Partly allowed

Smt Bhavani v. M S Prakash

Karnataka HC6 Sept 2022RSA/1489/2015

Case brief

AI extract

What is this about?

In a second appeal concerning partition, the High Court held that the plaintiffs estopped themselves from claiming rights to item No.1 due to a subsequent registered partition deed. The court declared the plaintiffs absolute owners of items 2 and 3, granting permanent injunctions against the respondent, while dismissing the claim over item No.1.

What did the court decide?

Plaintiffs declared absolute owners and in possession of items 2 and 3 with permanent injunction; appeal dismissed regarding item 1.

Smt Bhavani Vs M S Prakash — Partition | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6^TH DAY OF SEPTEMBER, 2022

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BEFORE

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THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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R.S.A.NO.1489 OF 2015 (DEC/INJ)

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BETWEEN:

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SMT. BHAVANI W/O LATE M.V. VENKATARAMANA, AGED ABOUT 70 YEARS

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SRI M.V. JAYAKUMAR S/O LATE M.V. VENKATARAMANA, AGED ABOUT 50 YEARS,

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BOTH ARE COFFEE PLANTER, R/O HALASIGE ESTATE, SARTHIHALLI VILLAGE, ALDUR HOBALI, CHICKMAGALORE TALUK-577101

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...APPELLANTS

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(BY SRI.VINOD GOWDA, ADVOCATE)

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AND:

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M S PRAKASH S/O LATE M.V. SHESHAPPA, AGED 48 YEARS, COFFEE PLANTER R/O SARTHIHALLI VILLAGE, ALDUR HOBALI, CHICKKAMAGALURU TALUK-577101 (BY SRI.PRAKASH M H, ADVOCATE)

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…RESPONDENT

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 23.06.2015 PASSED IN R.A.NO.82/2013 ON THE FILE OF THE PRL. DISTRICT JUDGE, CHIKKAMAGALURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 25.06.2013 PASSED IN O.S NO.213/2005 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE AND JMFC., CHIKMAGALORE.

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THIS APPEAL COMING ON FOR FURTHER HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The captioned second appeal is filed by the plaintiffs

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questioning the judgment and decree of the Courts below in dismissing the suit insofar as item Nos.1 and 2 are concerned.

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For the sake of brevity, the parties are referred to as per their rank before the Trial Court.

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The genealogical tree of the parties is as under:

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Vasappa(dead) | --------------------------------------------------------------------------| | | | Lingappa Shesappa Venkataramana Venkappa

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||||||||| |---|---|---|---| |Kushalatha|1.Rajeswari|Smt.Bhavani
|Vedavathi| |Wife(D1)|2.Sunila|Wife(P1)|Wife| |No issues|3.Prakesha(D2)|1.Gaythri
|1.Chandrakumara| |Both died|4.Shamala|2.Jayakumar(P2)|2.Anusaya| ||5.Sharmila|3.Devika
|3.Muruli| ||||4.Anitha.|

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The plaintiffs represent the branch of

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M.V.Venkataramana. Propositus Vasappa had four sons by name Lingappa, Shesappa, Venkataramana-branch of plaintiffs and lastly, Venkappa. The present suit is filed by the plaintiffs seeking relief of declaration to declare that they are the absolute owners in possession of the suit schedule properties and consequently, restrain the defendants from interfering with their peaceful possession and enjoyment over the suit schedule property. The basis on which plaintiffs are asserting title over the suit schedule property is a registered partition deed effected on 29.11.2000. The plaintiffs placing reliance on registered partition deed vide Ex.D-2 as well as Ex.P-7

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claim that suit schedule properties have fallen to their share and therefore, are asserting exclusive right over item Nos.1 to 3 of the suit schedule properties.

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At para 15 of the plaint, the plaintiffs claimed that

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through oversight item No.1 which was in fact allotted to the share of plaintiffs in O.S.No.83/1992 was omitted. Therefore, plaintiffs contended that though in the registered partition deed, item No.1 was omitted, however, they continued to be in possession and enjoyment over suit item No.1. Insofar as item No.2 is concerned, plaintiffs claimed that this item was also allotted to the share of husband of plaintiff No.1 in an oral partition which was referred in O.S.No.83/1992 and the same is confirmed in a registered partition deed dated 29.11.2000. The present suit is filed by the plaintiffs on the premise that the defendants are seriously disputing the title of plaintiffs insofar as item Nos.1 and 2 are concerned and therefore, have sought for relief of declaration and for consequential relief of

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injunction based on registered partition deed dated

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29.11.2000.

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On receipt of summons, the defendants tendered appearance and contested the proceedings by filing written statement. The defendant Nos.1 and 2 have admitted the pleadings relating to partition deed dated 29.11.2000. The defendants though admitted the pleadings relating to partition deed but, however, strongly disputed the averments relating to non-inclusion of item No.1 in the registered partition deed. The defendants seriously disputed the possession of plaintiffs insofar as item No.1 property is concerned. The defendants claimed that item No.1 property of the plaint schedule was allotted to the husband of defendant No.1 and therefore, defendants claimed that they are in exclusive possession and enjoyment over item No.1 property. Therefore, the defendants disputed the title of plaintiffs insofar as item No.1 property is concerned.

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7. The plaintiffs to substantiate their claim examined

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plaintiff No.2 as PW.1 and adduced documentary evidence vide Exs.P-1 to P-11. While defendants examined defendant No.2 as DW.1 and one witness as DW.2 and relied on documentary evidence vide Exs.D-1 to D-18.

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The Trial Court having assessed oral and

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documentary evidence dismissed the suit insofar as item Nos.1 and 2 are concerned. The Trial Court while examining issue No.4 has examined the decree passed in O.S.No.83/1992 which is marked at Ex.P-9 and has also given

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its anxious consideration to the registered partition deed dated 29.11.2000 vide Ex.P-11. Referring to these two documents,

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the Trial Court was of the view that since registered partition deed is admitted by both the parties and the pleadings are also in consonance with the registered partition deed, plaintiffs cannot assert right insofar as item No.1 is concerned. While examining item No.2, Trial Court was of the view that since

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boundaries relating to item No.2 in the schedule are found to be inconsistent with the boundaries in the registered partition deed vide Ex.P-11, has come to conclusion that the plaintiffs are not entitled for relief of declaration even in respect of item No.2. On these set of reasonings, the suit was partly decreed declining plaintiffs as owners only in respect of item No.3 while suit came to be dismissed insofar as item Nos.1 and 2 are concerned.

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Feeling aggrieved by the judgment and decree of the Trial Court, the plaintiffs preferred appeal before the Appellate Court.

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The Appellate Court having independently assessed

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oral and documentary evidence has also fallen back on the suit document i.e., registered partition deed vide Ex.P-11. The Appellate Court at para 32 while recording its reasons in not accepting the contention of plaintiffs insofar as item No.1 is concerned, has held that remedy of plaintiffs is to seek

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rectification of registered partition deed. If the registered partition deed vide Ex.P-11 is admitted, then plaintiffs cannot selectively challenge the partition deed during the course of trial. It is in this background, Appellate Court was of the view that the plaintiffs have not let in any evidence to indicate that through oversight item No.1 was omitted though it was originally allotted to the share of plaintiff No.1 in an earlier oral partition and consequently ratified by a competent civil court in O.S.No.83/1992. On these set of reasonings, the Appellate Court concurred with the findings of the Trial Court and consequently dismissed the appeal.

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These concurrent judgments are challenged at the instance of plaintiffs insofar as item Nos.1 and 2 are concerned.

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This Court vide order dated 05.07.2016 has formulated the following substantial questions of law:

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1) Whether the lower Appellate Court is justified in dismissing the appeal in respect of item Nos.1 and 2 of the suit schedule property when defendants did not deny or dispute that item No.2 was allotted to the share of the plaintiffs, as admitted in the crossexamination, as also, written statement?

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2) Whether the lower Appellate Court is justified in dismissing the appeal in respect of item No.1 when item No.1 was allotted to the plaintiffs as per decree made in O.S.No.83/1992 for partition and separate possession/ Exs.P.1 and 2?

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3) Whether the lower Appellate Court is justified in dismissing the appeal in the facts and circumstances of the present case?

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Heard learned counsel appearing for the plaintiffs

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and learned counsel appearing for the defendants. I have given my anxious consideration to the judgment rendered by the Courts below. I have also given my anxious consideration to the terms of settlement in the registered partition deed vide

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Ex.P-11.

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Learned counsel appearing for the defendants

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would fairly submit to this Court that insofar as item No.2 is concerned, it was in fact allotted to the plaintiff's share in the registered partition deed. Therefore, he would submit to this Court that mere discrepancies in the boundaries would not take away the right of the plaintiffs insofar as item No.2 is concerned. However, he would support the concurrent judgments of the Courts below insofar item No.1 is concerned.

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Before I advert to the substantial questions of law framed by this Court, I deem it fit to cull out paras 11 to 13 of the plaint.

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"11. In pursuance and in furtherance of the judgment and decree referred to above, late M.V.Lingappa, his first younger brother late M.V.Sheshappa, the first plaintiff and wife of the late younger brother of late M.V.Lingappa by name Vedavathi had entered into a registered partition deed on 29.11.2000, the photocopy of the certified copy is herewith produced. In this registered partition deed all the parties agreed for a modification so far as

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Sy.No.162 of Sathihally Village is concerned because of which this Survey number came to be allotted in 'B' and 'C' schedule property to the extent of 4 acres 30 guntas each.

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12. The properties detailed in the 'C' schedule to the registered partition deed fell to the share of the plaintiff No.1 for herself and also on behalf of the plaintiff No.2.

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13. Since the date of oral partition referred to in O.S.No.83/1992 on the file of this Court, late husband/father of plaintiffs herein was in possession and enjoyment of the said decree 'C' schedule properties and thereafter the plaintiffs continued to be in possession of the properties mentioned in the 'C' schedule of the registered partition deed."

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If the pleadings in para 12 are meticulously examined, this Court would find that the plaintiffs have admitted in unequivocal terms that schedule 'C' to the registered partition deed has fallen to the share of plaintiffs. In schedule 'C' to the registered partition deed, item No.1 is in fact allotted to the share of Lingappa who is none other than husband of defendant No.1. The pleadings at paras 11 to 13

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also indicate that plaintiffs are not disputing the due execution of registered partition deed dated 29.11.2000 vide Ex.P-11. On examination of prayer in the plaint, this Court would find that the relief of declaration of title is sought based on registered partition deed dated 29.11.2000 vide Ex.P-11. Even defendants are placing reliance on registered partition deed vide Ex.P-11. If both the parties are banking on the registered partition deed and the rights, if any, emanates from this registered partition deed, then it goes without saying that the parties to the registered partition deed are bound by the terms and recitals.

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Though a feeble attempt is made by the plaintiffs by contending that through oversight item No.1 is not allotted to the share of plaintiffs, the said averment which is found at para 15 coupled with oral evidence cannot be looked into and these paras which are found inconsistent with the recitals in the registered partition deed are inadmissible in evidence in terms of Section 92 of the Indian Evidence Act. The recitals in

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the registered document would bind the parties who are

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signatories to the said document.

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In view of my findings recorded in the preceding paragraphs, now let me consider the substantial questions of law framed by this Court. In the light of the discussion made supra, this Court is of the view that the findings recorded by the Courts below insofar as item No.1 is concerned is in accordance with law and does not suffer from any infirmities. The findings recorded by the Courts below in declining to grant relief of declaration in respect of item No.1 does not suffer from any infirmities and the said findings are recorded by taking note of registered partition deed dated 29.11.2000.

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The plaintiffs having voluntarily participated in a family arrangement and having voluntarily signed the registered partition deed cannot retract and trace their rights based on an oral partition and decree passed in O.S.No.83/1992. Though pleadings are found to be missing

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either in the plaint or written statement, it has to be presumed that the oral partition was never acted upon though there is a finding of fact recorded in O.S.No.83/1992. It can be inferred that there was a reunion for whatever reasons that were prevailing in the family and the parties have finally opted to effect fresh partition and the same is effected under registered partition deed dated 29.11.2000. Therefore, the rights, if any, in all the suit schedule properties have stood crystallized pursuant to registered partition deed dated 29.11.2000. If item No.1 is not allotted to the share of plaintiffs and if the registered partition deed is not challenged by the plaintiffs, the present suit insofar as item No.1 is concerned is not at all maintainable and no relief can be granted, more particularly relief of declaration of title. Therefore, the first substantial question of law framed has to be answered partly in the affirmative insofar as item No.1 is concerned. The second and third substantial questions of law are also liable to be answered partly in the affirmative in the

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light of the conclusions and observations made by this Court in the preceding paragraphs.

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Though plaintiffs had benefit of decree in O.S.No.83/1992 wherein the Court in terms of oral partition held that item No.1 is allotted to the plaintiffs' share, plaintiffs in view of registered partition deed subsequently have voluntarily and intentionally relinquished their right in item No.1. The abandonment of claim over item No.1 is found to be conscious and with knowledge. The abandonment is under registered partition deed. The plaintiffs have also admitted in unequivocal terms in the plaint itself. Paras 11 to 13 of plaint which are culled out in the preceding paragraphs clearly demonstrate that they have abandoned their claim insofar as item No.1 is concerned. The averments at paras 11 to 13 is a clear admission and the said pleadings operate as an estoppel against the plaintiffs herein. Though there is no defence set up by the defendants alleging waiver or estoppel, the plaintiffs' right in item No.1 has to be adjudicated in the

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context of pleadings at paras 11 to 13 and also in terms of recitals in the registered partition deed. The entire material on record clearly gives an indication that there is a waiver of right, if any, in item No.1 and therefore, plaintiffs could not have maintained a partition suit seeking share in item No.1.

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If plaintiffs are parties to the registered partition deed and if due execution of partition deed is admitted by plaintiffs, then they are estopped from asserting right over item No.1 which was allotted to the share of husband of defendant No.1. In that view of the matter, having answered

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the substantial questions of law partly in the affirmative, the second appeal is liable to be dismissed insofar as item No.1 is concerned.

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Hence, I pass the following:

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ORDER

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(i) The second appeal is allowed in part; (ii) The judgment and decree of the Appellate Court stands modified partly;

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(iii) The plaintiffs are declared as absolute owners and in possession of item Nos.2 and 3. Consequently, defendants are hereby restrained by way of permanent injunction from interfering with plaintiffs' peaceful possession and enjoyment over item Nos.2 and 3;

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(iv) Draw decree accordingly.

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Sd/JUDGE

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Smt Bhavani v. M S Prakash

Case brief

What is this about?

What did the court decide?

Smt Bhavani v. M S Prakash

Case brief

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