Karnataka High Court
Sri.Hanamantagouda Shivanagouda ... vs Sri.Mallanagouda Shivanagouda Patil on 6 January, 2020
IN THE HIGH COURT OF KARNATAKA
DHARWAD BEN CH
DATED THIS THE 6 T H DAY OF JAN UARY, 2020
BEFORE
THE HON'BLE MR.J USTICE AS HOK S. KINAGI
R.S.A .No .100897/ 2015 (Decln. & Po ssn.)
BETWEEN
SRI.HANAMANTAGOUDA SHIVANAGOUDA PATIL @
KALASANNAVAR
AGE:55 YEARS
OCC:GOVT. HIGH SCHOOL TEACHER,
R/O:MANIHAL, NOW AT SUREBAN,
TQ:RAMDURG.
..... APPELLANT
(BY SRI B V SOMAPUR, ADV.)
AND
1. SRI.MALLANAGOUDA SHIVANAGOUDA PATIL
@ KALASANNAVAR,
AGE:64 YEARS, OCC:AGRICULTURE,
R/O:MANIHAL, TQ:RAMDURG.
2. SRI.BASANAGOUDA MALLANAGOUDA PATIL
@ KALASANNAVAR,
AGE:32 YEARS, OCC: AGRICULTURE,
R/O:MANIHAL, TQ:RAMDURG.
3. SRI.MAHESHGOUDA MALLANAGOUDA PATIL
@ KALASANNAVAR,
AGE:32 YEARS, OCC: AGRICULTURE,
R/O:MANIHAL, TQ:RAMDURG.
4. SRI.PRAKASHGOUDA MALLANAGOUDA PATIL
@ KALASANNAVAR,
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AGE:26 YEARS, OCC: AGRICULTURE,
R/O:MANIHAL, TQ:RAMDURG.
5. SRI.NINGANAGOUDA SHIVANAGOUDA PATIL
@ KALASANNAVAR,
AGE:56 YEARS, OCC: AGRICULTURE,
R/O:MANIHAL, TQ:RAMDURG.
6. SRI.SHRIKANTGOUDA NINGANAGOUDA PATIL
@ KALASANNAVAR,
AGE:30 YEARS, OCC: AGRICULTURE,
R/O:MANIHAL, TQ:RAMDURG.
7. SRI SHASHIKANTGOUDA NINGANAGOUDA PATIL
@ KALASANNAVAR,
AGE:28 YEARS, OCC: AGRICULTURE,
R/O:MANIHAL, TQ:RAMDURG.
8. SRI SHEKHARAGOUDA SHIVANAGOUDA PATIL
@ KALASANNAVAR,
AGE:54 YEARS, OCC: AGRICULTURE,
R/O:MANIHAL, TQ:RAMDURG.
..... RESPONDENTS
(RESPONDENTS ARE SERVED BUT UNREPRESENTED)
THIS APPEAL IS F ILED UND ER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 23.06.2015
PASSED IN R.A.N O.39/ 2014 ON THE FILE OF THE SENIOR
CIVIL JUD GE, RA MDURG, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED
30.04.2014 AND T HE DECREE PASSED IN O.S .NO.194/ 2011
ON THE FILE OF THE CIVI L JUDGE AND J UDICIAL
MAGISTRATE FIRST CLASS, RAMDURG, DISMISSING THE
SUIT FILED FOR D ECLARATION AND POSSESSI ON.
THIS APPEAL COMING ON F OR ADMI SSION, THIS DAY,
THE COURT DELIV ERED THE F OLLOW ING:
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JUDGMENT
This appeal is arising out of judgment and decree dated 30.04.2014 passed in O.S.No.194/2011 by the Civil Judge and J.M.F.C., Ramdurg and confirmed in R.A.No.39/2014 by the Senior Civil Judge, Ramadurg vide judgment and decree dated 23.06.2015.
2. Brief facts of the case that the plaintiff claims that he is the owner of property bearing R.S.No.59/3 measuring 2 acres 30 guntas situated at Manihal village and another property bearing R.S.No.843 now at present No.210 towards western side the house is situated which mueasures East-West 12' North-South 24' and said house is an old house. The plaintiff further contended that the suit schedule properties were the joint family properties of the plaintiff and the defendants No.1 to 5 and 8 and due to the difference of opinion between the plaintiff and defendants No.1 to 5 and 8, a partition was effected in between them and the said partition was registered on -4- 27.12.1984. The plaintiff based on the registered partition deed claims that he is absolute owner and enjoying the suit schedule properties. He further submits that in the year 1986, he was appointed as a High School Teacher and he was serving in different parts and he requested the defendants No.1, 5 and 8 to cultivate the suit properties which are fallen to his share and the defendants No.1 used to give half of the income derived from the suit schedule properties. That in the year 2001, there was a difference of opinion between the plaintiff and defendants, plaintiff filed an application before the revenue authorities to effect a mutation based on the registered deed. The defendant No.1 and his father filed objection to the said application. The revenue authorities after due enquiry passed an order for effecting the mutation in the name of plaintiff. Since from 2002 till 2006, defendant No.1 is taking care of the suit schedule landed properties of plaintiff and defendant No.1 has not given crops grown in suit schedule properties to the plaintiff. Thereafter -5- the plaintiff has given suit schedule landed properties to cultivate the same in favour of Parameshwarappa Madar. At that time, defendants threatened the said Parameshwarappa for cultivating the suit schedule properties. Parameshwarappa filed suit in O.S.No.145/2007 for perpetual injunction against the defendants and said suit was compromised in the presence of elders in between the plaintiff and defendants. As per the terms of compromise, the plaintiff handed over the suit schedule properties to the defendant No.1 for cultivating the suit schedule properties on behalf of the plaintiff. That defendant did not give any proper income from the suit schedule properties and the defendants have threatened the plaintiff not to enter the suit schedule properties and dispossessed him from the suit properties. Hence, the plaintiff was constrained to file the suit for declaration that he is the owner of the suit schedule properties based on the registered deed dated 27.12.1984. -6-
3. The defendant No.1 filed written statement. Defendant No.5 also filed separate written statement. Defendants No.6 and 7 adopted the written statement filed by the defendant No.5 and defendants No.2 to 4 adopted the written statement filed by the defendant No.1. Defendant No.8 though appeared though his counsel did not file written statement.
4. The defendant No.1 to 7 contend that suit is not maintainable and admitted that the suit schedule properties are the joint family properties and denied the partition dated 27.12.1984. He further stated that till the suit schedule properties are under the joint possession and enjoyment of the plaintiff and defendants. It is further contended that the plaintiff, behind the back of the defendants, got mutated his name in the suit schedule properties. Hence, on these grounds, the defendants sought for dismissal of the suit.
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5. The trial Court on the basis of the pleadings, framed the following issues and additional issues:
1) Whether plaintiff proves that he is the owner of suit properties by virtue of registered partition deed?
2) Whether plaintiff proves that he is entitled for possession of suit properties?
3) What relief plaintiff is entitled for?
4) What decree or order?
ADDITIONAL ISSUE "Whether suit is properly valued and court fee paid is sufficient?"
6. The plaintiff examined himself as PW-1 and got marked documents at Exs.P-1 to P-5. The defendant No.1 examined himself as DW-1 and defendant No.5 examined as DW-2 and confronted one document to PW-1 at the time of cross-examination. The trial Court after considering the material on record held that plaintiff is not the owner of the suit schedule properties -8- by registered partition deed and further held that the plaintiff is not entitled for possession of suit schedule properties and further held that the plaintiff has correctly valued the suit properties and Court fee paid is sufficient. Consequently dismissed the suit of the plaintiff. The plaintiff aggrieved by the same, preferred an appeal in R.A.No.39/2014 before the Senior Civil Judge, Ramadurg. The appellate Court has framed the following points for consideration:
1) Whether plaintiff proves that he is the owner of the suit properties by virtue of registered partition deed?
2) Whether plaintiff proves that he is entitled for possession of suit properties?
3) What relief plaintiff is entitled for?
4) What decree or order?
7. The appellate Court after re-appreciating the material on record held that the plaintiff failed to prove that the judgment and decree passed by the trial Court -9- is arbitrary, capricious and perverse and it does not call for any interference and dismissed the appeal. The plaintiff aggrieved by the judgment and decree passed by the Courts below, filed this appeal.
8. Heard learned counsel for the appellant.
9. Learned counsel for the appellant submits that the plaintiff is the absolute owner of the suit schedule properties by virtue of registered partition deed dated 27.12.1984 and the suit schedule properties mutated in the name of plaintiff and the plaintiff put the defendant No.1 in possession in the suit schedule properties on half share crop basis. The trial Court has committed an error in dismissing the suit and the lower appellate Court has also committed an error in confirming the judgment and decree passed by the trial Court.
10. The material on record discloses that suit schedule properties were fallen to the share of plaintiff under registered partition deed dated 27.12.1984 and
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the name of the plaintiff was mutated by virtue of the said registered partition deed. On perusal of the cross- examination of PW-1, it clearly goes to show that the partition took place in the year 1984 but the name of plaintiff was not entered in the revenue records till 2001. The plaintiff has not explained the reasons for not filing an application before the revenue authorities for mutation based on the registered partition deed. Further Pw-1 admits that they are enjoying the suit schedule properties jointly. Therefore, it clearly reveals that the suit schedule properties are not properly demarcated by metes and bound. PW-1 has clearly admitted that Ex.P-1 bear his signature which was marked as Ex.D-1(a). He further admits that Ex.D- 1(b) bear the signature of his wife wherein in Ex.D-1, it has been stated that even though there was a partition which took place in the year 1984, properties were continued as a joint possession of plaintiff and defendants till 2001. The plaintiff has not produced any records to show that in the year 2002, plaintiff has
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taken possession of suit schedule properties by virtue of partition deed. The plaintiff has not acquired any right by virtue of a partition deed.
11. The word "Vibhaga" in Sanskrit "Bhaga" in Kannada is usually rendered into English by the word "Partition". It denotes adjustment of diverse rights regarding the whole by distributing them in a particular portions of the aggregate. It is a process by which joint enjoyment of a property is transformed into an enjoyment in severalty. It may be by agreement between the parties or by a decree of the Court. However, in either of the cases, the parties to the partition possess an antecedent title in the property and through process of partition, the antecedent title is specifically defined. Before the partition, the property was enjoyed jointly and after partition, they would enjoy the property in severalty. Therefore, in the partition, no party gets the title for the first time. In the other words, partition does not give a title or
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creative title. If the party to the partition has an antecedent title to the property, it only enables him to obtain what is his own in a definite and specific firm. Section 5 of the Transfer of Property Act contemplates transfer of property by a person whose title in the said property, to another person who has not title. In a partition, no one transfers the title which he possesses in favour of a person who does not possess a title. Every one has an antecedent title. Therefore, no conveyance is involved, in the process as conferment of a new title is not necessary. It does not amount to a transfer. Therefore, partition is not a transfer and by partition nobody acquires title to any property for the first time. Consequently the partition deed only recognizes an existing right which each party to the deed has in the joint property and no right spring from the deed of partition. In the light of the admitted facts of the case, plaintiff has no existing right in the suit property and he did not acquire any title in the partition deed for the first time. His suit is based on
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the partition deed. He is seeking declaration that he has become the owner of the suit properties by virtue of partition deed. A partition is not a transfer of property. Plaintiff gets nothing for the first time under the deed of partition. Therefore, the trial Court as well as lower appellate Court after considering the material on record has rightly held that the plaintiff is not entitled for the relief of declaration based on the deed of partition. I do not find any substantial question of law involved in this appeal. Hence, the appeal is dismissed.
Sd/-
JUDGE Naa