Karnataka High Court
Sri Shivaprasad vs Sri T Ramkrishna on 12 March, 2024
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NC: 2024:KHC:10096
RSA No. 395 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 395 OF 2013
(DEC/INJ)
BETWEEN:
SRI SHIVAPRASAD
AGED ABOUT 59 YEARS
S/O TULASIRAM
C/O RANGANATHA HI-TECH
PHOTO STUDIO, T S T COMPLEX
GANDHI CIRCLE, MAIN ROAD
HIRIYUR TOWN, CHITRADURGA - 577 598
...APPELLANT
(BY SRI. RAVISHANKAR S & K MURTHY, ADVOCATES)
AND:
Digitally
signed by R 1. SRI T RAMKRISHNA
DEEPA AGED ABOUT 65 YEARS
Location: S/O M TULASIRAM
HIGH COURT RETIRED RAILWAY POINTS MAN
OF SHREE NIVASAM, ANETHOTAM
KARNATAKA HANUMANTHAPURA, TUMKUR 572101
2. SMT B SUNDRARAMMA
SINCE DEAD BY HIS LR'S
2(A) T. THIMMAIAH
AGED ABOUT 93 YEARS
2(B) T. LAKSHMIKANTHA
AGED ABOUT 55 YEARS
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NC: 2024:KHC:10096
RSA No. 395 of 2013
2(C) T. SAROJA
AGEDE ABOUT 53 YEARS
RESPONDENT No.2(A) IS HUSBAND
RESPONDENT No.2(B) AND 2(C) ARE SON AND
DAUGHTER OF DECEASED RESPONDENT No.2
R/AT No.365/3
VENKATARAMANASWAMY
TEMPLE STREET, K.R. MOHALLA
MYSURU.
...RESPONDENTS
[BY SRI. T NATARAJ, ADVOCATE FOR R1 & R2(B)
R2(A) AND R2(C) ARE SERVED
V/O DATED 19.02.2019, R2(B) AND (C) LR'S OF DECEASED
R2(A)]
THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE
JUDGEMENT & DECREE DTD 31.8.2012 PASSED IN
R.A.NO.15/2011 ON THE FILE OF THE ADDL. DISTRICT JUDGE,
FAST TRACK COURT, CHITRADURGA, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGEMENT AND DECREE DTD
16.12.2010 PASSED IN OS.NO.45/2006 ON THE FILE OF THE
SENIOR CIVIL JUDGE, HIRIYUR.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This second appeal is filed by the appellant challenging the judgment and decree dated 31.08.2012, passed in R.A.No.15/2011 by the Addl. District Judge (Fast Track Court), Chitradurga, confirming the judgment and -3- NC: 2024:KHC:10096 RSA No. 395 of 2013 decree dated 16.12.2010, passed in O.S.No.45/2006 by the Senior Civil Judge at Hiriyur.
2. For the sake of convenience, parties are referred to as per their ranking before the trial Court. The appellant is the plaintiff and respondents are the defendants.
3. The brief facts leading rise to filing of this appeal are as under:
Plaintiff filed a suit for declaration that, the plaintiff is the absolute owner of the suit schedule properties on the ground that in the year 1989 there was a oral partition and a memorandum of partition deed was executed on 24.08.1989, between himself and his brother T.Suresh and at that time the defendants T.Ramakrishna and Sundaramma received Rs.12,000/- each from the plaintiff and gave up their share in favour of the plaintiff, in the suit schedule properties and the plaintiff has succeeded to -4- NC: 2024:KHC:10096 RSA No. 395 of 2013 the suit properties. It is also contended that the defendants gave a statement before the revenue authorities and khatha was effected in his name. It is contended that the defendants have no right, title or interest over the suit schedule properties. The defendants tried to interfere into the peaceful possession and enjoyment of the plaintiff over the suit schedule properties. Plaintiff requested the defendants not to interfere into the peaceful possession and enjoyment over the suit schedule properties, but the defendants did not give any heed to his request. Hence cause of action arose for the plaintiff to file the suit for declaration and perpetual injunction.
4. Defendants filed written statement denying the averments made in the plaint and admitted that item No.1 belongs to one Bheemappa and subsequent to his death, his wife Kamakka succeeded to the said land. It is contended that Kamakka had purchased item No.2 of the suit properties and she had 3 daughters, Puttamma, -5- NC: 2024:KHC:10096 RSA No. 395 of 2013 Gowramma and Sundaramma. It is denied that there was an oral partition effected between the plaintiff and defendants and palupatti was registered. It is contended that the suit schedule properties are the joint family properties of the plaintiff and defendants. It is contended that the plaintiff and defendants are in joint possession and enjoyment of the suit schedule properties. It is contended that the plaintiff has got created the affidavits by forging their signatures. It is further contended that the Assistant Commissioner by virtue of order dated 19.12.1997, restored the khata in the joint name of daughters of Kamakka. On these grounds sought for dismissal of the suit.
5. The Trial Court, on the basis of the above said pleadings, framed the following issues:
(1) Whether plaintiff proves that he is owner in lawful possession and enjoyment of the suit schedule properties as on the date of filing of suit?-6-
NC: 2024:KHC:10096 RSA No. 395 of 2013 (2) Whether plaintiff proves the alleged obstruction and interference over the suit schedule properties?
(3) Whether plaintiff is entitled for declaration and injunction as sought for?
(4) What order or decree?
6. In order to prove the case of the plaintiff, the plaintiff examined himself as PW-1 and got marked 45 documents as Exs.P1 to P45. In rebuttal, defendant No.2 examined herself as DW-1 and got marked 2 documents as Exs.D1 and D2. The trial Court after assessing the oral and documentary evidence of the parties, answered issue Nos.1 to 3 in negative; and issue No.4 as per final order. The suit of the plaintiff was dismissed with cost.
7. The plaintiff aggrieved by the judgment and decree passed in the above said suit, filed an appeal in R.A.No.15/2011. The First Appellate Court, after hearing the parties, has framed the following points for consideration:
(1) Whether the plaintiff proves that he is the owner and in lawful possession and -7- NC: 2024:KHC:10096 RSA No. 395 of 2013 enjoyment of the suit schedule properties as on the date of filing the suit?
(2) Does plaintiff proves that there was an obstruction made by defendants for his peaceful possession and enjoyment of the suit schedule properties?
(3) Whether the impugned judgment and decree passed by the learned trial Court is arbitrary, perverse and opposed to law? (4) Is there any sufficient reason to interfere in the order of leaned trial Court?
(5) Whether plaintiff is entitled for suit relief? (6) What decree or order?
8. The First Appellate Court, on re-assessing the oral and documentary evidence, answered point Nos.1 to 5 in negative; and point No.6 as per the final order and dismissed the appeal filed by the plaintiff, confirming the judgment and decree passed by the trial Court. The plaintiff, aggrieved by the judgments and decrees passed by the courts below, has filed this second appeal.
9. Heard learned counsel for the plaintiff.
10. Learned counsel for the plaintiff submits that both the courts below have committed an error in passing -8- NC: 2024:KHC:10096 RSA No. 395 of 2013 the impugned judgments on the ground that the plaintiff has failed to prove the oral partition and further failed to consider the palupatti executed by the defendants and also submits that the defendants have admitted the factum of partition in the written statement filed in O.S.No.27/1997. Hence, he submits that the courts below have not properly considered the material available on record and came to a wrong conclusion. The impugned judgments are arbitrary and capricious. On these grounds prays to allow the appeal.
11. Perused the records and considered the submissions of learned counsel for the plaintiff.
12. It is the case of the plaintiff that, the plaintiff is the owner of the suit schedule properties and that there was oral partition effected between the plaintiff and defendants. In the said oral partition, the suit schedule properties were fallen to the share of plaintiff and the name of the plaintiff was entered in the revenue records. The plaintiff claims as the absolute owner of the suit -9- NC: 2024:KHC:10096 RSA No. 395 of 2013 schedule properties. The defendants filed written statement and denied that there was an oral partition between the plaintiff and defendants and also denied the execution of alleged palupatti.
13. In order to prove that there was a prior partition between the plaintiff and defendants, the plaintiff has not examined any witness. Further, the plaintiff has also not produced the palupatti alleged to have been executed between the plaintiff and defendants, but has merely placed reliance on the written statement filed in O.S.No.27/1997 contending that there was a prior partition. PW-1 in the course of cross-examination has clearly admitted that talks of oral partition took place in his house and no writing was made at the time of said talks. He further deposed that he does not know who were present at the time of said talks. Further he also admitted that an amount of Rs.12,000/- was not paid to the defendants on that day and he has deposed that he himself has written palupatti on 24.08.1989, in his own
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NC: 2024:KHC:10096 RSA No. 395 of 2013 handwriting and he has got it typed on the stamp paper. He admits that he does not possess the original palupatti and he also admits that after writing the palupatti, the parties have not given varadi to revenue authorities for changing the khatha in his name.
14. From the admission of PW-1 itself, it is clear that the parties have not acted upon the oral partition alleged to have been taken place between the plaintiff and defendants and also the palupatti. The trial Court has declined to grant the relief of declaration on the ground that partition is not proved. This Court in the case of SRI. ARALAPPA VS. SRI. JAGANNATH & ORS. REPORTED IN ILR 2007 KAR 339, has held as under:
"21. The word "Vibhaga" in Sanskrit, "Bhaga" in Kannada is usually rendered into English by the words "Partition". It denotes adjustment of diverse rights regarding the whole by distributing them in particular portions of the aggregate. It is a process by which the joint enjoyment of a property is transformed into an enjoyment in severalty. It may be by the agreement between the parties or by a decree of the court.
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NC: 2024:KHC:10096 RSA No. 395 of 2013 However, in either of the cases, the parties to the partition possess an antecedent title in the property and through the process of partition, the antecedent title is specifically defined. Before 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 other words, partition does not give title or create 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 form, 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 no title. In a partition, no one transfers 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 transfer. Therefore, partition is not a transfer and by partition no body acquires title to any property for the first time. Consequently the partition deed only recognises an existing right, which each party to the deed has in the joint property and no right spring from the deed of partition.
22. In the light of the admitted facts in this case that the plaintiffs did not have any antecedent title in
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NC: 2024:KHC:10096 RSA No. 395 of 2013 the suit schedule property, they did not acquire any title under the partition deed for the first time. Their suit, is based on the partition deed. They are seeking declaration that they have become owners of the suit schedule property by virtue of this partition deed. If partition is not a transfer, if partition conveys nothing, the plaintiffs get nothing for the first time under this deed of partition. Therefore, they are not entitled to the relief of declaration sought for."
15. The trial Court was justified in dismissing the suit of the plaintiff holding that the plaintiff has failed to prove that the plaintiff is in exclusive possession of the suit schedule properties. The First Appellate Court, on re- appreciation of the material evidence available on record, has rightly confirmed the judgment and preliminary decree passed by the trial Court. Hence, I do not find any substantial question of law that arise for consideration in this appeal and I do not find any error in the impugned judgments and decrees.
16. In view of the above discussion, I proceed to pass the following:
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NC: 2024:KHC:10096 RSA No. 395 of 2013 ORDER The appeal is dismissed.
Consequently, the judgments and decrees passed by the courts below are hereby confirmed.
No order as to the costs.
SD/-
JUDGE RD