Partly allowed

H a Chandrashekaraiah v. H N Nagaraju S/O Late Nanjappa

Karnataka HC10 Nov 2020RSA/28/2006

Case brief

AI extract

What is this about?

A dispute over the location and ownership of an ancestral backyard resulted in a declaration of the plaintiffs’ one-fourth share. Both appeals were partly allowed, the impugned decree was modified, and a preliminary decree was directed, with demarcation reserved for final decree proceedings.

What did the court decide?

Plaintiffs’ one-fourth share in the backyard declared; impugned decree modified and preliminary decree directed, with demarcation in final decree proceedings.

H a Chandrashekaraiah Vs H N Nagaraju S/O Late Nanjappa — Partition | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF NOVEMBER, 2020

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BEFORE

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THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO

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R.S.A No.176 OF 2006 C/W R.S.A No.28 OF 2006

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In RSA No.176/2006

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BETWEEN:

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H.N.Nagaraju

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S/o late Nanjappa 56 years.

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Guruswamy,

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Since dead by his L.Rs His Mother Smt.Mangalamma W/o. late Nanjappa, 78 years.

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Mahadev @ H.N.Mahadevaswamy S/o Late Nanjappa, 32 years.

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All are r/o Hanchya Village Kasaba Hobli, Rammanahalli post Mysore Taluk – 571 024.

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…Appellants

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(By Sri T.N.Raghupathy, Advocate For A-1 to A-3)

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AND:

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Sri. H.A. Chandrashekaraiah

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Since dead by his LRs

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1(a). Smt. Kempamma w/o late H.A Chandrashekariah

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Age major.

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1(b). Sri. Kumaraswamy S/o late H.A Chandrashekariah

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Age major.

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1(c). Sri.Nagendra Murthy S/o late H.A Chandrashekariah

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Age major.

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1(d). Sri. Anandamurthy S/o late H.A Chandrashekariah

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Age major.

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1(e). Smt. Mahadevamma D/o late H.A Chandrashekariah

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Age major.

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1(f). Smt. Tejamma D/o late H.A Chandrashekariah

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Age major.

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All are residents of Hanchya Village, Kasaba Hobli, Rammanahalli Post Mysore Taluk (d) – 571 024.

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Madappa

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S/o. Belavadi Ningappa Since dead by his lrs.

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Smt. Sundarammanni 72 years

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w/o. late Madappa since dead represented by his son R-4.

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Ananda Since dead represented By L.R his wife Smt. Annapoorna 38 years, R/at. K.R.Pet Town Mandya District

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Niranjana 45 years S/o. late Madappa

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Respondent Nos.2(a) is the widow 2(b) and 2(c) are sons of late Madappa R/at. D.No.B.B.Garden Road K.R.Mohalla Mysore City – 570 001. …Respondents

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(By Sri.G.Balakrishna Shastry, Advocate for R-1 (A-F) Appeared through Video conferencing Sri. R.D.Renukaradhya, Advocate for R-4 V.O.Dt.18.7.16 notice to R-3 is dispensed with R-4 is treated as LRs of deceased R-2)

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This RSA is filed Under Section 100 of CPC against the judgment and decree dated 23.09.2005, passed in R.A.No.95/1998 on the file of the II Addl. Civil Judge (Sr.Dn.) CJM, Mysore, partly allowing and partly dismissing the appeal and setting aside the judgment and decree dated 27.1.98 passed in O.S.No.79/89 on the file of the II Munsiff, Mysore.

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In RSA No.28/2006

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BETWEEN

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Sri H.A.Chandrashekaraiah

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Since dead by his Lrs

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1(a). Smt. Kempdevamma Aged 65 years.

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1(b). Sri. Nagendramurthy Aged 40 years.

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1(c) Sri H C Kumaraswamy Aged 37 years.

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1(d). Sri. H C Anandamurthy Aged 33 years.

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1(e). Smt. Mahadevamma D/o. Late Chandrashekharaiah Major Occ: Household

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All are residents of Hanchya Village, Kasaba Hobli, Rammanahalli Post Taluk: Mysore.

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1(f). Smt. Tejamma W/o. Basavaraj Major Occ: Household R/o. Huralikyatanahalli Kasaba Hobli Srirangapattana Mandya District.

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…Appellants

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(By Sri G.Balakrishna Shastry, Advocate for A-1 (A to E) Sri V.S.Venkatesha Gowda, Advocate for A-1 (F)

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AND

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H.N.Nagaraju

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S/o. late Nanjappa Aged 56 years

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Sri. Guruswamy Since dead by his LR His mother

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Smt. Mangalamma W/o late Nanjappa Aged 77 years

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Sri Mahadeva @ H.N.Mahadevaswamy S/o. late Nanjappa Aged 31 years

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All are residing at Hanchya Village Kasaba Hobli, Pammanahalli Post Mysore Taluk Mysore – 570 001.

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Madappa S/o late Belavadi Ningappa Since dead by LRs

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Smt. Sundarammanni Aged 71 years

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Ananda Aged 48 years Since dead by LRs

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Smt. Annapoorna 30 years Residing at K.R.Pet Town Mandya District – 570 201.

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Niranjana 45 years

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Respondent No.4 is the widow and Respondent No.6 is the son of late Madappa Residing at D.No.BB Garden Road K.R.Mohalla Mysore City – 570 001.

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…Respondents

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(By Sri T.N.Raghupathy, Advocate for Respondent No.1 Sri R.D.Renukaradhya, Advocate for Respondent No.6 Respondent Nos.3 and 4 are served V/o dated 12.10.2011 and Service of Notice to R-2 and R-5 is Held sufficient)

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This RSA is filed Under Section 100 of CPC against the judgment and decree dated 23.09.2005, passed in R.A.No.95/1998 on the file of the II Addl. Civil Judge (Sr.Dn.) & C.J.M., Mysore, partly allowing and partly dismissing the appeal and setting aside the judgment and decree dated 27.1.1998 passed in O.S.No.79/1989 on the file of the II Munsiff, Mysore.

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These appeals Coming on for final hearing this day, the court through video conference at Bengaluru delivered the following:

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JUDGMENT

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These two appeals are directed against the

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judgment and decree dated 23-09-2005 passed in R.A.No.95/1998 by the learned II Additional Civil Judge (Sr.Dn.) & CJM, Mysore, wherein the appeal

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came to be allowed-in-part and the judgment and

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decree passed in O.S.No.79/1989 dated 27-01-1998 by the learned II Munsiff, Mysore, came to be set aside and the suit of the plaintiffs for declaration came to be rejected and the relief of permanent injunction was granted.

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Both the parties being aggrieved by the judgment and decree, are before this Court in these appeals. RSA No.176/2006 is preferred by the plaintiffs and RSA No.28/2006 is preferred by the defendant No.1.

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It is clarified that the plaintiffs H.N.Nagaraju and others have come in appeal in RSA No. 176/2006 against the judgment and decree of the First Appellate Court in refusing the relief of declaration. Similarly, defendant No.1 now represented by his LRs have come in appeal in RSA No.28/2005 against the

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judgment and decree in granting relief of permanent injunction in favour of the plaintiff.

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In order to avoid the confusion and

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overlapping, the parties are hereinafter referred in accordance with their rankings as held by them before the court below.

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The relief sought by the plaintiffs in the original suit is as under:

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“Wherefore the plaintiffs pray that this Hon’ble Court be pleased to pass a judgment and decree declaring that the plaintiffs are the absolute owners in possession of the schedule property with consequential reliefs of permanent injunction in their favour by restraining the defendants, their agents, servants or anybody acting on their behalf in any manner whatsoever from interfering with the plaintiffs lawful possession and enjoyment of the suit schedule property and grant such other court costs and relief as the Hon’ble court deems fit to grant the same in the above

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circumstances of the case, in the interest of justice and equity.”

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The brief facts of the case of the plaintiffs

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are: suit property is their ancestral property and it

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fell to their father’s share in a palupatti dated 4-12-1948 effected among the plaintiffs’ father, 2^nd defendant and other two persons. Since then their father has been using the schedule property as an hithalu for storing hay stock, grass and other agricultural materials. Their father died about 15 years back leaving the plaintiffs as his legal heirs/ representatives and since then plaintiffs have been in continuous possession of the same as absolute

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owner. It is further contended that defendants have no manner of right title or interest over the suit property. But 1^st defendant with the collusion of 2^nd defendant concocted some records behind the back of the plaintiffs and their father and 2nd

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defendant is trying to interfere with the same with an intention to cut and remove the kalli fence and to put up a foundation without any valid licence. This was resisted by the plaintiffs and a complaint was lodged before the police.

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1^st defendant appeared and filed the

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written statement admitting that plaint schedule property was the ancestral property of plaintiffs’ father and 2^nd defendant and denied that it fell to the share of plaintiff’s father Nanjappa in the partition. It is contended by the 1^st defendant that western most portion i.e. the portion abutting the road on the western side fell to the share of the deceased 2^nd defendant and immediately to the east of that share the portion was allotted to plaintiffs’ father and its east a share was given to Mallappa @ Marappa and to its east share was given to Gurushanthappa. After the partition they

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were in exclusive possession and enjoyment. It is further contended that 2^nd defendant sold his share to the 1^st defendant along with other items through a registered sale deed dated 2-1-1964 and placed 1^st defendant in possession. Since then he is in absolute possession and enjoyment of the same.

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It is evidenced from the agreement to sell dated 26-3-1981 and after the sale by 2^nd defendant, 1^st defendant obtained licence on 23-3-1989 from Mandal panchayat for construction.

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During the pendency of the suit, 2^nd defendant died and his legal representatives were brought on record and they filed a memo adopting the written statement of 1^st defendant.

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On the basis of the pleadings and contentions of the parties, the trial judge framed necessary issues and after considering oral and

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documentary evidence on behalf of plaintiffs and defendants, dismissed the suit of the plaintiffs. Aggrieved by the said judgment and decree, plaintiffs have preferred regular appeal in R.A.No.95/1998 which came to be partly allowed and partly dismissed by the appellate judge on 23-09-2005. Against the said judgment and decree, both the plaintiffs and defendants have preferred second appeal before this court as stated above.

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This court while admitting RSA No. 28/2006 on 09-01-2008 has framed the following substantial question of law:

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Whether the lower appellate court was justified in granting a decree of permanent injunction relying on Ex.P1, which was inadmissible in evidence?

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However, RSA No.176/2006 came to be admitted on 6-10-2017 to the consider the question of law raised in RSA No.28/2006.

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Learned counsel for the plaintiffs

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contends that defendants are in collusion to grab the schedule property in respect of the vacant space. They are powerful enough to dispossess the plaintiff from the suit schedule property. He has further submitted that, plaintiffs are under constant apprehension of dispossession of the suit schedule property because of the defendants.

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The learned counsel for defendants

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submits that the plaintiffs are creating confusion in respect of the schedule property. They want to grab the property of the defendants in the guise of the suit.

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The suit schedule property is a vacant site bearing V.P.No.86 (Katha number) measuring East to West 40 feet and South to North 50 feet, situate at Hanchya village, Kasaba Hobli,Mysore

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Taluk, bounded on the East by: Hittalu of the plaintiffs; West by: Road, North by: Road and South by House of Shambhulingappa. Thus, plaintiffs seek for the declaration that the suit schedule property is under their ownership and possession and they want an order of injunction restraining the defendants and persons claiming under them from interfering with their possession and enjoyment over the schedule property.

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In the original suit, plaintiffs and

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defendants are as under:

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Plaintiffs:

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H.N.Nagaraju S/o. Late Nanjappa;

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Guruswamy S/o. late Nanjappa;

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Mahadeva S/o. late Nanjappa.

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All are residents of Hanchya Village, Kasaba Hobli, Rammanhalli post, Mysore Taluk.

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Defendants are:

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H.A.Chandrashekaraiah S/o. late Lingappa is not related to the parties.

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Madappa S/o. late Belavadi Madappa since dead by his LRs.

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It is further necessary to clarify that senior

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most propositus or the ancestors is Belavadi Madappa and he has four sons, namely:

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Gurushanthappa; 2. Mallaiah;

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Nanjappa and

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Madappa.

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The plaintiffs are the sons of Nanjappa who

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is the third son of Belavadi Madappa. Insofar as defendants are concerned, defendant No.2 is Madappa

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who is the fourth son of Belavadi Madappa. The said Madappa is the brother of Nanjappa and the other two sons of Belavadi Madappa.

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The substance of the case of the plaintiffs is that, among the sons of Belavadi Madappa, the ancestral properties were partitioned as early as on

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04.12.1942 and different landed properties were granted to the share of each of the parties. One of the items granted to the shares of each of the sons of Belavadi Madappa is the subject matter of real controversy between the parties.

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In other words, there is no bone of contention regarding the other properties that was partitioned. Ex.P1 is the palupatti where the properties were allotted to the share of sons of Belavadi Madappa under the partition dated 04.02.1942, as claimed by the plaintiffs. Neither the partition is written on the stamp paper nor registered in accordance with the provisions of the Indian Registration Act, 1917. The rest of the matter is that the properties that were allotted to the share of all the four sons of Belavadi Madappa is stated to have been abutting ‘Hittalu’ which is originally belonged to all the

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legal heirs of Belavadi Madappa namely,

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Gurushanthappa, Mallaiah, Nanjappa and Madappa.

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The suit was filed by the plaintiffs who are the sons of Nanjappa against defendant No.1 (purchaser of the property from defendant No.2) and defendant No.2/Madappa who is the brother of Nanjappa who is the son of Belavadi Madappa and he is the seller of the disputed property in favour of defendant No.1.

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The cause of action claimed by the plaintiffs is that the ‘Hittalu’ abutting the schedule property is the exclusive property of presently the plaintiffs, earlier his father – Nanjappa.

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The document claimed as partition deed by the plaintiffs is disputed by the defendants. As I have stated earlier, the parties are not at issue in sofar as other properties or extent or identity is concerned.

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Incidentally, for both of them the controversy is erected regarding ‘Hittalu’ which means backyard. Thus, the plaintiffs who are the sons of late Nanjappa claim that the schedule property, more particularly, Hittalu-Backyard belonged to them by virtue of they succeeding their father Nanjappa. At this stage, it is necessary to mention the description of the schedule property which is as under:

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“Vacant site bearing V.P.No.86 (Katha number) measuring east to west 40 feet and south to north 50 feet, situated at Hanchya village, Kasaba Hobli, Mysore Taluk, bounded on the East by Hittalu of the plaintiffs, west by road; north by road and south by house of Shambulingappa.”

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Thus, insofar as northern side is concerned, it is mentioned as ‘common road’ and on the southern

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side it is mentioned as ‘house property of Shambulingappa’, the other non litigating brother is stated to be located. It is the Hittalu or backyard. It is mentioned as East by Hittalu of the plaintiffs which

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has become huge controversy between the parties. The defendants deny the plaint averments and contends that the description of the schedule with reference to Hittalu or backyard and their location are at issue.

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Learned counsel for plaintiffs Sri. T.N.Raghupathy would submit that the defendant No.1 has assumed the location of the hittalu-backyard to his convenience and in the schedule he has stated North by road and on the south by Shambulingappa’s building. At the same time, to the eastern side of his property, he claims Hittalu of plaintiffs. In other words to say, plaintiffs claim that on the eastern side of their property their own hittalu or backyard is located. This is strongly denied by the defendants.

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Learned counsel for plaintiffs would submit

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there is no ambiguity in understanding as the plaintiffs

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have come to the court with clean hands. Further, he has stated that facts in their original state and the claim of the plaintiffs is corroborated by the existing documents filed by the defendants and the materials available on record, besides his pleadings.

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Learned counsel for plaintiffs further submit that the learned appellate judge erred seriously in negativing the prayer for declaration of title and confines the relief of permanent injunction exclusively. Learned counsel would further submit that the very documents of the defendants come to the help of the plaintiffs and in all probability the claim, contentions, averments of the defendants apart from denials are hypothetical and not reliable.

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Learned counsel Sri.G Balakrishna Shastry for defendant No.1/respondent No.1 would submit length of time consumed so far and the attitude and

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acts of the plaintiffs have shown that Hittalu has existed now does not belong to the plaintiffs. On the other hand, the plaintiffs have come up after getting themselves messed up.

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These regular second appeals are filed

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under Section 100 of Code of Civil Procedure. This court framed the following substantial question of law:

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‘Whether the lower appellate court was justified in granting a decree of permanent injunction relying on Ex.P1, which was inadmissible in evidence?’

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In my measured opinion, I find additional

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substantial questions of law are necessary to be

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framed in these appeals and they are as under:

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(i) Whether the trial court and the first appellate court erred in interpreting Ex.P1 along with the pleadings of the parties?

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(ii) Whether the interpretation of the statement in the partition deed Ex.P1 require serious consideration, eschew the mischief?

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The parties have adduced their evidence

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before the trial court. The oral and documentary evidence adduced and produced by the plaintiffs are

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as under:

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“P.W.1 Nagaraju, examined on 8.4.96 P.W.2 Madappa do 30.5.97 P.W.3 M.S.Basavaraju 3.1.98

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Ex.P1 Palupatti Ex.P2 Demand register Ex.P3 to P7 Kandayam paid receipt.

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The oral and documentary evidence

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adduced and produced by the defendants are as under:

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”D.W.1 Chandrasekaraiah, examined on 9.6.97 D.W.2 Shambulingappa, do 14.7.97 D.W.3 H.D.Siddappa, do 14.7.97, 29.7.97

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Ex.D1 Sale deed Ex.D2 Demand register extract. Ex.D3 Receipt. Ex.D4 Building licence. Ex.D5 Demand register extract. Ex.D6 Kandayam receipt. Ex.D7 Sale deed.”

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Before considering the other aspects of the

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case, the relationship between the plaintiffs 1 to 3 and defendant No.2 is not disputed; defendant No. 2 and one late Nanjappa are brothers who are all sons of late Belavadi Madappa. The other two brothers of Nanjappa and B. Madappa are Gurushanthappa and Mallaiah. I have already stated that the other two brothers or the persons claiming under them are not parties to the suit. Even there is no dispute between the plaintiffs and the defendants regarding the extent and quantum of other movable and immoveable properties. It is a common backyard that abutted their respective properties. There is no necessity of considering the necessary parties regarding the non presence of said Gurushanthappa and Mallaiaih.

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Insofar as partition deed, Ex.P1 is

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concerned, it is written on a white paper, of course, dated 4.12.1942, written in black ink and the paper

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appears to be substantially old, but the fact of the matter is contextually defendants does not deny the partition but, they challenge on the genuineness of the partition on the ground that when it is an out and out partition which is not written on a proper stamp paper and not registered, because of payment of stamp duty and registration fee are the mandatory factors under the Stamp Act and the Registration Act. In this connection, the court cannot jump to a conclusion that the partition deed is denied and not accepted.

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Insofar as the properties other than the suit schedule properties are concerned, neither the plaintiffs nor the defendants are having any grouse. The materials and the claim and contentions, the factors of partition is not disputed.

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In other words, commencing words in the written statement endorses or reveals, the defendant also is in favour of partition. Thus the material preposition asserted by one and denied by the other takes us to a complete form wherein the partition did happen between the sons of Belavadi Madappa and was partitioned by meets and bounds. The description of Hittalu or backyard is to the south of road. In this connection, learned trial judge while dismissing the suit observes that Ex.P1 was reduced to writing and after the death of Nanjappa plaintiffs are in possession of the property and finds that Ex.P1 discloses that the deviation effected is not fair under Ex.D1 partition.

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In other words, learned trial judge goes on questioning the fairness of the partition deed which is substantially nobodies case. It is only mis conception that has crept in between the parties.

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Learned trial judge framed the following

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issues and gave findings in the negative for all the issues.

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Issues:

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“1. Whether the plaintiffs prove that they are the absolute owners of the suit schedule property?

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Whether the plaintiffs prove that they are in lawful possession and enjoyment of the suit schedule property as on the date of suit?

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Whether the plaintiffs prove that their possession has been interfered by the defendants?

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Whether the plaintiffs are entitled to the relief sought?

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What decree or order?

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Answer:

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In the negative.

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In the negative.

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In the negative.

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In the negative.

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As per final order.”

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More emphasis made by the learned Judge

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is only regarding validity of the partition. He fails to

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understand the impact of the deed, legal consideration to be attached to them and the animus of the parties and to find whether the partition deed was acted upon for over more than 47 years or whether there are litigation among the parties regarding the extent or measurement. The approach of the learned trial judge definitely has gone beyond the domain and he has not touched the relevant factors which are bound to be dealt with.

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Now sofar as the judgment of the appellate court is concerned, more discussion is regarding the partition and Will have the proof of possession of the plaintiffs. Further, insofar as Ex.P1 and Ex.D1 are concerned, though it is observed that the boundaries are not mentioned, in that direction, there should have been appreciation of evidence available on hand that is not done. The further discussions are regarding not approaching panchayat and getting

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necessary records in favour of the parties. It also finds that defendant No.1 had no transferable right over the schedule property. If that is to be accepted, then what would be the nature of, property i.e. backyard or hittalu, why was it meant for, what kind of right parties are having, all are not forthcoming in the judgment and decree passed by the appellate court.

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Insofar as partition deed is concerned, it is

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necessary to mention the schedule relating to Madappa. In the original deed contents of the last line in the second page are not forthcoming. What is stated there in is,

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‘£Á®ÌgÀ°è MAzÀÄ ¨sÁUÀ £ÀAd¥Àà£ÀªÀgÀ »¸Éì ¥ÀÆªÀð¨sÁUÀ’.

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“Nalakkaralli ondu baga” and thereafter two letters cannot be seen and Hittalu Nalkaralli ondu baga Nanjappana Hisse Poorvabaga.

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This means eastern portion is of Nanjappa.

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Learned counsel Sri. G. Balakrishna Shastry

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for 1^st defendant would submit that when he applied for the certified copy, they were issued in the same way as culled out in the copy filed by him. If such is the case, it is necessary to make a mention that who ever takes the responsibility of copying the pleadings or documents or judgments must apply mind and there should be proper translation and because of their negligence, there cannot be fatal mistake in the judgment. Office should take proper care.

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The confusion among the parties are the Hittalu appearing on the northern side of the entire property which is bifurcated into four parts and each part is given to each of the sons. In other words, Gurushanthappa, Mallaiah, Nanjappa and Madaiah.

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The first irregularity in the description of the schedule is, no measurement is mentioned either for

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the total extent or for individual extent. This is a mistake in many of the cases that we come across more particularly in the documents earlier to 1960. Of course, compared to the present, fair representation and admission was more common. Now the question is, who claims which share?

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Nodoubt, the principles of interpretation suggests whenever the property is given or transferred to a person or persons without mentioning the specific share given to each of them unless there is a specific mention that comprises measurement, the practice would be that it would be taken in equal proportion. But in the present case, it is not the question of unequal distribution resulting in inequality. Measurement is not the bone of contention between the parties. Further, each of the sons are given 1/4^th share in that ‘Hittalu’ which is a Kannada word. I am acquainted with Kannada language and state that it

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means ‘backyard’ which pre supposes, it is the

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backside of the property of a person.

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Now irrespective of the share of the total

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Hittalu or backyard as precise measurement is not given for the sake of convenience, it is taken as the total rectangle not to the scale without precise measurement only for convenient reading. Sketch is

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divided into four parts.

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A	B	C	D

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Whenever, plain understanding is possible

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through a plain reading it requires no further interpretation when the letter or the word itself spells

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out the meaning without ascertaining for further interpretation. But reading of interpretation would be ‘golden rule’. When the meaning of a statement or a term is nothing but what the words suggests, in short, in general sense. It is literally the next rule which

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plays mis chief and it is rightly termed as ‘mischief rule’. However, in order to interpret, the terms which have its own meaning or which require entire context to spell out the meaning or interpretation, the reading would be the object and eschew the mis chief.

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In this case, the sketch mentioned four divisions. The first location is of Gurushanthappa, a non litigating party. His Hittalu or backyard, it is mentioned as:

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‘»vÀÛ®Ä £Á®ÄÌgÀ°è MAzÀÄ ¨sÁUÀzÀ ¥ÀÆªÀð ¨sÁUÀzÀÄÝ.’

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That means, 1/4^th share on the east which spells out the commencement of measurement and location of the property that should be 1/4^th on the eastern side. Hence, in the sketch, 1/4^th is what is meant by the share allotted to Gurushanthappa.

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Insofar as Gurushanthappa’s non litigant’s share is concerned, it is mentioned as:

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‘»vÀÛ®Ä £Á®ÄÌgÀ°è MAzÀÄ ¨sÁUÀ UÀÄgÀÄ±ÁAvÀ¥Àà£ÀªÀgÀ ¥ÀPÀÌzÀ°è.’

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That means 1/4^th share in the backyard by the said of Gurushanthappa.

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Here the sensible understanding would be Gurushanthappa is placed at the extreme eastern side by the side of Gurushanthappa cannot go beyond the eastern side invariably the share of Mallaiah Marappa must be to the west of Gurushanthappa because location starts from the east. First one is Gurushanthappa and second one is, Mallaiah. Clue is given that share of Mallaiah is by the side of Gurushanthappa. Third one is Nanjappa. Nanjappa’s side is.

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‘ »vÀÛ®Ä £Á®ÄÌgÀ°è MAzÀÄ ¨sÁUÀ ¥À²éªÀÄ ¨sÁUÀzÀÄÝ. ’

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It is here Nanjappa’s property falls on the

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western side. What is to be morefully understood is after Gurusiddappa’s A portion, Mallaiah’s portion

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comes and journey is from East to West and incidentally share of Najappa is,

¶252

‘»vÀÛ®Ä £Á®ÌgÀ°è MAzÀÄ ¨sÁUÀ ¥À²éªÀÄ ¨sÁUÀzÀÄÝ.’

¶253

Insofar as last brother 4^th son Madappa is

¶254

concerned, it is,

¶255

‘»vÀÛ®Ä £Á®ÌgÀ°è MAzÀÄ ¨sÁUÀ £ÀAd¥Àà »¸ÉìAiÀÄ ¥ÀÆªÀð ¨sÁUÀ.’

¶256

The words do not require further interpretation.

¶257

It is the literal rule what has to be applied. The meaning of the sentence would be, Madappa’s share is

¶258

to the west and to be more precisely.

¶259

‘£ÀAd¥Àà£À »¸ÉìUÉ ¥ÀÆªÀð ¨sÁUÀ.’

¶260

That means on reading the whole context of the case, the properties located are:

¶261

(A) Gurushanthappa; (B) Mallaiah; (C) Madappa and

¶262

(D) Nanjappa.

¶263

Under these circumstances regarding the

¶264

very deed of partition, nodoubt, it is not registered no

¶265

¶266

stamp duty is paid. The true test of partition has its own principles regarding admissibility, enforceability and the related. Very often defence is taken regarding partition deed when it is not registered. Some how or the other the justification would be it is not a partition by itself. On the other hand, partition which has taken place long back and it is only a memorandum recording partition. Learned counsel appearing for plaintiffs would submit that Ex.P1 is a memorandum recording partition. But the question to be considered is that, it is nobody’s case that the partition has not been effected. In this connection, the commencement statement of the written statement is relevant to be extracted here, which is as under:

¶267

“Admittedly, plaint schedule vacant site (Hittalu) forms part of bigger area which was divided amongst the four sons of Belavadi Madappa, grand father of the plaintiffs.”

¶268

¶269

There shall not be any mistake regarding

¶270

treatment of the pleadings which run to convenience. The dispute between the parties is regarding topographical location of the property and its incidents and not on the primary aspect of the partition. In the peculiar circumstances of the case, there is no purpose in going after Registration Act and

¶271

Stamp Act.

¶272

PW1 Nagaraju was born in the year 1951 and the partition is of the year 1942. The contention of learned counsel Sri.G. Balakrishna Shastry for 1^st defendant is, he never had the knowledge of partition. The division of property, more particularly, abutting properties of the divided brothers must be in proportionate to their property. Here, the equality has to be maintained under equal circumstances. In the circumstances of the case, defendant No.2 has

¶273

¶274

sold his property to defendant No.1. In the

¶275

circumstances of the case, boundaries to the plaint schedule are:

¶276

“East by : Hittalu of the plaintiffs; West by : Road; North by : Road and South by : House of Shambulingappa.”

¶277

In the circumstances, the share of the

¶278

plaintiffs would be that of Nanjappa which is marked as D. The boundaries would be, East by: Madappa’s land and West by: road. There is no dispute regarding the southern and northern boundaries.

¶279

Learned counsel Sri T.N.Raghupathy for

¶280

appellants would submit that he has mentioned the eastern side as his property’s Hittalu on the ground that it is a fact that he has entered into an agreement

¶281

to purchase the share of Madappa who is none other than the father’s brotherv of plaintiffs.

¶282

¶283

In other words, brother of Nanjappa. But no

¶284

document is produced before the court to show the passing of the ownership.

¶285

At the end of the day what the learned trial Judge or appellate judge should have been focused is, the existence of right and not simply going by the pleading without noticing the marketability. The ideal position would be to follow the path that solves the problem instead of keeping the litigation alive for ever. There is no impediment if further formalities are made in this connection may be in the form of a final decree.

¶286

Thus the proper and appropriate and conclusion would be, to partly decree the suit of the plaintiffs to hold that they are having 1/4^th share or right in the hittalu or backyard and equally other brothers have their right to the same extent namely

¶287

¶288

Madappa, Mallappa and Gurushanthappa. In other words, from east to west Gurushanthappa, Mallappa, Madappa and Nanjappa. In this connection, declaration of title could be to declare 1/4^th share and in sofar as possession is concerned, there is no material.

¶289

Learned counsel Sri G. Balakrishna Shastry for 1^st defendant would drew my attention to the boundaries contemplated in the registered deed.

¶290

“£À£Àß »¸Éì ¨Á§ÄÛ £Á®ÄÌ MAzÀÄ ¨Á§ÄÛ ¥À²ÑªÀÄ ¨sÁUÀzÀ »vÀÛ®Ä.”

¶291

Learned counsel drew my attention to the copy of the registered sale deed dated 2.1.1964 executed by Madappa son of Belavadi Madappa in favour of 1^st defendant Chandrashekharaiah son of late Lingappa.

¶292

It is necessary to mention neither the plaintiffs nor the other brothers are parties to the said sale deed. Nemo dat quad non habet no one can

¶293

¶294

convey better what he had. Either in the extent or regarding title or possession or location when the property that was allotted to Madappa C.

¶295

He could not have executed his share

¶296

above the extreme western portion. Here is a case which requires proper division of properties. No-doubt that each of the sons of Belavadi Madappa are having

¶297

1/4^th share in the property of B. Madappa if exists. According to the plaintiffs and defendants that has to be demarcated in accordance with Ex.P1 and the respective portion shall be assigned or allotted to the parties. It is submitted that the entire hittalu or backyard is vacant place and there is no further complication in dividing the same. Hence I do not agree with the approach and appreciation of evidence of the trial judge and the first appellate judge. The question of law involved in the matter is, whether the

¶298

¶299

division is equal to enjoyment and the enjoyment is equal to location and principles goes that possession follows ownership. Thus, in my measured opinion a suit for declaration of 1/4^th share between the parties appears to be justifiable. At the same time, without mentioning the entitlement regarding possession it can not be kept in abeyance for which purpose participation of Gurushanthappa and Mallappa or persons claiming under them is necessary. Hence, the substantial questions of law are answered accordingly.

¶300

For the aforesaid reasons, the appeals are allowed in part.

¶301

It is declared that the plaintiffs are entitled for 1/4^th share in the Hittalu-Backyard. The impugned judgment and decree is modified accordingly.

¶302

Draw up preliminary decree accordingly.

¶303

¶304

Parties shall get their shares marked in final

¶305

decree Proceedings to the extent of 1/4^th share in the total measurement of Hittalu-backyard. No orders as

¶306

to costs.

¶307

Sd/JUDGE

¶308

HJ/tsn*

H a Chandrashekaraiah v. H N Nagaraju S/O Late Nanjappa

Case brief

What is this about?

What did the court decide?

H a Chandrashekaraiah v. H N Nagaraju S/O Late Nanjappa

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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