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2023 DIGILAW 495 (KAR)

Partha v. Gururaj

2023-03-23

ANANT RAMANATH HEGDE

body2023
JUDGMENT : Mr Anant Ramanath Hegde, J. - Appeal in RFA No.3046/2010 is filed by defendant No.1 challenging the judgment and decree in O.S.No.42/2005 on the file of Senior Civil Judge, Bilagi. The suit for partition filed by the plaintiffs seeking partition and separate possession of suit schedule properties is decreed in part awarding 4/5th share in Item No.1 property to the extent of 3 acres 17 guntas and in respect of Item No.2, the suit is decreed to the extent of entire property measuring 7 acres 23 guntas. The total extent of Item No.1 suit property is 6 acres 17 guntas. In other words, the suit is dismissed in respect of 3 acres in Item No.1 property. 2. RFA No.3044/2010 is filed by the plaintiffs in the said suit challenging the very same judgment and decree, in respect of rejected claim. 3. Genealogy of the parties is as under: 4. One Ramachandra was the propositus. He died on 17.06.1998. His wife Mandakini died on 02.11.1981. The couple had four sons, namely, Vijaya, Gururaj, Muruli, Partha and two daughters, namely, Vasanti and Shree. Among four sons Muruli died issueless in the year 1955. There was a partition in the family. In the said partition, Partha the fourth son of Ramachandra was allotted 6 acres 27 guntas in Sy.No.121/3 and 7 acres 23 guntas in Sy.No.200/3 and Gururaj the second son of Ramachandra, who is defendant No.2 in the aforementioned suit was allotted 8 acres 3 guntas in Sy.No.117/1 as reflected in M.E.No.616. This mutation would also reveal that other than three properties referred above, there were other properties in the family, namely, Sy.No.121/1 and 300/1. It is also evident from the records that the aforementioned properties bearing Sy.No.121/1 and 300/1 were allotted to the other members of the family. Those properties are not the subject matters of the present suit. It is also forthcoming from the records that defendant No.2 Gururaj made a claim over the properties bearing Sy.No.121/3 to the extent of 3 acres 10 guntas on the basis of M.E.No.2314 of the year 1994. It is forthcoming that M.E.No.2314 is said to be a mutation based on the partition between Partha and Gururaj, who have separated in 1955 itself. 5. Sons of Partha have challenged this M.E.No.2314 by filing an appeal before the Assistant Commissioner, where they failed in their challenge. It is forthcoming that M.E.No.2314 is said to be a mutation based on the partition between Partha and Gururaj, who have separated in 1955 itself. 5. Sons of Partha have challenged this M.E.No.2314 by filing an appeal before the Assistant Commissioner, where they failed in their challenge. In the revision before the Deputy Commissioner also, they were unsuccessful. That being the position, they filed a suit claiming partition in respect of properties allotted to the share of their father Partha as per the partition which took place in 1955. Claim was opposed by Gururaj, the second defendant and claim was supported by Partha, the first defendant. Second son Gururaj took a defence that the partition of 1955 was inequitable, as such, father again in the year 1994 effected partition in respect of Sy.No.121/3 and in that partition, he allotted 3 acres 17 guntas in Sy.No.121/3 in favour of Partha and 3 acres 10 guntas in the same survey in favour of his son Gururaj. Thus, he prayed for dismissal of the suit. 6. The trial Court on appreciation of evidence, has decreed the suit in part as indicated above. It is interesting to note that issue No.4 is framed as under: "Whether defendant No.2 proves that fresh partition was effected between defendants No.1 and 2 on 26.12.1990 and in that partition an extent of 3 acres 10 guntas was allotted to defendant No.2 and 3 acres 17 guntas was allotted to defendant No.1, since then they are in exclusive possession of their respective shares as contended in para 3 of W/S?" 7. The trial Court has concluded that defendant No.2 has failed to prove partition of 1990. However, the suit is not decided in favour of the plaintiffs, as the Court held that there was no partition in 1955. 8. Sri.V.P.Kulkarni, learned counsel appearing for the appellants/plaintiffs in RFA No.3044/2010 would urge that 1955 partition has attained finality which was not questioned and once there is a partition, there cannot be a further partition between the parties who have separated in 1955. Unless the defendants are able to establish reunion through a registered document, there cannot be a further partition. Sri.V.P.Kulkarni, learned counsel appearing for the appellants/plaintiffs in RFA No.3044/2010 would urge that 1955 partition has attained finality which was not questioned and once there is a partition, there cannot be a further partition between the parties who have separated in 1955. Unless the defendants are able to establish reunion through a registered document, there cannot be a further partition. Mutation in M.E.No.2314 is not supported by a valid document and alleged partition of 1994 is not established as defendant No.2 has not produced the original partition deed and has only produced Xerox copy which is marked at Ex.D.1 and signature on the Xerox copy is also disputed by defendant No.1 and that being the position, the trial Court erred in dismissing the suit in respect of part of Sy.No.121/3 measuring 3 acres 10 guntas. 9. It is also his submission that the finding of the trial Court that partition has not taken place in 1955, it was only a family arrangement is contrary to the evidence placed on record. 10. Learned counsel for the appellant/defendant No.1 in RFA No.3046/2010 would support the case of the appellants in RFA No.3044/2010 and would submit that there was no partition in the year 1994 and there was only one partition in 1955. That being the position, the trial Court could not have held that 1955 partition is only a family arrangement. 11. Learned counsel for the second respondent would submit that the partition of 1955 was inequitable partition and as such, to set it right one more partition was effected in 1994 and in that partition 3 acres 10 guntas was allotted to the share of defendant No.1, as such, suit for partition in respect of 3 acres 10 guntas is not maintainable. 12. Learned counsel for the contesting respondent/defendant No.2 would also submit that plaintiffs' father himself has signed the partition agreement of 1990 and he has not questioned the mutation based on the said partition i.e. M.E.No.2314, as such, his sons cannot question the said mutation entry and he would further submit that the trial Court has rightly dismissed the suit in respect of 3 acres 10 guntas. 13. This Court has perused the records and considered the contentions raised at the bar. 13. This Court has perused the records and considered the contentions raised at the bar. The following point emerges for consideration: i. Whether the trial Court is justified in holding that partition of 1955 is not a partition but it is only a family arrangement and thereby dismissing the suit in part in respect of 3 acres 10 guntas in Sy.No.121/3. 14. It is also relevant to note that during the course of evidence it has come on record that O.S.No.24/2005 was filed by elder son of propositus Ramachandra Habbu seeking partition in respect of residential house bearing No.148(A). The said suit was decreed holding that residential house was allotted to the share of propositus in the partition of 1955 and plaintiff in O.S.No.24/2005 is entitled to 1/5th share. 15. It is also forthcoming from the records that one more suit was filed in O.S.No.52/2005 by the daughters claiming share in respect of all the properties and the said suit was dismissed holding that the partition has taken place in 1955. These two judgments have attained finality, as none of the parties to the aforementioned proceeding questioned the correctness of the aforementioned judgments. Interestingly, defendant No.2 - Gururaj is also party to both proceedings. Thus, the finding that partition has taken place in the family in the year 1955 cannot be revisited as the said finding has attained finality and it binds the plaintiffs and defendants of the present suit. 16. The trial Court has also given a finding that the partition of 1990 which is sought to be proved by producing M.E.No.2314 and Xerox copy of the alleged partition deed at Ex.D.1 is not established. This Court has perused the records. Ex.D.1 is a Xerox copy. The reason for producing Xerox copy is not forthcoming. Original is not produced. Signature on the Xerox copy is disputed by defendant No.1. No attempt is made by defendant No.2 to prove the signature on Ex.D.1. Under the circumstance, Ex.D.1 is inadmissible. Apart from that, as already noticed, in the previous proceeding the trial Court has come to the conclusion that partition of 1955 is a valid partition in the eye of law. When the partition of 1955 is a valid partition, then in the property allotted to the share of Partha in Sy.No.121/3 to the extent of 6 acres 17 guntas, his brother cannot have any share. When the partition of 1955 is a valid partition, then in the property allotted to the share of Partha in Sy.No.121/3 to the extent of 6 acres 17 guntas, his brother cannot have any share. That being the position, there cannot be one more partition in the year 1990 between Partha and his brother Gururaj. Transfer of property allotted to the share of Partha in the partition of 1955 can take place only through a registered document in favour of his brother. Such being the position, in the absence of any registered document, this Court is of the view that mutation entry No.2314 cannot confer any title in respect of properties bearing Sy.No.121/3 measuring 3 acres 10 guntas in favour of Gururaj. 17. Learned counsel, Sri.V.P.Kulkarni in support of his contention, has relied upon the following judgments: i. Naganna v. Shivanna, ILR 2004 KAR 1074 ii. Hanumamma v. M.T. Ramalingaiah and Others, Misc. Second Appeal No.67/2000 iii. Chanderwati and Others v. Lakhm Chand, Letters Patent Appeal No.14/1975 (Delhi High Court) iv. Gopal v. Baburao and Others, RSA No.7456/2013 of this Court decided on 27.04.2019 18. The ratio laid down in the aforementioned judgments would squarely apply to the facts of the present case. Under the circumstance, this Court is of the view that partition of 1955 is not a valid partition and the same is only a family arrangement is an erroneous finding arrived at by the trial Court. Moreover, such a defence was not raised before the trial Court. Even defendant No.2 admits the partition of 1955. Having accepted the earlier partition of 1955 in the written statement, defendant No.2 raised a contention that he was a minor when the partition took place in 1955. However, it is to be noticed that after attaining majority, within the time stipulated, defendant No.2 has not questioned the partition of 1955 on the premise that the partition is inequitable. For these reasons, this Court is of the view that the contention cannot be accepted. More than anything else, as already noticed, in the earlier proceeding in O.S.No.24/2005 and O.S.No.52/2005, the Court has concluded that partition of 1955 is a valid partition and that finding binds all the persons claiming under the propositus Ramachandra. Under the circumstance, impugned judgment and decree passed by the trial Court are to be modified granting partition in respect of entire Item No.1 property. 19. Under the circumstance, impugned judgment and decree passed by the trial Court are to be modified granting partition in respect of entire Item No.1 property. 19. The appeal filed by the sons of Partha i.e. RFA No.3044/2010 is allowed. The impugned judgment and decree passed by the trial Court are set aside and suit of the plaintiffs in O.S.No.42/2005 on the file of Senior Civil Judge, Bilagi is decreed. 20. In view of the decree in favour of the plaintiffs, counter claim filed by defendant No.1 father seeking declaration of ownership over property No.121/3+4A+4B/1 of Yadahalli village, Bilagi taluk is decreed in part and defendant No.1 is declared as joint owner of the said property along with the plaintiffs. Since the relief of partition is granted in O.S.No.42/2005 in favour of plaintiffs, defendant No.1 is also entitled to 1/5th share in the suit schedule properties. Consequently, RFA No.3046/2010 is allowed in part.