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Judgment
B.V. Nagarathna, J.—1. Defendants in O.S. No. 105/1992, have preferred this appeal, assailing judgment and decree dated 30.03.2010 passed in R.A. No. 306/2001 by Senior Civil Judge, Honnavar. The judgment and decree of the trial Court passed in O.S. No. 105/1992 by Principal Civil Judge (Jr.Dn.) Honnavar, dated 31.07.2000 has been modified, by allowing the appeal.
For the sake of convenience, parties shall be referred to, in terms of their status before the trial Court.
Plaintiff No. 1 is a minor represented by his father/guardian. Plaintiff No. 2 is the vendor of plaintiff No. 1 in respect of suit properties. Plaintiff No. 1 along with plaintiff No. 2 filed a suit for the relief of declaration that plaintiff No. 1 is the owner of suit properties and for a direction to mutate his name in the revenue records and consequential relief of permanent injunction against defendants.
It is the case of plaintiffs that plaintiff No. 2''s husband Timmanna Hegde and defendant No. 1''s husband and father of defendants No. 2 to 4 Gopal Hegde, were brothers. Timmanna Hegde and Gopal Hegde were sons of Narayan. On the demise of Narayan, there was a partition between the brothers. Item No. 2 of suit schedule property bearing Sy. No. 366/4 is a family house. There was a partition between plaintiff No. 2''s husband Thimanna Hegde and defendant No. 1''s husband Gopal Hegde on 12.11.1954 by way of registered partition deed. In the said partition, Item No. 2 i.e., in northern half portion of Sy. No. 366/4 i.e., quarter portion of the house property was allotted to Gopala Hegde. Accordingly, he is enjoying said property. Plaintiff No. 2''s husband Timmanna Hegde was allotted the other quarter portion. He also purchased Item No. 2 of suit schedule property being southern portion of Sy. No. 366/4 from one Govind Hegde, which is his self-acquisition. He was enjoying this property along with his ancestral property. Abutting the said house, Govind Hegde had constructed a building. The property of Govind Hegde towards his southern side half portion was being enjoyed as per partition deed. Thus, abutting suit property there exists Sy. No. 366/4 towards northern side, 1/4th portion of which was allotted to Gopal Hegde and towards southern side 1/4 portion was allotted to Timmanna Hegde and the house was partitioned. The well situated in said property was enjoyed by all the sharers or dayadees. Thus, as per partition deed of year 1954 in Sy. No. 366/4 plaintiff No. 2''s husband had 3/4th share towards southern side in ancestral house and also construction made by plaintiff No. 2''s husband abutting the ancestral house, which was in possession of Timmanna Hegde. They were being enjoyed independently by Timmanna Hegde and plaintiff No. 2 and they are their separate properties. That, at that time, it was noted that the said land was fragmented and it was difficult to get the entries mutated in revenue records. Therefore, it is shown in the revenue records that Timmanna Hegde was towards southern portion of said land i.e., 3/4th portion in possession and the house was shown as ancestral house and he had half share in it and was in possession of it. Even it has been shown that said house was constructed with his self-acquisition. Though they were enjoying properties together, it was shown in the revenue records as 3/4th and 1/4th respectively.
It is further specifically alleged by plaintiffs that after the demise of Timmanna Hegde, his property was inherited by plaintiff No. 2, as his only legal heir. Timmanna Hegde and plaintiff No. 2 Kaveri had no children. After mutation of her name in the revenue records, certain persons who are in possession of property filed Form No. 7 claiming occupancy rights and accordingly it was granted. That plaintiff No. 2 is a lady and nobody came forward to help her. Defendants ill-treated plaintiff No. 2 and harassed her. As a result, she felt uneasy and was unwell. Whenever plaintiff No. 2 pleaded help, it was plaintiff No. 1''s father, who helped her and also treated her. Plaintiff No. 2 sold suit schedule properties to plaintiff No. 1 for a valuable consideration, which was above the prevailing market rate under a registered sale deed dated 09.08.1989. After the purchase of said property, plaintiff No. 1 was in possession and enjoyment of same. In Item No. 2, plaintiff No. 2 is residing as a licencee under plaintiff No. 1.
That, after the purchase of property, plaintiff No. 1 moved an application before revenue authorities for entering his name in the revenue records to which defendants filed objections. The Tahsildar, Honnavar, however, set aside mutation entries made in the name of plaintiff No. 1. Being aggrieved by same, plaintiffs preferred an appeal before Assistant Commissioner, Kumta, who dismissed the same by stating that Section 4 of the Partition Act applies. According to plaintiffs there exist no joint family between plaintiff No. 2 and defendants as there has been a registered partition entered into between them in the year 1954.
During the life time of Timmanna Hegde, he had enjoyed suit schedule properties. After his demise, plaintiff No. 2 enjoyed the same and she sold it to plaintiff No. 1. She had the right to execute the sale deed dated 09.08.1989. That Fragmentation Act is also not applicable. Therefore, name of plaintiff No. 1 ought to have been entered in revenue records. Pursuant to the sale made by plaintiff No. 2 in favour of plaintiff No. 1, revenue authorities have not followed the procedure with regard to certifying mutation entries. Therefore, plaintiffs were constrained to file the suit. That the defendants on the basis of order passed by Assistant Commissioner were disturbing peaceful enjoyment and possession of suit Item No. 2. Therefore, plaintiffs filed the suit seeking aforesaid reliefs.
Pursuant to service of suit summons and Court notices from the trial Court, defendants No. 1 to 3 appeared before Court, but defendant No. 4 did not appear and he was placed ex parte. Defendant No. 3 has filed a written statement, which has been adopted by defendants No. 1 and 2. While admitting the relationship between plaintiff No. 2 and defendants, other aspects have been denied. It is denied that suit schedule properties were enjoyed by Timmanna Hegde independently and after his demise by plaintiff No. 2. The purchase made by plaintiff No. 1 from plaintiff No. 2 is also denied.
It is contended that sale deed and partition deed are not binding on legal representatives of Timmanna and Gopal Hegde. That defendants were ready to purchase rights of plaintiff No. 2. They were ready to give medical treatment to her. It is not true that father of plaintiff No. 1 treated plaintiff No. 2. That suit schedule properties are in joint possession of plaintiff No. 2 and defendants. Therefore, sale deed is against law. That plaintiff No. 1 belongs to Jam community, whereas, plaintiff No. 2 belongs to Havyak Brahmin community, and therefore, there cannot be any purchase of joint family property. That revenue authorities were right in setting aside mutation entries. That the defendants are in joint possession of Item No. 2 of suit property despite partition deed being executed in the year 1954. Therefore, question of interference does not arise at all. There was no cause of action to file the suit, and hence, defendants sought dismissal of suit.
On the basis of above pleadings, trial Court framed the following issues for its consideration:
Whether the plaintiff No. 1 proves that 1/4 of the north half of suit property in Item No. 2 in Sy No. 366/4 and half of the house property came to the share of Gopal Hegde under the partition deed dated 12.07.1954?
Whether the plaintiffs prove that husband of plaintiff No. 2 Timmanna Narayan Hegde has purchased the southern half of Item No. 2 of suit schedule property from one Govind Timmanna Hegde out of his own separate income and it is his self-acquired property?
Whether the plaintiffs prove that even though Timmanna Narayan Hegde was in actual possession of southern 3/4 of the property and half of the house property and it has been wrongly entered in revenue records as 3/4 and 1/4 due to the bar under the Karnataka Fragmentation Act?
Whether the plaintiffs prove that second plaintiff has sold her property in favour of first plaintiff for her legal necessity and for lawful consideration under the sale deed dated 09.08.1989?
Whether the plaintiff No. 1 proves that he is the owner in lawful possession of the suit schedule properties as on the date of the suit?
Whether the defendants 1 to 3 proves that the value of the suit property is exceeding the pecuniary jurisdiction of this court?
Whether the valuation made by plaintiffs is proper?
Whether the court fee paid is sufficient?
Whether the description of the suit properties as shown in the plaint is correct?
Whether the suit is bad for mis-joinder of parties?
Whether the defendants are entitled for compensatory costs?
Whether the plaintiff No. 1 is entitled for declaration and consequential injunction as prayed in the suit?
What decree or order?
In support of their case plaintiffs examined one witness and they produced 17 documents, which were marked as Exs.P-1 to P-17, while the defendants let in the evidence of one witness, but no documents were marked on their behalf On the basis of the evidence on record, trial Court answered issues No. 1, 2 and 4 to 9 in the affirmative, issue No. 12 partly in affirmative, while issues No. 3 and 10 were answered in negative. Trial Court partly decreed the suit by granting the relief of declaration, declaring that plaintiff No. 1 is the owner of suit schedule properties by virtue of Ex.P-1 sale deed, but consequential relief of injunction was not granted. Liberty was also reserved to plaintiff to file a proper suit for partition, if he was advised to do so.
Being aggrieved by not getting the relief of permanent injunction, plaintiffs preferred R.A. No. 306/2001 before the Court of Senior Civil Judge, Honnavar, the First Appellate Court. Significantly, defendants did not challenge the judgment and decree of trial Court declaring plaintiff No. 1 to be the owner of suit schedule property. First Appellate Court on hearing the counsel for respective parties formulated the following points for consideration:
Whether the plaintiffs prove that the trial Court has committed error in refusing the relief of permanent injunction in their favour under impugned judgment and decree?
Whether the plaintiffs prove that the reasoning of the trial Court in answering issue No. 3 is not based on proper appreciation of the evidence available on record and the principles of law applicable to the case on hand?
Whether the plaintiffs have made out sufficient ground to interfere with the impugned judgment and decree of the trial Court to the extent as prayed for in the appeal?
Whether the defendants have made out any ground for permitting them to adduce additional evidence by production of documents as prayed for in I.A. No. 1?
What order and decree?
First Appellate Court answered points No. 1 to 3 in the affirmative and point No. 4 in the negative, and allowed the appeal of plaintiffs by granting consequential relief of permanent injunction in favour of plaintiff No. 1 restraining defendants from interfering with peaceful possession and enjoyment of suit properties.
Being aggrieved by judgment and decree of First Appellate Court, defendants have preferred this second appeal.
I have heard learned counsel for appellants and learned counsel for respondent No. 1 and perused the material on record as well as original records. Appellants counsel contended that First Appellate Court was not right in granting consequential relief of permanent injunction against defendants, as the defendants are none other than the wife and children of the brother of plaintiff No. 2''s husband. He contended that despite Ex.P-2 registered partition deed executed and there being partition of joint family properties between Timmanna and Gopal, sons of Narayan, as far as suit schedule properties are concerned, they are in joint possession, the reason being, that said properties could not be divided. It was, therefore, contended that when the defendants are in joint possession of suit schedule properties along with plaintiff No. 2 there could not have been an injunction issued against them. Elaborating the said contention, he brought to my notice the fact that on the demise of Narayan, his two sons Timmanna and Gopal had partitioned all the suit schedule properties. There was a registered partition deed dated 12.07.1954 at Ex.P-2.
No doubt plaintiff No. 2 as the legal representative of Timmanna could have sold Timmanna''s share in suit schedule properties, but in order to seek possession of said properties, the purchaser i.e., plaintiff No. 1 had to file a suit for partition. Defendants did not dispute the right of plaintiff No. 2 to alienate her share in suit schedule properties. The trial Court rightly declined the grant of relief of permanent injunction against defendants as they were jointly enjoying suit schedule properties with plaintiff No. 2. He drew my attention to the relevant portions of Ex.P-2 to contend that, as the suit schedule properties could not be divided by metes and bounds between Timmanna and Gopal, therefore, they were in joint possession. He contended that when they were in joint possession plaintiff No. 1, who had purchased the share of plaintiff No. 2 in the said suit Items could not straight away step into the possession of plaintiff No. 2, but had to seek partition and separate possession. Thereafter, the question as to whether portion purchased by plaintiff No. 1 could be partitioned or not, would have been taken up for consideration and in that regard provisions of Partition Act, 1893, would have come into play. He, further, contended that First Appellate Court was not right in granting a decree of permanent injunction against defendants when they were in joint possession of suit schedule properties with plaintiff No. 2, and hence, substantial questions of law would arise in this appeal. Therefore, matter may be admitted for a detailed hearing, is the submission of learned counsel of appellant.
Per contra, learned counsel for respondent No. 1 - plaintiff supporting the judgment and decree of First Appellate Court contended that the sons of Narayan, namely, Timmanna and Gopal were no longer in joint status. When once the registered partition deed was executed on 12.07.1954 there was severance in the joint family. The two brothers did not constitute a Hindu Undivided Family. Various items of immovable properties were divided between the two brothers. As far as suit schedule items are concerned, although they are referred to in Item No. 53 of Ex.P-2, those items were divided by metes and bounds and were being enjoyed independently by the two families of Timmanna and Gopal and each person''s extent of possession was categorically stated, and therefore, plaintiff No. 2 as the successor to Timmanna had every right to alienate the portion, which was in her possession as the legal representative of Timmanna and there was no hindrance for plaintiff No. 1 to step into the shoes of plaintiff No. 2 and reside in that portion of the house, which was in the exclusive possession of plaintiff No. 2. Elaborating his submission, he contended that in Ex.P-2 partition deed, in property bearing Sy. No. 366/4, in northern half portion, quarter portion was in the possession of Gopal, husband of defendant No. 1 and father of defendants No. 2 to 4 and southern quarter portion of northern half portion of Item No. 2 was in the possession of Timmanna, husband of plaintiff No. 2. That apart, southern half portion of that survey number was in the ownership and possession of one Govind Timmanna Hegde and from him, husband of plaintiff No. 2 had purchased that portion as his self-acquisition. Thus, plaintiff No. 2 as the successor of Timmanna had the ownership and was in possession of 3/4th portion of Sy. No. 366/4 and possession being exclusive she had the right to alienate that portion and also hand over that portion to the alienee, who is plaintiff No. 1. He, therefore, contended that these facts were appreciated by First Appellate Court and consequently the relief of permanent injunction was also granted. That, it was not necessary for plaintiff No. 1 to seek partition and separate possession at this stage, and hence, there is no merit in the appeal as no substantial question of law would arise in the appeal. He sought dismissal of the appeal.
Having heard learned counsel for the parties and on perusal of the material on record and also the original records, it is noted that the relationship between parties is not in dispute. One Narayan was the original propositus. He had two children, namely, Timmanna and Gopal. On his demise, Timmanna and Gopal divided joint family properties between them under a registered partition deed, Ex.P-2 on 12.07.1954. Timmanna''s wife is Kaveri. Timmanna and Kaven had no children. Timmanna died and he was succeeded by Kaveri, plaintiff No. 2. Timmanna''s younger brother Gopal also died. His widow is defendant No. 1 and his three children are defendants No. 2 to 4. There is also no dispute that plaintiff No. 2 has sold suit schedule items to plaintiff No. 1 under a registered sale deed dated 09.08.1989 at Ex.P-1. The said sale has not been objected to by defendants. On purchase of suit schedule items and there being interference by defendants with regard to possession of plaintiff No. 1 vis-a-vis suit items, which was handed over to him, pursuant to Ex.P-1 sale deed dated 09.08.1989, O.S. No. 105/1992 was filed by plaintiffs seeking the relief of declaration and consequential relief of permanent injunction. The Trial Court granted relief of declaration, but declined to grant the relief of permanent injunction on the interpretation given to the relevant clauses in Ex.P-2 registered partition deed. It is against that judgment and decree, declining to grant the relief of permanent injunction that plaintiff preferred R.A. No. 306/2001 before First Appellate Court. The First Appellate Court has not only confirmed the judgment and decree of trial Court granting the relief of declaration of title, but has also granted relief of permanent injunction, against which this appeal has been filed.
In order to unravel the conundrum regarding the status of the parties to this appeal, relevant portions of Ex.P-2 would have to be considered. As already noted, under Ex.P-1, which is a registered sale deed, plaintiff No. 1 has purchased suit schedule items from plaintiff No. 2 on 09.08.1989. There is no dispute about that fact.
But, insofar as suit schedule items are concerned, relevant clauses in Ex.P-2 reads as under:
The Trial Court on reading of the same has stated that suit items were meant for common enjoyment and that no bifurcation of said properties between Timmanna and Gopal had taken place, and having held that plaintiff No. 2 was not in exclusive possession of her share in suit schedule item, trial Court held that plaintiff No. 1 could not have straight away stepped into the shoes of plaintiff No. 2 vis-a-vis possession of plaintiff No. 2 in suit schedule items are concerned.
However, First Appellate Court has not concurred with the interpretation given by trial Court. According to First Appellate Court there was exclusive possession given in respect of suit schedule items to plaintiff No. 2 and plaintiff No. 2 having sold her portion of suit items to plaintiff No. 1 under registered sale deed dated 09.08.1989 and having handed over possession of those portions to plaintiff No. 1, latter was entitled to the relief of permanent injunction as there was interference caused by defendants.
Having regard to the relevant portions extracted supra, it is noted that the apparent intention in Ex.P-2 was that there should be no division of suit schedule items. But the fact remains that exclusive possession of portions of suit items were given to Timmanna and Gopal. What emerges from this is that, though the suit schedule items were to be enjoyed as a whole by the brothers and their respective families, but exclusive portions of those suit items were given exclusively to Timmanna''s family and Gopal''s family. This intention of the parties in Ex.P-2 becomes clear on a reading of subsequent clause of Ex.P-2. If there was to be a common and joint possession of entire suit items by both the branches then, there was no need to elaborately give a description of which portion of the suit items was to be in possession of which branch and that too in exclusive possession. Therefore, having regard to peculiar clauses in Ex.P-2, it is held that in substance there has been a division of suit schedule items by metes and bounds as such between the two brothers. The actual share of each of the brothers was determined in respect of suit items by giving exclusive possession to each brother. Thus from Ex.P-2 the parties knew as to which portion of suit items is in possession of which branch of the family. Accordingly, they have continued to reside exclusively in their respective portions since the year 1954. By continuous residence of the parties in their respective portions, it must be held that there has in fact been a division of those portions between two branches of Timmanna and Gopal vis-a-vis exclusive portions in their possession.
In that view of the matter, when plaintiff No. 2 sold the portion, which is in her possession to plaintiff No. 1, it is implied that she had the right to sell that portion in which she was in exclusive possession. The implication further being that defendants were in their exclusive portion of suit schedule items, and hence, the clause actually and in substance determined a division of the suit items between the branches of Timmanna and Gopal. Plaintiff No. 2 being the successor to Timmanna had every right to sell that portion of the suit items, which were in her possession to plaintiff No. 1 and hand over possession to him. First Appellate Court has noted these aspects of the matter and accordingly has granted consequential decree of permanent injunction by coming to a conclusion on the basis that plaintiff No. 1 had purchased suit schedule properties from plaintiff No. 2 by a registered sale deed dated 09.08.1989. I do not find any infirmity in the judgment of First Appellate Court. No substantial question of law would arise in the matter. Appeal is dismissed.
Parties to bear their respective costs.