Karnataka High Court
Naganna vs Shivanna on 8 January, 2004
Equivalent citations: AIR2004KANT209, ILR2004KAR1074, 2004(2)KARLJ591
Author: K. Sreedhar Rao
Bench: K. Sreedhar Rao
JUDGMENT K. Sreedhar Rao, J.
1. The appeal filed against the judgment and decree passed in R.A. No. 32 of 2002 on the file of the District Judge, Mandya arising out of the judgment and decree passed in O.S. No. 96 of 2000 on the file of Civil Judge, Senior Division, Maddur.
2. The appellant is the defendant in the suit. The plaintiff filed a suit for declaration of title and permanent injunction against the defendant not to interfere with the possession and enjoyment of the suit schedule property bearing Sy. No. 265 measuring 31/2 guntas in Kadukothanahalli of Maddur Taluk. The plaintiff submits that the plaintiff and defendant are brothers. In the year 1981 there was a partition amongst the brothers and a written memorandum of partition was recorded on 12-9-1982 styled as Palupatti. Six months thereafter there was redistribution of properties in partition under Ex. P. 2 according to which the plaintiff was allotted the suit property and claims to be in possession. The suit is filed seeking declaration of title and injunction when the defendant took hostile attitude.
3. The defendant denied the case of the plaintiff contending that Ex. P. 2 is concocted, denied the right title and possession of the plaintiff over the suit property. The Trial Court holds that the deed of Ex. P. 2 being unregistered cannot invest any title in the plaintiff and dismissed the suit. The First Appellate Court reverses the finding and holds that under Ex. P. 2 the plaintiff derived title, accordingly allowed the appeal and the suit of the plaintiff by setting aside the judgment and decree of the Trial Court. Hence, the second appeal.
4. The case is at the stage of admission. Both the Counsels consented and argued on merits for final disposal. The following substantial question of law is framed for consideration:
"Whether the Appellate Court was justified in declaring the title of the plaintiff on the basis of an unregistered deed Ex. P. 2 and such a finding is perversely contrary to law and evidence on record? Further, whether the Appellate Court erred in granting injunction against the defendant overlooking the evidence on record which showed the possession with the defendant and the finding thereon while granting injunction is perversely contrary to law and evidence on record?"
5. The recitals of Ex. P. 2 discloses that partition was effected between the parties six months prior to Ex. P. 2 and properties were distributed. Again under Ex. P. 2 the parties mutually agreed to exchange between themselves some of the properties and the suit property is allotted to plaintiff. Obviously Ex. P. 2 is an unregistered document. The contention that Ex. P. 2 is the continuation of the oral partition recorded under Palupatti-Ex. P. 1 is untenable by the explicit terms of the document, when once the parties by oral partition have divided the properties by metes and bounds and put into writing by way of memorandum of partition, the joint character of the property comes to an end and each of the party would become exclusive owner of the share allotted to him. If there is any further transaction of exchange of properties between the parties, it is to be done necessarily by a registered document under Section 17 of the Registration Act. The terms of Ex. P. 2 does not disclose that the earlier oral partition referred to is not put into effect when the earlier partition is complete and concluded it binds the parties. The reversal of allotment of the properties granted in the earlier partition cannot be done by oral transaction. Ex. P. 2 being an unregistered document, cannot invest any title in the plaintiff.
6. On the possession, I find Ex. P. 2 although unregistered for collateral purpose would show the delivery of possession of the suit property to the plaintiff. Besides, the ROR extracts produced by the plaintiff would show that he is in effective possession of the property. The ROR extract carries presumptive value in law. There is no convincing evidence placed by the defendant to rebut the legal presumption. In that view, the finding of the Appellate Court to the extent that the plaintiff is in possession is to be upheld, but however declaration of title by the Appellate Court is untenable and contrary to law. Accordingly, the first part question of law is answered in affirmative and second part in negative.
The appeal is partly allowed set aside the judgment and decree of the Appellate Court in declaring the title, but however the lesser relief of injunction granted is confirmed.