Partly allowed

Sri Marian S/O Jeron Drago v. Shri Kustas S/O Anton/Kaitan Drak

Karnataka HC19 Aug 2024RFA/100059/2017

Case brief

AI extract

What is this about?

Regular first appeal against dismissal of a suit for declaration, partition and separate possession of ancestral agricultural lands among heirs of a Christian family. The court confirmed that Survey No.19 lands were unavailable for partition but held the trial court erred in not providing partition of three Santibastwad parcels, allowing the appeal in part.

What did the court decide?

Appeal allowed in part; declaration of partition inter se appellant and others in respect of Sy.Nos.166/1/1A, 166/1/1B and 166/1/1C-P1, Santibastwad village; liberty to initiate further proceedings; n

Sri Marian S/O Jeron Drago Vs Shri Kustas S/O Anton/Kaitan Drak — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:11754-DB RFA No. 100059 of 2017

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 19^TH DAY OF AUGUST, 2024

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PRESENT

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THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD

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AND

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THE HON'BLE MR. JUSTICE C M JOSHI

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REGULAR FIRST APPEAL NO. 100059 OF 2017 (DEC/PAR)

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BETWEEN:

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SRI. MARIAN S/O. JERON DRAGO AGE:66 YEARS, OCC:SERVICE R/O:HOUSE NO. 41/12, PLOT NO. 69, ALTO DABOLIM, GOA-403804.

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…APPELLANT

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(BY SRI. SANGRAM S. KULKARNI, ADVOCATE)

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AND:

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SHRI KUSTAS S/O. ANTON/KAITAN DRAK (SINCE DECEASED BY HIS L.RS)

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Digitally signed by YASHAVANT NARAYANKAR Location: HIGH COURT OF KARNATAKA

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ANTON @ BABANI S/O. MARIAN DRAK SINCE DECEASED BY HIS L.RS

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1(A) ROSEMARY WD/O. ANTON DRAK, AGE:45 YEARS, OCC:HOUSEHOLD WORK, R/O:124/2, ANANT NIVAS, LAXMI STREET, SNTIBASTAWD, BELAGAVI-590014.

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1(B) ALVINA D/O. ANTON DRAK, AGE: 29 YEARS, OCC: STUDENT, R/O: 124/2, ANANT NIVAS, LAXMI STREET, SNTIBASTAWD, BELAGAVI-590014.

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1(C) AGNEL S/O. ANTON DRAK, AGE: 29 YEARS, OCC: STUDENT, R/O: 124/2, ANANT NIVAS, LAXMI STREET, SNTIBASTAWD, BELAGAVI-590014.

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1(D) AMOL S/O. ANTON DRAK, AGE: 22 YEARS, OCC:STUDENT, R/O: 124/2, ANANT NIVAS, LAXMI STREET, SNTIBASTAWD, BELAGAVI-590014.

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SMT. ROSAGINA MONTEIRO, MAIDEN NAME ROSALINE BAYA DRAK, AGE: 50 YEARS, OCC: HOUSEWIFE, R/O: SURUTE, KOLHAPUR, MAHARASHTRA-416507.

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SHRI MONU S/O. KUSTAS DRAK (SINCE DECEASED BY HIS L.R’S)

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SHRI PHILIP S/O. MONU DRAK AGE:63 YEARS, OCC:AGRICULTURE R/O:PATIL GALLI, SANTIBASTWAD, BELAGAVI-590014.

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SHRI LAWRENCE S/O. MONU DRAK AGE:55 YEARS, OCC:AGRICULTURE R/O: PATIL GALLI, SANTI-BASTWAD, BELAGAVI-590014, AND ALSO AT PRIYA MINERALS WAGHAWADE TALUKA AND DISTRICT BELAGAVI-590014.

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SMT.SURIAN W/O. JERON DRAGO AGE: 50 YEARS, OCC:HOUSEWIFE R/O: 19/B, CATHOLIC HOUSING SOCIETY, KANGRALI ROAD, SHAHU NAGAR, BELAGAVI-590010.

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SMT.SUVERINE W/O. ANTON D’SOUZA AGE:71 YEARS, OCC: PENSIONER R/O: 19/B, CATHOLIC HOUSING SOCIETY, KANGRALI ROAD, SHAHU NAGAR, BELAGAVI-590010.

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SMT.GETRUDE W/O. MERVYN GUDINHO AGE:70 YEARS, OCC:SERVICE R/O:DUBAI AND ALSO AT CATHOLIC HOUSING SOCIETY, KANGRALI ROAD, SHAHU NAGAR, BELAGAVI-590010.

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SMT.ROSY CYRIL D’SOUZA AGE:63 YEARS, OCC:HOUSEWIFE R/O:19/B, CATHOLIC HOUSING SOCIETY, KANGRALI ROAD, SHAHU NAGAR, BELAGAVI-590010.

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SMT.EUGINE W/O. FRANCIS SEQUEIRA AGE:60 YEARS, OCC:HOUSEWIFE R/O:KERALA AND ALSO CATHOLIC HOUSING SOCIETY, KANGRALI ROAD, SHAHU NAGAR, BELAGAVI-590010.

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SHRI PARASHARAM S/O. MALLAPPA KADALIKAR AGE: 60 YEARS, OCC:AGRICULTURE R/O:KHADARWADI POST:PIRANWADI TALUKA:BELAGAVI-590014.

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SHRI GADAGYAPPA APPAYYA @ RAMU SANADI AGE: 61 YEARS, OCC:AGRICULTURE R/O:BRAHMA NAGAR, POST: PIRANWADI, BELAGAVI-590014.

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…RESPONDENTS

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(BY SRI. SANJAY S. KATAGERI, ADVOCATE FOR R3 AND R4; R1(A) TO R1(D), R2, R5 TO R10, AND R11 SERVED AND UNREPRESENTED)

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THIS REGULAR FIRST APPEAL FILED UNDER SECTION 96 R/W. ORDER 41 RULE 1 AND 2 OF CPC., 1908, AGAINST THE JUDGMENT AND DECREE DATED 27.10.2016 PASSED IN O.S.NO.84/2008 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE, BELAGAVI, DISMISSING THE SUIT FILED FOR DECLARATION, PARTITION AND AWARDING SEPARATE POSSESSION.

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NC: 2024:KHC-D:11754-DB RFA No. 100059 of 2017

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD AND

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THE HON'BLE MR. JUSTICE C M JOSHI

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD)

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The controversy in this appeal relates to a claim for

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partition with the appellant plaintiff tracing genealogy over three generations and title to some of the properties for the period prior to 1920. The appellant’s suit is in O.S.No.84/2008 on the file of the Principal Senior Civil Judge and CJM, Belagavi [for short ‘ civil Court’ ]. The civil Court by the impugned judgment and decree dated 27.10.2016 has dismissed the appellant’s suit.

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The appellant is the plaintiff, and his mother and sisters are the seventh to eleventh defendants [ the fifth to nineth respondents ] in the suit. The appellant claims that his father, Sri. Jeron Drago, is the only son of Sri. Marian and that the appellant’s father had two sisters viz., Smt. Kosumeri and Smt. Pavlina, who are not parties to the suit. The appellant’s next contention is that the other defendants

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[ the other respondents ] are either grandsons or great grandsons of Sri. Marian’s elder brother, Sri Kustas Anton. The genealogy as is presented on behalf of the appellant before this Court during the course of hearing reads as under:

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Manvel Drak
(Died-Not Known)
Kustas Anton Marian
(died on 1-1-1930) (died on 7-1-1930)
Anton Kaitan Monu Kustas Drak Wife Rosubhai
@ Anton Drak Died 2010 D4 (died on 4-8-1982)
(Died on 10-1-1958)
Wife Avelin Wife Natalin Jeron Kosumeri Pavlina
(Died on 03-05-1988) (Died on (Died on 29-9-1959) (Died on Died 2015
28-06-2008) 17-03-1996)
Kustas Rozaline Mariyan Wife (3 Sons & 1
(Priest) (Daughter) (Died on (Suriyan) Daughter)
Died 2015 16-7-1997) Died 2017 (1 Daughter)
D1
Milagren Felix Lawrence
Wife Sobina (Daughter) (Son) D5 (Son)D6
(Plaintiff)
Mariyan Severina Getrude Rosy Eugene
Plaintiff D8 D9 D10 D11
Anthon Voilet Prema Sunita
(Baban) (Daughter) (Daughter) (Daughter)
D2

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The appellant has listed three parcels of lands in

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the plaint schedule with the two parcels of lands being in Waghawade village, Uchagoan Hobli, Belagavi Taluk and one being in Santibastawad village, Uchagoan Hobli, Belagavi

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Taluk. The details of these properties are as under:

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Sl. No.	Sy.No.	Area A-G	Assessment Rs. Ps.	Situated at
1	18/1	4-17	3.99	Waghawade
2	18/2	1	0.90	Waghawade
3	18/3	4-34	4.36	Waghawade
4	19/1	4	0.8	Waghawade
5	19/2	-15	0.30	Waghawade
6	19/3	9-11	7.67	Waghawade
7	166/1/1A	1-26	6.86	Santibastwad [Amended as per order dtd.27-4-13]
8	166/1/1B	1-26	6.86	Santibastwad [Amended as per order dtd.27-4-13]
9	166/1/ 1C- P1	3-12	13.71	Santibastwad [Amended as per order dtd.27-4-13]
				TOTAL

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The properties for the reasons of convenience are referred with survey numbers and villages.

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The appellant contends that the land in Survey No.18 of Waghawade village was purchased by Sri Kustas Anton [the elder son of the propositus – Sri Manvel Drak] way back in the year 1920 as per Ex.D1, but the lands in Survey No.19 of Waghawade village was left behind by Sri. Manvel Drak to his two sons, Sri Kustas Anton and Sri Marian, both of whom have died in the year 1930. With the demise of the elder son, Sri Kustas Anton, on 01.01.1930, the revenue records for the lands in Survey No.18 and 19 of Waghawade were transferred in the name of his two sons, Sri Anton Kaitan @ Anton Drak and Sri Monu Kustas Drak, and that with the younger son, Sri Marian, also dying over the next seven days, the name of his son, Sri Jeron was entered in the revenue records in the year 1932.

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The appellant relies upon the revenue entry M.E.No.228 dated 10.04.1930 insofar as the change in the revenue entries on the demise of Sri Kustas Anton and the

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entries in M.E.No.263 dated 15.04.1932 insofar as the change in the revenue entries after the demise of Sri Marian. The appellant’s case is that there has been no partition amongst the legal representatives of these two brothers except for change in the revenue entries on 25.08.1977 at the instance of Sri Anton Kaitan @ Anton Drak and Sri Monu Kustas Drak and that this revenue entry is clandestine inasmuch as his father’s name [Sri Jeron’s name] is deleted. The appellant contends that this change at the best could only be an arrangement inter se the legal representatives of Sri Kustas Anton but not proof of any partition.

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The contesting respondents, who are legal heirs of Sri Anton Kaitan @ Anton Drak and Sri Monu Kustas Drak [the first to sixth defendants], have filed their written statement contending essentially that there was a partition, albeit an oral partition between the two brothers viz., Sri Anton Kaitan @ Anton Drak / Sri Monu Kustas Drak and the appellant’s father, Sri. Jeron S/o. Marian, who was

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allotted different properties at Santibastwad. The appellant’s father has sold these properties [including a residential house] and shifted to Castle Rock, but the appellant has filed the present suit after lapse of a long time only to stake a wrong claim suppressing this fact and not including Smt. Kosumeri and Smt. Pavlina.

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The civil Court, in the light of the rival pleadings, has framed Issues which require the appellant to prove that he was in joint possession and enjoyment of the suit schedule properties and that the contesting respondents have transferred some of the properties to outsiders [the twelfth and thirteenth defendants] while requiring the contesting respondents to prove that there was an oral partition and that they are in possession of the suit schedule properties in their own rights. The civil Court has also called upon the contesting respondents to prove that the appellant has suppressed the judicial proceedings as regards the land in Survey No.166/1B and Survey No.181 of Santibastwad village. The civil Court has answered the

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Issues against the appellant and in favour of the contesting respondents opining that the contesting respondents have demonstrated an oral partition.

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Sri. Sangram Kulkarni, the learned counsel for the appellant, at the very outset, submits that the appellant cannot claim any interest in the lands in Survey No.18 of Waghawade village because the appellant cannot dispute that this property was purchased by Sri Kustas Anton in the year 1920 and that on his demise, because the concept of a joint family is alien to Christians, would devolve only upon his legal heirs. It is obvious from this submission that the appellant is not pursuing his case insofar as the lands in Survey No. 18 of Waghawade village and consequently this Court cannot interfere with the civil Court’s judgment and decree insofar as it relates to the first three items of the plaint ‘A’ schedule [ Sy. No.18/1, Sy. No.18/2 and Sy. No.18/3 of Waghawade village ].

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Sri. Sangram Kulkarni next submits that this

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Court must grant partition of the lands in survey No.19 of

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Waghawade village and Survey No.166/1 of Santibastwad village [ the next six items of the plaint ‘A’ schedule ] because of the following:

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[i] The contesting respondents set up a case of oral partition between Sri Kustas Anton and Sri Marian, but it is irrefutable that there cannot be any oral partition amongst Christians.

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[ii] After the demise of Sri Kustas Anton [the eldest son of Sri Manvel Drak], the mutation entries for the lands in Survey Nos.18, 19, 16/4 and 16/8 of Waghawade village are made in the name of his son, Sri Anton Kaitan @ Anton Drak vide M.E.No.228 dated 10.04.1930, but with the demise of his younger brother, Sri Marian seven days later, the mutation entries are made to include the name of Sri. Jeron [his younger brother’s son and the appellant’s father] as per the revenue entries in M.E.No.263 dated 15.04.1932 represented by

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his grandmother Smt. Rosybai.

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[iii] As is seen in Ex.P-11 to Ex.P-14, the revenue entries for the land in Survey No.18 and 19 of Waghawade are made in the joint names of Sri Anton Kaitan @ Anton Drak and Sri Monu Drak [the two sons of Sri Kustas Anton] later with even appellant’s father’s name, Sri Jeron, being shown in the revenue records. These entries relate to the year 1954-55 and there is reference to both the revenue entries in M.E.No.228 and M.E.No.263.

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[iv] In the year 1978 [as per Ex.P-17, and its translation marked as Ex.P-15(A)], the name of Jeron is deleted with Sri. Anton Kaitan @ Anton Drak and Sri. Monu Kustas Drak reporting inter se partition for the land in Survey No.19 of Waghawade and also for Survey No.18 of Waghawade.

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[v] The contesting respondents have not been able to bring on record any material to demonstrate a partition to justify the entries as per Ex.P-17

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excluding the name of the appellant’s father [Sri Jeron] and this demonstrates that there is no partition. This Court must, therefore, infer that there is no partition amongst the legal heirs of Sri. Kustas Anton and Sri Marian, especially with the revenue entries for 3 acres and 12 guntas in Survey No.166/1/1C [item No.9 of plaint ‘A’ schedule] being continued in the name of the appellant.

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Sri. Sanjay S Katageri, the learned Counsel for the contesting respondents, submits that this Court must not interfere with the civil Court’s judgment because the contesting respondents are able to demonstrate a partition, which is acted upon and that the appellant, who has filed this suit [mostly relying upon the revenue entries of the year 1930/1950 and 1977] has suppressed material facts which would demonstrate a partition in which the appellant’s family is allotted specific properties and are dealt with by his father.

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Sri. Sanjay Katageri submits that this Court must consider that the appellant has, in his crossexamination, categorically admitted that his grandfather, Sri Marian, was allotted, in a partition, the lands in Survey No.161 and Survey No.181 of Santibastwad village as also a residential property at Lohar Galli of Santibastwad village, and that after the sale of these properties, the appellant’s family relocated to Castle Rock. When queried Sri. Sanjay Katageri, submits that the contesting respondents will not have any claim over the land measuring 3 acres 12 guntas in Survey No.166/1/1C [ item No.9 of the plaint ‘A’ schedule inasmuch as the revenue records are mutated in favour of the appellant. When further queried as to whether the appellant’s father is allotted this land in a partition, the learned counsel submits there must be otherwise the revenue records would not have been made separately in favour of the appellant.

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In the light of the rival submissions, the point for consideration is:

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Whether the Civil Court has considered all the circumstances as borne out by the evidence in dismissing the appellant’s suit, and if not, the terms of this Court’s interference.

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This Court must observe that it cannot be

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gainsaid that if there has to be a partition of immovable properties amongst Christians, it must be by way of a registered document and in the absence thereof, the defense of oral partition would be tenuous. This Court, having observed thus, must also consider the peculiarities as seen from the evidence that is placed on record. The appellant has filed this suit asking for partition of not just the land in Survey No.19 of Waghawade and Survey No.166 of Santibastawad village, but also the land in Survey No.18 of Waghawade village specifically contending that there has been no partition after the demise of Sri. Manvel prior to the demise of his sons, Sri Kustas Anton and Sri Marian in the month of January 1930.

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The appellant has been able to place on record material to demonstrate how the family has acquired land in Survey No.18 of Waghawade village but not how the land in Survey No.19 has been with this family for over decades. Further, the appellant does not dispute that the land measuring 15 guntas in Survey No.19/2, though listed as one of the plaint ‘A’ schedule properties, is not available for partition, and similarly the lands measuring 1 acre and 4 acre 34 guntas in Survey No.18/2 and 18/3 of Waghawade village are also not available for partition.

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The absence of materials in these regards, in this Court’s considered view, gains substantial significance when read conjointly with the fact that the appellant has admitted in his evidence that his grandfather, Sri Marian, was allotted lands in Survey Nos.161 and 181 of Santibastwad village apart from a residential house in Lohar Galli of Santibastwad village, and that these properties are presently not available. The appellant has indicated in his crossexamination that the land in Survey No.181 is lost under the Land Reforms Act but does not offer any explanation for the

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other two lands. Crucially the appellant has also admitted that his family resided in Castle Rock and did not reside either in Waghawade or Santibastwad Village.

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The revenue entries for the land in Survey No.19, as emphasized by Sri. Sangram Kulkarni, was initially in the name of Sri. Kustas Anton M.E.228 and later the appellant’s father’s name [Sri Jeron] is included vide M.E.No.263 dated 15.04.1938 with his grandmother, Smt. Rosybai, representing him. The revenue entries for the land in Survey No.19 as of 1954-55 continued to be in the name of these three persons until 1977 when there is a change in the names of Sri Anton Kaitan @ Anton Drak and Sri Monu Kustas Drak. The question would be whether these circumstances must prevail, notwithstanding all the other circumstances, to conclude that there has been no partition at all.

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This Court must opine that given the lapse of time between 1977 to the date of suit, which is more than 40 years, that the appellant does not dispute that certain

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properties indeed were allotted to his father and that he has transferred the same, it would amount to reading a certain case when the appellant’s case is completely uncertain. It is trite that a person who comes to the Court with an uncertain case cannot succeed. Though the civil Court has opined that the appellant has failed to establish that the suit schedule properties are joint family properties and that the oral partition has been acted upon in the light of the reasons as aforesaid, the first part of the point for consideration must be answered against the appellant confirming the civil Court’s finding that the appellant has failed to establish that the land in Survey No.19 of Waghawade village was available for partition.

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However, the contesting respondents do not dispute that, even as of the date of the suit, the revenue entries for the land measuring 3 acres 12 guntas in Survey No.166/1/1C-P1 [ item No.9 of the plaint ‘A’ schedule ] stood in the name of the appellant. Further, Sri. Sanjay Katageri is not able to show, on the basis of evidence on record, that this land and the next 3 acres 12 guntas in Survey

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No.166/1/1A and 166/1/1B of Santibastwad village are partitioned inter se . The revenue entries for these lands in Survey No.166/1/1A and 166/1/1B of Santibastwad village are in the names of some of the contesting respondents. The dismissal of the suit without providing for partition of these land by metes and bounds could adversely affect the appellant’s interest. The civil Court has failed to consider these aspects, and therefore, there must be interference to this limited extent. In the light of the aforesaid, the following:

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ORDER

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The appeal is allowed in part modifying civil Court’s judgment and decree dated 27.10.2016 declaring that there must be a partition inter se the appellant and others insofar as the corresponding land in Sy. Nos.166/1/1A, 166/1/1B and No.166/1/1C-P1 of Santibastwad village [ the item No.7 to 9 of the plaint ‘A’ schedule ]. The appellant shall be at liberty to initiate further proceedings in this regard.

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NC: 2024:KHC-D:11754-DB RFA No. 100059 of 2017

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The office is directed to draw the decree

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accordingly. No costs.

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Sd/(B.M.SHYAM PRASAD)

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JUDGE

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Sd/(C M JOSHI) JUDGE

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Yan,

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List No.: 1 Sl No.: 27

Sri Marian S/O Jeron Drago v. Shri Kustas S/O Anton/Kaitan Drak

Case brief

What is this about?

What did the court decide?

Sri Marian S/O Jeron Drago v. Shri Kustas S/O Anton/Kaitan Drak

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

Coram

Case details

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