Dasappa vs Thimmappa

Anand Byrareddy, J.—Heard the learned Counsel for the Appellant and the Respondent.

The Appellant was the Plaintiff in a suit for declaration and possession. The Appellant had claimed that the suit property was his absolute property and that the Defendant ought to be restrained from interfering with his possession. The suit was decreed in favour of the Appellant inspite of contest by the Respondent herein. The same having been carried in appeal, the lower Appellate court has found that the Exhibit P.1 would disclose that the property was granted in favour of the Plaintiff. The Plaintiff and the Defendant are brothers and had lived jointly up to the year 1974 and that the Grant Certificate was issued in favour of the Appellant in the year 1983. However, the partition deed that was set up as per Exhibit P.2 being an unregistered document, the lower Appellate court held that it was not admissible in law and there was no mention of the suit property in the schedule to the partition deed. Similarly; item No. 4 also was not mentioned in the B Schedule and therefore, it could not be accepted as a deed of partition which took into account all the items of the property of the family. The lower Appellate court has also found that the mother of the Plaintiff and his sister were not parties to the partition deed and since they were also entitled to a share, their exclusion was therefore a glaring circumstance, which did not enable the parties to rely upon the said partition deed. The lower appellate court has also held that insofar as Exhibit D.1 sought to be produced by the Respondent was concerned, it was apparently a tampered document and therefore no reliance could be placed on it. In that view of the matter, the lower appellate court found that insofar as possession of the suit property is concerned, the Plaintiff had clearly established that he was in continuous possession of the same and therefore, at best could be entitled to the relief of permanent injunction, but it could not be said that there was absolute right and title over the property by the Plaintiff in the light of the fact that the partition deed could not be accepted in establishing that there was a partition as between the Plaintiff and the Respondent. Accordingly, the lower appellate court has modified the judgment and decree to restrict the relief to one of permanent injunction till such time that the Plaintiff could be dispossessed or the Defendant-Respondent could work out his right insofar as the property was concerned in appropriate proceedings, if he was entitled. It is this judgment which is sought to be questioned in the present appeal.

The appeal has been admitted on the following substantial question of law namely, whether the lower appellate court was in error in not granting the relief of declaration, having held that the land was granted to the Plaintiff as per Exhibit P.1.

Since the lower appellate court has negated the partition deed, which was relied upon by the Plaintiff before the trial court, the only conclusion was that the partition between the parties was not established and therefore, the jointness of the family being presumed, the lower appellate court in having held that Exhibit P.1 though granted exclusively in favour of me Appellant did not enable him to claim exclusive title to me property if the joint family was not divided or not established to have been divided. Therefore, there is no infirmity in the reasoning of the lower appellate court. No substantial question of law arises. Accordingly, the appeal is disposed of and the parties are left to their respective remedies, if any, in appropriate proceedings.