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2011 DIGILAW 189 (KAR)

Chinnappa Reddy v. C. Nanjundappa

2011-02-17

A.S.PACHHAPURE

body2011
JUDGMENT A.S. PACHHAPURE, J.—The unsuccessful defendants have approached this Court in second appeal challenging the judgment and decree granting 1/2 share to the respondent in the suit properties and to effect the division by metes and bounds. 2. The facts relevant for the purpose of this appeal in brief are as under: The parties are referred to as per their rank before the Trial Court for the purpose of convenience. The appellants herein were the defendants, whereas, the respondent is the plaintiff who instituted a suit for partition and separate possession of two Items of properties, i.e., S. No. 1/2 measuring 0.12 guntas and S. No. 1/19 measuring 1 gunta with the boundaries described in the schedule to the plaint. The plaintiff and father of defendants are the full brothers. The father of the defendants was the eldest member in the family and they were living jointly and it. is claimed that the father of the defendants being the eldest member was managing the affairs of the joint, family and in view of some differences amongst the members, there was a partition between the parties under the registered partition deed dated 17.7.1974. In the said partition, the suit properties were not included. The plaintiff contends that the suit, properties alongwith S. No. 4/1 and 45/2 measuring 6 acres 35 guntas and 2 acres 24 guntas respectively were granted by an order of the Tahsildar dated 4.2.1959 in the name of Dodda Avalappa the father of the defendants, as they were inam lands. In the partition that, was held the land bearing S. No. 4/1 and 45/2 were partitioned and the share of the plaintiff was given in the said properties in addition to the other joint family properties as mentioned in the partition deed dated 17.7.1974. 3. The plaintiff claims that though there was a partition in the year 1974. the suit properties were kept for joint use of the plaintiff and the defendants and item No. 1 of the suit property was used as a thrashing yard, whereas item No. 2 was used as a manure pit. The pleadings also reveal that the defendants have put up the construction of a house in item No. 1 of the property measuring 12 guntas. The pleadings also reveal that the defendants have put up the construction of a house in item No. 1 of the property measuring 12 guntas. The plaintiff claims that he requested for effecting the division in these two properties and as the defendants refused to effect the division, alleging that they are the self acquired properties, the plaintiff was constrained to institute the suit for partition and separate possession of his share in the suit properties. 4. The relationship between the parties is not in dispute. But any how, it is the contention of the defendants that all the ancestral and joint family properties were divided and the partition deed to that effect was registered on .17.7.1974 and as the suit items were not the joint family properties, the plaintiff has no right or title to claim any share in the said properties. It is their further contention that in the registered partition deed, the plaintiff himself has admitted that there are no other joint family properties except those which were partitioned and hence, the question, of granting share does not arise at all. So also, it is the contention of the defendants in the written statement that when once the partition was held in the year 1974, the suit to he instituted cannot be for partition again and that the plaintiff has to institute a suit for reopening the partition and the present suit in the present form is not. maintainable in law. So also, it is their contention that since from the year 1974 onwards, the suit properties were exclusively in possession and enjoyment of the defendants, and the suit instituted is barred by limitation. It is also contended that, their father Dodda Avalappa submitted an application for grant of occupancy rights of the suit lands and that the said survey numbers were exclusively granted to their father and the plaintiff having not applied for the registration of the rights is barred from claiming any share in the suit properties. On these grounds, the defendants sought for the dismissal of the suit. 5. On the basis of these pleadings, the Trial Court framed the following issues: “1. Whether the Plaintiff proves that the suit schedule properties are the joint family properties consisting of himself and the Defendants and they are in joint possession as alleged? 2. On these grounds, the defendants sought for the dismissal of the suit. 5. On the basis of these pleadings, the Trial Court framed the following issues: “1. Whether the Plaintiff proves that the suit schedule properties are the joint family properties consisting of himself and the Defendants and they are in joint possession as alleged? 2. Whether the Defendants proves that the factum of partition in the family under the Registered partition deed dated 17.7.1974 and the allotment of the properties to the respective shares as alleged in para No. 4 of the Written statement? 3. Whether the Defendants further proves that the suit is not: maintainable in the present form as alleged in Para Nos. 8 and 9 of the written statement? 4. Whether the plaintiff is entitled for partition and separate possession of his share in the suit schedule properties as alleged? 5. Whether the plaintiff is entitled for mesne profits as prayed as alleged? 6. To what relief if any, the parties are entitled?” 6. During the trial, the plaintiff was examined as P.W. 1 and two witnesses P.Ws. 2 and 3 and in their evidence, the documents Exs. P1 to P4 were marked. The defendants examined the first defendant as D.W. 1 and a witness D.W. 2 and in their evidence got marked the documents Exs. D1 to D22. The Trial Court heard the counsel for the parties and on appreciation of the material on record held that the plaintiff is entitled to get 1/2 share in the suit schedule properties and directed to effect the division by metes and bounds. Aggrieved by the judgment and decree of the Trial Court, the defendants approached the First Appellate Court in RA 50/2006, which also dismissed the appeal, after hearing the counsel for the parties. Aggrieved by the concurrent, findings of both the Courts below, the present appeal has been filed by the defendants. 7. This Court vide order dated 26.2.2009 has framed the following substantial question of law. “Whether the impugned judgments are vitiated for non-consideration of material recitals in Ex. D1?” 8. Ex. P2 is the certified copy of the partition deed produced by the plaintiff whereas the defendants have also produced the copy of the same at. Ex. D1, There is no dispute amongst the parties so far as the partition is concerned. “Whether the impugned judgments are vitiated for non-consideration of material recitals in Ex. D1?” 8. Ex. P2 is the certified copy of the partition deed produced by the plaintiff whereas the defendants have also produced the copy of the same at. Ex. D1, There is no dispute amongst the parties so far as the partition is concerned. The grievance of the counsel for the appellant is that the contents and the recitals in the partition deed have not been properly interpreted by the Courts below and, therefore, he contends that the plaintiff has not produced any material to show that the suit properties are the joint family properties and the Courts could have dismissed the claim of the plaintiff. 9. In the partition deed at Ex. D1, it is mentioned that except the properties shown in the schedule A and B in the partition deed, there are no other moveables or immovables to be partitioned. The properties in Schedule A of the partition deed were given to the share of the plaintiff, whereas, the properties mentioned in. Schedule B were given to the share of the defendants. So referring to this recital that no other joint family property except the properties mentioned in the partition deed are available for partition, the counsel submitted that in the absence of any material to prove that there was inequitable partition or that the partition deed was vitiated due to fraud, coercion, misrepresentation etc., the plaintiff cannot maintain a. suit for partition. Though he referred to the suit in O.S. No. 441/1982 filed by Chikka Avalaiah, the suit pertains to a different branch and not the branch of the plaintiff and the defendants. The said suit appears to have been dismissed on merits. There was an appeal against the judgment and decree in RA No. 20/1992 and it was dismissed for default, OS No. 731/1995 was filed by the plaintiff seeking the relief of declaration and partition in respect of the suit, schedule properties and the said suit also came to be dismissed for default. The certified copy of the plaint has been produced at Ex. D10 and the order sheet has been produced at Ex. D9. The mere fact that the suit, came to be dismissed for default does not. bar the plaintiff from filing a fresh suit, for partition and separate possession as the principle of res judicata is not applicable. 10. The certified copy of the plaint has been produced at Ex. D10 and the order sheet has been produced at Ex. D9. The mere fact that the suit, came to be dismissed for default does not. bar the plaintiff from filing a fresh suit, for partition and separate possession as the principle of res judicata is not applicable. 10. So far as the recitals contained in Ex. D1 (Ex. P2) is concerned, though it is stated that, except the properties mentioned in Schedule A and B, there are no other joint family properties, this sentence has to be considered in a wider sense. It is relevant to note that the properties mentioned in Schedule A and B are neither the agricultural lands where cultivation is done or the house properties of the parties and so far as the claim made by the plaintiff is concerned, item No. l of the suit property was used as a thrashing yard, whereas. Item No. 2 was used as a manure pit. So, generally, whenever any partition takes place, it may be possible that the manure pit or the thrashing yard could be continued jointly by the brothers and in such circumstances, when there is no mention of these two properties in the partition deed at Ex. D1 (Ex. P2), it cannot be presumed that there were no other joint family properties. So far as the Thrashing yard and Manure Pit are concerned, they do not yield any income. It is in this context that there must be no reference of these two properties in the partition deed, as the rest of the properties mentioned therein are either agricultural lands which yield income or the house properties. So merely because there is a mention that there are no other joint family properties is not a ground to reject the claim of the plaintiff. 11. It is contended by the learned counsel for the appellants that the suit properties are the self acquired propeili.es. It. is relevant to note that apart from the suit properties, the lands hearing R.S. Nos. 4/1 and 45/2 measuring 6 acres 35 guntas and 2 acres 24 guntas respectively were also the inarn lands and the father of the defendants submitted an application for grant of occupancy rights for these lands including the suit properties. This fact is not in dispute. 4/1 and 45/2 measuring 6 acres 35 guntas and 2 acres 24 guntas respectively were also the inarn lands and the father of the defendants submitted an application for grant of occupancy rights for these lands including the suit properties. This fact is not in dispute. So also, the fact that the father of the defendants was the elder member of the family is not disputed. In these circumstances, when the father of the defendants filed an application for grant of occupancy rights, both in respect of the suit items and also the properties referred to supra, it has to be considered that the suit properties are the joint family properties, as there was a partition in respect of S. Nos. 4/1 and 45/2. Even the perusal of the oral evidence of the parties reveals that the said property were used as a joint family properties and though the father of the defendants has put up the construction of a house and the defendants are residing there, the said house does not occupy the whole of the property measuring 12 guntas and in such circumstances, the plaintiff is justified in seeking a share at least in the vacant space including the house property which can be given to the share of the defendants. 12. The learned counsel further contended that, when there was already partition under the partition deed at Ex. P2 (Ex. D1) a further suit for partition cannot be maintained. On this aspect of the. matter, the counsel for the respondent has relied upon a decision, of the Apex Court reported in Ratnam Chettiar and others vs. S.M. Kuppuswami Chetliar and others, (1976) I SCR 863 wherein, if is stated as under: “Hindu Law—Partition—When may be reopened—Minor coparceners—When partition binding on them. 1. A partition effected between the members of an Hindu Undivided Family by their own volition and with their consent: cannot be reopened unless it is shown that it was obtained by fraud, coercion, misrepresentation or undue influence. In such, a case, the Court should require strict proof of facts, because, an act inter vivos cannot be lightly set aside.” 13. So when once a partition is effected between the members of an Hindu Undivided Family by their own volition and with their consent, it cannot be reopened unless it is shown that it was obtained by fraud, coercion, misrepresentation or undue influence. So when once a partition is effected between the members of an Hindu Undivided Family by their own volition and with their consent, it cannot be reopened unless it is shown that it was obtained by fraud, coercion, misrepresentation or undue influence. But, here is the case, where there is no allegation by the plaintiff that there was any fraud, coercion, mis-representation etc., at the time when the partition was effected under the registered partition deed Ex. P2 (Ex. D1). Furthermore, as could be seen from the decision of the High Court of Kerala, Kumaraswami Mudaliar and others vs. Rajamanikkam Udayar and others, AIR 1966 Ker. 266 the Division Bench of Kerala High Court took into consideration the question of partition again where there was already a partition and held as under: “A. Hindu Law—Partition—Property excluded from—Rights of coparceners in. Where an item of joint family property is left out in the partition, the right of the coparceners in the excluded property will not be lost by the partition entered into and can be enforced by a fresh partition of that property.” 14. Furthermore, the counsel for the respondent also relied upon a decision reported in Mulam Chand Chhotetylall Modi vs. Kanehhendllall Bhaiyalal and others, AIR 1958 Madhya Pradesh 304 wherein, the Division Bench of Madhya Pradesh High Court held that where a portion of the joint family property has been excluded from partition, whatever the reason, it continues to be the joint property and it must be divided amongst the persons who took under the partition. 15. So, as could be seen from the principles laid down by the High Courts in the decisions referred to supra, despite the partition between, the family members, some of the properties can be kept jointly and as could be seen from the evidence that has been led by the parties, it is the specific contention of the plaintiff that the suit properties were used as a Thrashing yard and Manure Pit jointly even after the partition. So, there is no material placed on record to show that the plaintiff was ousted from the joint possession of the joint property at any time. In these circumstances, merely because the partition was in the year 1974, it does not mean that the plaintiff loses his right to seek partition on the ground that his suit is barred by time. In these circumstances, merely because the partition was in the year 1974, it does not mean that the plaintiff loses his right to seek partition on the ground that his suit is barred by time. When the suit property is continued as joint family property, the cause of action for the plaintiff arises when the defendants refuses to effect division. In that, view of the matter and on appreciation of the material on record, I do not think that the Courts below committed any error in granting a decree for partition. Hence, 1 answer the substantial question of law in negative and proceed to pass the following: The appeal is dismissed. No costs.