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2023 DIGILAW 960 (KAR)

Chowdanaika v. Narayana

2023-08-04

RAJENDRA BADAMIKAR

body2023
JUDGMENT 1. This appeal is filed by the plaintiff challenging the judgment and decree dtd. 14/8/2008 passed by the Civil Judge (Sr.Dn.), Sagar, confirming the judgment and decree dtd. 25/1/2001 passed by the Additional Judge (Jr.Dn.) & JMFC, Sagar, in OS No.341/1999 (Old No.72/1997). 2. For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the trial Court. 3. The brief factual matrix leading to the case are that, the plaintiff has filed a suit for permanent injunction against the defendants from interfering in his peaceful possession and enjoyment over the suit schedule properties situated in Hosur Village, Avinahalli Hobli of Sagar Taluk. The plaintiff asserts that the suit schedule properties are ancestral and joint family properties of the plaintiff and defendants and as per oral partition under Jubani Hissa dtd. 24/1/1997, the suit schedule properties are fallen to his share and accordingly, the mutation entries were effected. It is asserted that the defendants without any right, title and interest, interfering in his peaceful possession and as such, he filed a suit for injunction. 4. Defendant Nos. 1 to 6 have appeared and defendants- 1 to 5 disputed the claim of the plaintiff, while Defendant No.6-Smt. Susheelamma though disputed interference, she admitted the claim of the plaintiff.Defendants - 1 to 6 denied the entire case of the plaintiff and asserted that the plaintiff is no way concerned to the joint family of the defendants and he has nowhere pleaded in what way he is connected with the joint family of defendants. It is asserted that, there is no blood relationship between the plaintiff and defendants. It is also asserted that the suit schedule properties are self-acquired properties of one Late Hampa Naika and it is asserted that the said late Hampa Naika has acquired the suit schedule properties under tenancy and the plaintiff has also acquired the separate properties through tenancy. It is asserted that Defendant No.6 is now sailing with the plaintiff and the Defendants have obtained injunction in O.S. No.67/1997 against Defendant No.6 and denied Jubani Hissa as asserted and contended that it is a concocted document. It is the specific assertion that the plaintiff and defendants are never members of the joint family and disputed the claim of the plaintiff and sought for dismissal of the suit. 5. It is the specific assertion that the plaintiff and defendants are never members of the joint family and disputed the claim of the plaintiff and sought for dismissal of the suit. 5. On the basis of the pleadings, the trial Court has framed the following issues:- 6. In support of plaintiff's case, his grand son was examined as PW.1 as his Power of Attorney and he has also got examined as PW.2. The plaintiff has also relied on seven documents marked at Exs.P1 to P7. Defendant No.5 was examined as DW.5 and defendants have produced Ex.D1. 7. After perusing the oral and documentary evidence, the trial Court has answered issue Nos. 1 to 3 in the affirmative and decreed the suit of the plaintiff. Being aggrieved by this judgment of the trial Court, the defendants 1 to 5 have approached the learned Senior Civil Judge, Sagar, in RA No.61/2001. The learned Senior Civil Judge, after re-appreciating the oral and documentary evidence, has allowed the appeal by setting the judgment and decree passed by the trial Court and dismissed the suit of the plaintiff. Being aggrieved by this divergent finding, the plaintiff is before the Court. 8. Heard the arguments advanced by the learned counsel the appellant and the learned counsel for the respondent. Perused the records. 9. Learned counsel for the appellant-Chowdanaika (Respondent No.1(a) in this appeal) would contend that the trial Court has properly appreciated the oral and documentary evidence. But, the First Appellate Court has failed to appreciate the oral and documentary evidence in proper perspective. It is also further contended that the Lower Appellate Court has not considered the Ex.P2 in proper perspective and it is not justified in reversing the findings of the trial Court and hence, it is prayed for allowing the appeal by setting aside the judgment of the First Appellate Court. 10. Per contra, the learned counsel for the respondent would contend that the plaintiff is in no way concerned to the family of the defendants-1 to 5 and the plaint itself disclose that he has not disclosed the genealogy. It is further asserted that the Ex.P2 relied on is the exchange deed and since they are not related, exchange can be made only by way of Registered deed and hence, the suit itself is not maintainable. It is further asserted that the Ex.P2 relied on is the exchange deed and since they are not related, exchange can be made only by way of Registered deed and hence, the suit itself is not maintainable. He would contend that the trial Court has failed to appreciate this aspect, but the First Appellate Court has properly appreciated the oral and documentary evidence and has rightly allowed the appeal, by setting the judgment and decree of the trial Court by dismissing the suit. Hence, sought for dismissal of appeal. 11. This Court by order dtd. 18/12/2009 while admitting the appeal, framed the following substantial question of law:- "Whether in the facts and circumstances of the case, the Lower Appellate Court was justified in not relying upon Exs.P2 and P3 to P7 to reverse the findings and conclusion of the trial Court? 12. It is the contention of the plaintiff that the suit schedule properties are the joint family properties of plaintiff and defendants. It is further asserted that under oral partition, the suit schedule properties were allotted to the share of the plaintiff and he placed reliance on Ex.P2. At the out-set, the plaintiff in his plaint has nowhere pleaded genealogy as to in what way he is connected with the family of the defendants. However, in the evidence he has taken inconsistent and contrary stands. The entire case of the plaintiff is based on Ex.P2 and unless the plaintiff establishes that he is the Member of the joint family, question of he succeeding in the suit does not arise at all. 13. The plaintiff consistently relies on Ex.P2. But, on perusal of Ex.P2, it is evident that it is not the partition deed recording the earlier partition. But, in fact it is an exchange deed asserting that the occupancy rights are granted in favour of the defendants pertaining to the land which was cultivated by the plaintiff and the occupancy rights granted in respect of the land cultivated by the defendants, in favour of plaintiff. Virtually it is an exchange deed. When the plaintiff has failed to prove the partition as asserted, question of considering exchange deed does not arise at all. Apart from that, the exchange deed is a compulsorily registerable document and admittedly Ex.P2 is not registered and hence, it is hit by Ss. -17 & 49 of the Registration Act. 14. Virtually it is an exchange deed. When the plaintiff has failed to prove the partition as asserted, question of considering exchange deed does not arise at all. Apart from that, the exchange deed is a compulsorily registerable document and admittedly Ex.P2 is not registered and hence, it is hit by Ss. -17 & 49 of the Registration Act. 14. Though it is asserted by the learned counsel for the appellant/plaintiff that Ex.P2 itself is the Memorandum of Partition. The said argument holds no water in view of appreciation of Ex.P2. Ex.P2 no doubt refers to the earlier partition, but the contents are not of earlier partition, but regarding tenancy rights granted and exchanged. When wardi was given and when the mutation entries are effected or certified, are not at all pleaded. Even the plaintiff has not at all pleaded as to how he is related to the defendants. 15. Plaintiff has not examined himself and power of attorney holder, who is grand son is examined, who has no better knowledge. Though his sons are alive, they are not examined and PW.1 does not have any knowledge of joint family. 16. The above facts and circumstances would establish that the plaintiff has not approached the Court with clean hands. Apart from that, when the plaintiff has failed to establish his status as one of the member of the joint family, question of he claiming any interest over the suit schedule properties does not arise at all, that too by way of exchange deed. If there is any divergent view taken by the land Tribunal, that could have been rectified by the land Tribunal itself. Apart from that, the defendants have nowhere admitted Ex.P2 and the plaintiff is required to examine the material witnesses in the form of attesting witnesses to Ex.P2. But, that exercise was also not made. The entire case of the plaintiff is based on Ex.P2 and if the partition is not proved, then as per the own case of the plaintiff that the properties are the joint family properties and in such circumstances, question of plaintiff claiming injunction against the co-owner does not arise at all. But, that exercise was also not made. The entire case of the plaintiff is based on Ex.P2 and if the partition is not proved, then as per the own case of the plaintiff that the properties are the joint family properties and in such circumstances, question of plaintiff claiming injunction against the co-owner does not arise at all. All these facts and circumstances clearly establish that the First Appellate Court has appreciated the oral and documentary evidence in detail and has rightly set aside the judgment and decree of the trial Court, which is not based on material evidence on record. The wrong committed by the trial Court was set right by the First Appellate Court and the judgment and decree passed by the First Appellate Court cannot be said to be erroneous or arbitrary, so as to call for any interference by this Court. 17. In the above facts and circumstances, the substantial question of law is answered in the negative and hence, the appeal fails and accordingly I proceed to pass the following:- ORDER This Regular Second Appeal is dismissed. Office is directed to send back the original records to the concerned Trial Court and First Appellate Court with a copy of this judgment.