Karnataka High Court
Syed Habeeb vs T M Vijayakumar on 4 June, 2025
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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RSA No. 2801 of 2007
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAVI V. HOSMANI
REGULAR SECOND APPEAL NO.2801 OF 2007 (DEC/INJ)
BETWEEN:
1. SYED HABEEB
S/O.LATE ABDUL AZEEZ
SINCE DECEASED BY HIS LRs
1a. SMT. ZAHEEDA,
W/O LATE SYED HABIB,
AGED ABOUT 57 YEARS,
R/A KARUR VILLAGE,
DAVANAGERE TALUK.
1b. SYED MOIDIN BI,
D/O LATE SYED HABIB AKTHARUNNISA,
AGED ABOUT 39 YEARS,
R/A KARUR VILLAGE,
Digitally signed DAVANAGERE TALUK.
by RAMESH
MATHAPATI 1c. SYED ZUBAN,
Location: HIGH S/O LATE SYED HABIB
COURT OF AGED ABOUT 36 YEARS,
KARNATAKA
R/A KAURU VILLAGE,
DAVANAGERE TALUK.
1d. SYED FATHIMA,
D/O LATE SYED HABIB
AGED ABOUT 35 YEARS
R/A KAURU VILLAGE,
DAVANAGERE TALUK.
1e. SYED ANJUM
D/O LATE SYED HABIB
AGED ABOUT 33 YEARS
R/A KAURU VILLAGE,
DAVANAGERE TALUK.
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1f. SYED HAFEEZ
S/O LATE SYED HABIB
AGED ABOUT 32 YEARS,
R/A KAURU VILLAGE,
DAVANAGERE TALUK.
1g. SYED MUSHTARI
D/O LATE SYED HABIB
AGED ABOUT 28 YEARS
R/A KAURU VILLAGE,
DAVANAGERE TALUK.
2. SYED ABDUL KHASIM
S/O.LATE ABDUL AZEEZ
AGED ABOUT 40 YEARS, AGRICULTURIST
R/O SANTEBENNUR VILLAGE
CHANNAGIRI TALUK.
3. AKTHARUNNISA
W/O IMAM HUSSAIN
SINCE DECEASED BY HER LRs
3a. ISHRATH UNNISA
D/O LATE AKTHARUNNISA
W/O D.H.K. RAHAMATHULLA,
AGED ABOUT YEARS
R/A VINOBHANAGAR
1ST MAIN, 8TH CROSS,
DAVANAGERE.
3b. FARHATH UNNISA
D/O LATE AKTHARUNNISA
W/O K.C.B. MAKBUL,
AGED ABOUT YEARS,
KTG NAGAR, 2ND MAIN, 4TH CROSS,
DAVANAGERE.
3c. SALLIMA UNNISA,
D/O LATE AKTHARUNNISA,
W/O MUNNAVAR SAB
AGED ABOUT YEARS,
R/ VINOBHANAGAR
3RD MAIN, 15TH CROSS,
DAVANAGERE.
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3d. DASTAGIR
S/O LATE AKTHARUNNISA
AGED ABOUT YEARS
R/A YARAGUNTA, KARUR
DAVANAGERE.
3e. ZAKIR HUSSAIN
S/O LATE AKTHARUNNISA
AGED ABOUT YEARS
R/A SANTEBENNUR
CHANNAGIRI TALUK,
DAVANAGERE DISTRICT.
3f. NAZREEN TAJ
D/O LATE AKTHARUNNISA
W/O ZAFFRULLA KHAN
1ST MAIN, 4TH CROSS,
SANTE MARKET, MALEBENNUR
DAVANAGERE DISTRICT.
4. NOORJAHAN
W/O.RAHAM SAB
AGED ABOUT 60 YEARS
R/O.KARUR VILLAGE,
DAVANAGERE TALUK.
5. SHA JAHAN
W/O YUNUS SAB, AGED ABOUT 47 YEARS
HOUSEHOLD, C/O.RESPONDENT NO.1 AT
KARUR VILLAGE IN DAVANAGERE TALUK.
...APPELLANTS
[BY SRI SHANTHA KUMAR N., ADVOCATE FOR
SRI M.S. RAJENDRA, ADVOCATE FOR APPELLANTS]
AND:
T.M. VIJAYAKUMAR
S/OT.M. SIDDARADHYA
SINCE DECEASED BY HIS LRs
1a. T.M. RAJEANDRA KUMAR,
S/O LATE T.M. VIJAY KUMAR,
AGED ABOUT 60 YEARS
NO.232/10, SHANTINIVAS,
OPP. TO OLD BUS STAND,
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RSA No. 2801 of 2007
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OPP. TO CANARA BANK, P.B.ROAD,
DAVANAGERE - 577 002.
1b. A.H. POORNIMA,
W/O A.H. ANANDA,
AGED ABOUT 56 YEARS,
NO.1340/7A, SUSHEELA SWAMY ANUGRAHA
SIDDALINGASWAMY COMPOUND
K.B. EXTENSION
DAVANGERE-577 002.
1c. T.M. SIDDALINGESHWARA
S/O LATE T.M. VIJAYAKUMAR,
AGED ABOUT 54 YEARS,
R/A NO.232/3, OPP. TO SOUTH,
INDIA OPTICALS,
MAHILA SAMAJA ROAD,
DAVANAGERE-577 002.
1d. T.M. NAGARATHNA,
D/O LATE T.M. VIJAYAKUMAR,
AGED ABOUT 52 YEARS,
NO.232/10, SHANTHINIVAS,
OPP. TO OLD BUS STAND,
OPP CANARA BANK,
P.B. ROAD, DAVANAGERE-577 002.
...RESPONDENTS
[BY SRI B.M. SIDDAPPA AND SRI T. BASAVARAJ ADVS FOR R1 (a-d)]
THIS RSA IS FILED U/S 100 OF CPC AGAINST THE JUDGMENT
& DECREE DATED 31.7.07 PASSED IN R.A.NO 177/02 ON THE FILE
OF THE ADDL. SESSIONS JUDGE, PRESIDING OFFICER, FAST TRACK
COURT I, DAVANAGERE, ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGMENT AND DECREE DTD 8.8.02 PASSED IN OS
597/96 ON THE FILE OF THE ADDL. CIVIL JUDGE, (JR.DN),
DAVANAGERE..
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 20.03.2025, THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI
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RSA No. 2801 of 2007
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CAV JUDGMENT
Challenging judgment and decree dated 31.07.2007
passed by Addl. Sessions Judge, Presiding Officer, Fast Track
Court - I, Davanagere in RA no.177/2002, this appeal is filed.
2. Appellant was plaintiff in OS no.597/1996 filed for
declaring plaintiff as absolute owner of Eastern portion of
Sy.no.13/1, measuring 4 Acres 5 guntas of land situated at
Karur village, Kasaba Hobli, Davanagere, ('suit property' for
short) and for permanent injunction etc.
3. In plaint, it was stated Smt.Mehaboob Bi w/o
Yakoob Sab was owner of land bearing Sy.no.13 totally
measuring 13 Acres 37 guntas. After her death, it was divided
by mutual agreement/oral partition between her two children,
with extent of 8 Acres 10 guntas i.e. Syno.13/1 assigned to
Syed Kasim Sab ('SKS', for short) and 5 Acres 27 guntas i.e.
Sy.no.13/2 assigned to Syed Zainulabddin Sab ('SZ', for short).
It was stated unequal partition was due to fact that SKS as
elder brother shouldered responsibility of family and discharged
debts. It was further stated since then, they were enjoying
respective properties as absolute owners.
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4. Thereafter, SKS had sold half portion to
Matadashaksharappa ('MSS' for short) under registered Sale
deed dated 29.05.1939. But, due to typographical error,
measurement/extent sold to MSS was not mentioned, except
stating that eastern half portion in Sy.no.13/1 was sold and
western half portion measuring 4 Acres 5 guntas was retained
by SKS.
5. It was stated, vide MR no.7/39-40 name of MSS
was mutated on 30.05.1939, mentioning total measurement of
Sy.no.13/1 and sale of half portion to MSS. After death of SKS,
his children namely Syed Abdul Azeez, Syed Ahamed, Syed
Abdul Gafoor, Syed Usuf and Syed Umar were in joint
cultivation of their property until oral partition in 1982, wherein
suit property was assigned to Abdul Azeez (plaintiff's father) as
others were in government service. And in 1983, Abdul Azeez
died leaving behind six children (plaintiffs herein) of whom
plaintiffs no.4 to 6 - daughters were married and residing with
their husbands, therefore plaintiffs no.1 to 3 - sons were in
joint possession of suit property. It was stated, in year 1991,
brothers of Abdul Azeez also executed Assignment Deed in
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favour of plaintiffs no.1 to 3. Thus, plaintiffs were absolute
owners of suit property in which defendant claiming to have
succeeded to ownership as grandson of MSS and son of
Siddadharaiah. Therefore, revenue entries showing assignment
of 6 Acres 38½ guntas in Sy.no.13/1 to ancestors of defendant
were erroneous.
6. It was stated, even as per sale deed and partition
between SKS and SZ, half share would not exceed 4 Acres 5
guntas. Same was sold by SKS. Applications were made to
Tahsildar for rectifying entries. Taking advantage of same,
defendant got converted extent standing in his name and
began interfering. In meanwhile, Tahsildar, Davanagere
initiated enquiry on applications and on 29.02.1996 passed
order that property sold by SKS to MSS was 4 Acre 5 guntas
renumbered as Sy.no.13/1A, and remaining extent measuring
4 Acres 5 guntas as Sy.no.13/1B. Consequently, conversion of
excessive extent, interference with suit property belonging to
plaintiffs and efforts for alienation of portion of suit property
was illegal. Hence, suit was filed.
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7. On appearance, defendant filed written statement
denying existence of suit property and its measurement. He
admitted land bearing Sy.no.13 measuring 13 Acres and 37
guntas, situated at Karur village, belonged to Smt.Mehaboob Bi
w/o Yakoob Sab and succeeded by her sons - SKS and SZ. He
denied phodi of Sy.no.13 as Sy.no.13/1 and Sy.no.13/2 and
plaintiff's claim about unequal shares in oral partition.
8. It was stated, after death of Smt.Mehaboob Bi, her
two sons divided several properties under oral partition in year
1925 and Sy.no.13 was divided equally with SKS given Eastern
half portion measuring 6 Acres 38½ guntas and SZ given
Western half portion. It was stated, SKS had five children -
Syed Abdul Azeez, Syed Ahamed, Syed Abdul Gafoor, Syed
Usuf and Syed Umar.
9. It was stated, SKS and his two sons - Syed Abdul
Azeez and Syed Ahamed had borrowed money from MSS by
executing simple mortgage deed on 11.06.1928 to extent of 6
Acres 38½ guntas of Sy.no.13. In fact, mortgage was for family
necessity. Thereafter, under registered sale deed dated
29.05.1939, SKS and his children sold 6 Acres 38½ guntas to
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MSS receiving consideration of Rs.1000/- and delivered
possession by mentioning total extent of Sy.no.13 as 13 Acres
37 guntas and 'Eastern half portion' as demised property.
Therefore, plaintiffs' claim about unequal partition was
baseless. Thereafter, there was phodi and Sy.no.13/1 assigned
to land purchased by name of MSS and remaining land
assigned Sy.no.13/2.
10. And on death of MSS, his two sons namely TM
Siddaradhya and TM Maheshwaraiah executed registered
partition deed on 17.11.1951 wherein 6 Acres 38 ½ guntas was
allotted to Siddaradhya. It was stated, during life time of
Siddaradhya, he and his five sons - TM Jaydev, TM Vijaya
Kumar (defendant), TM Shiva Kumar, TM Shashidharamurthy,
and TM Niranjanmurthy executed registered partition deed on
26.09.1969, wherein defendant was allotted 6 Acres 38½
guntas. It was stated, said land was called "Khasim sahebara
hola", as he was elder brother. It was stated, since SKS was
well acquainted with family of defendant, his name was
mentioned in respect of Western half portion instead of SZ,
which was formal mistake. Moreover SKS was not alive on date
of partition dated 26.06.1969. Thus, from date of partition,
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defendant and his two children were possession by paying tax.
It was stated property bearing Sy.no.13/1A measuring 6 Acres
38½ guntas was 'ws property'.
11. It was stated, Sy.no.13/1B measuring 1 Acre 11
guntas belonged to Syed Ibrahim Sab s/o Syed Zainulabdin. It
was stated, Sy.no.13/2 was further divided into Sy.no.13/2A
measuring 3 Acres 19 guntas and Sy.no.13/2B measuring 2
Acres 7 guntas and together they measured 6 Acres 37 guntas
i.e. western half portion of Sy.no.13. And after sale of ws
property, neither SKS nor his five children continued in
possession. Hence, suit was not maintainable.
12. It was stated, defendant had got converted ws
property for residential purposes and until 23.08.1995, there
was no dispute about it. When defendant realized attempt to
tamper revenue records, he filed application before Tahsildar.
As plaintiffs also sought mutation, dispute arose. After enquiry,
Tahsildar rejected plaintiff's application on 08.07.1996.
Thereafter, without cause of action suit was filed. It was
alternatively stated suit was barred by time, besides being bad
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for non-joinder of necessary parties. On above grounds, sought
for dismissal of suit.
13. Based on pleadings, trial Court framed following:
ISSUES
1. Whether the defendant proves that suit
property is not in existence which measures
4 acres 5 guntas and which was alleged to be
part of Sy.No.13 of Karur village?
2. Whether the plaintiff proves that defendant is
claiming ownership of more than 4 acres 5
guntas in suit schedule land even though
they have no right over the same?
3. Whether the defendant proves that Syed
Khasim and his five sons sold the land
bearing Sy.No.13 measuring 6 acres 38½
guntas to the said Shadakshraiah?
4. Whether the defendant proves that by
registered partition deed date 26.06.69
defendant became the owners and in
possession of Sy.No.13/1 measuring 6 acres
38½ guntas?
5. Whether the plaintiffs are entitled for
declaration as sought for?
6. Whether the plaintiff is entitled for injunction
as sought for?
7. What order or decree?
ADDITIONAL ISSUE
1. Whether the plaintiff proves that he is the
owner of the suit schedule property?
14. Thereafter, plaintiff no.1 examined himself and two
others as PWs.1 to 3 and got marked Exhibits P1 to P20, while
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defendant examined himself as DW.1 and got marked Exhibits
D1 to D37.
15. On consideration, trial Court answered issues no.1,
3 and 4 in negative; issues no.2, 5, 6 and addl. issue no.1 in
affirmative and issue no.7 by decreeing suit holding plaintiffs as
owners in possession of suit property and directing defendant
etc. from interfering with their peaceful possession and
enjoyment of suit property and also restraining from alienating
any portion of suit property.
16. Aggrieved defendant filed RA no.177/2002. Based
on contentions, first appellate Court framed following points:
1. Whether the plaintiffs/appellant have proved
the existence of suit property and that, they
are the absolute owner in possession of the
suit property?
2. Whether the plaintiff/appellant have proved
the alleged interference with their possession
and enjoyment of suit property?
3. Whether the plaintiff/appellants are entitled
to the relief of declaration and injunction as
prayed for?
4. Whether the judgment and decree passed by
the lower court is liable to be interfered with?
5. What order or decree?
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17. On consideration, it answered points no.1 to 3 in
negative, point no.4 in affirmative and point no.5 by allowing
appeal, setting aside trial Court decree and dismissing suit.
Aggrieved plaintiffs are in second appeal.
18. Sri Shanth Kumar N, learned counsel appearing for
MS Rajendra, advocate for plaintiffs submitted that appeal was
against divergent findings in suit for declaration of title and
permanent injunction. It was submitted suit property was part
of original Sy.no.13 totally measuring 13 Acres 37 guntas,
which belonged to Smt.Mehaboob Bi and same was not
disputed by defendant. It was submitted, after her death, since
SKS as elder member was managing family, discharged family
debts, at time of oral partition, larger extent of 8 Acres 10
guntas was allotted to him and 5 Acres 27 guntas was allotted
to SZ and mutations effected accordingly. Therefore, contention
of defendants about equal partition was without basis. Further,
Exs.P3, P4, P8, P9, P13 and P15 - RTC records from years
1970-71 to 1988-89 showed 5 Acres 27 guntas was allotted to
SZ, while Exs.P5, P7, P10, P11 and P14 showed 8 Acres 10
guntas in Sy.no.13/1 was allotted to SKS.
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19. It was contended except stating eastern half portion
of Sy.no.13/1, there were no recitals about extent sold in sale
deed dated 29.05.1939 executed by SKS in favour of
defendant's grandfather - MSS. Half extent of Sy.no.13/1 would
be 4 Acres 5 guntas. Therefore, defendant's claim over 6 Acres
38½ guntas was not justified.
20. It was submitted, DW.1 admitted sale of eastern
half portion of Sy.no.13/1 and non-mention of measurements
in sale deed. He also admitted, he had no claim over remaining
portion of land. On appreciation of same and consistent
revenue records about unequal partition between children of
Smt.Mehaboob Bi, and failure of defendant to establish that his
grandfather purchased 6 Acres 38½ guntas, trial Court decreed
suit. It also noted, despite sale on 29.05.1939, attempt for
entering name of defendant in revenue records was made for
first time in year 1985-86.
21. Without proper appreciation, first appellate Court
erroneously interfered with judgment and decree of trial Court.
It was submitted, first appellate Court mis-read boundaries
mentioned in Ex.D1 - sale deed and Ex.D2 - partition effected
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between MSS and his children in year 1951. Therefore,
interference was illegal. It also failed to appreciate consistent
revenue records produced by plaintiffs. Thus, judgment and
decree passed by first appellate Court was contrary to material
on record and therefore perverse, giving rise to substantial
question of law. He prayed for answering them in favour of
plaintiffs and allow appeal.
22. On other hand, Sri BM Siddappa, learned counsel
for defendant submitted appeal was without merit. It was
submitted, there was no dispute that Smt.Mehaboob Bi was
absolute owner of property bearing Sy.no.13 measuring 13
Acres 37 guntas. But, plaintiffs claimed that in oral partition
between children of Smt.Mehaboob Bi, SKS was allotted 8
Acres 10 guntas and SZ was allotted 5 Acres 27 guntas. It was
submitted, defendant took specific contention about equal
partition, allotment of 6 Acres 38½ guntas to SKS and its sale
to MSS. And allotment of said extent to defendant's father in
partition between children of MSS and to defendant in partition
between defendant and his brothers.
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23. It was submitted, plaintiffs never disputed or
challenged sale deed in favour of MSS. On other hand, failure
to produce any material to establish oral partition was fatal to
plaintiffs' claim. It was submitted, production of sale deed and
partition deeds - Exs.D1 to D3 would establish defendant's
title. While records of rights, encumbrance certificate, tax paid
receipts and settlement of Aakarband as Ex.D14 to 16, D22 to
35 would establish possession. On other hand, plaintiffs failed
to discharge even initial burden about unequal partition. It was
submitted, contention of plaintiffs about failure to mention
extent in Ex.D1 would not sustain as boundaries were
mentioned and same would prevail. Moreover, sale deed
described demised property as eastern half portion and as PW.1
admitted SKS sold his entire extent, there was no property
remaining to substantiate plaintiffs' claim.
24. It was submitted, while passing judgment and
decree, trial Court failed to appreciate above and held unequal
partition based only on revenue entries, ignoring consistent
revenue records from 1938 substantiating defendant's claim.
Therefore, judgment and decree passed by trial Court was
erroneous. But in appeal, first appellate Court dismissed suit
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taking note of admissions of plaintiffs in cross-examination,
documents produced and holding except revenue records,
plaintiffs had not produced title documents to establish SKS
was holding extent of land as claimed. It was submitted, first
appellate Court noted western boundary description in Ex.D1 -
sale deed, Exs.D2 and D3 - partition deeds, was mentioned as
belonging to SZ (brother of SKS) to hold that SKS sold his
entire share to plaintiff's grandfather and there remained no
land as claimed by plaintiffs and therefore defendant was
absolute owner. It held as against revenue records produced by
plaintiffs, Ex.D1 - registered sale deed would prevail and rightly
dismissed suit.
25. It was also submitted, after mutation of defendant's
name in revenue records, he had got converted his entire
extent for non-agricultural purposes. Failure to object to
revenue entries or establish possession over suit property,
would disentitle claim and suit was without cause of action. It
was submitted SKS and his children were parties to Ex.D1.
Their successors were therefore estopped from staking claim
after lapse of decades. On above grounds, learned counsel
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submitted no substantial question of law would arise for
consideration and sought for dismissal.
26. Heard learned counsel, perused impugned
judgment and decree and record.
27. This appeal is by plaintiff in suit for declaration and
injunction challenging judgment and decree passed by first
appellate Court reversing trial Court judgment and decree and
dismissing suit. Appeal was admitted on 18.09.2014 to consider
following substantial questions of law:
1. Whether the lower Appellate Court was justified in
reversing the judgment of the trial Court?
2. Whether the judgment of the lower Appellate Court
suffers from perversity?
28. Main ground of challenged is perversity of findings
by first appellate Court. It is contended, plaintiffs' claim for
declaration of their title over suit property was that in oral
partition between SKS and SZ, extent of 8 Acres 10 guntas was
allotted to SKS and out of same he sold half extent to MSS
under Ex.P1 sale deed, thus he retained remaining half extent
i.e. 4 Acres and 5 guntas. It is contended plaintiff's claim was
supported by Exs.P3, P4, P8, P9, P13 and P15 - RTCs from
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years 1970-71 to 1988-89 showing 5 Acres 27 guntas was
allotted to SZ, while Exs.P5, P7, P10, P11 and P14 showed
allotment of 8 Acres 10 guntas to SKS.
29. While passing judgment and decree, trial Court
adverted to rival pleadings and evidence. It observed plaintiffs
claimed to be owners of suit property after SKS sold half extent
of land he got in oral partition with SZ and to prove same PW.1
deposed as per plaint averments. It also referred to
documentary evidence of plaintiffs. From Ex.P1 - sale deed it
observes even though exact extent was not mentioned,
description of property sold as 'eastern half portion share of
SKS' would indicate sale of 4 Acres 5 guntas in Sy.no.13/1 to
MSS and not 6 Acres and 38 ½ guntas. It found corroboration
in Exs.P13 and P14 - RTCs from 1970-71 to 1983-84 showing 5
Acres 27 guntas in name of SZ and Ex.P6 - Form no.5 showing
8 Acres 10 guntas in name of SKS. Even Exs.P7 and P8 - RTCs
showed 8 Acres 10 guntas in Sy.no.13/1 in name of SKS. Based
on above material, it holds purchase by MSS was not 6 Acres
38½ guntas and defendant's claim was doubtful and based on
manipulated revenue records. It also draws adverse inference
for records not showing extent of 6 Acres 38½ guntas in name
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of SKS. It notes Ex.D2 (a) in Ex.D2 - partition deed showed
only 38½ guntas was shown allotted to defendant's father.
Likewise it notes, Ex.D3 (a) in Ex.D3 showed extent of
Sy.no.13/1 as 6 guntas. It holds Exs.D4 to D6 showing extent
of 8 Acres 10 guntas in name of MSS contradicting defendant's
case to castigate them as manipulated. On above observations,
suit was decreed.
30. In appeal, defendant filed application for additional
evidence which was allowed and additional evidence recorded
after challenge against said order was dismissed. Additional
evidence led was to effect that 6 Acres 38½ guntas allotted to
SZ in oral partition was partitioned between his two sons each
taking 3 Acres 19¼ guntas under Partition Deed marked as
Ex.D36. Even sale deed executed by one of sons selling his
share to one Mariyappa was got marked as Ex.D37.
31. While passing impugned judgment and decree, first
appellate Court refers to principle of law that entries in record
of rights are not documents of title. It refers to admission by
PW.1 that there was no document to prove oral partition and
allotment 8 Acres 10 guntas to SKS and further, as plaintiffs
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were seeking for declaration of his title, heavy burden lie on
plaintiffs to prove allotment of unequal shares to SKS and SZ in
partition. It noted basis for allotment of larger share to SKS
was clearing of debts by SKS, but, PW.1 admitting ignorance
about same. It observed in case of variation/inconsistency
between oral and documentary evidence, latter would prevail.
From pleadings and oral evidence, first appellate Court
observes partition between SKS and SZ effected, share of SKS
renumbered as Sy.no.13/1. And recitals in Ex.P1 showed
Sy.no.13/1 was mortgaged in favour of MSS and due to
inability to redeem, it was sold to MSS by receiving further
consideration.
32. First appellate Court also noted, as per defendant's
case, there was equal partition between SKS and SZ, eastern
portion fell to share of SKS was renumbered as Sy.no.13/1 and
western portion of SZ renumbered as Sy.no.13/2. And in 1928,
SKS was in need of money mortgaged Sy.13/1 to MSS, unable
to redeem it sold it to him. Thereafter, sons of MSS divided it in
which 6 Acres and 38½ guntas fell to share of defendant's
father in registered partition of 17.11.1951 and in later
partition of 26.06.1969 fell to share of defendant. It noted
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contents of Exs.P1, D2 and D3 were consistent in this regard. It
observed appreciation of Ex.P1 by trial Court was erroneous. It
observed that if as per plaintiffs half portion in share of SKS
(eastern portion) were sold under Ex.P1, western boundary
shown as property of SZ would not tally and reference to
'Khasim Sabana Hola' referred to 6 Acres 38½ guntas
mortgaged with MSS. On perusal of another certified copy of
partition deed (Ex.D2) produced at time of arguments as
permitted, extent shown was 6 Acres 38½ guntas. It further
noted Ex.P2 - sketch showed bifurcation of Sy.no.13 was in
equal proportion and consequently concluding trial Court had
committed error in appreciation of material on record.
33. It also observes there was improper appreciation of
evidence led by defendant and admission in cross-examination
about property of SKS lying on western side of his property
would yield to documentary evidence i.e. Exs.D1 - sale deed,
Exs.D2 and D3 - registered partition deeds. Based on above
observations, it concluded entire extent fallen to share of SKS
i.e. 6 Acres 38½ guntas was sold under Ex.P1 to MSS and there
was no existence of suit property and proceeded to allow
appeal and dismiss suit.
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34. Though re-appreciation of evidence is not permitted
in an appeal under Section 100 of CPC, since substantial
question of law required to be answered is about perversity of
findings of first appellate Court, which in turn was on conclusion
that there was improper appreciation of material on record by
trial Court and there is divergence of finding between both
Courts, a brief reference to material on record would appear
necessary.
35. Suit was filed on assertion that Smt.Mehaboob Bi
was owner of Sy.no.13 totally measuring 13 Acres 37 guntas.
On her death it was unequally divided between her two sons
with SKS taking 8 Acres 10 guntas and SZ taking 5 Acres 27
guntas (renumbered as Sy.no.13/2). And SKS selling half his
portion i.e. 4 Acre 5 guntas to MSS and retaining remaining
extent (suit property), which came to share of plaintiffs' father
in oral partition with his siblings. It was alleged that without
any right defendant began interfering with suit property.
36. While, defendant admitted Smt.Mehaboob Bi as
original owner of Sy.no.13 measuring 13 Acre 37 guntas and
partition between her sons, he asserted that partition was
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equal and SKS sold his extent of 6 Acres 38½ guntas (ws
property) to MSS, which was inherited by defendant's father
and thereafter by defendant.
37. Above would indicate both plaintiffs and defendant
claiming to be successors in title from SKS. There is no dispute
about property allotted to SZ. Dispute is about extent SKS got
in partition with SZ and extent sold under Ex.P1 - sale deed.
38. Plaintiff no.1 deposed as PW.1 I terms of plaint and
produced sale deed by SKS to MSS as Ex.P1, Hissa Tippani
showing division of Sy.no.13 as Sy.no.13/1 and Sy.no.13/2 as
Ex.P2, RTCs showing Sy.no.13/2 belonging to SZ as Exs.P3 and
P4, RTCs of 1951 to 1982 showing extent of Sy.no.13/1 as 8
Acres 10 guntas standing in name of SKS, as Exs.P5, P7, P10
and P11, Form no.5 showing extents of lands of SKS and SZ as
Ex.P6, RTC of 1980-81 to 1984-85 showing Sy.no.13/1A
measuring 8 Acres 10 guntas standing in name of defendant
and another as Ex.P12, RTCs of year 1980-1981 to 1984-85 of
Sy.no.13/2 as Ex.P13, RTCs of year 1970-71 to 1974-75 of
Sy.no.13/1 and Sy.no.13/2 respectively as Exs.P14 and P15,
RTC of year 1961-62 and 1962-63 showing 1 Acre 11½ guntas
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in Sy.no.13/1A in name of MSS and 6 Acres 38½ guntas in
Sy.no.13/1B in name of Shiddharadhya as Exs.P16 and 18,
RTCs of year 1963-64 and 1964-65 showing 8 Acres 10 guntas
in Sy.no.13/1 name of Shiddharadhya as Exs.P17 and P19 and
Mutation Extract as Ex.P20.
39. In cross-examination, he admits oral partition
between SKS and SZ was in 1925 and he had no documents to
show SKS got 8 Acres 10 guntas in it. He admits not knowing
particulars of family loan cleared by SKS. He admits not having
RTCs, tax paid receipts to show name of SKS entered in
revenue records. He admits that on 11.06.1928, his father,
grandfather and uncle had mortgaged land bearing Sy.no.13,
denies suggestion about extent mortgaged as 6 Acres 38½
guntas, but volunteers to state it was 4 Acres and 5 guntas. He
admits that in Ex.P1 it is mentioned that half of land in
Sy.no.13 was sold to MSS, but claims recital to be false. He
admits on western side of land sold to MSS, there was land of
SZ and on eastern side there was land of MSS. He also admits
sons of SZ divided 6 Acres 38½ guntas equally. He admits his
application before Tahsildar to enter his name to extent of 4
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Acres 5 guntas in Sy.no.13 was rejected with liberty to
approach Civil Court.
40. Resident of Karur village examined as PW.2,
deposed that suit property was irrigated land measuring 4
Acres 5 guntas and in possession of plaintiffs. He states
defendant's land is adjoining land of SZ. In cross-examination,
he states partition in year 1938 was under registered partition
deed and he had seen it. PW.3, deposed that extent of 8 Acres
10 guntas in Sy.no.13 was earlier in possession of SKS and SZ
had 5 Acres 27 guntas and SKS sold 4 Acres 5 guntas to MSS
and retained 4 Acres 5 guntas. He states extent sold by SKS to
MSS was mentioned in sale deed as 4 Acres 5 guntas. He
admits he is deposing at instance of plaintiffs.
41. Defendant deposed as DW.1 in terms of written
statement averments and got marked sale deed dated
29.05.1939, partition deeds as Ex.D1 to D3, RTCs as Ex.D4 to
Ex.D14, tax paid receipts as Ex.D15, Ex.D22 to D34,
Encumbrance Certificate as Ex.D16, Applications to Tahsildar
and notices as Ex.D17 to D21, Settlement/Akarband as Ex.D35.
In cross-examination suggestion that in partition share allotted
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to SKS was numbered as Sy.no.13/1 and that of SZ
Sy.no.13/2. He admits he does not know whether 8 Acres 10
guntas was given to SKS and admits eastern half portion in
Sy.no.13/1 was sold to SKS. He also admits suggestion that
defendant had no right in remaining land of SKS which was not
sold to MSS.
42. In additional evidence led in first appeal, DW.1
stated SKS had executed simple mortgage in favour of MSS on
11.07.1928, original deed was lost, certified copy showed
extent mortgaged was 6 Acres 38½ guntas, while SZ was
enjoying western half i.e. Sy.no.13/2 measuring 6 Acres 38½
guntas, which was shared by his two sons equally. He produced
certified copy of partition deed dated 21.05.1966 between
children of SZ as Ex.D36 and certified copy of sale deed dated
24.05.1969 executed by children of SZ as Ex.D37. In cross-
examination, except suggesting that said documents were in
respect of land bearing Sy.no.13/2 and not suit property,
nothing material is elicited.
43. Though perversity is alleged, it is seen there is
detailed examination of material and first appellate Court
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arrived at conclusion by assigning sufficient reasons. When it is
plaintiffs' case that SKS got larger share in partition since he
had cleared family debts, he had to substantiate same. First
appellate Court noted failure on this count. In fact, there is
admission that he was unaware of debts.
44. His further admission about sale of half of land in
Sy.no.13 to MSS, would also be directly contrary to his case.
Though he claims recitals in Ex.P1 to be false, he admits on
western side of land sold to MSS, there was land of SZ and on
eastern side there was land of MSS. If eastern half of his share
were sold to MSS, then land of SZ could not be western
boundary. Apart from above, he admits sons of SZ divided 6
Acres 38½ guntas equally. Said admission would be fully in
tune with case of defendant. Depositions of PWs2 and 3 would
be unreliable for being contrary to material or beyond case of
plaintiffs. Further, doubts entertained by trial Court about
omission to mention Acres in Ex.D3 stood explained as copyist's
error as another certified copy disclosed extent as 6 Acres 38 ½
guntas was partitioned by sons of SZ. And Ex.D36 and Ex.38
partition deed and sale deeds would indicate successors of SZ
dealing with 6 Acres 38 ½ guntas. First appellate Court also
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dealt with admissions elicited from DW.1. It observed when
compared with admission in pleadings and documentary
evidence, oral admissions had to yield.
45. Thus, reasoning and findings of first appellate Court
are based on proper appreciation of material on record.
Therefore, substantial questions of law are answered as
follows:
1. Whether the lower Appellate In affirmative
Court was justified in reversing the
judgment of the trial Court?
2. Whether the judgment of the In negative.
lower Appellate Court suffers from
perversity?
46. In view of above, following:
ORDER
Appeal is dismissed.
Sd/-
(RAVI V. HOSMANI)
JUDGE
Psg/AV/GRD
