AI Structured Summary
Not yet generated for this judgment
Judgment
A.V. Chandrashekara, J—Heard the learned counsel for the parties.
The matter is admitted to consider the following substantial questions of law framed on 27.08.2015:
"1. Whether the Lower Appellate Court has committed serious error in coming to the conclusion that there was no partition between the plaintiff and defendant Nos. 1 to 4 by ignoring the material evidence placed on record?
Whether the judgment of the First Appellate Court is perverse and illegal?"
Appellant No. 1 - Basayya is defendant No. 1 in O.S. No. 48/2007, filed by respondent No. 1 -Sharanayya herein, as the sole plaintiff. The other respondents herein are defendants Nos. 2 to 5 in the said suit.
Parties will be referred to as plaintiff and defendants as per their ranking before the trial Court.
Plaintiff - Sharanayya and defendants Nos. 1 to 4 are the sons of a person by name Tripurantayya and the said Tripurantayya is no more. Plaintiffs case is that himself and defendants Nos. 1 to 4 are the joint owners in possession of the suit land, measuring 13 acres 1 gunta in Sy. No. 348 of Neelahalli village and to declare that the sale deed executed by defendant No. 1 in favour of defendant No. 5 on 23.02.2007, vide deed bearing No. 3810/2006-2007, to and extent of 2 acres as null and void and does not bind him and that has preferential right to purchase the portion of the suit land.
Defendant No. 1 - Bassayya the purchaser alone has filed a detail written statement denying all the material averments. According to him, there was already a partition between the plaintiff and defendants Nos. 1 to 4 and the suit land measuring 2 acres, purchased by him had fallen to the share of the first defendant and he has purchased the same for valid consideration. Defendant Nos. 4 and 5 have adopted the written statement filed by defendant No. 1.
On the basis of the pleadings, the following issues came to be framed by the trial Court as follows:
"(i) Whether the plaintiff proves that he and the defendant No. 1 to 4 are the joint owners and in possession of suit land by way of succession?
(ii) Whether the plaintiff further proves that the defendant No. 1 has no right to sole the suit property in favour of defendant No. 5 and the sale deed brg. No. 3810/2006-07 dtd: 23.02.2007 is null and void and same is not binding upon the plaintiff?
(iii) Whether the plaintiff further proves that, he has preferential right to purchase the suit land by defendant No. 1 instead of defendant No. 5?
(iv) Whether the defendant No. 5 proves that, already partition took place between plaintiff and defendant No. 1 to 4 in the year 1995?
(v) Whether the plaintiff is entitled for the relief as sought?
(vi) What order or decree?"
Plaintiff is examined as PW. 1 and 15 exhibits have been got marked. Defendant Nos. 1 and 3 have been examined as DWs.1 and 2 and 6 exhibits have been got marked on their behalf.
Ultimately the suit came to be dismissed vide considered judgment dated 01.08.2009 by answering issue Nos. 1 to 3 and 5 in the negative and issue No. 4 in the affirmative.
The said judgment and decree was challenged by filing an appeal in terms of Section 96 of CPC before the Court of Civil Judge (Sr.Dn) at Yadgir in R.A. No. 36/2009. The said appeal has been allowed after contest. The first appellate Court has framed the following points as found in Paragraph No. 10 at Page Nos. 11 and 12 of the impugned judgment.
"(i) Whether plaintiff proves that he had defendants 1 to 4 are the joint owners and in joint possession of the suit property?
(ii) Whether plaintiff proves that he is having preferential right to purchase a portion of the suit property measuring 2 acres from defendant No. 1?
(iii) Whether plaintiff proves that the sale deed dated 23.02.2007 executed by defendant No. 1 in favour of defendant No. 5 is null and void and it is not binding on the plaintiff?
(iv) Whether the trial Court is justified in dismissing plaintiffs suit?
(v) Whether the plaintiff is entitled for the reliefs of declaration and injunction as sought?
(vi) What order or decree?"
Point Nos. 1 to 3 and 5 have been answered in the affirmative and point No. 4 has been answered in the negative. The operative portion of the order passed by the First Appellate Court on 18.12.2009 is found in Page Nos. 36 and 37 and the same is reproduced as below;
"Appeal is allowed with costs throughout to be paid by defendant No. 1. The judgment and decree passed by the Civil Judge (Jr.Dn) Yadgir, in O.S. No. 48/2007 dated 01.08.2009, is set aside.
Plaintiffs suit is decreed.
It is declared that plaintiff and defendants 1 to 4 are the joint owners and possessors of the suit land.
The sale deed dated 23.03.2007 bearing document No. 3810/2-6-07 is declared as null and void and not binding on the plaintiff.
The defendant No. 5 is restrained from interfering with the joint possession and enjoyment of the suit property by the plaintiff and defendants 1 to 4.
It is further declared that the plaintiff has preferential right to acquire the property sold under Ex. P11 dated 23.02.2007. Plaintiff has to purchase the said two acres of the land in the suit property from defendants 1 and 5 by paying consideration amount of Rs. 1,00,000/- within three months from the date of the judgment. If he failed to do so, the preferential right of plaintiff to acquire the said two acres of land in the suit property, stands waived and the suit of the plaintiff stands dismissed."
Being aggrieved by the said judgment of the First Appellate Court, present appeal is filed under Section 100 of CPC. Matter has been admitted to consider the above substantial questions of law by this Court.
Sy. No. 348/A of Neelahalli village in Yadgir Taluk measures in all inclusive of 13 acres 01 guntas of Khatedars and this is evident from Ex. P.1/RTC of the land, issued for the year 2000-01. Name of Tripurantayya, the father of plaintiff and defendant Nos. 1 to 4 has been shown as Khatedar in column No. 9 and also the person in possession in column No. 12. Ex. P.2 is the RTC issued for the year 2000 and name of Tripurantayya is found in column No. 12/2 of the RTC. Similar is the other RTC marked as Ex. Nos. 3 to 5 issued by Tahsildar for the year 2001-06. In Ex. P6 for the year 2001-06 names of plaintiff and defendant Nos. 1 to 4 are found as Khatedars to an extent of 2.25 acres, 2.15 acres, 2.15 acres, 2.30 acres, 2.36 acres respectively and the incorporation of their names is on the basis of the mutation entered in M.R. No. 37/2005-06. The learned Judge of the trial Court has come to the conclusion that first defendant Basayya was the owner of the land in question. Mutation entry does not confer any title in favour of the person whose name is mutated unless the said mutation entry is supported by a valid document. The learned Judge has attained too much of importance to this entry on the basis of statutory presumption available under Section 133 of Karnataka Land Revenue Act, 1996. As already discussed the said presumption is a rebuttable presumption. No such presumption could be attached in regard to the partition unless a valid partition deed is made available.
First defendant Basayya the brother of plaintiff is examined as DW.1. In his examination in chief he has deposed that partition was effected between himself and his brothers in the year 1995 and that an extent of 4 acres 23 guntas out of the entire extent of land in Sy. No. 348/A had fallen to his share. It is his case that 2 acres 30 guntas had fallen to defendant No. 3 and 2 acres 30 guntas had fallen to the share of defendant No. 4 and 2 acres 25 guntas had fallen to the share of defendant No. 2 and 2 acres 15 guntas fallen to the share of plaintiff.
In his cross examination he has admitted that his father was very much alive in the year 1995 when the alleged partition took place. It is his case that only in Sy. No. 348/A partition in the year 1995. Normally partition means a general partition and there cannot be any partial partition. A party who wants to rely upon partial partition, must make out a special case stating that other properties of the family were left out for valid reasons. It is his case that no share had been allotted to his father in the year 1995 though he had a share. It is his case that partition effected in the year 1995 is evidenced through a document and that is not produced before the Court. It is his case that his father is not a signatory to the partition deed executed in the year 1995. It is ununderstandable as to how there could be a partition excluding the father of plaintiff especially when the property in question is an ancestral property. It is his case that he is in possession of the said partition deed executed in the year 1995 and the same is not produced. Non production of an important document like this enables the Court to draw an adverse in terms of Section 114(g) of the Evidence Act. Therefore, a specific suggestion is put to him that he has purposefully avoided from producing the said document.
If the mutation entry bearing No. M.R. No. 37/2005-06 and 29/2005-06 is on the basis of the partition deed executed in the year 1995, he should have produced a copy of the mutation register. An unregistered partition deed is inadmissible in evidence. He has further submitted that no hissa survey has been conducted in respect of the alleged division of the land in Sy. No. 348/A. It is his case that in all three properties are the joint family properties inherited by his father. If that is so, all the properties should have been subject matter of the partition. He has further deposed that only land in Sy. No. 348/A was the subject matter partition in the year 1995 and all other joint family properties had already been partitioned in the year 1986. According to him a document was executed in the year 1986 while dividing the remaining properties and the said remaining documents is in the name of Sagareddy and that document is also not made available before the Court.
Ex. D5 is stated to be a document which came into being on 09.04.2008. This does not have any significance in the light of the fact that the said document is of the year 2008. Hence, this document has not been rightly ignored by the First Appellate Court. Even otherwise the said document does not bear the signature of plaintiff.
Ex. P11 is the copy of the sale executed by the first defendant in favour of defendant No. 5 relating to 2 acres of land on the Eastern side of Sy. No. 348/A. The boundaries mentioned are as follows;
"East: Land in Sy. No. 307 of purchaser and land in Sy. No. 306.
West: Remaining land of the seller.
North: Land of Ayyamma.
South: Land of........"
If 4.36 acres of land had really fallen to the share of defendant No. 1 in the year 1995 and it is the basis for mutation entry, it is ununderstandable as to how his name could be incorporated through mutation bearing No. M.R. No. 37/2005-06 to an extent of 2.36 acres only. These aspects have been properly analyzed by the First Appellate Court while re-appreciating the evidence on record. The trial Court was more concerned about the revenue entries and had not analyzed the evidence placed on record in right perspective. The First Appellate Court, being the final on facts, has properly come to the conclusion that there was no partition between the plaintiff and defendant Nos. 1 to 4 relating to land in Sy. No. 348/A and therefore it is in the joint possession of plaintiff and defendant Nos. 1 to 4.
As a member of undivided Hindu family, a share or a co-sharer can sell his undivided share and the responsibility cast on the purchaser is to seek general partition since he would be a stranger to the joint family. There is no inhibition for a member of the family to alienate his undivided share. Therefore, the approach of the First Appellate Court in setting aside the very sale deed is improper and incorrect. The purchaser will have to work out his remedies in the final decree proceedings after obtaining preliminary decree in a partition suit. Therefore, the approach of the First Appellate Court in declaring the sale deed dated 23.02.2007 bearing No. 3810/2006-07 is null and void is incorrect. At the best, it does not bind the share of the plaintiff. Therefore the said relief will have to be modified holding that the sale deed dated 23.02.2007 executed by the defendant No. 1 in favour of defendant No. 5 will not bind the share of the plaintiff and binds the share in so far as it relates the defendant No. 1, who is the alienor. It has to be treated as valid and binding on the defendant No. 1 who is the alignor. Therefore the Lower Appellate Court has rightly come to the conclusion that there was no partition between plaintiff and defendant Nos. 1 to 4. Accordingly, the substantial question of law No. 1 has to be answered in the negative.
Point No. 2: In view of the discussion made above the judgment of the First Appellate Court will have to be modified holding that the sale deed binds the share of the defendant No. 1 and it does not bind the share of the plaintiff and defendant Nos. 2 to 4. The remedy available to defendant No. 5 is to seek his share by filing a suit for general partition and work out his remedies in the final decree proceedings in terms of the principle enunciated by the Hon''ble Apex Court in the case of M.L. Subbaraya Setty (Dead) by Lrs. and Others Vs. M.L. Nagappa Setty (Dead) by Lrs. and Others, AIR 2002 SC 2068 : (2002) 1 JT 383 Supp : (2002) 4 SCALE 75 : (2002) 4 SCC 743 : (2002) 3 SCR 326 : (2002) AIRSCW 2124 : (2002) 3 Supreme 484 . Accordingly, appeal is to be allowed in part. Similarly, the preferential right granted to the plaintiff under Section 22 of the Hindu Succession Act will have to be set aside.
ORDER
Appeal is allowed in part holding that sale deed executed by the first defendant in favour of fifth defendant does not bind the share of plaintiff and defendant Nos. 2 to 4 and that it is valid in so far as first defendant is concerned.
The observation made by the First Appellate Court that the sale deed executed by the first defendant in favour of fifth defendant is null and void is set aside. Similarly the observation made by the First Appellate Court that plaintiff has preferential right under the Hindu Succession Act is also set aside.
Notwithstanding the fact that this appeal is allowed, the defendant No. 5/appellant is at liberty to file a suit for general partition to seek his share and work out his remedies in the final decree proceedings.
The parties to maintain same state of things as they exist today till the right of the defendant No. 5 work out his remedy by filing a suit for partition in the final decree proceedings. Draw amended decree accordingly.
Parties to bear their own costs.