Dismissed

G.S Kadira Reddy v. Chikka Subba Reddy

Karnataka HC11 Feb 2022RSA/983/2007

Case brief

AI extract

What is this about?

The High Court dismissed a regular second appeal filed by a defendant challenging a first appellate order that declared a plaintiff the owner of his share in partitioned family property. The court held that an alleged oral exchange of immovable property was not legally maintainable and that the plea of adverse possession could not be raised in second appeal without prior pleading.

What did the court decide?

Regular Second Appeal No.983/2007 dismissed; judgment and decree of the first appellate court confirmed.

G.S Kadira Reddy Vs Chikka Subba Reddy — Partition | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF FEBRUARY, 2022

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BEFORE

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THE HON’BLE MR.JUSTICE M.G.S.KAMAL

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REGULAR SECOND APPEAL NO.983 OF 2007

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BETWEEN:

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G.S.Kadira Reddy S/o late Subbarayappa, Aged about 55 years, R/at Gejjilarallahalli, Somenahalli Hobli, Gudibanda Taluk-562104. ... Appellant

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(By Sri. Vishwanath R Hegde, Advocate)

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AND:

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Chikka Subba Reddy

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S/o Kadirappa,

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Aged about 70 years,

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Agriculturist,

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R/at Gejjilarallahalli, Somenahalli Hobli, Gudibanda Taluk-562104.

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Subbarayappa

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Since dead by LRs

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2a. Muddamma

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W/o Subbarayappa,

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Since dead by LRs R2(b to f)

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2b. G.S.Nagaraja

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S/o late Subbarayappa,

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Aged about 45 years,

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2c. G.S.Manjunatha S/o late Subbarayappa,

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Aged about 43 years,

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R2 (b) & (c) are R/at Gangiralahalli, Someshwara Post, Gudibanda Taluk-562104.

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2d. Venkata Narasamma

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D/o late Subbarayappa, Aged about 41 years, R/at Gowkuntapalli, Daparthi Post, Gudibanda Taluk-562104.

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2e. Venkatalakshmamma D/o late Subbarayappa,

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Aged about 38 years,

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R/at Devireddipalli,

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Paragodu Post, Bagepalli Taluk-562104.

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2f. Venkatasubbamma D/o late Subbarayappa, Aged about 37 years,

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R/at Nallamaddareddipalli, Someshwaram Post, Gudibanda Taluk-562104.

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G.S.Narasimha Reddy S/o Subbarayappa, Aged about 46 years, R/o Gaggilarallahalli, Somenahalli Hobli, Gudibanda Taluk-562104. …Respondents

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(By Sri. S.R.Sreeprasad, Adv., for R1; R2d, R2b to f and R3 are served R2a is dead)

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This appeal is filed under Section 100 of Code of Civil Procedure against the Judgment & Decree dated 13.12.2006 passed in R.A.No.157/2001 on the file of the Addl. Sessions Judge, Presiding Officer, Fast Track Court, Chickaballapura, allowing the appeal and filed against the judgment and decree dated 07.09.2001 passed in O.S.No.174/1998 on the file of the Civil Judge (Jr.Dn.) Gudibanda, dismissing the suit for declaration and deliver the vacant portion.

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This appeal coming on for admission this day, the court delivered the following:

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J U D G M E N T

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The present Regular Second Appeal is filed by the appellant/defendant No.2 aggrieved by the judgment and decree dated 12/07/2006 passed in R.A.No.157/2001 on the file of Fast Track Court-V, Chickballapur, (for short hereinafter referred to as 'the first appellate court') allowing the appeal fled by the respondent No.1/plaintiff and reversing the judgment and decree dated 07/09/2001 passed in OS.No.174/1998 on the file of the Civil Judge (Junior Division) and JMFC, Gudibanda (for short hereinafter referred to as 'the Trial Court').

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The parties are referred to as per their original

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rankings before the trial court.

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The case of the respondent No.1/plaintiff in brief is as under;

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Chikkasubbareddy, the plaintiff and Subbarayappa, the defendant No.1 are brothers. That there was a registered deed of partition dated 19/09/1970 entered into between the respondent No.1/plaintiff and defendant No.1 partitioning the various family properties. The suit schedule property namely, House property bearing No.411/400/25 situated at Gejjilarahalli, Somenahalli Hobli, Gudibanda Taluk was one of the properties subject matter of the said partition in which eastern half portion of the property was allotted to the share of the plaintiff while western half portion was allotted to the share of the defendant No.1. That the defendant No.1 had requested the plaintiff that he would continue to reside in the entire extent of the suit property and agreeing to quit and deliver the possession of the said portion as and when demanded by the plaintiff. In view of the family of the plaintiff

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growing big, defendant No.1 was requested to deliver the possession of the plaintiff possession of the property. The defendant No.1 declined to hand over the vacant possession of the suit property, which constrained the plaintiff to file the suit for declaration and possession of the Eastern half portion of the suit schedule property.

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The defendant No.2, who appeared in response to the notice, filed the written statement, denying the plaint averments. It was however, admitted that half portion of the suit schedule property had fallen to the share of the plaintiff. That there was an oral understanding in terms of which plaintiff had given his share of property in favour of defendant No.1. The House List No.412 which had fallen to the share of the defendant to the extent of Eastern portion had been given to the plaintiff in exchange of the suit schedule property. That the defendant No.1 and his 4 sons had further divided the suit schedule property in the year 1984 and the plaintiff was witness to the said document. That the defendants

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have constructed a dwelling house in the suit schedule property by spending huge amount and as such the plaintiff had given up his right over the suit schedule property. Hence, sought for dismissal of the suit.

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The Trial Court based on the pleadings framed

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the following issues:

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i. Whether the plaintiff proves that plaint schedule properties under a family partition among first defendant and him under a registered partition deed dated 19/09/1970 along with other properties?

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ii. Do he further proves that at the partition dated 19/09/1970 the first defendant requested him that he will reside in the portion which has fallen to the share of plaintiff and he can reside in the portion fell into the share of defendant and plaintiff delivered the same?

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iii. Whether the plaintiff proves that first defendant refused to vacate his portion of the property?

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iv. Whether the defendants prove that in a oral agreement between plaintiff and defendants the plaintiff has given up his half share in the suit property to first defendant and first defendant has given up his right in House List No.412 in the year 1977?

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v. Whether the plaintiff is entitled for the relief of declaration of his title to the suit properties?

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vi. What order or decree?

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The trial court recorded the evidence. The

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plaintiff examined himself as P.W.1 and one Balappa and Munivenkatappa have been examined PWs.2 and 3 and exhibited 9 documents as per Ex.P1 to Ex.P9. On the other hand, one Narasimhareddy, the 3rd defendant examined himself as DW.1 and Kadirareddy, the defendant No.2 has

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been examined as DW.2 and exhibited 6 documents as Exs.D1 to D6.

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On appreciation of evidence, the Trial Court, by its judgment and decree dated 07/09/2001 dismissed the suit of the plaintiff. Aggrieved by the same, plaintiff preferred regular appeal in RA.No.157/2001 before the first appellate court. Considering the grounds urged in the appeal memo, the first appellate court framed the following points for its consideration.

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i. Whether the alleged oral agreement said to have been entered into between divided brothers exchanging immovable properties is maintainable in law?

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ii. What order?

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On re-consideration of oral and documentary evidence, the first appellate court, by its judgment and decree dated 13/12/2006 allowed the appeal reversing the judgment and decree passed by the Trial Court declaring the plaintiff to be the owner of the suit schedule property

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and directed the defendants to hand over the vacant possession of the suit schedule property to the plaintiff and further ordered that the defendants were entitled for portion in H.L.No.412 as per the registered partition deed, dated 19/09/1970. Being aggrieved with the same, the defendant No.2-Kadirareddy has filed the present regular second appeal.

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Sri Vishwanath R. Hegde, learned counsel for the appellant/defendant No.2 reiterating the grounds urged in the appeal memorandum submitted;

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a) That the first appellate court grossly erred in negating the claim of the appellant/defendant No.2 to the effect that the entire property bearing H.L.No.411 was agreed by the respondent No.1/plaintiff to be in possession of the appellant/defendant No.2 merely on the ground that law does not permit oral/mutual exchange of immovable property and that such agreement was compulsorily registrable.

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b) That Ex.D1 is a document under which the appellant/defendant No.1 and his sons partitioned the suit property including the share of the respondent No.1/plaintiff, who was an attester which indicates the respondent No.1/plaintiff was in complete knowledge of all the defendants being in exclusive possession of the suit schedule property and that the respondent No.1/plaintiff was aware of the construction of the building made by the defendants over his share of property and took no steps to claim his share which conduct amounts to acquiescence on the part of the respondent No.1/plaintiff estopping him from seeking any claim over the property.

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Hence, he submits that the appeal involves substantial question of law requiring consideration. Hence, sought for allowing the appeal.

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On the other hand, Sri S.R.Sreeprasad, learned counsel for the respondent No.1/plaintiff justifying the

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judgment and decree passed by the first appellate court submits;

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a) That the respondent No.1/plaintiff had merely permitted the defendants to occupy his share of the suit schedule property on a specific understanding of appellant/defendant No.2 handing over the same as and when demanded by the respondent No.1/plaintiff. That there has been no formal conveyance of the property by the respondent No.1/plaintiff in favour of the appellant/defendant No.2 in the manner known to law.

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b) That the respondent No.1/plaintiff has disputed the signature on Ex.D1. That there is no acquiescence or estoppel against the plaintiff as the defendant was admittedly permitted by the plaintiff

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to use his share of suit schedule property.

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As such, no substantial question of law would arise for consideration. Hence sought for dismissal of the appeal.

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Heard the learned counsel for the parties.

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The admitted facts of the case are that, there was a registered partition deed entered into between the plaintiff and defendant No.1 on 19/09/1970, in and by which, apart from the suit schedule property number of other properties were also partitioned between them. It is also admitted fact that the respondent No.1/plaintiff, who was allotted Eastern half portion of properties in H.L.No.411, upon request of defendant No.1 had permitted him to reside in the entire extent of property bearing H.L.No.411. After 19/09/1970 there has been no formal

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agreement or conveyance in the manner known to law between the parties conveying or relinquishing the right, share and interest of the respondent No.1/plaintiff over his Eastern portion of property bearing No.H.L.No.411 in favour of defendant No.1.

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As rightly taken note of by the first appellate court that once there is severance of the joint family and

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the partition of the joint family property particularly in terms of a registered deed of partition, each sharer would become absolute owner in respect of his share. Therefore, creating or extinguishing any right, title and interest in respect of his exclusive immovable property in favour of any person would have to be only by a registered deed of conveyance in the manner known to law. This being the position of law, the claim of the defendant No.1 that there was a oral agreement between the plaintiff and defendant No.1, in terms of which there was a exchange of immovable property cannot be countenanced.

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Learned counsel for the appellant/defendant No.2 submitted that the conduct of the parties have to be taken into consideration to determine the lis effectively and finally. He submits that since the plaintiff was a signatory to the deed of partition that was entered into between the defendant No.1 and his sons including the suit schedule property the same amounts to acquiescence on the part of the respondent No.1/plaintiff and as such any

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claim over the property has to be made within time stipulated under Article 65 of the Limitation Act. He relied upon the judgment of the Apex Court in the case of Parsinni (dead) by LR's and others Vs. Sukhi and others reported in (1993) 4 SCC 375. Learned counsel for the defendant No.2 read the entire written statement, however, there is no plea or whisper of adverse possession raised by the appellant/defendant No.2.

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It is the case of the defendant No.2 that he is in possession of the property in terms of oral understanding between the plaintiff and defendant No.1. This being the admitted and unambiguous case of the defendant, arguments of adverse possession even in the absence of any pleading and proof in that regard cannot be countenanced. More over, there has been no issue with regard to plea of adverse possession framed before the trial court or before the first appellate court. Quite rightly so, as there is no specific pleading to this effect by the appellant/defendant No.2 in the written statement. No

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such plea can be allowed to be raised in the second appeal by the appellant/defendant No.2. Therefore, reliance placed by the appellant/defendant No.2 on the judgment of the Apex Court in the case of Parsinni (supra) is of no avail. Further as rightly contended by the learned counsel for the plaintiff, the signature of Ex.D1-Partition Deed has neither been confronted to the plaintiff nor has been proved. The content of the said Ex.D1 would not even remotely suggest any narration of oral agreement between plaintiff and defendant No.1 regarding exchange of properties.

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Since the appellant/defendant No.2 has failed to establish and prove the oral agreement purportedly entered into between the respondent No.1/plaintiff and the defendant No.1 and also failed to prove the acquisition of their right over the portion of the property of the respondent No.1/plaintiff in the manner known to law, no substantial question of law is involved in the matter requiring consideration. In the result, the following.

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ORDER i) Regular Second Appeal No.983/2007 filed by the appellant/defendant No.2 is dismissed. ii) The judgment and decree dated 13/12/2006 passed in RA.No.157/2001 by the first appellate court is confirmed.

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Sd/JUDGE

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MKM

G.S Kadira Reddy v. Chikka Subba Reddy

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G.S Kadira Reddy v. Chikka Subba Reddy

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