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2023 DIGILAW 230 (KAR)

Sulochanamma v. S. narayanaiah

2023-02-07

N.S.SANJAY GOWDA

body2023
JUDGMENT/ORDER N.S. Sanjay Gowda, J. - Smt.Sulochanamma and Smt.Susheelama, who are defendant Nos.6 and 7, are in appeal. 2. For the sake of convenience, the parties are referred to by their names and not their rankings. 3. Brief facts of the case are as under: Plaint averments: (a) S.Narayanaiah (respondent No.1) instituted a suit in O.S. No.242 of 2000 (Old No.160 of 1995) on 20.10.1995 seeking for a declaration that he was the owner in possession and enjoyment of the property bearing Sy.No.15/3 of Achyuthapura village, Govinakovi Hobali, Honnali Taluk, measuring 03 acres 05 guntas (hereinafter referred to as 'the suit property'). (b) S.Narayanaiah contended that he had purchased the above-mentioned property from Hanumanthaiah-father of Sulochanamma and Susheelamma under a registered sale deed dated 05.05.1965 and ever since, he was in actual physical possession of the suit property and he had also made huge investments on the said property over the years. He further stated that he had failed to secure the transfer of Khata in his name and he was under the impression that the Khata would be registered in his name in the usual course and Revenue authorities had not acted pursuant to the sale deed and changed the entries. (c) S.Narayanaiah stated that K.B.Thimmaiah, K.B.Seetharamaiah, K.B.Shamasundar and K.B.Rangaraju (sons of K.T.Balakrishnaiah), Smt.Rukmanamma (Wife of K.T.Balakrishnaiah) and Sulochanamma and Susheelamma (daughters of Hanumanthaiah), the defendants, were making attempts to interfere with his possession and were trying to take advantage of spurious revenue entries, which had been made behind his back. (d) He stated that the entries made in favour of the sons of K.T.Balakrishnaiah would have absolutely no effect on his right since they did not bind his interest. (e) S.Narayanaiah stated that Hanumanthaiah had set out the genealogical tree of the family of the defendants in the following manner: (f) He stated that in the year 1943, there was an oral partition amongst the branch of Lakshmipathaiah, Krishnappa and Hanumanthaiah and the parties were in their possession as per the said oral partition. (g) He stated that thereafter in the year 1962, there was another oral partition amongst the sons of Krishnappa (son of Doddappa), but, despite the oral partition, the revenue entries continued in the name of Pandurangaiah (1st son of Lakshmipathaiah) and K.T.Balakrishnaiah (father of defendant Nos.1 to 4 and husband of defendant No.5). (g) He stated that thereafter in the year 1962, there was another oral partition amongst the sons of Krishnappa (son of Doddappa), but, despite the oral partition, the revenue entries continued in the name of Pandurangaiah (1st son of Lakshmipathaiah) and K.T.Balakrishnaiah (father of defendant Nos.1 to 4 and husband of defendant No.5). (h) He stated that in this oral partition of the year 1962, the suit property had been allotted to Hanumanthaiah-the father of Sulochanamma and Susheelamma and the grandfather of K.T.Balakrishnaiah. (i) He also stated that on 05.05.1965, Hanumanthaiah sold 3 acres 05 guntas of Sy.No.15/3 i.e., the suit property, in favour of S.Narayanaiah under a registered sale deed. He also specifically stated that in this sale deed executed by Hanumanthaiah, his grandson K.T.Balakrishnaiah had also subscribed his signature as a consenting witness and it was therefore clear that the family members had also acquiesced to the sale. (j) He submitted that thereafter with MALA FIDE intentions, the children of K.T.Balakrishnaiah i.e., defendant Nos.1 to 4 and his wife/defendant No.5 supplied false information to the authorities and got entered their names in the cultivator's column and he had also challenged the same before the Assistant Commissioner and the same was pending. (k) Subsequently, on 13.07.1966, the earlier oral partition was reduced into writing and in this partition, the suit property had been allotted to Hanumanthaiah. He stated that thereafter, a registered partition deed was executed on 03.01.1967 among (i) K.S.Narayana Rao (1st son of Krishnappa), (ii) Pandurangaiah (son of Lakshmipathaia and grand-son of Seenappa), and (iii) K.T.Balakrishnaiah (son of Thimmaiah and grand-son of Hanumanthaiah). (l) He stated that under this partition of the year 1967, the eastern side of Sy.No.15/3 was excluded and only the western portion of Sy.No.15/3 to an extent of 03 acres 37 guntas was subjected to partition and was allotted to K.S.Narayana Rao. (m) Narayanaiah also stated that subsequently, it was noticed in the sale deed, the name of the village had been wrongly shown as Kotehal village, instead of Achyuthapura village and therefore, a rectification deed came to be executed by the wife of Hanumanthaiah Smt.Kamalamma under the registered rectification deed on 12.11.1968 and to even this rectification deed, K.T.Balakrishanaiah/father of defendant Nos.1 to 4 and wife of defendant No.5 had subscribed his signature as a consenting witness. (n) He stated that since attempts were being made in the month of June 1994 to disturb Narayanaiah's possession, he was constrained to institute the suit. Written Statement averments of Defendant Nos.1 to 5: (o) The children and wife of K.T.Balakrishnaiah i.e., defendant Nos.1 to 4 and defendant No.5 initially filed their written statement contesting the suit. They stated that Sy.No.15/3 totally measured 07 acres 12 guntas and the Khata had been registered in the name of their father-K.T.Balakrishnaiah and after his death, the Khata was mutated in the name of Smt.Rukmanamma- defendant No.5 by following the due procedure prescribed under the Karnataka Land Revenue Act and Rules. It was contended that they were in actual possession and cultivation of the entire extent of 07 acres 12 guntas and were being assisted by Govindaiah. They also stated that they had effected a partition by means of a registered instrument on 16/17.04.1993. (p) He had stated that S.Narayanaiah was basically trying to grab a portion of Sy.No.15/3 which was in their possession and therefore, the suit should not be entertained. (q) It may be pertinent to state here that after filing the written statement on 30.07.1996, defendant Nos.1 to 5 in fact proceeded to enter into a compromise and filed a compromise petition on 03.09.1998. Under this compromise petition, the children of K.T.Balakrishnaiah conceded that Hanumanthaiah had sold the suit property in favour of S.Narayanaiah in the year 1965 and they had agreed for the said sale and their father had in fact signed as the consenting witness to the said sale deed. They had also admitted the execution of the registered Rectification Deed executed by Kamalamma and they had conceded that they had not got any title or interest in the suit property and that S.Narayanaiah-plaintiff was in actual possession. They also undertook to agree for giving consent for a change of revenue entries in the name of S.Narayanaiah. (r) The Trial Court accepted the compromise by its order dated 03.09.1998. (s) Since Sulochanamma and Susheelamma were not parties to the compromise, the suit against them proceeded. Written Statement averments of Defendant Nos.6 to 7: (t) Sulochanamma and Susheelamma filed their written statement on 20.08.1996 denying all the plaint averments. (r) The Trial Court accepted the compromise by its order dated 03.09.1998. (s) Since Sulochanamma and Susheelamma were not parties to the compromise, the suit against them proceeded. Written Statement averments of Defendant Nos.6 to 7: (t) Sulochanamma and Susheelamma filed their written statement on 20.08.1996 denying all the plaint averments. It was averred by them that Sulochanamma was married in the year 1959 and her husband had deserted her and her one-year-old baby and was living with another woman and his whereabouts were not at all known. She stated that the members of the family were unhappy about the situation and to console her, they had asked her to look after the land measuring 3 acres 15 guntas of Sy.No.15/3, which was lying on the eastern side of Sy.No.15/3. She contended that Sy.No.15/3 totally measures 7 acres 12 guntas and it was the ancestral property of K.B.Thimmaiah and his family members and also that of her family. (u) They went on to admit that a partition did take place amongst the sons of Lakshmipataiah, sons of Krishnappa and son of Thimmaiah under the registered partition deed dated 03.01.1967 and Pandurangaiah being the eldest son of Lakshmipathaiah had taken the shares of the properties both for himself and also on behalf of his brothers. Similarly, it was stated that, Narayana Rao alias Narayanaiah-son of Krishnappa had also taken his share and also the share of his brothers and they also stated that K.T.Balakrishnaiah-son of Thimmaiah being the only son, took his share. (v) They however stated that despite the registered partition deed, the khatas of the properties continued in the name of K.T.Balakrishnaiah and the khatas were not changed in favour of the persons to whom they had been allotted. They stated that in this partition dated 03.01.1967, an extent of 03 acres 15 guntas which lies on the eastern side of Sy.No.15/3 had been deliberately excluded since it had been given to Sulochanamma. They stated that the remaining 03 acres 37 guntas on the western side of Sy.No.15/3 had gone to the sons of Krishnappa under the above partition. They stated that in this partition dated 03.01.1967, an extent of 03 acres 15 guntas which lies on the eastern side of Sy.No.15/3 had been deliberately excluded since it had been given to Sulochanamma. They stated that the remaining 03 acres 37 guntas on the western side of Sy.No.15/3 had gone to the sons of Krishnappa under the above partition. They stated that since the sons and wife of K.T.Balakrishnaiah/defendant Nos.1 to 5 were not in good terms with Sulochanamma and her sister, the wife and children of K.T. Balakrishnaiah (defendant Nos.1 to 5) had entered into a partition taking advantage of the fact that the Khata in respect of Sy.No.15/3 stood in their name. They stated that the physical possession of the above portion of Sy.No.15/3 remained with them and the rest was in the physical possession of the sons of Govindaiah. (w) They contended that the suit had been instituted at the instigation of Pandurangaiah-the eldest son of Lakshmipathaiah, who happened to be the brother-in-law of Narayanaiah. They also stated that an oral partition had taken place in the year 1994 amongst the grand-sons and grand-daughters of Krishnappa and in this partition, an extent of 03 acres 15 guntas in Sy.No.15/3 had also been included and under this partition, the western portion to an extent of 03 acres 22 guntas of Sy.No.15/3 was allotted to Susheelamma. Since Susheelamma was living with her husband at Chikkajajur village, Chitradurga District, Sulochanamma was looking after the suit property in addition to taking care of her share of property i.e., eastern portion of Sy.No.15/3. 4. The Trial Court on consideration of the pleadings, framed five issues. 5. Narayanaiah got himself examined as PW-1 and examined eight other witnesses, apart from exhibiting 16 documents. Sulochanamma examined herself as DW-1 and also examined another witness apart from marking two documents. 6. The Trial Court on consideration of the pleadings and the evidence came to the conclusion that S.Narayanaiah had proved that he was the owner of the Suit property having purchased the same under a registered sale deed dated 05.05.1965. Sulochanamma examined herself as DW-1 and also examined another witness apart from marking two documents. 6. The Trial Court on consideration of the pleadings and the evidence came to the conclusion that S.Narayanaiah had proved that he was the owner of the Suit property having purchased the same under a registered sale deed dated 05.05.1965. It also held that S.Narayanaiah had proved that he was in lawful possession of the said property as on the date of the suit and that was sought to be interfered with by the defendants and hence, it proceeded to decree the suit holding that S.Narayanaiah was the owner in possession of the suit property and the defendants were also restrained from interfering with his possession. Arguments of learned counsel for the appellants: 7. Sri.G.S.Balagangadhar, learned counsel for the appellants, contended that in the light of the admitted plea that there had been an oral partition in the year 1943 and 1962 and also the partition which had been reduced in writing on 13.07.1966 Ex.P-3, it had been recorded that the entire Sy.No.15/3 had been allotted to the share of K.S.Narayana Rao. He submitted that since the very partition contended by S.Narayanaiah itself indicated that the entire Sy.No.15/3 had been allotted to K.S.Narayana Rao, his purchase of property from Hanumanthaiah was of no consequence at all. He submitted that the fact that the rectification deed was executed only by Hanumanthaiah's wife-Kamalamma and that none of his children had acceded to the sale or this rectification deed, no title had been conveyed to S.Narayanaiah. 8. He submitted that Ex. D-1-oral partition which had been reduced into writing indicated that Sy.No.15/3 had been allotted to Susheelamma and her sister and therefore, the argument that Narayanaiah had acquired title could not be accepted. Arguments of learned counsel for respondents: 9. The learned counsel for the respondents Sri.S.V.Prakash, on the other hand, contended that the judgment of the Trial Court could not be found fault with. He submitted that once the suit property was the subject matter of a registered partition deed, it was only that registered partition deed which would have to be considered and the rights of the parties would have to be accordingly considered. 10. He submitted that the earlier oral partition would only have been arrangements which ultimately stood superseded by the partition effected by the registered partition deed. 11. 10. He submitted that the earlier oral partition would only have been arrangements which ultimately stood superseded by the partition effected by the registered partition deed. 11. He submitted that since under the registered partition deed dated 03.01.1967 only the western portion measuring 03 acres 37 guntas had been allotted in favour of K.S.Narayana Rao and the eastern portion was not included, that by itself, established that the family members had accepted the sale made by Hanumanthaiah. 12. He also sought to highlight the fact that under the registered partition deed dated 03.01.1967, the eastern boundary of Sy.No.15/3 was described as property of S.Narayanaiah also indicated that the family members accepted and acknowledged the sale made in favour of S.Narayanaiah. He stated that to this sale deed, Hanumanthaiah's only grand-son K.T. Balakrishnaiah had affixed his signature as consenting witness and therefore, it was clear that S.Naryanaiah had acquired title way back in the year 1965. 13. Sri S.V.Prakash, learned counsel, contended that the oral partition stated in the plaint and also the partition which had been recorded in writing as per Ex.P-3 only indicated that there was a division of the properties and since the registered partition deed indicated that S.Naraynaiah had purchased the eastern side, the suit of S.Narayanaiah would have to be decreed. Points for determination: 14. In the light of these averments, the points that arise for determination are as to whether Hanumanthaiah had acquired Sy.No.15/3 measuring 03 acres 05 guntas validly under the sale deed dated 05.05.1965 and whether Sulochanamma and Susheelamma had any semblance of right over Sy.No.15/3? 15. The relationship of the parties as stated by Narayanaiah was not in dispute. 16. Doddappa had two sons, namely Seenappa and Krishnappa. Seenappa, in turn, had one son called Lakshmipathaiah, while Krishnappa had three sons- K.S.Naryana Rao, Hanumanthaiah and Govindaiah. 17. It is not in dispute that the sons of Lakshmipathaiah, two sons of Krishnappa i.e., K.S.Narayanarao and Hanumanthaiah's grand-son K.T.Balakrishnaiah had entered into a registered partition deed on 03.01.1967. This partition was essentially a partition amongst the two main branches of the family and in this partition, while allotting Sy.No.15/3, it was evident that only the western portion was being allotted to K.S.Narayana Rao-the first son of Krishnappa. 18. While allotting the said property, the property was described as under: 19. This partition was essentially a partition amongst the two main branches of the family and in this partition, while allotting Sy.No.15/3, it was evident that only the western portion was being allotted to K.S.Narayana Rao-the first son of Krishnappa. 18. While allotting the said property, the property was described as under: 19. As could be seen from the above, the eastern boundary was shown as the property belonging to S.Narayanaiah, who is none other than the plaintiff. This indicates that the family was aware of the sale in favour of S. Narayanaiah. If the family had actually retained the entire extent of 07 acres 12 guntas in Sy.No.15/3, obviously, the entire extent of land would be subjected to a partition. As a consequence, if the western portion of Sy. No. 15/3 was allotted to K.S. Narayana Rao, the remaining eastern portion would have been allotted to some other members of the family. It is therefore clear that the family had acknowledged that Hanumanthaiah had sold the eastern portion to S.Narayanaiah and this sale was consented to by them by excluding it from the partition. 20. Sulochanamma and Susheelamma, who were the daughters of Hanumanthaiah obviously did not have any pre-existing right in any of the ancestral properties in the year 1967 and they could not obviously be considered as coparceners in 1967. As a consequence, they cannot have any right over any extent of Sy. No. 15/3 and cannot also challenge the alienation made by their father Hanumanthaiah. 21. Since the coparceners of the family had partitioned Sy.No.15/3 only to the extent of the portion which they had retained and had acknowledged the sale in favour of Narayanaiah by clearly stating that the eastern boundary of Sy. No. 15/3 allotted to K.S. Narayan Rao's share was the property of Narayanaiah, it is obvious that neither Sulochanamma nor Susheelamma had any right in the property. 22. No. 15/3 allotted to K.S. Narayan Rao's share was the property of Narayanaiah, it is obvious that neither Sulochanamma nor Susheelamma had any right in the property. 22. Even if it is assumed that the suit property was a coparcenary property and by virtue of the 2005 amendment to the Hindu Succession Act, 1956, neither Sulochanamma nor Susheelamma became coparceners, they would not be entitled to challenge or get over the alienation made under registered sale deed in the year 1965 and they would also not be entitled to question or seek for re-opening of a partition effected by means of the registered partition deed dated 03.01.1967 by virtue of the bar created under the 2005 amendment which saved the partitions and alienations made before 20.12.2004. 23. Sulochanamma and Susheelamma did not also produce any documents to indicate that they were in possession of the eastern portion of Sy.No.15/3. They produced only two documents, one of which was a marriage invitation card relating to the marriage of Sulochanamma (20.05.1959) and the other was the partition which was reduced into writing on 03.01.1967. 24. Since there is absolutely no evidence indicating their possession over the eastern portion of Sy. No. 15/3, it cannot be held that Susheelamma had established that she had been permitted to cultivate eastern portion of Sy.No.15/3. 25. An application was also filed to adduce additional evidence and the same was allowed during the pendency of this appeal. 26. By way of this application, revenue records in relation to Sy.No.15/3 were sought to be produced. In all the documents which are produced, the name of neither Sulochanamma nor Susheelamma are found in respect of Sy.No.15/3. It is therefore clear that there is absolutely no evidence indicating that Sulochanamma and Susheelamma were in possession of any portion of Sy.No.15/3. 27. The Trial Court was therefore justified in coming to the conclusion that S.Narayanaiah had proved that he had acquired Sy.No.15/3 measuring 03 acres 05 guntas under validly executed registered sale deed and the suit was entitled to be decreed. The points for consideration are accordingly answered. 28. I find no reasons to entertain the appeal and the appeal is dismissed.