Karnataka High Court
Sri Samiulla Khan vs Sri Fayazulla Khan on 11 January, 2024
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO.924 OF 2016
BETWEEN:
SRI SAMIULLA KHAN
S/O LATE AMEER KHAN,
AGED 66 YEARS,
R/O CHINNASANDRA VILLAGE AND POST,
KASABA HOBLI,
CHINTAMANI TALUK-563125
...APPELLANT
(BY SRI. HARISH KUMAR M.S., ADVOCATE)
AND:
1 . SRI FAYAZULLA KHAN
S/O LATE AMEER KHAN
AGED 56 YEARS,
PRESENTLY R/O ANJNANI EXTENTION
SHOP AT AZAD CHOWK,
CHINTAMANI CITY
CHIKKABALLAPUR DISTRICT-563215
2 . SRI RAHAMATHULLA KHAN
S/O LATE AMEER KHAN,
AGED 69 YEARS,
PRESENTLY R/AT CHINNASANDRA
VILLAGE AND POST,
2
KASABA HOBLI,
CHINTAMANI TALUK,
CHIKKABALLAPUR DISTRICT-563 125
3 . SMT. SHARPUNNISA
W/O AMANULLA
AGED 62 YEARS,
AGRAHARA MAIN ROAD,
MEHABOOB NAGAR,
CHINTAMANICITY,
CHIKKABALLAPUR DISTRICT-563125
4 . SMT AJEEMUNNISA
S/O ALLA BAKASH,
AGED 54 YEARS,
R/O DARGH MOHALLA
NEAR CLOCK OWER,
KOLAR CITY AND DISTRICT-563101
...RESPONDENTS
(BY SRI B.M. HALA SWAMY, ADVOCATE;
V/O/DTD: 23.03.2022 SERVICE OF NOTICE TO R3 & R4 H/S;)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 6.2.2016 PASSED IN RA
NO.73/2012 ON THE FILE OF THE II ADDL. DISTRICT AND
SESSIONS JUDGE, CHICKABALLAPUR (SITTING AT CHINTAMANI)
ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND
DECREE DATED 1.3.2012 PASSED IN OS NO.33/2006 ON THE FILE
OF THE SENIOR CIVIL JUDGE AND JMFC., CHINTHAMANI.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 10.01.2024, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
3
JUDGMENT
The captioned second appeal is by plaintiff No.1 assailing
the judgment and decree of the appellate Court wherein,
appellate Court has allowed the appeal and suit filed by the
plaintiffs seeking relief of partition is dismissed. These
divergent findings are under challenge by plaintiff No.1.
2. For the sake of brevity, the parties are referred to
as per their rank before the trial Court.
3. Plaintiffs and defendant Nos.1 and 2 are brothers
and sisters. Plaintiff No.1 is seeking relief of partition by
contending that suit properties were purchased by their father
namely Ameerkhan and after his demise, plaintiffs and
defendants have inherited the properties as tenants in
common. The present suit is filed alleging that defendant
No.1 is trying to alienate the suit schedule properties and
therefore, plaintiffs requested the defendants to effect
partition and effect their legitimate share in the suit schedule
properties. It is alleged in the plaint that defendants refused
to effect partition.
4. On receipt of summons, defendant No.1 tendered
appearance, filed written statement and stoutly denied the
entire averments made in the plaint. Defendant No.1
contended that there is already partition in the family under
unregistered partition deed dated 24.06.1997 and the suit
schedule properties were allotted to the share of defendants.
Defendant No.1 claimed that Sy.No.13/5 is allotted to
defendant No.2 while item No.2 bearing Sy.No.14/3 is allotted
to defendant No.1. Defendants further pleaded that
agricultural land bearing Sy.No.14/4 is allotted to plaintiff No.1
and therefore, sought for dismissal of the suit.
5. Plaintiffs and defendants to substantiate their
respective claim have let in oral and documentary evidence.
The defendants by way of rebuttal evidence placed heavy
reliance on Ex.D-3 which is the mutation register wherein the
alleged partition is reported to the revenue authorities. The
defendants also placed reliance on unregistered partition deed
which is marked at Ex.D-14.
6. Trial Court has discarded the rebuttal evidence let
in by defendants and proceeded to answer issue No.3 in the
negative. While answering issue No.3 in the negative, trial
Court held that defendant No.1 has failed to substantiate the
factum of partition dated 24.06.1997. Consequently, suit is
decreed and plaintiff No.1 is allotted 2/8th share and plaintiff
Nos.2 and 3 are allotted 1/8th share in the suit schedule
properties.
7. Defendant Nos.1 and 2 feeling aggrieved by the
judgment and decree of the trial Court, preferred appeal
before the appellate Court.
8. Appellate Court as a final fact finding authority has
independently assessed the entire evidence on record.
Appellate Court while examining Exs.D-3 and D-13 however
took a contrary view. Appellate Court referring to Exs.D-3 and
D-13 however held that though Ex.D-14 is unregistered, the
rebuttal evidence let in by defendants clearly establishes that
the said partition is acted upon and the partition is reported to
the concerned authorities and accordingly, the names are
mutated to the respective properties in terms of partition
effected under Ex.D-14. Appellate Court was of the view that
Ex.D-3 mutation is effected based on Ex.D-14 which is
unregistered partition deed. Therefore, appellate Court was of
the view that parties have acted upon Ex.D-14 and therefore,
proceeded to hold that there is already severance in the family
and therefore, plaintiffs suit for partition is not maintainable.
9. Feeling aggrieved by the judgment and decree of
the appellate Court, plaintiff No.1 is before this Court.
10. This Court vide order dated 06.04.2022 was
pleased to admit the appeal on following substantial questions
of law:
"1) Whether Ex.D-14 could be pressed into
service to establish a partition in the family of plaintiffs
and defendants, notwithstanding the fact that Ex.D-14
was marked only for collateral purpose?
2) Whether the First Appellate Court misdirected
itself in construing that the execution of Ex.D-14 was
admitted by the parties though there was no adequate
evidence in that regard?"
11. Heard learned counsel appearing for plaintiff No.1
and learned counsel appearing for defendants. I have also
examined the reasons assigned by the trial Court as well as
appellate Court on issue No.3. I have also given my anxious
consideration to the judgment relied upon by plaintiff No.1
rendered by Apex Court in the case of K.B.Saha and Sons
Private Limited vs. Development Consultant Limited1.
12. Defendant No.1 has set up a plea of prior partition.
Admittedly, partition deed dated 24.06.1997 vide Ex.D-14 is
an unregistered document. Ex.D-14 on account of being an
unregistered document is not admissible under Section 49 of
(2008) 8 SCC 564
Registration Act. However, the said document can be looked
into for collateral purpose to ascertain whether there is
severance in the family. Ex.D-3 is mutation effected based on
Ex.D-14. Pursuant to mutation effected by the revenue
authorities under Ex.D-3, defendant Nos.1 and 2's names are
duly mutated to Sy.Nos.13/5 and 14/3. Defendant No.1's
name is mutated to Sy.No.14/3 i.e., item No.2 whereas
defendant No.2's name is mutated to Sy.No.13/5 which is item
No.1.
13. Let me examine the conduct of plaintiff in
instituting the present suit seeking share in the properties.
The plaintiff has disputed the partition deed on the ground
that Sy.No.14/4 which is self acquired property could not have
been allotted to his share. The plaintiff has consciously
produced only record of rights pertaining to Sy.Nos.13/5 and
14/3 which are marked at Exs.P-8 and P-9 respectively. For
reasons best known to plaintiff, he does not produce record of
rights pertaining to Sy.No.14/4. Therefore, an adverse
inference has to be drawn against the plaintiff for having not
chosen to place on record the record of rights in respect of
Sy.No.14/4 after 1997.
14. Now let me examine the evidence of plaintiff during
trial. On examining cross-examination of plaintiff, it can be
gathered that his conduct is not fair. The relevant cross-
examination of plaintiff is culled out which reads as under:
"೨ ) ತ ತಕ ಾ ನ ಪ ಟ-೨ ರ ೋ ರುವ ೫ ಐಟಂ ಸ ತುಗಳ ನನ
ೆಸ ನ ಇ"ೆ. ಸದ ಸ ತುಗಳನು ಈ "ಾ%ಾ ಸ wÛನ ೋ ಲ. ಸ%ೆ' ನಂ.೧೩
ರ ೧ ಎಕ ೆ ೧೩ ಗುಂ+ೆ ಜ-ೕನನು ದರ.ಾ ನ ಮೂಲಕ ಸ.ಾ'ರದವರು ನನ0ೆ
೨೦೦೪ 3ೇ ಇಸ4ಯ ಮಂಜೂರು 6ಾ7 .ೊಟ8ರು. ಸ%ೆ' ನಂ.೧೫ ರ ೩ ಗುಂ+ೆ
ಜ-ೕನನು ಅಂ:ನಪ;<ಂದ ೨೦೦೦ 3ೇ ಇಸ4ಯ 3ಾನು .ೊಂಡು.ೊಂ>ೆನು.
ಸ%ೆ' ನಂ.೧೨೭:೪ ರ ೧೮ ಗುಂ+ೆ ಜ-ೕನನು ನಸುABಾ ಷ ೕDರವ ಂದ
ಸು6ಾರು ೧೨ ವಷ'ಗಳ Eಂ"ೆ .ೊಂಡು.ೊಂ>ೆನು. ಸ%ೆ' ನಂ.೧೫೧:೧ ರ ೧
ಎಕ ೆ ೭ ಗುಂ+ೆ ಜ-ೕನನು ಅಬುHI JಾKರವ ಂದ 3ೊಂದL ಕAಯದ ಮೂಲಕ
೧೯೯೫ ರ .ೊಂಡು.ೊಂ>ೆನು. ಮ3ೆ Jಾ ೆ ನಂ.೮೧:೧೧೨ ಅ-ೕN JಾK
ಅಂದ ೆ ನನ ತಂ"ೆಯ ೆಸ ನ ಇತು. ನನ ತಂ"ೆ ಮತು ನನ ಸ ೋದರರು Pೇ
ನನ0ೆ ಸದ ಮ3ೆಯ Jಾ ೆಯನು ಬದBಾವQೆ 6ಾ7 .ೊR8"ಾH ೆ. Jಾ ೆ
ಬದBಾವQೆ 6ಾಡಲು ಮೂಲ ಪತAವನು 6ಾ7.ೊR8ಲ.
೫) 3ಾನು ೨ ಅಥ%ಾ ೩3ೇ ತರಗTಯವ ೆ0ೆ ೫೦ ವಷ'ಗಳ Eಂ"ೆ %ಾUPಾಂಗ
6ಾ7"ೆHೕ3ೆ. 3ಾನು ಉದು' WಾXೆಯ %ಾUPಾಂಗ 6ಾ7ಲ. Yಾವ WಾXೆಯ ೨-
೩ ತರಗTಯ %ಾUPಾಂಗ 6ಾ7"ೆHೕ3ೆಂದು 3ೆನZಲ. 3ಾನು ಅರ[\ WಾXೆ ಕ Tಲ.
೨3ೇ ಪAT%ಾ] ನನ^ಂತ ೩ ವಷ' "ೊಡ_ವನು. ೧ ಾಗೂ ೨3ೇ ಪAT%ಾ] ಎ ಯ
ತನಕ ಓ]"ಾH ೆಂದು ನನ0ೆ 0ೊTಲ. ೨3ೇ ಪAT%ಾ] Yಾವ ಊ ನ
%ಾಸ4"ಾH3ೆಂದು ನನ0ೆ 0ೊTಲ, ೨3ೇ ಪAT%ಾ]0ೆ ]bcಲ ]%ಾನ ಇಲ
ಎBೆ dೕ Tರುಗು ಾ3ೆ. ೨3ೇ ಪAT%ಾ] Yಾವ .ಾರಣ.ೆc ಊರೂರು
Tರುಗು ಾ3ೆ 0ೊTಲ. ೨3ೇ ಪAT%ಾ]0ೆ Yಾವ .ಾರಣ.ಾc^ ಮದು%ೆ ಆ^ಲ
ಎನು ವ ದು ನನ0ೆ 0ೊTಲ. ೧3ೇ ಪAT%ಾ] ಬಂ0ಾರದ ಅಂಗ7ಯನು ೧೫
ವಷ'ಗgಂದ ಇಟು8.ೊಂ7"ಾH ೆ. 3ಾನು ಇR80ೆ %ಾUhಾರವನು ೩೦ ವಷ'ಗgಂದ
6ಾಡುT"ೆHೕ3ೆ. ಅದರ ಸಂಬಂಧ 3ಾನು Bೆಕc ಪತA ಇಟು8.ೊಂ7ಲ. ನನ0ೆ ೨ ೆಣುk ೨
ಗಂಡು ಮಕcಳ . ನನ ೪ ಜನ ಮಕcಳl %ಾUPಾಂಗ 6ಾಡುT"ಾH ೆ. 3ಾನು ಇR80ೆ
%ಾUhಾರ 6ಾಡುT"ೆHೕ3ೆಂದು ೋ ಸಲು "ಾಖBೆ ಇಲ. ೨3ೇ ಪAT%ಾ]ಯು
ಊರೂರು TರುಗುTದH ಂದ 3ಾ3ೇ ಮ3ೆಯ ಜ%ಾnಾH ಯನು ವE .ೊಂ7"ೆH.
3ಾನು ೩೦ ವಷ'ಗgಂದ nೇ ೆ %ಾಸ ಇ"ೆHೕ3ೆ. 3ಾನು ಪA ೆUೕಕ%ಾಗು%ಾಗ
ಮ3ೆoಂದ Yಾವ ವಸುಗಳನು ೆ0ೆದು.ೊಳp ಲ. ಸ%ೆ' ನಂ.೧೪:೪ ರ ಜ-ೕನು
ನನ ತಂ"ೆ ಸಂhಾ] ದ ಆ ಎಂದ ೆ ಸ ಯಲ. zÁªÁ 2 LlA ಸ ತುಗಳ ನನ
ತಂ"ೆ ಸಂhಾ] ದ ಸ ತುಗಳ ಎಂದ ೆ <ಜ. ]3ಾಂಕ:೨೪-೬-೧೯೯೭ ರಂದು
3ಾನು ಮತು ಪAT%ಾ]ಗಳ 6ಾತ3ಾ7.ೊಂಡು ಸ%ೆ' ನಂ.೧೪:೪ ರ ಜ-ೕನು
ನನ hಾ ಗೂ ಐಟಂ ನಂ: ೧ "ಾ%ಾ ಜ-ೕನು ೨3ೇ ಪAT%ಾ]ಗೂ ಐಟಂ ನಂ.೨ ರ
"ಾ%ಾ ಜ-ೕನು ೧3ೇ ಪAT%ಾ]ಗೂ Pೇರnೇ.ೆಂದು ಒಂದು "ಾಖBೆಯನು
6ಾ7.ೊಂ>ೆವ ಎಂದ ೆ ಸ ಯಲ. sAೕ :ಎಂಐ ವbೕಲರು Pಾt0ೆ 4Wಾಗ ಪತAವನು
ೋ ಅದರ ರುವ ಪAT%ಾ]೧, ೨ ಮತು Pಾtಯ ರುಜುವನು ೋ "ಾಗ
ನನ0ೆ 0ೊTಲ ಎಂದು ನು7ಯು ಾ ೆ. 4Wಾಗ ಪತAದ ಆuಾರದ vೕBೆ ನನ ಮತು
ಪAT%ಾ]ಗಳ ೆಸ 0ೆ Jಾ ೆYಾoತು ಎಂದ ೆ ಸ ಯಲ. ಸ%ೆ' ನಂ.೧೪:೪ ರ
ಜ-ೕನನು ನನ hಾ 0ೆ ಬಂದ ಜ-ೕನು ಎಂದು ಕAಯ ಪತAದ ಬರವL0ೆಯನು
ಬ ೆ "ೆHೕ3ೆ ಎಂದ ೆ ಸ ಯಲ. ಸ%ೆ' ನಂ.೧೪:೪ ರ ಜ-ೕನನು 3ಾನು 6ಾ ಾಟ
6ಾ7ಲ ಎಂದು Pಾt ನು7ಯು ಾ ೆ, ಸದ ಜ-ೕ<ನ Jಾ ೆಯು ಅ6ಾನTನ "ೆ
ಎಂದು ನು7ಯು ಾ ೆ. 3ಾನು ಮತು ೧3ೇ ಪAT%ಾ] Pೇ ಸ%ೆ' ನಂ.೧೪:೪ ಮತು
೧೪:೩ ರ ಅಕcಪಕcದ ಜ-ೕನುಗಳನು 3ಾ ಾಯಣPಾ - ಮತು ಚಂದAಕBಾರವ 0ೆ
6ಾ ಾಟ 6ಾ7"ೆHೕ%ೆ ಎಂದ ೆ ಸ ಯಲ. ಸ%ೆ' ನಂ.೧೪:೪ ಮತು ೧೪:೩ ರ
ಜ-ೕನುಗಳ Jಾ ೆಯು 3ಾ ಾಯಣPಾ - ಮತು ಚಂದAಕBಾರವರ ೆಸ 0ೆ
Jಾ ೆYಾ^"ೆ ಎಂದ ೆ ಸ ಯಲ. ಈಗಲೂ ಐಟಂ ನಂ.೧ ರ ಜ-ೕ<ನ Jಾ ೆಯು
೨3ೇ ಪAT%ಾ]ಯ ೆಸ ನ ಬರುT"ೆ ಎಂದ ೆ <ಜ. 3ಾ3ೇ ಮಧU x.ೆ ವE ೧3ೇ
ಪAT%ಾ]oಂದ 3ಾ ಾಯಣPಾ -0ೆ ಜ-ೕ<ನ ಕAಯ 6ಾ7 .ೊ+ೆ8ನು ಎಂದ ೆ
ಸ ಯಲ."
15. On reading the above culled out cross-examination,
plaintiff No.1 who has sold Sy.No.14/4 after filing of the suit
has gone to the extent of denying the said alienation. The
above culled out paragraph also clearly reveals that
defendants have voluntarily transferred residential house in
favour of plaintiff No.1 which was originally owned by their
father. Plaintiff No.1 has admitted in unequivocal terms in the
above culled out portion.
16. The question as to whether there is severance in
the family can be ascertained from Ex.D-3, Exs.P-8, P-9 and
Ex.D-9. Ex.D-9 would clearly clinch the controversy
surrounding the partition in the family. Plaintiff only produces
record of rights pertaining to suit schedule properties i.e.,
Sy.Nos.13/5 and 14/3. Plaintiff No.1 claim that he is not party
to the partition deed and the same was never acted upon.
Plaintiff No.1 countered the partition on the ground that
Sy.No.14/4 is self acquired property and therefore, question of
allotting Sy.No.14/4 to his share would not arise for
consideration. Plaintiff No.1 consciously produced record of
rights only in respect of agricultural land bearing Sy.No.13/5
and 14/3. However, defendant Nos.1 and 2 have placed on
record the revenue records pertaining to Sy.No.14/4. Plaintiff
No.1's name is mutated based on Ex.D-14 under mutation
bearing M.R.No.20-25/97-98. Therefore, if Ex.D-9 coupled
with Ex.D-3 and Exs.P-8 and P-9 are looked into, then this
Court is more than satisfied that defendants have successfully
proved and established the plea of partition. Even if Ex.D-14
is ignored, the consequent act of plaintiff No.1 and defendant
Nos.1 and 2 in reporting family partition to the concerned
authorities and the revenue authorities acting upon an
application and effecting mutation in terms of partition under
unregistered document clearly goes to show that plaintiff No.1
and defendant Nos.1 and 2 have resolved to effect partition on
24.06.1997. Therefore, the defendants by adducing rebuttal
evidence have successfully substantiated that there is
severance in the family. Ex.D-14 can be looked into for that
limited purpose. The parties have submitted a Vardhi which is
accompanied by Ex.D-14. The unregistered partition deed
vide Ex.D-14 coupled with Ex.D-3 wherein mutation is effected
based on Ex.D-14 and further the entries made in revenue
records pertaining to Sy.Nos.13/5, 14/3 and 14/4 which are
also evident from Exs.P-8, P-9 and D-9 clearly substantiate
the plea of prior partition set up by defendants.
17. For the reasons stated supra, the first substantial
question of law is answered in the affirmative and the second
substantial question of law is answered in the negative.
Hence, I pass the following:
ORDER
The second appeal is dismissed.
The pending interlocutory application, if any, does not
survive for consideration and stands disposed of accordingly.
Sd/-
JUDGE
CA
