property. Hence, he submits that, the trial Court has not
properly appreciated the evidence of D.W.2 and D.W.3 and
the documents produced by the defendants. Hence, on
this ground he prays to allow the appeal.
14. Perused the records and considered the
submissions of the learned counsel for the parties. The
points that would arise for our consideration are:
(i) Whether the plaintiff proves that, the
defendant No.1 obtained her signatures of the
plaintiff on the blank papers by mis-
representing and created a document as if
plaintiff has given consent for the partition ?
(ii) Whether the defendant No.1 proves that, there
was a oral partition and the plaintiff executed
a consent deed dated 18.03.2014 ?
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(iii) Whether the defendant No.2 proves that, she
is a bonafide purchaser of the portion of the
suit property for valid consideration?
(iv) Whether the defendant No.2 proves that, the
Judgment and Decree passed by the trial is
perverse and arbitrary?
(v) What order or decree ?
15. Point No.1: There is no dispute with regard to
the relationship of the plaintiff and defendant No.1 and
also with regard to the nature of the suit schedule
properties. Though, it is the case of the plaintiff that, the
suit schedule properties are the joint family properties of
the plaintiff and defendant No.1 and there was no partition
in respect of the suit schedule properties. The suit
schedule property is the joint family properties of plaintiff
and defendant No.1. When the plaintiff demanded for
partition and separate possession, the defendant No.1
refused to effect the partition. The plaintiff in support of
his case examined himself as P.W.1 and reiterated the
plaint averments in the examination-in-chief and in
support of his contention he has produced documents at
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Ex.P.1 and Ex.P.16. Ex.P.1 is the RTC extract in respect of
the land bearing Survey No.58/1 standing in the name of
plaintiff and defendant No.1 jointly. Ex.P.2 is the RTC
extract in respect of the land bearing survey No.58/1
stands in the name of defendant No.1. Ex.P.3 to Ex.P.5
are the certified copies of the mutation extract which
discloses that, the properties have fallen to the share of
the plaintiff and defendant No.1 under the partition.
Further, Ex.P.6 is the copy of the death certificate of father
of the plaintiff and defendant No.1. Ex.P.7 is the copy of
the application submitted by the wife of the plaintiff to the
Tahasildar on 26.09.2014. Ex.P.8 is the certified copy of
the consent letter executed by the plaintiff in favour of the
defendant No.1 and the said consent deed registered
discloses that the plaintiff has admitted the partition
between the plaintiff and the defendant No.1. Ex.P.9 is the
sketch map issued by the Village Accountant. Ex.P.10 is
the certified copy of the registered sale deed dated
16.11.2015 executed by defendant No.1 in favour of the
defendant No.2. Ex.P.11 is the certified copy of the
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mutation extract which discloses that, on the basis of the
registered sale deed dated 16.11.2015, i.e. Ex.P.10, the
name of the defendant No.2 was mutated in the revenue
records in respect of the portion of the suit land. Ex.P.12 is
the certified copy of the M.R.No.H2. Ex.P.13 is the copy of
the RTC extract which discloses that, the portion of the
suit schedule property stands in the name of defendant
No.2. Ex.P.14 is also RTC extract in respect of the land
bearing Survey No.58 with regard to the portion of the
land which stands in the name of defendant No.2. Ex.P.16
is the RTC extract in respect of the remaining portion of
the land bearing survey No.58 stands in the name of the
defendant No.1.
16. From the perusal of the course of the cross-
examination, it was suggested to P.W.1 that there was a
prior partition between plaintiff and defendant No.1 and on
the basis of the said partition, names of the parties were
entered in the revenue records and further P.W.1 in the
course of cross-examination has admitted that, the
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property bearing Survey No.49/3 and 40/1 were
partitioned and the suit property was not included without
his knowledge. Further, it was suggested to P.W.1 that,
P.W.1 has executed a consent deed which was marked as
Ex.P.8. From the perusal of Ex.P.8, it discloses that, the
plaintiff has given up his right to the defendant No.1 in the
suit schedule properties and further P.W.1 has admitted in
the course of cross-examination that, he has sold the
property bearing Survey No.49/3A measuring 3 acres 16
guntas and he also admitted that, the said property was
allotted to him in the partition and further the plaintiff has
admitted her signature on the consent deed at Ex.P.8, but
the plaintiff has stated that, defendant No.1 has taken his
signature on the blank papers. When the plaintiff has
pleaded that, defendant No.1 has played fraud, the burden
is on the plaintiff to establish that the defendant No.1 has
played fraud and further the plaintiff must prove regarding
plea of fraud as per order VI Rule 4 of CPC, which reads as
under:
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"4. Particulars to be given where necessary : In
all cases in which the party pleading relies on any
misrepresentation, fraud, breach of trust, willful
default, or undue influence, and in all other cases in
which particulars may be necessary beyond such as
are exemplified in the forms aforesaid, particulars
(with dates and items if necessary) shall be stated
in the pleading."
17. From the perusal of the contents of the plaint, it
does not discloses that, the defendant No.1 has played
fraud, misrepresentation on the plaintiff and obtained a
signature on the blank papers. Further the plaintiff himself
has produced consent deed marked as Ex.D.8 and has not
chosen to challenge the consent deed executed by him.
The said document is remained un-challenged.
18. In rebuttal, the defendant No.1 examined
himself as D.W.1 and he has reiterated the contents of
written statement in his evidence and examination-in-
chief. Ex.D.1 is the certified copy of the M.E.No.1623 and
Ex.D.2 is the consent letter executed by the plaintiff. It is
already marked as Ex.P.8. Ex.D.3 is the certified copy of
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the registered sale deed dated 15.07.1986 which discloses
that, the plaintiff has sold the property bearing survey
No.49/3A measuring 3 acres 16 guntas in favour of the
third party and Ex.D.4 is the application submitted to the
Village Accountant by the plaintiff. Ex.D.5 is the Kabuli
Vardi. Ex.D.6 is the Apsat Vatni Patra. Ex.D.7 to Ex.D.20
are the RTC extracts of the suit property. Ex.D.21 to
Ex.D.27 are the extracts of D-entry. Ex.D.28 is the
intimation letter issued by the Tahasildar. Ex.D.29 and
Ex.D.30 are the certified copies of the paper publications
intimating the public at large that the defendant No.2 is
intending to purchase the portion of the suit schedule
property and calling for any objections from the public.
None of the persons have filed objections including the
plaintiff. Ex.D.31 is the copy of the receipt issued by the
Samyukta Karnataka Paper publication. Ex.D.32 and
Ex.D.33 are the extracts of the D-entry.
19. From the perusal of the records, it is clear that,
there was a partition between the plaintiff and defendant
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No.1 and the plaintiff has sold the property which has
fallen to his share bearing Survey No.49/3A to the
defendant No.1. Though, it is the case of the plaintiff that,
the said suit schedule property was not included in the
prior partition, the burden is always on the plaintiff to
show that, the said property was not included in the
earlier partition. There was a complete partition between
the plaintiff and defendant No.1. Therefore, the
presumption would be that, there was a complete partition
of the properties. Consequently, the burden of proof that
certain properties were excluded from the partition would
be on the party who alleges that the suit property is the
joint family property. Though we have already recorded a
finding that, the defendant No.1 has marked "Apsat Watni
Patra" as Ex.D.6 and a consent letter marked from both
sides as Ex.P.8 as well as Ex.D.2, which discloses that,
there was a partition between the plaintiff and defendant
No.1. When there was a disruption of status of the joint
family, the plaintiff has failed to establish that the suit
schedule property is a joint family property of the plaintiff
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and the defendant No.1. The trial Court has failed to
consider the material placed on record i.e. Ex.P.8 and
Ex.D.6. Further, the trial Court has not considered the
admission of the plaintiff during the course of cross-
examination with regard to the prior partition between the
plaintiff and defendant No.1 and also regarding the
property which fallen to the share of the plaintiff and later
sold by the plaintiff in favour of the third party.
20. Further, the trial Court has also recorded a
finding at paragraph No.16 that the plaintiff has not
furnished particulars of misrepresentation and inconsistent
stand. Further, the plaintiff has already admitted his
signature on Ex.P.8 i.e. consent letter and Ex.D.6 i.e.
"Apsat Watni Patra". When the plaintiff has admitted his
signature on Ex.P.8, the burden is always on the plaintiff
to establish that the signatures were obtained by playing a
fraud. From the perusal of the plaint, the plaintiff has not
pleaded the particulars as required under Order VI Rule 4
of CPC. The said aspect was not considered by the Trial
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Court and proceeded to pass the impugned Judgment. It is
the case of the plaintiff that, the defendant No.1 has
obtained signatures on the blank papers. In order to
substantiate the case of the plaintiff, the plaintiff has not
led any independent evidence in order to demonstrate that
the defendant No.1 has taken signatures on the blank
papers and further the plaintiff has not challenged Ex.P.8
which is a registered consent instrument.
21. As per Section 31 of the Special Relief Act, the
plaintiff ought to have sought for the relief of cancellation
of Ex.P8. In the absence of the relief of declaration of
cancellation of Ex.P8, the suit filed by the plaintiff for the
relief of partition and separate possession without seeking
the relief of declaration of cancellation of Ex.P8 is not
maintainable. In view of the above discussion, we hold
that the plaintiff has failed to prove that defendant No.1
has obtained his signature on the blank paper and created
a consent deed Ex.P8.
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22. Point No.2: Defendants have taken a defence in
the written statement that there was a oral partition
between the plaintiff and defendant No.1 and plaintiff also
executed a consent deed dated 18.03.2014. Defendants in
order to prove that there was an oral partition between
plaintiff and defendant No.1 and also plaintiff has executed
consent deed dated 18.03.2014 has produced document
marked as Ex.P8 i.e., certified copy of consent deed and
also Ex.D6-"Apsat Watni Patra", which discloses that there
was prior partition between plaintiff and defendant No.1
and plaintiff has also executed consent deed dated
18.03.2014 and the said consent deed is marked as Ex.P8.
Further, the trial court has recorded a finding on Ex.D2
i.e., Ex.P8 in para 16, which reads as under:
"Ex.D2 is the consent deed and it is a
registered document. Plaintiff denied the execution
of the consent deed. It is the contention of the
plaintiff that by misrepresentation his signature was
obtained on blank documents and then consent
deed was created. It is true that plaintiff not certain
in his contention."
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23. When the trial court has recorded a finding that
plaintiff was not certain in his contention, the trial court
could have disbelieved the material placed on record by
the plaintiff. On the contrary, the trial court considered the
material placed on record and held that consent deed is
executed by the plaintiff and the burden is on defendant
No.1. As observed above, P.W.1 has clearly admitted his
signature on Ex.P8-consent deed and the plaintiff has not
challenged the consent deed, as per Section 31 of the
Specific Relief Act. The defendants have also examined
scribe of Ex.D2 i.e., consent deed as D.W.2 and he has
deposed that plaintiff came with a document and got
prepared the consent deed. Defendants have also
examined D.W.3 in order to prove the contents of Ex.P8
who has deposed that on 18.03.2014, plaintiff took him to
the scribe and on his instruction D.W.2 has prepared the
consent deed. The plaintiff has not established any enmity
with defendant Nos.1 and 2 and as to why they have
deposed against the plaintiff. As the plaintiff already
admitted his signature on Ex.D2, defendants have proved
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that there was an oral partition and plaintiff voluntarily
executed consent deed dated 18.03.2014. We would like
to place reliance on the judgment of the Hon'ble Apex
Court in the case of Kesharbai alias Pushpabai
Eknathrao Nalawade (D) by L.Rs. & Another vs.
Tarabai Prabhakarrao Nalawade & Others reported in
AIR 2014 SC 1830, wherein the Hon'ble Apex Court held
that, wherein joint family partition has been made it is
presumed that there is complete partition of all properties.
In case suit is filed by plaintiff for partition of one property
which is claimed to be joint but left out of partition in that
circumstance plaintiff has to prove that such property is
not self-acquired property. Placing this burden of proof on
defendant is not proper. In view of the above discussion,
we answer point No.2 in the affirmative.
24. Point No.3: Defendant No.2 has purchased the
portion of the suit schedule property from defendant No.1
under registered sale deed dated 16.11.2015 under
Ex.D10. On the strength of registered sale deed, the name
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of defendant No.2 was entered in the revenue records.
Further, defendant No.2 before purchasing the suit
schedule property issued paper publication as per Exs.P29
and 30 which discloses that defendant No.2 got issued
public notice informing the public that she is intending to
purchase the portion of the suit schedule property and
that anybody got any objection, the same be
communicated to defendant No.2. In spite of paper
publication, none of have raised any objection for
purchasing the said portion of the suit schedule property
by defendant No.2 including the plaintiff. Further, on the
basis of the records stood in the name of defendant No.1,
defendant No.2 has purchased the property. Defendant
No.2 is the bonafide purchaser and she has purchased the
property after verifying the documents stood in the name
of defendant No.1 and also issued paper publication
wherein the plaintiff has not raised any objection. The
plaintiff is estopped to contend that defendant No.2 is not
a bonafide purchaser. Defendant No.2 before purchasing
the property has taken all measures to avoid future
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litigation. On perusal of the records, it is clear that
defendant No.2 is the bonafide purchaser of the portion of
the schedule property for valid consideration. In view of
the above discussion, we answer point No.3 in the
affirmative.
25. Point No.4: As we have already answered point
Nos.1, 2 and 3 against the plaintiff and further the trial
court has not properly appreciated the material placed on
record and has committed an error in passing the
impugned judgment. The impugned judgment passed by
the trial court is arbitrary and erroneous and the same is
liable to be set aside. In view of the above discussion, we
answer point No.4 in the affirmative.
26. Point No.5: Accordingly, we proceed to pass the
following:
ORDER
i) The appeal is allowed.
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ii) The judgment and decree dated 19.10.2016
passed in O.S.No.13/2015 by the III Additional
Senior Civil Judge, Hubballi is set aside. The
suit of the plaintiff is dismissed.
iii) No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
Svh/- para 1 to 19
MBS/- para 20 to end
