Smt Indira Vs Sridhara Poojary (Deceased)

THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGEMENT DECREE DTD 24.03.2018 PASSED IN R.A.NO. 25/2011 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC., AT PUTTUR, D.K, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 18.04.2011 PASSED IN OS.NO.32/2001 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC., PUTTUR, D.K.

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

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CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI

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ORAL JUDGMENT

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This Regular Second Appeal is filed by the appellant, challenging the judgment and decree dated 24.03.2018 passed in R.A.No.25/2011 by the learned Additional Senior Civil Judge and JMFC, Puttur, D.K., and the judgment and decree dated 18.04.2011 passed in O.S.No.32/2001, by the learned Principal Civil Judge and JMFC, Puttur, D.K.

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For convenience, the parties are referred to, based on their rankings before the trial court. The appellant was plaintiff No.2, respondent No.1 is the legal representative of defendant No.1, and other respondents were the defendants.

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Brief facts, leading rise to the filing of this appeal are as follows:

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The plaintiffs filed a suit against the defendants

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seeking the relief of declaration. Initially, plaintiff No.1 filed a suit against the defendants for a declaration to

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declare the registered partition deed dated 01.01.1996 is null and void, and not binding on the plaintiff, and for a decree for perpetual injunction. It is the case of the plaintiffs that, plaintiff No.1 is the father of defendants. He is the absolute owner of plaint ‘A’ schedule properties.

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The said properties were granted to him by the land Tribunal vide order dated 15.11.1976. The defendants have no right over the same. The plaintiff filed a suit in O.S.No.317/89 against defendant Nos.1 to 3 for the relief of perpetual injunction. The said suit was decreed, and defendant Nos.1 to 3 preferred an appeal, which is pending consideration. It is contended that the plaintiff served with a mutation notice from the mutation officer, as there was an application filed by defendant No.1 seeking mutation on the strength of the registered partition deed entered into between the plaintiff and defendants. It is contended that the plaintiff never participated in the alleged partition. Defendant Nos.1 to 4 have fabricated the document purporting to be a

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registered partition deed to defeat decree passed in O.S.No.317/89.

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The plaintiff objected to mutation, but his

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objection was rejected, and the mutation was effected in pursuance of the alleged partition deed. The plaintiff preferred an appeal before the Assistant Commissioner. The Assistant Commissioner dismissed the appeal. Thus, a cloud is cast on the title of the plaintiff. Hence, a cause of action arose for the plaintiff to file a suit for a declaration to declare that the partition deed dated 01.01.1996 is null and void and not binding on the plaintiff, etc. Accordingly, prays to decree the suit.

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Summons were issued to defendants Nos.1 to 5. Defendant Nos.1 to 3 appeared through their counsel. Despite the service of summons on defendant Nos.4 and 5, they remained unrepresented, and they were placed exparte. Defendant No.2 filed a written statement admitting the relationship between the plaintiff and the defendants, and denied the allegations made in the plaint.

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It is contended that plaint ‘A’ schedule properties were tenanted lands where all the defendants were cultivating and residing together. The plaintiff filed a declaration regarding plaint ‘A’ schedule properties, and occupancy rights were granted in favour of the plaintiff and his children.

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The plaintiff had gone to Kerala State for two years. Defendant No.2 was managing the suit schedule properties. There was a dispute between the plaintiff and defendants regarding the suit schedule properties. Due to the intervention of responsible persons, a panchayath was held on 15.11.1987. On 17.04.1988, the gist of the said panchayath was reduced to writing. Thereafter, the properties were divided, and possession of the respective shares was handed over to the respective sharers. To confirm the partition, the same was reduced to writing and it was registered on 01.01.1996. Based on the registered partition deed dated 01.01.1996, all the records, including RTC, were entered in the name of the respective parties.

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The plaintiff preferred an appeal against the revenue records; the appeal was dismissed. It is also contended that, the plaintiff during the pendency of the suit, executed a sale deed dated 13.06.2001. The said sale is invalid. Hence, prays to dismiss the suit.

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The Trial Court, based on the afore-said pleadings, framed the relevant issues and additional issues.

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Plaintiff No.2 was impleaded subsequently. The

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plaintiffs to substantiate their case, plaintiff No.1 was examined as PW.1 and marked 12 documents as EXs.P1 to 12. On the other hand, defendant No.2 examined himself as DW.1, and marked 14 documents as Exs.D1 to 14. The trial Court, on assessing the oral and documentary evidence, dismissed the suit with costs vide judgment dated 18.04.2011.

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Plaintiff No.2, aggrieved by the judgment and decree passed in O.S.No.32/2001, preferred an appeal in

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R.A.No.25/2011 on the file of Additional Senior Civil Judge and JMFC, Puttur, D.K.

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The First Appellate Court, on reassessment of oral and documentary evidence, dismissed the appeal vide judgment dated 24.03.2018. Plaintiff No.2, aggrieved by

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the impugned judgments passed by the Courts below, filed this regular second appeal.

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Heard the arguments of the learned counsel for plaintiff No.2.

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Learned counsel for plaintiff No.2 submits that suit ‘A’ schedule properties were granted in favour of plaintiff No.1 vide order dated 15.11.1976. The Land Tribunal granted occupancy rights in favour of plaintiff No.1 in his individual capacity and not for the benefit of the family. He submits that plaintiff No.1 is in possession and enjoyment of the suit schedule properties. Defendant Nos.1 to 3 tried to trespass into the suit schedule properties. The plaintiff filed a suit in O.S.No.317/1989.

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The said suit was decreed vide judgment dated 07.07.1992. He submits that defendant No.1 submitted

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an application to revenue authorities to change the mutation based on the registered partition deed dated 01.01.1996. The plaintiff received a mutation notice from the Tahsildar. Plaintiff No.1 submitted objections to the said application. The Tahsildar rejected the said application. He submits that there has no partition effected between the parties as alleged by the defendants. He submits that the defendants have created the alleged partition deed. The said aspect was not properly considered by the Courts below, and committed an error in passing the impugned judgments. He further submits that the Courts below have not examined that the land Tribunal granted occupancy rights in favour of plaintiff No.1 in his individual capacity and not for the benefit of the entire family. Plaintiff No.1 is the absolute owner of the suit schedule properties. Hence, on these grounds, prays to allow the appeal.

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Perused the records, and considered the

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submissions of learned counsel for plaintiff No.2.

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Plaintiffs, to substantiate their case, plaintiff No.1 examined himself as PW.1, he reiterated the plaint averments in his examination-in-chief and he deposed that, suit ‘A’ suit schedule properties are the tenanted lands and occupancy rights were granted in favour of plaintiff No.1, and he became the absolute owner of the suit schedule properties. There is no partition effected as alleged by the defendants, and the plaintiff has not executed the alleged registered partition deed dated 01.01.1996. He has deposed that defendant No.1 based on the alleged registered partition deed dated 01.01.1996, submitted an application for effecting the mutation. Plaintiff No.1 received the notice from Tahsildar and plaintiff No.1 filed his objections. The Tahsildar over looked the objections, and passed the order to effect the mutation in the names of the defendants. The plaintiff, aggrieved by the order passed by the Tahsildar, preferred

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an appeal before the learned Assistant Commissioner. The said Assistant Commissioner dismissed the appeal. The plaintiffs, to substantiate their case, produced the documents marked as Exs.P1 to 9, which are the RTC extracts of suit schedule properties. Ex.P10 is the certified copy of the order passed by the Assistant Commissioner dated 30.03.2000 which discloses that plaintiff No.1, aggrieved by the mutation order passed in favour of defendant No.1, preferred an appeal, and the said appeal was dismissed.

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The plaintiffs have produced two affidavits marked as Exs.P11 and 12 sworn in by defendant No.1 and defendant No.5. During the course of crossexamination, it was suggested to PW.1 that there was a partition between the plaintiffs and defendants, and the same was reduced into writing and registered on

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01.1.1996. After the partition, the parties are in possession of their respective shares. Based on the partition, names of the parties were entered in the

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revenue records. PW.1 admitted the said suggestion, but deposed that he did not accompany his children on that day. He also deposed that the occupancy rights regarding plaint ‘A’ schedule properties were grated for the benefit of the entire family and not for plaintiff No.1 alone. To prove the defense of the defendants, the defendants have produced the documents Ex.D1 is the certified copy of the resolution passed by panchayatdars, which discloses that partition was effected between the plaintiffs and defendants. Ex.D2 is the certified copy of the sketch. Ex.D3 is the original registered partition deed executed on 01.01.1996, which discloses that partition was effected between the plaintiff No.1 and defendants. Ex.D4 is the certified copy of the order passed by the Deputy Commissioner, Mangalore, which discloses that the revision petition filed by the plaintiffs was dismissed and the order passed by the Tahsildar was confirmed. Ex.D5 to 13 are the assessment receipts which disclose that the defendants are paying the land revenue of the suit

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schedule properties. Ex.D14 is the certified copy of the order passed in DCR 6/96-97 dated 30.10.1996.

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During the cross-examination, it was suggested to DW.1 that, the defendants have created Ex.D3 i.e., registered partition deed dated 01.01.1996 and occupancy rights of suit ‘A’ schedule property were granted in favour of the plaintiff No.1 in his individual capacity and not for the benefit of the family. The said suggestion was denied by DW.1. Considering the entire evidence on record, it is clear that the land Tribunal granted an occupancy rights in favour of the plaintiff No.1 on 15.11.1976. Subsequently, a partition effected between the plaintiffs and defendants regarding the suit schedule properties. PW.1, during the cross-examination, admitted the thumb mark on Ex.D3 i.e., original registered partition deed. Though, plaintiff No.1 denied the thumb impression on Ex.D3, the trial Court has sent Ex.D3 and the deposition of PW.1 to the thumb impression expert for comparison. The experts have submitted the report stating that the thumb

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impression marked on Ex.D3 and deposition of PW.1 are identical. Neither of the parties to the suit filed their objections to the commissioner’s report. Further, PW.1 admitted that there was a partition on 01.01.1996 and the same was reduced into writing and the same was registered. Based on the registered partition deed, the names of the respective parties were entered in the revenue records. The plaintiffs have produced the affidavits of defendant Nos.4 and 5.

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Admittedly, summons were duly served on defendant Nos.4 and 5, but despite the service of summons, defendants Nos.4 and 5 remained unrepresented, and were placed exparte. The plaintiffs did not prove the contents of Exs.P11 and 12 by examining defendant Nos.4 and 5. Plaintiff No.1, except examining himself, he has not examined any witnesses to disprove the execution of Ex.D3. Ex.D3 discloses a partition effected between the plaintiffs and defendants. There was a partition between the parties. Hence, the question of

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claiming a declaration that the plaintiff No.1 is the absolute owner of the suit schedule properties does not arise and further, the registered partition deed was executed on 01.01.1996, and the suit was filed on 14.03.2001. As per Article 56 of the Limitation Act, the plaintiffs should have filed a suit within 3 years from the date of execution of Ex.D3. Admittedly, the suit is filed after a lapse of 5 years from the date of execution of Ex.D3. Thus the suit filed by the plaintiffs is barred by limitation.

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Plaintiff No.2 purchased the property during the pendency of the suit. The transaction between plaintiff No.1 and plaintiff No.2 is hit by the doctrine of lis pendence, i.e., under Section 52 of the Transfer of Property Act. Plaintiff No.2 has failed to prove the execution of the registered sale deed dated 13.06.2001. The plaintiffs failed to prove that the defendants had played fraud and executed the registered partition deed on 01.01.1996. This Court is of view that there was a

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partition between plaintiff No.1 and defendants, and plaintiff No.1 had failed to establish that the defendants have played fraud on plaintiff No.1. Further, plaintiff No.2 has not entered the witness box to prove that, plaintiff No.2 is a bonafide purchaser for a value without notice, and the trial Court rightly dismissed the suit. The first Appellate Court, on re-assessment of oral and documentary evidence, dismissed the appeal.

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The Courts below have concurrently recorded a finding of fact that the occupancy rights were granted in favour of plaintiff No.1, and there was a partition between the plaintiff No.1 and defendants, and the same was reduced into writing and registered on 01.01.1996, and the plaintiff No.1 has failed to establish that Ex.D3 is the outcome of fraud. Both the Courts below have concurrently recorded a finding of facts against the plaintiffs. Hence, I do not find any error in the impugned judgments or any substantial question of law, that arises for consideration in this appeal.

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