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2014 DIGILAW 175 (KAR)

Shyamarao v. Hanamant

2014-02-17

A.S.PACHHAPURE

body2014
Judgment : 1. The appellant has challenged the judgment and decree in O.S.No,20/2005 dated 30th August 2006, dismissing the suit for declaration and injunction. 2. The parties would be referred to as per their ranks before the Trial Court for the sake of convenience. 3. The facts relevant for the purpose of this appeal are as follows: The appellant - plaintiff before the Trial Court is the full brother of defendant No.4; they are the sons of Muddurao, whereas defendant Nos.1 and 3 are the son and daughter of Aannaraya arid defendant No.2 is the wife of Annaraya; Muddurao and Annaraya were full brothers; they were said to be the members of a joint family. The family owned the lands bearing 1) Sy.No.72/1 later numbered as C.S. NO.106/A measuring 9 acres b guntas, 2) Sy. No.72/2 later numbered as C.S.No.l06/B measuring 8 acres 12 guntas, 3) Sy. No.5/2 later numbered as C.S.No.11 measuring 5 acres and 4) Sy. No.74/2 measuring 8 acres 37 guntas; Muddurao and Annaraya had purchased the property bearing Sy. No. 5/2 in the year 1956, whereas the land bearing Sy.No.74/2 was sold in the said year; the parties continued in joint possession of the remaining properties. 4. As contended by the plaintiff, there was an oral partition in the year 1959. In the partition, the lands bearing Sy.Nos.72/1 and 72/2 (C.S.NO.106/A and C.S.NO.106/B) which are the suit properties said to have fallen to the share of the father of the plaintiff and the 4th defendant; they were said to be the dry lands; the other property bearing Sy.No.5/2 (C.S.No.11) measuring 5 acres which is said to be an irrigated land said to have fallen to the share of Annaraya, the father of defendant Nos.1 to 3 and the husband of defendant No.2; the plaintiff's fathers name came to be entered in the record of rights all along till he died in the year 197b and thereafter, the names of the plaintiff, defendant No.4 and another brother who died unmarried later were entered; they claimed that they are the absolute owners in possession of the suit property in pursuance of the oral partition and the defendants 1 to 3 have no right title or interest of whatsoever type in it. 5. 5. Later there was some dispute between the parties relating to the entries in the record of rights and the matter went upto Assistant Commissioner in RTS appeal. At the relevant point of time, there was an obstruction to the peaceful possession and enjoyment of the suit properties of the plaintiff. The 4th defendant is said to be supporting defendant Nos.1 to 3. It is in these circumstances that the suit came to be instituted seeking relief of declaration that the suit properties are the absolute properties of the plaintiff and defendant No.4 and for injunction against defendant Nos.1 to 3 to restrain them from causing obstruction to their peaceful possession and enjoyment of the suit properties. 6. The 1st defendant has filed his written statement denying the averments made and it is his specific contention that the oral partition was in the year 1958 and in the said partition, the suit Sy.No.72/1 (C.S. 106/A) fell to the share of his father, whereas suit Sy. No.72/2 (C.S.No.106/B) fell to the share of the plaintiff’s father. It is also contended that the land bearing Sy.No.5/2 (C.S.No.11) was continued to be in joint possession of the parties. He also submits that there is a mutation entry in this regard, which was never challenged by the plaintiff and defendant No.4. Therefore, he has denied the averments that the suit properties are in possession of the plaintiff absolutely and he has also denied the alleged obstruction. It is his specific contention that Sy.No.72/1 (C.S.No.106/A) is in possession of defendants 1 to 3 all along since from the date of the partition and as there was illegal mutation entry, the lame was challenged before the appropriate authorities. He submits that the plaintiff got a mutation entry created in the year 1999 on the basis of a report relating to the death of his father. It is on these grounds, he has sought for dismissal of the suit. Defendants 2 and 3 have adopted the written statement of the 1st defendant. Defendant No.4 has filed the written statement supporting the contention of defendants 1 to 3. 7. On the basis of the pleadings, the Trial Court framed the issues and later the plaintiff examined himself as PW.1 and one witness as PW.2. In their evidence, the documents Fxs.Pl to P37 wore marked. Defendant No.4 has filed the written statement supporting the contention of defendants 1 to 3. 7. On the basis of the pleadings, the Trial Court framed the issues and later the plaintiff examined himself as PW.1 and one witness as PW.2. In their evidence, the documents Fxs.Pl to P37 wore marked. The 1st defendant was examined as DW.1, whereas defendant No.4 was examined as DW.4 and two other witnesses as DWs.2 and 3. In their evidence, documents D1 to D19 were marked. 8. The Trial Court, after hearing the counsel and on appreciation of the evidence on record, dismissed the suit. Aggrieved by the decree of dismissal, the plaintiff is in appeal before this Court. 9. I have heard the learned counsel for both the parties. 10. The points that arise for my consideration are: 1) Whether the plaintiff proves that he along with defendant No.4 is the absolute owner of the properties bearing Sy.No.72/1 (C.S.No.106/A) and Sy.No.72/2 (C.S.No.106/B) and that they fell to their share in the oral partition alleged. 2) Whether the plaintiff made out any grounds to call for interference in the impugned judgment and decree? 11. It is the contention of the learned counsel for the appellant that the suit properties are standing in the name of the father of the plaintiff all along till he died and thereafter, they were continued in the name of the plaintiff and the 4th defendant. Hence, he submits that on the basis of these entries in the records for a continues period since from the year of partition leads to only inference that the plaintiff is the absolute owner in the possession of the suit property and the oral partition as alleged by the plaintiff stands proved. Further, it is contended that the trial Court illegally relied upon a mutation entry relating to the partition produced at Ex.D8 and committed an error in dismissing the suit. He would further submit that on the death of the father of the plaintiff, the names of the plaintiff and other legal representatives were brought on record and this itself would indicate that the defendants 1 to 3 have no right title and interest of whatsoever type in the said properties. He submits that the trial Court committed an error in relying upon the evidence of defendants 1 to 3 and the mutation entry at Ex.Dy. He submits that the trial Court committed an error in relying upon the evidence of defendants 1 to 3 and the mutation entry at Ex.Dy. On these grounds, he has sought for setting aside the impugned judgment and decree. On the other hand, leaned counsel for the 1st respondent supporting the judgment and decree of the trial Court contended that the entries in the record of rights itself is insufficient to prove an absolute title to the properties and therefore, he would submit that in the absence of any evidence about partition and the suit properties having fallen to the share of the plaintiff, the trial Court was justified in dismissing the suit. 12. The learned counsel for both the parties, have taken to me through the oral evidence recorded by the trial Court and also the documents produced. 13. Learned counsel for the appellant, relying upon the decision of the Apex Court reported in AIR 1995 SUPREME COURT 1728 (Digambar Adhar Patil, v. Devram Girdhar Patil (died) and another) submits that the record of rights reveal the names of the father of the plaintiff till the year 1999 and that of the plaintiff and defendant No.4 on the death of their father and these consistent entries in the record of rights are corroborated by the oral evidence and hence, he submits that the principles laid down by the Apex Court in the aforesaid decision applies to the facts on hand. 14. Perusal of the judgment of the Apex Court reveals that the partition was evidenced by the entries, in the Record of Rights and corroborated by oral evidence of the brother, so also the factum of partition between two brothers wherein the entries in the Record of Rights were maintained in official course of business and therefore, the Apex Court held that it is a relevant piece of evidence. The parties to the suit belong to Hindu Community and in fact an oral partition can be effected. There need not be any deed of partition. But anyhow, it is for the plaintiff to establish that in the partition which was done in the year 1959, the suit properties had fallen to the share of his father. 15. On this aspect of the matter so far as the oral evidence is concerned, the plaintiff examined himself as PW.1 and one witness as PIAI.2. But anyhow, it is for the plaintiff to establish that in the partition which was done in the year 1959, the suit properties had fallen to the share of his father. 15. On this aspect of the matter so far as the oral evidence is concerned, the plaintiff examined himself as PW.1 and one witness as PIAI.2. The plaintiff was aged 57 years at the time when the suit came to be filed in the year 2005. Thereby, he was approximately aged about 9 or 10 years in the year 1959. Though, he has examined the witness as PW2, the said witness also does not refer to the partition which is said to have been effected in the year 1959. These two witnesses except stating the possession over the said property, so far as the factum of partition is concerned, they were not present at that time. So also none of the witnesses examined on behalf of the defendants were also present at the time of the said partition and except they stating before the Court that one of the suit property is in possession of the plaintiff and the other in possession of the 1st defendant, their evidence is of no help to the parties to prove as to which property fell to the share of the father of the plaintiff and the property that fell to the share of the father of the 1st defendant. Therefore, the oral evidence is of no help to the parties. 16. Exs.P1 to P9 are the record of rights of C.S.NO.106/A (Sy. No.72/1). These record of rights are for the year from 1965-66 onwards till the year of institution of the suit. The plaintiff has not produced the record of rights of this property prior to 1965-66, at least to know as to in whose name these properties were standing. Likewise, Exs.P10 to P21 are the record of rights of C.S.NO.106/B (Sy. No.72/2) and these are for the years 1959-60 onwards till the year of institution of the suit. No record of rights prior to 1959-60 relating to this property have been produced. Exs.P22-P31 are the record of rights of C.S.No.11 (Sy.No.5/2) and they are for the years 1964-65 onwards till the year of institution of the suit. No record of rights prior to the year 1964-65 have been produced. No record of rights prior to 1959-60 relating to this property have been produced. Exs.P22-P31 are the record of rights of C.S.No.11 (Sy.No.5/2) and they are for the years 1964-65 onwards till the year of institution of the suit. No record of rights prior to the year 1964-65 have been produced. So far as the record of rights of the suit property is concerned, the documents produced at Exs.Pl to P21 would reveal that the name of Muddurao was entered in the record of rights al] along till the year 1999 and thereafter the names of the plaintiff and the 4th defendant continued till the year 2003-2004. In none of these records there is any entry relating to partition between the parties. If the plaintiff had produced the record of rights prior to the year 1958-59 and if the lands were standing in the name of a person other than Muddurao, the change in the record of rights after 1958-59 could have been a circumstance in favour of the plaintiff to show the alleged partition. Suppression of the record of rights prior to 195859 leads to an adverse inference. If even before 1958-59 the name of Muddurao was there in the records and if that name was continued, the mere fact that name of Muddurao is in the record of rights is of no help to the plaintiff to prove the properties having fallen to his share in the partition. 17. That apart, perusal of these record of rights at Exs.Pl to P21 would reveal that these are dry lands. It is so mentioned in column No.8. As per the version of the plaintiff, these lands were given to the share of his father, whereas Sy.No.5/2 (C.S.No.11) was given to the share of Annaraya, as it was an irrigated land. Both the suit lands measure 9 acres 6 guntas and 8 acres 12 guntas respectively to mean they would be approximately about 17 acres of land, whereas Sy. No.5/2 measures 5 acres and as pleaded by the plaintiff, it was Bagayat land and was given to Annaraya towards his share. 18. Perusal of the record of rights at Exs.P22 to P31 relating to Sy. No.5/2 (C.S.No.11) would reveal that till the year 1998-99 it is shown as dry land and for the first time in the year 2000-2.061 under Ex.P28, it is shown as an irrigated land. 18. Perusal of the record of rights at Exs.P22 to P31 relating to Sy. No.5/2 (C.S.No.11) would reveal that till the year 1998-99 it is shown as dry land and for the first time in the year 2000-2.061 under Ex.P28, it is shown as an irrigated land. If the land bearing Sy. No.5/2 (C.S.No.11) was an irrigated land in the year 1959 and for that reason if this land was given to the share of Annaraya, the record of rights could haze contained an entry about the land being an irrigated land. Therefore, when the documents produced by the plaintiff themselves would reveal that the land bearing C.S.No.11 was not an irrigated land, his assertion that this land only was given to the share of the father of the 1st defendant cannot be accepted. 19. That apart, perusal of the record of rights of both the said properties under Exs.Pl to P21 would indicate that till the year 1999-2000 it was the name of Muddurao which was appearing in the record of rights both in the owners column and cultivators column and for the first time, the names of the plaintiff and defendant No.4 were entered on the basis of mutation entry said to have been certified in 1975. If this entry was certified in the year 1975, subsequent to 1975-76, the name of the plaintiff and defendant No,4 could have been found in the records. It is not so. Therefore, much reliance cannot be made on the mutation entry produced at Ex.P33 brining the names of plaintiff and his other brothers on record vide the entry dated 21.08.1976, as it has not been carried into the record of rights for the year subsequent to 1975-76 till the year 1999-2000. So perusal of the record of rights as well in the context of the submission made by the counsel would not indicate the suit properties having fallen to the share of the father of the plaintiff. In the aforesaid facts and circumstances, the principles laid down by the Apex Court in the decision referred to supra, does not apply. 20. The learned counsel has also placed reliance on the decision of the Apex Court reported in 2004(6) Kar.L.J. 644 (SC): AIR 2004 SC 4130 : (2004) 12 SCC 189 :2004 AIR SCW 4435 (K.G. SHIVALINGAPPA (DEAD) BY L.Rs AND OTHERS 1 G.S. ESHWARAPPA AND OTHERS). 20. The learned counsel has also placed reliance on the decision of the Apex Court reported in 2004(6) Kar.L.J. 644 (SC): AIR 2004 SC 4130 : (2004) 12 SCC 189 :2004 AIR SCW 4435 (K.G. SHIVALINGAPPA (DEAD) BY L.Rs AND OTHERS 1 G.S. ESHWARAPPA AND OTHERS). It relates to unregistered partition deed. But as there is no such document evidencing the partition, the principle cannot be applied. 21. He has placed reliance on the decision of the Apex Court reported in 2009(4) Kar.L.J. 378 (SC): ILR 2009 Kar.1001 (SC): AIR 2009 SC 1481 : (2009) 2 SCC 177: 2009 AIR SCW 968 (U.R. VIRUPAKSHAIAH 1/ SARVAMMA AND ANOTHER). Under the provisions of Hindu Law, there is a presumption as to the existence of the joint family and this presumption gets weaker and weaker from descendant to descendant and it is held that such weak presumption can be rebutted by adducing some evidence of separate possession of properties. It has been held that in such case the burden to prove its existence shifts to the party who asserts its existence. 22. Scrutiny of the evidence which has been referred to supra, does not reveal any such presumption in favour of the plaintiff and mere continuance of the name of the father of the plaintiff in the record of rights in the absence of any material on record to show that his name was not appearing prior to the partition., is of no assistance to him. 23. Reliance is also placed on the decision of this Court reported in 2005 (3) KCCR 2100 (Hanumath Bheemappa Sanadi and Others Versus Rudrappa Thammanna Sanadi and Others) 2005 (3) KCCR 2100 . Wherein, it has been held by this Court that mere entry relating to partition on the basis of a report made to the Revenue Authorities is not sufficient evidence of partition. This decision in my opinion goes against the plaintiff and when he claims the entries in the name of his father and on the basis of which he intends to prove the partition, the principle laid down is of no assistance to him. 24. An alternative contention has been submitted by the learned counsel for the appellant that the suit instituted was for the relief of declaration and injunction and in case if a decree of declaration cannot be granted, a relief of partition ought to have granted by the trial Court. 24. An alternative contention has been submitted by the learned counsel for the appellant that the suit instituted was for the relief of declaration and injunction and in case if a decree of declaration cannot be granted, a relief of partition ought to have granted by the trial Court. This submission cannot be accepted for the reason that other family members are not parties to the suit and all the properties of the joint family are not the subject matter of the suit. Therefore, the relief of partition in alternative cannot be granted. In the circumstances, the decision relied upon by the appellant reported in 1987 (2) Kar.L.J. 369 : ILR 1987 Kar. 2889 (Rangappa v Smt. Jayamma) is not applicable. 25. At the same time, learned counsel for the 1st respondent has placed reliance on the decision of the Apex Court reported in (1994) 4 SCC 294 (KENCHEGCWPA (SINCE DECEASED) BY LEGAL REPRESENTATIVES Versus SIDDEGOWDA ALIAS MOTEGOWDA). Wherein, it has been held that in a suit of partial partition, when all the joint family properties not made the subject-matter of the suit nor the co-sharers impleaded, the suit itself is not maintainable. In view of this principle laid down, the appellant cannot seek alternative relief of partition in the present suit for declaration, as all the properties of the joint family are not the subject-matter of the suit and all the sharers are not parties in this suit. 26. The learned counsel for the 1st respondent referring to Fx.D8 contends than this entry in M.E.No.1184 has been certified on 21.12.1958 wherein, Sy. No.72/1 was given to the share of Annaraya and Sy.No.72/2 is said to have been given to the share of Muddurao, the father of the plaintiff and therefore, he would submit that the averments made by the plaintiff cannot be accepted and the relief of declaration and injunction cannot be granted. Anyhow, this entry though was certified on 04.10.1959, was not carried into the record of rights at any time and there is no explanation offered by the respondents in this regard. Therefore, this entry is also of no help to the respondents to prove the partition of the suit lands as contended by them. 27. Anyhow, this entry though was certified on 04.10.1959, was not carried into the record of rights at any time and there is no explanation offered by the respondents in this regard. Therefore, this entry is also of no help to the respondents to prove the partition of the suit lands as contended by them. 27. The scrutiny of material placed on record in the context of the submission made by the learned counsel for the 1st respondent would reveal that though the parties admitted oral partition, they are not able to establish as to which of the property has fallen to whose share. For these reasons, I am of the opinion that the appellant has not made out any grounds to call for interference in the impugned judgment and decree. Hence, I answered Point Nos.1 and 2 in the negative. Consequently, the appeal fails and is accordingly dismissed.