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2010 DIGILAW 1216 (KAR)

K. Bhemanna v. Vijay Kumar

2010-11-25

B.MANOHAR, K.L.MANJUNATH

body2010
Judgment : 1. The appellant who was defendant No.2 in O.S.No.24/2000 on the file of the Civil Judge (Sr.Dn.), Raichur is challenging the legality and correctness of the judgment and decree passed by the Civil Judge (Sr.Dn.), Raichur dated 8th February 2006. 2. The facts leading to this case are as follows: Respondents 1 and 2 were plaintiffs before the court below. Respondent No.3 was defendant No.1 and the appellant herein was defendant No.2 and the remaining respondents were respective defendants 3 to 40. During the pendency of this appeal, one Rajendra Kumar Patil who was not a party before the court below has been arrayed as respondent No.41. 3. The plaintiffs instituted a suit for partition and separate possession of their ½ share in the plaint schedule properties and to declare that the sale deed executed by the second defendant in favour of defendants 3 to 39 are not binding on them. 4. The plaint schedule properties are non-agricultural lands measuring 2 acres 21 guntas situated in Sy.No.1130; 36 guntas in Sy.No.1136 situated at Raichur bounded on East by Road, West by Site No.1132 and 1135; North by Site No.1167 and South by Site No.1137 and also 0.3 guntas of land in Sy.No.1137 of Raichur village bounded on East by site No.1137; West by Site No.1137; North by Site No.1137 and South by site No.1137 and also non-agricultural land measuring 11 acres 20 guntas in Sy.No.1137 bounded on East by Sy.No.1139, West by remaining portion of Sy.No.1137, North by proposed layout and South by remaining portion of the same Survey number. 5. According to the plaint averments, defendants as close friends purchased about 16 acres of land in 5 different survey numbers of Raichur village namely Sy.No.1130 measuring 2 acres 21 guntas. Sy.No.1131 measuring 36 guntas, Sy.No.1136 measuring 3 guntas, Sy.No.1337 measuring 12 acres 14 guntas and 6 guntas in Sy.No.138 from its previous owner Bade Raja Sab and others under a registered sale deed dated 21-11-1981 vide documents No.513/81-82 and 514/81-82 and they were enjoying the same as co-owners. Sy.No.1131 measuring 36 guntas, Sy.No.1136 measuring 3 guntas, Sy.No.1337 measuring 12 acres 14 guntas and 6 guntas in Sy.No.138 from its previous owner Bade Raja Sab and others under a registered sale deed dated 21-11-1981 vide documents No.513/81-82 and 514/81-82 and they were enjoying the same as co-owners. Thereafter, defendants 1 and 2 got converted the said agricultural lands for non-agricultural purposes from the office of the Special Deputy Commissioner, Raichur and out of the aforesaid land purchased by them, the defendants 1 and 2 have sold 3 acres 34 guntas of land in Sy.No.1137 and 6 guntas of land in Sy.No.1138 and also 4 acres of land in Sy.No.1137. Thus, in all 8 acres of land was sold in favour of M/s. Gulbarga Builders jointly and after selling the aforesaid 8 acres of land in favour of the M/s. Gulbarga Builders, defendants 1 and 2 were enjoying the remaining 8 acres of land together. 6. It is the case of the plaintiffs that in the month of December 1997, the first defendant learnt that the second defendant without his knowledge started alternating the sites carved out by them showing as if the sits are situated well within the CMC of Raichur and having come to know the illegal activities of the defendant No.2 in selling the property, the first defendant approached the plaintiffs with a request to purchase his undivided ½ share in the suit schedule properties. Accordingly, defendant No.1 sold his undivided ½ share in favour of the plaintiffs under a registered sale deed dated 22-2-1999 vide document No.2788/98-99 before Sub-Registrar, Raichur and thereafter the plaintiffs demanded the second defendant to divide their share by metes and bounds and to hand over possession. Since, the second defendants refused to do so, they filed a suit for partition and separate possession contending that the alienation made by the second defendant in favour of the remaining defendants without the knowledge of the plaintiffs and the first defendant, does not bind on them. Accordingly, the suit was instituted. 7. The first defendant filed separate written statement and he supported the case of the plaintiffs. The second defendant also filed a detailed written statement. According to him, he admitted purchase of the entire 16 acres of land from Bade Raja Sab and others in respect of 5 survey numbers jointly by defendants 1 and 2. 7. The first defendant filed separate written statement and he supported the case of the plaintiffs. The second defendant also filed a detailed written statement. According to him, he admitted purchase of the entire 16 acres of land from Bade Raja Sab and others in respect of 5 survey numbers jointly by defendants 1 and 2. he also admitted the execution of the same deed in favour of M/s.Gulbarga Builders jointly by defendants 1 and 2. According to him, the lands sold to M/s Gulbarga Builders would represent the share of defendant No.1 and the entire sale consideration was received by the first defendant from M/s Gulbarga Builders and that he was asked to sign the documents to convey better title to M/s Gulbarga Builders. Thereafter, the remaining extent of land (which is the subject matter of suit0 had fallen to the share of the second defendant under an oral partition and later the same was reduced into handwriting under a memorandum of partition dated 17-1-1985 and subsequently, he converted the said land for non-agricultural purposes and carved the sites. Accordingly, the sites were sold to defendants 3 to 39 and that defendants 3 to 29 are the bonafide purchasers of the said sites for valuable consideration. He also contended that the first defendant in order to harass defendant No.2 has created the sale deed in favour of the plaintiffs as if he is having ½ share in the suit property. According to him, defendant No.1 has no right in the suit property. Therefore, the suit filed by the plaintiffs is not maintainable. 8. In addition to the above pleadings, the parties have also referred to several other revenue cases which were pending between the parties. We are not referring to other cases, since the suit filed by the plaintiffs is for partition and separate possession and for declaration to declare the sale deed executed by the second defendant in favour of defendants 3 to 39 as not binding on them and such transactions are ancillary in nature and those transactions would be referred to by us while considering the evidence let in by the parties. Therefore, the second defendant requested the court to dismiss the suit. 9. Similarly the purchasers have also filed written statement separately in line with the second defendant. In other words, they have supported the case of the second defendant. 10. Therefore, the second defendant requested the court to dismiss the suit. 9. Similarly the purchasers have also filed written statement separately in line with the second defendant. In other words, they have supported the case of the second defendant. 10. Based on the above pleadings, the Trial Court framed the following issues: .(i) Whether plaintiffs prove that the defendant No.1 was the owner and in possession of the suit schedule properties along with defendant No.2? .(ii) Whether plaintiffs prove that the defendant No.1 had subsisting right and title to sell the undivided half share in the suit schedule properties in favour of the plaintiffs? (iii) Whether plaintiffs prove that the sale deed executed by defendant No.2 in favour of the defendants 3 to 36 are illegal, null and void and not binding on the plaintiffs? (iv)Whether plaintiffs prove that they are entitled for partition and separate possession of their half share in the suit schedule properties by metes and bounds? .(v) Whether defendant No.2 proves that there was an oral partition on 25-10-1984 and there was a memorandum of partition deed dated 17-5-1985 between himself and defendant No.1 and defendant No.1 ceased to be the joint owner and in possession thereof and the suit schedule properties are his exclusive properties? .(vi) Whether defendants 3 to 36 prove that they are the bonafide purchasers of plots sold to them? (vii) Whether defendants proves that the suit suffers from non-joinder of necessary parties? (viii) Whether defendants prove that the court fee paid is insufficient? .(ix) Whether defendants prove that there is no cause of action? .(x) Whether defendants prove that the suit is not maintainable? And .(xi) What order of decree the parties are entitled to? ADDITIONAL ISSUES: .(1) Whether defendant No.2 proved estoppel as stated in the written statement? .(2) Whether the suit is barred by limitation? 11. In order to prove the case of the respective parties, on behalf of the plaintiffs, GPA holder of the plaintiffs was examined as P.W.1 and he relied upon Ex.P.1 to Ex.P.66. The first defendant got examined himself as D.W.1 and defendant No.2 was examined as D.W.2 and the Manager of P.G.Bank, Raichur has been examined as D.W.3. They have relied upon the documents as per Ex.D.1 to Ex.D.44. 12. The first defendant got examined himself as D.W.1 and defendant No.2 was examined as D.W.2 and the Manager of P.G.Bank, Raichur has been examined as D.W.3. They have relied upon the documents as per Ex.D.1 to Ex.D.44. 12. The Trial Court after considering the entire evidence let in by the parties, held issues 1 to 4 and 6 in the affirmative and held issue No.5, 7, 9, 10 and additional issued 1 and 2 in the negative. Issue No.8 was considered as preliminary issue and the same was answered by the court below on 30th August 2003 and ultimately, the court below decreed the suit of the plaintiffs by holding that the plaintiffs are entitled to get ½ share in the suit properties by metes and bounds and the sale deed executed by the first defendant in favour of defendants 3 to 39 are not binding upon the plaintiffs to the extent of their share. It was further held that defendants 3 to 39 are entitled to work out equity and seek for allotment of plots in favour of the second defendant under the Final Decree Proceedings. Being aggrieved by the judgment and decree of the Trial Court dated 8th February 2006, the present appeal is filed by the second defendant. 13. We have heard the learned counsel Mr.Gururaj Rao Kakkeri for the appellant and Sri.Ashok Kinagi, learned counsel for the respondent No.41 and Mr.Pramod N.Katavi for other respondents. 14. Though several grounds are urged in the appeal memo, at the time of arguments, learned counsel for the appellant has raised the following grounds in support of his arguments. 15. According to him, the Trial Court has committed a serious error in decreeing the suit holding that defendant No.1 had title to convey ½ share in the suit properties in favour of the plaintiffs. According to him, while selling the property in favour of M/s Gulbarga Builders, the first defendant received the entire sale consideration in lieu of ½ share in the entire extent of 16 acres by leaving the plaint schedule properties in favour of the second defendant. He further contends that the Trial Court has committed a serious error in not believing the oral partition set up by the appellant. He further contends that the Trial Court has committed a serious error in not believing the oral partition set up by the appellant. According to him, after executing the sale deed in favour of M/s Gulbarga Builders, the entire plaint schedule properties had fallen to the share of the appellant/defendant No.2 under a oral partition dated 25-10-1984 and later the same was reduced into writing by way of memorandum dated 17-1-1985. The Trial Court without appreciating the case has wrongly decreed the suit of the plaintiffs. He further contends that defendant No.2 alone had obtained conversion of land from agricultural to non-agricultural purposes and that he continues to be in possession of the property from the date of oral partition, till the sites are demarcated and sold in favour of the defendants 3 to 39 and that he continues to be in possession of the remaining extent of land. He further contends that defendant No.1 taking undue advantage of non-registration of the partition has illegally sold the property in favour of the plaintiffs herein without having any right, title or interest. In the circumstances, he requests the court to allow the appeal by setting aside the judgment and decree of the court below and dismiss the suit with exemplary costs. 16. Per contra, the learned counsel appearing for the respondents contends that defendants 1 and 2 being co-parceners of the properties had sold 8 acres of land in favour of M/s Gulbarga Builders jointly and the sale deed executed in favour of M/s Gulbarga Builders discloses that the sale consideration has been paid to the defendants 1 and 2 jointly. In the sale deed executed in favour of the M/s Gulbarga Builders, it is not recited that the property was sold in respect of ½ of the share of defendant No.1 and the entire sale consideration is received by defendant No.1. He further contends that there is no partition between defendant Nos.1 and 2 and there cannot be oral partition between the two co-owners who are not co-parceners of Hindu Joint Family and oral partition between two co-owners is unknown to Hindu law. He further stated that memorandum of oral partition can be relied upon by the parties, provided they are the members of joint family while considering the partition under the Hindu law. He further stated that memorandum of oral partition can be relied upon by the parties, provided they are the members of joint family while considering the partition under the Hindu law. He further contends that the alleged memorandum of partition dated 17-1-1985 has not been produced and proved in order to show that the plaint schedule properties had fallen to the share of the second defendant under an oral partition dated 25-10-1984. He further contends that to show that how partition took place on 25-10-1984, no witness has been examined by the second defendant and whether the first defendant is entitled for ½ share; how his share has been compensated by the second defendant to claim the entire plaint schedule properties under the oral partition. 17. He further contends that if really the sit property had fallen to the share of the second defendant under the oral partition dated 25-10-1984, there was no need or necessity for the parties herein to file an application before the Revenue Authority for conversion of the land from agricultural to non-agricultural purposes, by paying conversion fee in the year 1986. The very fact that conversion fee has been paid in the year 1986 would only discloses that as on the date of payment of conversion fee, thee was no partition. If there was no partition in the year 1986 and if the defendants 1 and 2 wee enjoying all the properties as co-owners, the contention of the second defendant that under the oral partition dated 25-10-1984 he has become the absolute owner of the plaint schedule properties cannot be believed. He further contends that when the first defendant has been examined as D.W.1, the alleged memorandum of partition dated 17-1-1985 has not been confronted to defendant No.1 and the said document is also not produced before the court and the said original of memorandum of partition dated 17-1-1985 has not seen the light of the day even today. Therefore, he contends that the entire contention of the appellant’s counsel has to be negatived. He further contends that certain correspondences taken place between the second defendant and the CMC, Raichur and other Revenue Authorities, would not give title to the second defendant to contend that he has become the absolute owner. Therefore, he contends that the entire contention of the appellant’s counsel has to be negatived. He further contends that certain correspondences taken place between the second defendant and the CMC, Raichur and other Revenue Authorities, would not give title to the second defendant to contend that he has become the absolute owner. He also contends that even the CMC, Raichur has refused to grant permission to form the layout by sanctioning a plan on the application filed by the second defendant. When such an application was rejected by the CMC, Raichur and the same has also been marked to the first defendant, it would only show that any application filed by defendant N.2 was on behalf of the defendants 1 and 2 and that there was no partition as alleged by the defendant No.2. he further contends that the sale deed executed by the second defendant in favour of the defendants 3 to 39 will not convey any title to the aforesaid defendants and they cannot be considered as bonafide purchasers since the property was purchased jointly by the defendants 1 and 2 and that the plaintiffs having purchased undivided share of defendant No.1 under a registered sale deed, they are entitled for a decree as granted by the court below. He further contends that when there was a dispute in regard to the possession of the property, the proceedings under Section 145 Cr.P.C. was initiated by the Sub-Divisional Magistrate. Challenging the same, the second defendant and two others filed a Criminal Revision Petition before the Sessions Court at Raichur wherein it is specifically contended by the appellant that defendants 1 and 2 are the owners and when they are in joint possession, the proceedings initiated under Section 145(1) of Cr.P.C. is not maintainable. According to him, the said petition was filed in the month of April, 1999 as per Ex.P.23, Ex.P.24, Ex.P.25 and Ex.P.26. Relying upon these documents, he contends that the entire case pleaded by the appellant that he has become the owner of the property by virtue of oral partition is not correct. In the circumstances, he requests the court to dismiss the appeal. 18. Relying upon these documents, he contends that the entire case pleaded by the appellant that he has become the owner of the property by virtue of oral partition is not correct. In the circumstances, he requests the court to dismiss the appeal. 18. Having heard the learned counsel for the parties, we have to consider the following points in this appeal: .(i) Whether the appellant has proved that there was partition between him and the first defendant and in the said partition, the suit property had fallen to his share? .(ii) If the said point is answered in favour of the appellant, whether the sale deed executed by the first defendant in favour of the plaintiffs is valid and does not bind on the second defendant? 19. After hearing the learned counsel for the parties and upon perusal of the pleadings, evidence and documents relied upon by the parties, it is not in dispute that the defendants 1 and 2 purchased about 16 acres of land vide two documents bearing No.513/81-82 and 514/81-82 dated 21-11-1981 in respect of 5 survey numbers of Raichur village, namely 2 acres 21 guntas in Sy.No.1130, 36 guntas in Sy.No.1131, 3 guntas of land in Sy.No.1136, 12 acres 14 guntas in Sy.No.1137 and 6 guntas in Sy.No.1138. It is also not in dispute that defendants 1 and 2 have executed the sale deed in respect of 7 acres 36 guntas of land in favour of M/s Gulbarga Builders, retaining the remaining 8 acres of land (plaint schedule properties). The actual dispute between the defendants 1 and 2 is in regard to the oral partition set up by the defendant No.2. According to him, the share of defendant No.1 was sold in favour of M/s Gulbarga Builders and the plaint schedule properties were retained by the second defendant towards his share. While selling the property in favour of M/s Gulbarga Builders, the first defendant alone has received the entire sale consideration and that the second defendant was made to sign the documents along with the first defendant only to convey better title to M/s Gulbarga Builders, since the property sold in favour of M/s Gulbarga Builders was jointly purchased by defendants 1 and 2. According to the appellant, after the portion of land was sold in favour of M/s Gulbarga Builders, there was oral partition dated 25-10-1984 and in the said oral partition, the plaint schedule properties had fallen to his share and from that date onwards he has been enjoying the plaint schedule property as an absolute owner. In the circumstances, he is entitled to deal with the suit property in any manner he likes. But it is the specific contention of defendant No.1 that no such partition took place between him and the second defendant and that he is entitled for ½ share. Since, defendant No.2 started meddling with the properties alone and started selling the sites without the knowledge of the first defendant for his legal necessity and the first defendant has executed the sale deed in respect of ½ of the share in the plaint schedule property in favour of the plaintiffs and based on such sale deed plaintiffs have filed a suit for partition and separate possession and for other reliefs. 20. In view of the aforesaid admitted facts, the actual question arises for reconsideration is whether there is oral partition and whether oral partition could be set up by two co-owners who are not members of a Hindu undivided joint family as contended by the learned counsel for plaintiffs. 21. According to Mr.Katavi, the principles of the oral partition can be applied only if there is partition between two co-parceners and such partition is alien to non-coparceners. According to him, the first defendant and the second defendant belongs to different communities and the first defendant hails from Andhra Pradesh and his friend defendant No.2 hails from Raichur. Defendants 1 and 2 have purchased the property together. In the circumstances, it is canvassed by the learned counsel for the plaintiffs that the defendants cannot set up oral partition and even if the oral partition has been set up, defendant No.2 has miserably failed to prove the same. It is no doubt true that among Hindus, oral partition is recognized. Even though defendants 1 and 2 are Hindus, they are not from the same family and they are not coparceners. It is no doubt true that among Hindus, oral partition is recognized. Even though defendants 1 and 2 are Hindus, they are not from the same family and they are not coparceners. If they are not co-parceners and as co-owners, if they want to divide and if the first defendant had given up his share in favour of the second defendant and that when the value of such share is worth more than Rs.100/-, such partition shall be made under registered document only as per the provisions of the Transfer of Property Act. In the instant case, defendant No.2 has not produced any documents to show that there was partition on 25-10-1984. Even though it is contended that there is oral partition on 25-10-1984, the same has not been proved by him because subsequent to oral partition dated 25-10-1984, the alleged memorandum of partition dated 17-10-1985 has been executed. Both defendants 1 and 2 had made an application for grant of conversion of the land from agricultural to nonagricultural purposes on 29-10-1984 and order of conversion has been obtained on 1-1-1985. Therefore, it is clear that if really there was partition, the oral partition dated 25-10-1984 and if the same was reduced into writing on 17-1-1985, there was no reason for the second defendant to file an application jointly for grant of conversion and paid conversion charges in the name of defendants 1 and 2 together in the year 1986. In addition to that, if really there was a partition, second defendant would have requested the first defendant to file an affidavit before the Special Deputy Commissioner, Raichur, while obtaining an order of conversion from agricultural to non-agricultural purposes stating that he has no semblance of right over the plaint property and that the second defendant alone is entitled for the order of conversion. Be that as it may, the terms of oral partition has not been pleaded properly in the written statement and similarly it is not proved by leading cogent evidence. 22. According to defendant No.2, the share of defendant No.1 was given towards sale consideration received by the first defendant from M/s Gulbarga Builders, but the sale deed executed in favour of M/s Gulbarga Builders are at Ex.P.8 and Ex.P.9. 22. According to defendant No.2, the share of defendant No.1 was given towards sale consideration received by the first defendant from M/s Gulbarga Builders, but the sale deed executed in favour of M/s Gulbarga Builders are at Ex.P.8 and Ex.P.9. On perusal of these two documents, it is clear that it is the joint sale deed executed by defendants 1 and 2 and the sale consideration is received jointly. Ex.P.10 is an application filed by defendant No.1 seeking conversion of the land from agricultural to non-agricultural in the name of defendants 1 and 2. This is dated 20th August 1985. Similarly, Ex.P.11 is the joint application filed before the Special Deputy Commissioner on 24-12-1985 signed by defendants 1 and 2 for grant of conversion in respect of the suit land for residential purposes. Ex.P.12 is the proceedings of the Special Deputy Commissioner, Raichur granting conversion based on the application filed by defendants 1 And 2, Ex.P.13 is a copy of the Challan for having paid the conversion charges. From the above documents, it is clear that even as on 1986, the defendants 1 and 2 have corresponded with the Special Deputy Commissioner as co-owners of the plaint schedule properties. Thereafter, the actual dispute has commenced between defendants 1 and 2, when defendant No.2 started selling the sites in favour of the third parties. In this connection, the proceedings under Section 145 of CR.P.C. was also initiated before the Special Judicial Magistrate, Raichur in case No. MAG 44/98-99 dated 20th March 1999. The said order was challenged by the second defendant by filing a Revision Petition before the Sessions Judge. In respect of the aforesaid proceedings, the certified copies of the revision petitions and stay petitions and order in the revision petition are produced as per Ex.P.23 to Ex.P.26. In this background, the appellant-2nd defendant has admitted joint ownership and possession of the defendants 1 and 2. 23. It is difficult for any court to accept the oral partition dated 25-10-1984. Even 15 years after the said oral partition also the appellant has admitted the co-ownership of defendant No.2 and himself. In the court proceedings, these documents cannot be disputed by the second defendant and he has also not disputed the same. 23. It is difficult for any court to accept the oral partition dated 25-10-1984. Even 15 years after the said oral partition also the appellant has admitted the co-ownership of defendant No.2 and himself. In the court proceedings, these documents cannot be disputed by the second defendant and he has also not disputed the same. In the circumstances, we are of the opinion that at the first instance, defendant No.2 has not let any evidence to show that there was oral partition on 25-10-1984 and the same was reduced into writing on 17-1-1985 and the parties have acted upon. When defendants 1 and 2 have received the sale consideration jointly from M/s Gulbarga Builders how the second defendant can contend that the first defendant has given up his entire share in respect of the plaint schedule properties and the same has not been explained by the second defendant and he has failed to prove the same. 24. In addition to that, the principles of oral partition is accepted under the Hindu Law while considering the partition among the co-parceners, but defendants 1 and 2 are not co-parceners of a Hindu Joint Family. Defendant No.1 is from Andhra Pradesh and defendant No.2 is from Raichur. They belong to different family and different castes and between such persons, oral partition cannot be accepted. It is the case of the second defendant that first defendant has given up his right in lieu of consideration received by him from M/s Gulbarga Builders. The value of ½ share of the first defendant was more than Rs.100/-and if first defendant had relinquished his ½ share in respect of the said immovable property, the same can be effected by means of a registered document and such document is a compulsorily registerable document under the Indian Registration Act. But, the second defendant has not even produced the memorandum of partition dated 17-1-1985 to consider his case and similarly no witness has been examined to show that the said oral partition has taken place on 25-10-1984. 25. But, the second defendant has not even produced the memorandum of partition dated 17-1-1985 to consider his case and similarly no witness has been examined to show that the said oral partition has taken place on 25-10-1984. 25. In the circumstances, we are of the opinion that the Trial Court is justified in holding that the second defendant has failed to prove the oral partition alleged to have taken place on 25-10-1984 and in the circumstances, we are of the opinion that any sale deed made by the second defendant in favour of defendants 3 to 39 or in favour of any parties will not bind defendant No.1 and also on the plaintiffs who are purchaser of the ½ share from the first defendant in respect of the plaint schedule property. 26. In the result, we do not see any merits in this appeal. According the appeal is dismissed. Parties to bear their own costs.