Karnataka High Court
Puradayya vs Smt Sulochana on 5 December, 2012
Author: K. Sreedhar Rao
Bench: K. Sreedhar Rao
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 5 T H DAY OF DECEMBER, 2012
BEFORE
THE HON'BLE MR. JUSTICE K. SREEDHAR RAO
AND
THE HON'BLE MR. JUSTICE V. SURI APPA RAO
R.F.A. NO.3019/2010 (Par.& Pos.)
BETWEEN:
Puradayya
S/o.Rachayya Karaveermath
Age: 84 years, Occ: Retired,
R/o. Shiraguppi, Tq: Hubli-583128.
... Appellant
(By Sri J.S.Shetty, Advocate.)
AND:
1. Smt.Sulochana
W/o.Sangayya Vastrad
Age: 58 years, Occ: House work,
R/o.Shirol, Tq: Navalgund,
Dist: Dharwad-582208.
2. Smt.Saroja
W/o.Gurumallayya Puranmath
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Age: 52 years, Occ: House work,
R/o.Mallapur, Tq: Dist: Gadag-582114.
3. Smt.Sharada
W/o.Ishwarayya Betagerimath
Age: 50 years, Occ: House work,
R/o. HUDCO Colony, Mulgund,
Tq: Dist: Gadag-582114.
4. Smt.Savakka
W/o.Shekharayya Karaveermath
Age: 67 years, Occ: House work,
R/o.Dyvanoor, Tq: Kundgol,
Dist: Dharwad-581113.
5. Chennayya
S/o.Rachayya Karaveermath
Age: 70 years, Occ: Agriculture,
R/o.Shiraguppi, Tq: Hubli,
Dist: Dharwad-583128.
6. Rachayya
S/o.Chennayya Karaveermath
Age: 48 years, Occ: Lecturer,
R/o.Shiraguppi village, Tq: Hubli,
Dist: Dharwad-583128.
7. Smt.Rachavva
W/o.Irayya Gadigyappanavar
Age: 70 years, Occ: House work,
R/o.Shiraguppi village, Tq: Hubli,
Dist: Dharwad-583128.
... Respondents
(By Sri S.V.Pralayakalmath, Advocate, for R.2, R.5 to
R.7,
R.1, R.3 and R.4 - are Served.)
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This Regular First Appeal is filed under Section 96
read with Order XLI Rule 1 of CPC, against the
judgment and decree dated 22.12.2009, passed in
O.S.No.317/2006, on the file of the I-Addl. Civil Judge
(Sr.Dn.), & CJM, Dharwad, dismissing the suit filed for
partition and separate possession and for declaration.
This appeal coming up for final hearing this day,
K.Sreedhar Rao, J., delivered the following judgment.
JUDGMENT
The appellant/plaintiff filed a suit for partition and possession of 6/25 t h share in the suit properties and also for grant of relief of mesne profits with costs.
2. The plaintiff later on amended the plaint to include the relief of declaration that the document dated 18.4.1986 is a concocted document and that the mutation entries effected on the basis of the said document is void.
3. The defendants filed objection stating that the suit for partition is not maintainable, as there was earlier registered partition in the year 1973. Accordingly the properties amongst the plaintiff and -4- defendants have been divided and separate possession is allotted. The mutation entries have also been effected by virtue of such partition. It is further stated that in the year 1986 the plaintiff executed a document wherein he relinquished his share allotted to him in the partition in favour of his brothers. Accordingly mutation entries are also effected. It is stated that the plaintiff is not in physical possession w.e.f. 18.4.1986 i.e., the date of relinquishment deed. It is stated that the plaintiff is not entitle to seek for partition and also not entitle to the relief of declaration that relinquishment deed dated 18.4.1986 is void.
4. The trial Court framed the following issues for consideration.
ISSUES
(i) Whether the plaintiff proves that suit A and B schedule properties are joint family property i.e., ancestral property as contended?
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(ii) Whether the defendants prove that defendant No.4 are 7 are not necessary parties?
(iii) Whether the defendants prove that there is no existence of joint family and there was partition effected on 17.5.1973 as contended in WS?
(iv) Whether the defendant proves that there was a rearrangement deed on 18.4.1986 as contended in para 4 and 5 of WS?
(v) Whether the plaintiff is entitled for 6/25 t h share in the suit property?
(vi) What decree or order?
Additional Issue:
(i) Whether the plaintiff proves that the
rearrangement deed dated 18.4.1986 to be false and bogus?
5. The issue No.2, 3 and 4 are held in affirmative. Issue No.1, 5 and additional issue No.1 are held in negative and accordingly the suit came to be -6- dismissed. The plaintiff aggrieved by the said dismissal has filed this appeal.
6. Upon consideration of the facts and submissions made at the Bar, the following points would arise for consideration in this appeal.
(i) Whether the appellant is entitle to seek partition of the suit properties despite the fact that there was already a partition effected on 17.5.1973?
(ii) Whether the appellant proves that the relinquishment deed dated 18.4.1986 is void and has no effect in law?
7. The trial Court has rightly observed from the oral and documentary evidence that the plaintiff has admitted the fact that there was a registered partition on 17.5.1973, only one landed property was a tenanted land and not the subject matter of the partition. However the plaintiff and his brothers submitted -7- separate applications in the form No.7 to the Land Tribunal for grant of occupancy rights and accordingly the Land Tribunal granted occupancy rights. Therefore in the face of such material it cannot be contended that there was no partition in the family on 17.5.1973. In this regard the finding of the trial Court is sound and proper.
8. With regard to the relinquishment deed dated 18.4.1986, the same is marked as Ex.D.1. The trial Court upon the pleadings and oral evidence of the plaintiff has found that the signature on Ex.D.1 is admitted. It is the contention of the plaintiff that his signature is taken on a blank paper and the contents are manipulated. The contention is farfetched. The Ex.D.1 is dated 18.4.1986. When the plaintiff contends that by voidable circumstances his signature is taken in the document, the burden is upon the plaintiff to prove the voidable circumstances. In this case the -8- plaintiff apart from examining himself he has not examined any witness to substantiate his contention.
9. That apart, as per Ex.D.1, mutation entries have been effected. It is almost 20 years after execution of Ex.D.1, the plaintiff has filed a suit for partition. The said suit would be wholly untenable, because there was already a partition. The relinquishment deed at Ex.D.1 may be an unregistered document, but none the less the parties have acted upon and mutation entries have been effected. The plaintiff had abandoned his right over the properties covered under Ex.D.1 and after 20 yeas he files a suit. The conduct of the plaintiff disentitles to challenge Ex.D.1, since the suit would be hopelessly barred by limitation since there is voluntary abandonment of his right over the property. The plaintiff ought to have filed a suit for declaration that there is no legal relinquishment and that he should have sought for possession. Instead the plaintiff -9- has filed a suit for partition which is wholly untenable. In that view of the matter, the appeal is dismissed.
SD/-
JUDGE SD/-
JUDGE Mrk/-