Karnataka High Court
Venkataramana Alias Venkappa Annayya ... vs Ganpathi And Ors. on 23 September, 2003
Equivalent citations: AIR2004KANT433, AIR 2004 KARNATAKA 433, 2004 AIR - KANT. H. C. R. 2414, (2005) 1 HINDULR 465, (2005) 1 RECCIVR 835, (2004) 3 KCCR 2034
Author: K. Sreedhar Rao
Bench: K. Sreedhar Rao
JUDGMENT K. Sreedhar Rao, J.
1. The present case stares as glaring example of the laws delay denting the image of the system. The litigating parties almost have completed the substantial life span and the litigation is almost at the verge of celebrating .golden jubilee.
2. The names of the ancestors are bit confusing because several persons bear similar names. One Venkappa is the propositus dies leaving behind two sons by name Venkappa and Ganpaiah @ Sannappa. The first son Venkappa has two sons by name Dodda Venkappa and Naranappa. The progeny of the latter becomes extinct. Dodda Venkappa adopts the plaintiffs father who is none other than the natural brother of the first defendant. In the branch of Ganapaiah @ Sannappa there are three sons namely (1) Devappa (2) Sanna Venkappa, (3) Thimmaraya who died issueless. The children of Devappa branch remained separate. The first partition in the family takes place in the year 1885 granting shares to Dodda Venkappa, Devappa and Sanna Venkappa. The plaintiffs father was taken in adoption by Dodda Venkappa. During minority of plaintiffs father Annalah, Dodda Venkappa died. The natural mother of Annalah predeceased her husband thereby his natural father becomes disinterested in worldly activities. Uncle Devappa takes over the management of properties of Sannappa and Dodda Venkappa and so also takes care of minor Annaiah father of the plaintiff) and minor children of Dodda Venkappa.
3. The division of properties made in the registered deed of 1885 is kept intact during the management of Devappa. After Annalah attaining majority in the year 1905 Devappa redelivered the possession of the properties to Annaiah under registered document Ex. 45. without mix-up or amalgamation of the divided property between Dodda Venkappa and Sanna Venkappa- As per the recitals in Ex. 45 Devappa constructed 24 Ankanas house. 12 Ankanas was delivered to Annaiah. The said house is shown to be constructed in the area of Sy. No. 109 that had fallen to the share of Dodda Venkappa. The rest of the 12 ankanas of the house is taken by Devappa. In the year 1925 Annaiah dies. The plaintiff was still a minor. The first defendant who is the natural brother of Annaiah takes over the management of the estate and takes care of the plaintiff who was a minor. The facts till this stage are not in controversy.
4. It is the contention of the plaintiff that during the life time of his father during 1923-24, the first defendant who had become marjor by then starts residing separately by constructing a house in survey No. 109/1. In the year 1925, the father of the plaintiff dies. The first defendant comes back with his family, lives with the plaintiff in the suit house manages the property of the plaintiff and they continued to live together till 1940s. According to plaintiff since the differences arose, the first defendant resided separately in his house in survey No. 109/1. Somewhere around the year 1945-46, it is said that the house of first defendant in survey No. 109 collapsed. Therefore for a temporary accommodation, the first defendant and his family was permitted to stay in the portion of the suit house which measures around 6 Ankanas until the first defendant reconstructs his house. The first defendant does not take up construction forthwith despite repeated requests. Ultimately in the year 1949, it is said that first defendant refused to vacate. Therefore the suit came to be filed for possession of the suit house.
5. The defendants 2 to 5 are the wife and children of the first defendant. In their written statement, contend that in the year 1940, the partition take place between himself and the plaintiff and there was division and allotment of properties between them and a report to the revenue authority is also submitted to that effect. The theory of permissible possession is denied. The contention that the defendant had constructed house in survey No. 109/1 and lived there for some time and after it fell down he was permitted to live in the portion of the suit house is denied as false. It is contended that a suit O. S. 191/49 was filed by the plaintiff for declaration of title and possession. A compromise is entered into and finally the properties have been divided. Thus deny right of plaintiff to seek possession of the suit house in the occupation of the defendant. Alternatively the defendants plead adverse possession saying that plaintiffs suit for possession on the basis of title is beyond the period of 12 years and cannot be maintained.
6. The earliest judgment rendered by the trial Court in the year 1956 decreed the suit of the plaintiff directing defendant to deliver possession. The first appellate Court in a CA 170/56 before the District Court Karwar allowed the appeal, set aside the judgment and decree of the trial Court and dismissed the suit. This Court in RSA 444/ 63 allowed the appeal and remanded the matter to the trial Court to give opportunity to the parties on the question of limitation. The trial Court for the second time rendered judgment in the year 1972 by dismissing the suit. The first appeal RA 331/77 on the file of Civil Judge, Senior Division, Sirsi filed by the plaintiff is dismissed confirming the judgment and decree of the trial Court. This Court in RSA 456/88 allowed the appeal, framed four specific points for consideration and remanded the matter to first appellate Court to record additional evidence if any and to render its verdict. Consequently the first appellate Court has rendered the impugned judgment and decree challenged in this appeal.
7. The admission Judge has framed the following questions of law:
"1. Whether the findings of the Courts below on the basis of Ex. P. 45 that the plaintiff has no title to the properties supported by other evidence on record is correct?
2. Whether the finding given by the lower appellate Court that the previsions of Article 144 of the old Act and 65 of the present Act are not applicable or attracted is correct?"
8. After hearing the parties, the additional questions of law are framed:
1. Whether the findings of the appellate Court that the plaintiff has failed to prove title and therefore not entitled to relief of possession is perverse and contrary to evidence on record?
2. Whether the finding of the appellate Court that defendant has proved the case of adverse possession is perverse and contrary to law and evidence?
9. The Appellate Court gives a categorical finding that the plaintiff has failed to prove the fact that in the year 1923-24. 1st defendant moved out of the Joint family and started living in his residence situated in Sy. No. 109/1. Further holds that the plaintiff has failed to prove that after 1940 partition at Ex. 41, the defendant moved out of the suit house, lived in the premises situated in Sy. No. 109/1 until it collapsed somewhere in the year 1945, and was permitted to live for some time in a portion of the suit house to enable him to reconstruct the house. The appellate Court holds that the possession of 1st defendant in the suit house subsequent to 1940 partition is not proved to be a permissive possession; Therefore, holds that 1st defendant has proved the case of adverse possession and thus dismissed the Appeal.
10. The division of the estate amongst Dodda Venkappa and his cousins took place under registered document in 1885. The properties given to the branch of Sanna Venkappa. Doddavenkappa and to other members, the father of 1st defendant have been shown in the deed. The father of the plaintiff and the father of the 1st defendant are full brothers. The plaintiffs father was adopted by Dodda Venkappa, Nonetheless. during minority of plaintiffs father and during minority of 1st defendant, they lived together under the care of Devappa. For some years the plaintiffs father was taking care of 1st defendant. Under 1905 partition-Ex. 45. Devappa returns the properties allotted to the branches of Sanna Venkappa and Dodda Venkappa to the possession and custody of plaintiffs father, who continued to manage till 1925. The plaintiff was minor, Therefore, 1st defendant managed the properties. The partition deed of 1905 disclose that the status-quo of division of estate between Dodda Venkappa and Sanna Venkappa is kept intact. The suit house came to be constructed by Devappa during his management, around 1905. It is a fact that 1st defendant and plaintiff lived together upto 1940.
11. The crux of the dispute between the parties revolves round Ex. 43 of the year 1941. The contents of the document show that it is a memorandum of partition acknowledging the oral partition between the parties in the month of July. 1940. Under the said document, the properties are divided between the first defendant and the plaintiff. The Courts below have failed to appreciate the true legal implication and effect of Ex. 43.
12. Sri Phanindra, learned Counsel for the respondent relied on the ruling of Madras High Court in the case of Paidimarri Mahalaksmamma v. Chaturveduta Suryanarayana (AIR 1928 Mad. 1113), to contend that when the partition takes place. by virtue of registered deed, the evidence with regard to factum of re-union if any also should be by a registered deed and oral evidence otherwise is Inadmissible.
13. Per contra, the learned Counsel for the respondent relied on the ruling of Madras High Court in the case of Biyyala Chinna Narasamma v. Biyyala Venkata Narasi Reddy wherein it is held that when a partition is evidenced by a written document, it is reasonable to expect the intention to reunite similarly to be expressed by a document, otherwise the factum of re-union becomes a very difficult matter to establish. This decision in a way dilutes the ratio laid down in AIR 1928 Madras 1113. The insistence of registered deed of reunion impliedly held not necessary but if the reunion is borne out by a document, it could enhance the probative value of the fact, in view of the later decision of the Madras High Court, I am unable to agree with the arguments of Sri Phanidra that fact of reunion should necessarily be by a registered document.
14. In the re-union, the parties rearrange their legal status by Joint living and such an act is not compulsorily to be recorded by a registered document. The legal consequence of reunion results only in revival of the joint status, the divided estate of the members remains a separate property and does not become a Joint family property ipso facto by the fact of reunion however after such reunion a member can blend their property to make it a joint family property. It is not uncommon to the members of the joint family to own separate and individual properties. The existence of joint status does not give rise to a presumption in law that the properties held by the members or the joint family properties. Therefore the bare fact of re-union does not attract any of the transactions contemplated u/S. 17 of the Registration Act.
15. Ex. 43 indicates the re-union of the families long prior to the document and records the past transaction of oral partition between the parties and the list of properties allotted to the share of concerned parties. The plaintiff is a signatory to Ex. 43. In the year 1949, plaintiff filed a suit 0. S. 191/49 stating that the allotment of D schedule properties to the first defendant under Ex. 43 is by mistake and claims that all the properties belong to him and that they were the one allotted in the earliest partition to the share of Dodda Venkappa. Further contends that without proper verification, he had signed Ex. P, 43 and that the division effected according to Ex. P. 43 is illegal and improper and seek declaration of title to the properties in 'D' schedule, and seek possession. The suit ended in a compromise. The averments in the plaint are only unilateral assertions. There is no denial of fact of reunion and joint family status as recorded in Ex. 43 either in the terms of the compromise petition or in the decree. Under the terms of compromise all the properties allotted to the share of Dodda Venkappa shown in 'D' schedule are not re delivered to plaintiff. Only 4 items are re-delivered. The claim for the rest of the items is given up in favour of the first defendant. In that view, the recitals of Ex. 43 that there was an oral partition and division of properties between the parties would bind I he plaintiff. The earlier partition under document 1885 and 1905 will have no consequence in law and would be relevant only as a history.
16. It is the contention of the plaintiff that first defendant after attaining majority in the year 1925 moved out of the house, comes back and manages the property till 1940. Again he moves out of the suit house and resides in his house situate in survey No. 109/1 until it collapsed. The defendant denied owning of a house or existence of a house in survey No. 109/1 in the year 1925. The survey records are produced by plaintiff to show that there was existence of some structure in the year 1927 in sy. No. 109/1 and it is argued to be a residential house owned and resided by the first defendant separately. This argument appears to be a far-fetched surmise. The plaintiff is a party to Ex. 45. The contents of the document contradict the plaintiffs claim. The theory that the first defendant lived in his house till the year 1945 until it collapsed and was permitted to stay in the suit house appears Lo be an artificial version. There is no independent witness examined to corroborate this fact. There are number of close relatives of the plaintiff who could have been examined to testify to the fact but none of them are cited and examined.
17. According to plaint averments, the plaintiff insisted first defendant to vacate the house in the year 1947 to which the first defendant flatly refuses. This shows that in respect of the suit house there were serious disputes between the parties, however no reference is made to the suit house in 0, S, 191/49. If there was a dispute with regard to the suit house, I think it would not have been left out of the purview of the compromise.
18. The plaintiff has miserably failed to prove the theory of permissive possession. The evidence on record discloses the continued possession and enjoyment of the suit house since the year 1940. When the plaintiff fails to prove the theory of permissive possession as a legal corollary the claim of adverse possession is to be upheld. In the first place. I find the plaintiff has failed to prove the title to the property therefore not entitled to relief of possession. In that view the first and second question of law are answered in the affirmative. The additional questions of law are answered in the negative.
Accordingly the appeal is dismissed.