Munidoddappa & Ors. vs Akkalamma

This second appeal is filed praying this Court to set aside the judgment and decree dated 20.02.2010 passed by the First Appellate Court in R.A.No.155/2009, on the file of the Principal District and Sessions Judge, Bengaluru Rural District, and to affirm the judgment and decree dated 12.08.2009 passed in O.S.No.203/2006, on the file of the Civil Judge (Sr.Dn.) and JMFC, Devanahalli, wherein the relief of declaration and permanent injunction was granted.

The factual matrix of the case of the plaintiffs before the Trial Court while seeking the relief of declaration and permanent detention, it is contended that the plaint schedule property has fallen to the share of the plaintiffs and they are in exclusive possession of the property from the date of allotting the property in favour of the plaintiffs and the said partition was taken place on 16.10.1963. It is contended that the defendant left his native about 30 - 35 years back and he has been roaming from place to place like a nomad. The plaintiffs did not get their names mutated in the revenue records of the schedule property. As such, RTC reflects the name of the defendant. The daughters of the defendant wants to take advantage of the mutation of the schedule property, pressurizing the defendant to dispose of the said property either into their names or to a third party by way of sale. The defendant has been facing unbearable pressure from his daughters. They are also negotiating for the disposal of the suit schedule property. This fact came to the knowledge of the plaintiffs on 22.07.2001 through reliable sources. Hence, filed a suit for the relief of declaration.

The defendant appeared through counsel and filed a written statement denying the averments made in the plaint. It is contended that the suit itself is not maintainable and the plaintiffs have suppressed the real fact. The defendant denied the alleged partition deed dated 16.10.1963 and the schedule property fallen to the share of the plaintiffs. He also denied the possession of the plaintiffs and at no point of time they were in possession of the suit schedule property. It is contended that the defendant’s wife Smt. Akkayamma died about 20 years ago, having no male issues and he was forced to live with daughters. But, the plaintiffs made reckless allegation against him, which is uncalled for. The suit schedule property has been purchased by him from one Puttanna of Mandibele Village. Ever since from the said sale, he is in possession and enjoyment of the said property as absolute owner by paying land revenue. As long as he is alive, his daughters will not get any right, interest over the said property. The averments made in the plaint is only created for the purpose of alleged cause of action and to knock off the property of him and he is the absolute owner of the suit schedule property and having right to deal with the property in any manner.

The Trial Court having considered the pleadings of the parties, framed the following issues:

The plaintiffs in order to prove their case examined the GPA holder as P.W.1 and got marked the documents at Exs.P.1 to 11 and also examined two witness P.W.2 and P.W.3. The defendant also examined the power of attorney holder and the earlier affidavit is recalled and further examined him as D.W.1 and got marked the documents at Exs.D.1 to 9 and closed their side evidence. The Trial Court having considered the material on record, answered the points for consideration in the affirmative that the suit schedule property by virtue of the partition dated 16.10.1963 was allotted in favour of the plaintiffs and they are in possession over the suit schedule property and the defendant is causing interference and the plaintiffs are entitled for declaration and injunction.

Being aggrieved by the judgment and decree of the Trial Court, an appeal is filed in R.A.No.155/2009. The First Appellate Court having considered the grounds urged in the appeal memo, formulated the following points for consideration:

The First Appellate Court having re-assessed both oral and documentary evidence placed on record, in a cryptic manner while answering point No.1 comes to the conclusion that the plaintiffs are not entitled for declaration of title with regard to the plaint schedule property. The First Appellate Court also answered point Nos.2 and 3 in favour of the appellants, particularly considering the evidence of P.W.1, which is extracted in paragraph No.14. The First Appellate Court comes to the conclusion that the evidence of P.W.1 cannot be believed and the document is not registered and should be under a registered document and already if there was a partition, any further dealings should be under a registered document in view of the judgment of the Apex Court in the case of NAGANNA v. SHIVANNA reported in ILR 2004 KAR 1074. The plaintiffs are estopped from contending that Ex.P.3 is a partition deed. The Trial Court committed an error and answered issue Nos.2 and 3 in the affirmative.

Being aggrieved by the said findings of the First Appellate Court, the present second appeal is filed before this Court and in the second appeal even extracted with regard to the recitals of document of Ex.P.3 in paragraph No.10 and extracted the answers elicited from the mouth of D.W.1 in paragraph Nos.11, 12 and 13. This Court having considered the grounds urged in the second appeal, admitted the second appeal and framed the following substantial questions of law:

The learned counsel for the appellants in his arguments would vehemently contend that when the suit is filed for the relief of declaration and injunction, particularly relying upon the document Ex.P.3, the First Appellate Court committed an error in not relying upon the document Ex.P.3 that there was a reference of oral partition earlier and the same is reduced into writing. Each schedule properties were allotted in favour of the children of original propositus. The Trial Court in detail discussed the evidence available on record and rightly comes to the conclusion that there was a partition and suit schedule properties were allotted in favour of the plaintiffs. The First Appellate Court committed an error in only considering the evidence of P.W.1 and failed to consider the admission on the part of D.W.1, who gave the admission with regard to the very existence of the document of Ex.P.3 that there was a partition. The learned counsel also brought to the notice of this Court the admission available on record admitting the partition and the respective parties are in possession consequent upon Ex.P.3.

The learned counsel for the appellants also relies upon the judgment of the Apex Court in the case of THULASIDHARA AND ANOTHER v. NARAYANAPPA AND OTHERS reported in (2019) 6 SCC 409 and brought to the notice of this Court Section 17 of the Registration Act, 1908 that when there is a palupatti, whether it requires the requirement for registration. It is held in the judgment that paluputti means list of properties partitioned. At most it can be said to be family arrangement and the same is not required to be registered. The learned counsel also brought to the notice of this Court the discussions made in paragraph Nos.9.3, 9.4 and 9.5, wherein it is held that even without registration, a written document of family settlement/family arrangement can be used as corroborative evidence as explaining the arrangement made thereunder and conduct of the parties.

The learned counsel also relies upon the judgment of the Apex Court in the case of MATURI PULLAIAH AND ANOTHER v. MATURI NARASIMHAM AND OTHERS reported in AIR 1966 SC 1836 and brought to the notice of this Court the discussion made in respect of Section 17 of the Registration Act. Family arrangement needs registration only if it creates any interest in immovable property. Family arrangement if entered into bonafide and the terms thereto are fair, Courts will readily give assent to it. The learned counsel brought to the notice of this Court the principles laid down in this judgment.

Per contra, the learned counsel for the respondents has filed written arguments along with synopsis and brought to the notice of this Court that the plaintiffs are relying upon the document of partition deed dated 16.10.1963 and the same is not a registered document. The learned counsel also vehemently contend that all the sons have not signed the said document, particularly father of the respondents has not signed this document and there is no partition at all. The learned counsel would contend that encumbrance certificate is produced for having purchased the property by the father of the defendant. When the documents Exs.P.8 to 10 are relied upon by the Trial Court, nowhere there was a reference that there was a partition. The learned counsel would contend that when a pleading was made that there was a partition, there is no reference of the said partition in any of the mutation evidencing the partition and khatha of other members of the family is also not forthcoming. Kempanna i.e., the defendant was not having any male members. The learned counsel would contend that when the pleading was made that there was a partition in the year 1963, having considered the plaint, only it was a imaginary cause of action making an allegation against the daughters of the original defendant.

The learned counsel for the respondents in the written arguments has pleaded the genealogy of the parties, nature of the property, nature of the suit, contention of the plaintiffs, framing of issues and also highlights of the plaintiffs’ case is also mentioned in the written argument. It is contended that Ex.P.3 discloses that only four persons put their thumb impression. In fact, the original defendant has clearly denied the document of Ex.P.3. The learned counsel also vehemently contend that Ex.P.3 ought to have been compulsorily registered having considered the recitals of the document. The evidence of P.W.1 cannot be believed considering his age and he was not having any acquaintance with the document of Ex.P.3 and his evidence cannot be relied upon. P.W.2 was not tendered to cross-examination. In respect of P.W.3 is concerned, the witness failed to produce the document how he had the knowledge of the document of Ex.P.3. If really Ex.P.3 came into existence on 16.10.1963 with the consent of the defendant, the defendant ought not to have executed in favour of Dyavanna the sale deed on 16.09.1966 as per Ex.P.9 and so also Exs.P.10 and 11. The Trial Court committed an error, but the First Appellate Court rightly reversed the same.

In reply, the learned counsel for the appellants would contend that, though the learned counsel for the respondents contend that Ex.P.3 is not signed, but thumb impression of the defendant is very clear in the document and the same is also not disputed.

Having heard the learned counsel for the appellants and the learned counsel for the respondents and also considering the principles laid down in the judgments referred supra as well as considering the document of Ex.P.3, which is the crux of the issue in the suit and the substantial questions of law framed by this Court, this Court has to examine whether the First Appellate Court exercised its statutory powers under Order 41 Rule 31 of CPC.

It is the specific case of the plaintiffs that there was a partition in the year 1963 as per Ex.P.3. On perusal of Ex.P.3, there is a clear reference that prior to reducing this partition into writing, there was a division in the presence of panchayatdars and also reference was made with regard to the fifth son of their family taking his share and releasing the property right in respect of the remaining persons. A specific recital is there that remaining five persons have taken the suit schedule properties in their possession and they are paying the tax and also reduced the partition into the document, wherein also particular village, particular survey number, particular extent is also mentioned in the schedule. Each properties are allotted in favour of each of the parties. Having perused the original document of Ex.P.3, it is very clear that the parties have put their thumb impression on the document and the defendant’s thumb impression is also found in this document. The learned counsel for the respondents would contend that only four persons have put their thumb impressions in this document. But when the left thumb impression of the defendant Kempanna was also available in the document and though denies the same, the very document is not sent to the handwriting expert. If really they are disputing the said document, they would have applied for the Trial Court to send the document to the handwriting expert for scientific examination and the same was not done. The Trial Court has taken note of this fact into consideration while passing an order of judgment and decree in favour of the plaintiffs. In paragraph No.19, though the Trial Court comes to the conclusion that revenue records stands in the name of the defendant, the very recital of document Ex.P.3 is taken note of i.e., there is a recital of entering into partition of both ancestral and self-acquired properties as on said date available to their family. Further, there is also a recital of division of movable property before panchayathdars earlier to the existence of Ex.P.3 and specific properties are allotted, particularly four schedule properties fallen to the share of the plaintiffs also taken note of in paragraph No.20. In paragraph No.21 also details are given with regard to the properties allotted.

It is important to note that when the plaintiff was examined, defence was taken in the cross-examination of P.W.1, when the question was put to P.W.1, only suggestion was made that LTM found in the said document is similar in nature. The Trial Court in paragraph No.21 taken note of that having disputed the LTM of the parties of Ex.P.3, to prove the said fact, the defendants are having ample opportunity to get finger print expert’s opinion by sending Ex.P.3 along with vakalath and written statement of both plaintiff No.1 and the defendant to know the genuinity of the said document. The Trial Court, in length considered the evidence of the plaintiffs as well as the defendant and particularly, the admission on the part of D.W.1 is also taken note of. During the course of cross-examination of D.W.1 in respect of the recitals of Ex.P.3, he has shown his ignorance about, how he acquired the schedule property by the deceased defendant and also it is his contention that they have produced the encumbrance certificate as per Exs.D.1 and 3, which itself is sufficient to establish the alleged purchase of the schedule property by the defendant. But no documents are produced before the Court when the claim was made that it was a self-acquired property and the same was also taken note of by the Trial Court. The defendant also not furnished the date of alleged purchase in his written statement and even there was no any reference of sale deed. The admission of D.W.1 was extracted in paragraph No.26 of the judgment of the Trial Court and whatever question was put to him, he denies that he is not aware of the same. When the particular plots allotted to the parties were suggested by confronting the document of Ex.P.3, he admitted the same and hence, the said portions are marked as Exs.P.3(a), 3(a)(i), 3(b) and 3(b)(i). This admission clinches the issue unequivocally pointing out in a division as per Ex.P.3, the schedule property fallen to the share of plaintiff No.1 and father of plaintiff No.2. The further admission is very clear that as per Ex.P.3, not only the schedule property belonged to joint family, but also some other properties are there and the children of his grandfather are in possession and enjoyment by cultivating the same. This admission is extracted in paragraph No.27. He admits that in Ex.P.3, boundary description was also given. But the plaintiffs have discharged their burden by producing the original document Ex.P.3 and also its recitals. The admission of P.W.1 is very clear.

It is also important to note that in the cross-examination, D.W.1 categorically admits that in terms of the partition as per Ex.P.3, respective parties are cultivating the said property. These answers elicited from the mouth of D.W.1 was not considered by the First Appellate Court. The First Appellate Court is bound to consider the question of fact and question of law. The First Appellate Court in paragraph No.12 comes to the conclusion that assuming for the argument sake that Ex.P.3 is an unregistered partition deed is admissible in evidence, the property in question is allotted to the share of Marappa 4^th hissedar in Ex.P.3. Then how son of Narayanappa, namely Pillegowda can claim plaint schedule property remains unsubstantiated. The First Appellate Court fails to consider the evidence of P.W.1 and D.W.1 and comes to the conclusion in a cryptic manner that the approach of the Trial Judge that Ex.P.3 gives title to the plaintiffs is not apt and that is the only one sentence considered while answering point No.1. Insofar as point Nos.2 and 3 are concerned, nothing is discussed with regard to the evidence of P.W.1 and D.W.1 and nowhere discussed the evidence of D.W.1 and only an observation is made that D.W.1 is again a power of attorney holder’s evidence and comes to the conclusion that the plaintiff cannot fall back on the weakness of the defendant and the Court has to find whether the plaintiffs have proved title to the plaint schedule properly. In 8^th line of Ex.P.3, it states that there was already a partition. The First Appellate Court ought to have taken note of the very recital in the document Ex.P.3 though it is not a registered document. It is settled law in view of the principle laid down in the judgments referred supra by the learned counsel for the appellants that the document Ex.P.3, even though not registered, could have been considered for a collateral purpose. Under the document Ex.P.3, there was no partition and the same was reduced into writing and there was a reference of one of the family member releasing his rights and also there was a partition earlier and the same is reduced into writing. These materials were not properly considered by the First Appellate Court and failed to exercise its statutory appellate power under Order 41 Rule 31 of CPC and without discussing the evidence of D.W.1, proceeded to reverse the judgment of the Trial Court. There is a clear admission in terms of Ex.P.3 that parties have got the properties and they are cultivating the properties and they are in possession of the same. The Trial Court also taken note of Ex.P.9 executed by Kempanna in favour of one of his brother Dyavanna in respect of Sy.No.53/1 to the extent of 23½ guntas and nothing is stated with regard to that he has got the absolute right over the property though there was no reference of partition and in Ex.P.10 also when the sale deed was executed in favour of Dyavanna and Marappa while releasing the right that there was a difference between the family members and dispute among them and so also Ex.P.11 executed by Marappa and in turn he has sold the property in respect of Sy.No.23/3. All these documents evidence the fact that there was already a partition and parties have acted upon even though there was no revenue documents for changing of khatha and also Kempanna is the original propositus and documents stands in his name. All these materials were taken note of by the Trial Court while decreeing the suit and the First Appellate Court in a cryptic manner without re-appreciating both oral and documentary evidence, proceeded to reverse the judgment of the Trial Court and the same is not sustainable. Hence, I answer the substantial questions of law accordingly.

In view of the discussions made above, I pass the following: