Prayagbai and Anr. Vs Baburao @ Bhaurao and Anr.

THIS RSA IS FILED UNDER SECTION 100 CODE OF CIVIL PROCEDURE 1908, PRAYING TO ALLOW THE REGULAR SECOND APPEAL AND THEREBY PLEASED TO SET ASIDE THE JUDGMENT AND DECREE PASSED IN R.A. NO 20/2019, ON THE FILE OF THE HON’BLE SENIOR CIVIL JUDGE AND JMFC BASAVAKALYAN, DATED 02.12.2023 AND THEREBY SET ASIDE THE JUDGMENT AND DECREE IN O.S.NO.72/2014 ON THE FILE OF HON’BLE CIVIL JUDGE, BASAVAKALYAN DATED 26.04.2019 AND THEREBY PLEASED TO DECREE THE SUIT OF THE PLAINTIFF / APPELLANTS AS PRAYED FOR THROUGHOUT COST, TO MEET THE ENDS OF JUSTICE ENDS EQUITY.

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

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CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI

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ORAL JUDGMENT

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Challenging judgment and decree dated 02.12.2023 passed by Senior Civil Judge and JMFC, Basavakalyan in RA no.20/2019 and judgment and decree dated 26.04.2019 passed by Civil Judge, Basavakalyan in OS no.72/2014, this appeal is filed.

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HC-KAR

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Sri KM Ghate, learned counsel submitted appeal was by plaintiffs in OS no.72/2014 filed for declaration, permanent injunction and rectification of revenue records etc. In plaint, it was stated that land bearing Sy.no.205/4, 5 and 6 of Mirkhal village, Basavakalyan taluk were ancestral properties of Vittalrao (husband of plaintiff no.1 and father-in-law of plaintiff no.2) and his brother - Baburao (defendant no.1). It measured 8 Acres 10 guntas. In oral partition in year 1998, extent of 4 Acres 28 guntas was allotted to Vittalrao while defendant no.1 was allotted 3 Acres 32 guntas, due to fact that it was more fertile.

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It was stated Vittalrao had died leaving behind plaintiffs. It was further stated on 01.03.1999, defendant no.1 filed application before Tahasildar, Basavakalyan showing extent 3 Acres 32 guntas in Sy.no.205 fell to his share and 4 Acres 28 guntas in favour of plaintiffs. Subsequently, misusing innocence of plaintiffs, name of defendant no.1 was entered to extent of 2 Acres 2 guntas and 2 Acres 5 guntas in name of defendant no.2 – his son. Thereafter, land was bifurcated as Sy.nos.205/4, 5 and 6 respectively. It was submitted such entry was illegal and contrary to possession.

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HC-KAR

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It was submitted, due to exigencies and to obtain loan, plaintiff no.1 had executed nominal sale deed over extent of 1 Acre 38 guntas. Same was redeemed and re-sale deed got executed in name of plaintiff no.2. Thus, extent of 2 Acres 10 guntas numbered Sy.no.205/6 stood in name of plaintiff no.1. It was stated, after oral partition, land was measured by surveyor as per partition and sketch prepared. Due to plaintiffs being rustic villagers, they were unaware of wrong entries. On knowing, they approached defendants for correction of entries. When they refused and attempted to interfere with plaintiffs’ possession and enjoyment of 4 Acres 28 guntas, suit was filed.

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On service of suit summons, defendants filed written statement, alleging suit was barred by principles of resjudicata as OS no.56/2013 filed by plaintiffs earlier seeking for partition and separate possession was dismissed as withdrawn after filing of written statement by defendants. It was also stated suit was hit by principles of estoppel, as in said suit plaintiffs had pleaded that there was no partition of joint family properties, but in present suit contradictory stand asserted earlier partition and claimed dispute was only about extent allotted in said partition.

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HC-KAR

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While generally denying plaint averments, it was

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stated that Sy.no.205 totally measuring 8 Acres 20 guntas was divided equally among two brothers and therefore, there could be no further partition. Allegation of alienation of portion of property by plaintiff no.1 in favour of plaintiff no.2 under registered sale deed dated 19.04.2007, subsequent sale thereof in favour of Venkat S/o Kadajirao Biradar under registered sale deed dated 15.03.2008 was also made. Filing of application for mutation as alleged by plaintiff before Tahasildar was denied. It was stated division of land between husband of plaintiff no.1 and defendant no.1 was equal and they were in possession accordingly. Therefore, suit was without merit and sought dismissal.

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Based on pleadings, trial Court framed following

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issues:

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Whether the plaintiff proves that, they are the owners of suit land?

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Whether the plaintiff proves that they are in lawful possession of suit land as on date of suit?

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Whether the plaintiff proves that Revenue Authorities have made wrong entries in the record of rights of suit land?

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HC-KAR

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Whether the plaintiff proves that defendants are illegally interfering and causing illegal obstruction in possession of plaintiffs over suit land?

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Whether the defendant proves that suit valuation made by plaintiffs is incorrect and court fee paid on plaint is insufficient?

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Whether the defendant proves that suit of plaintiff is not maintainable?

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Whether plaintiffs are entitle for the reliefs claimed in the plaint?

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What decree or order?

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Thereafter, plaintiff no.1 examined herself and

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three others as PWs.1 to 4 and got marked Exhibits P1 to P8, while defendant no.1 and two others were examined as DWs.1 to 3 and Exhibits D1 to D12 were got marked.

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On consideration, trial Court answered issues no.1 to 5 and 7 in negative, issue no.6 in affirmative and issue no.8 by dismissing suit. Aggrieved plaintiffs filed RA no.20/2019 on various grounds. Based on same, following points were framed for consideration:

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1. Whether the trial Court has wrongly come to the conclusion that the plaintiffs are not entitled for the relief prayed in the plaint ?

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HC-KAR

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1. Whether the findings of the trial court in the impugned judgment are perverse, capricious and erroneous, which require interference by this court?

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1. What order?

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On consideration, first appellate Court answered

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points no.1 and 2 in negative and point no.3 by dismissing appeal. Against concurrent findings, this appeal was filed.

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It was submitted, when plaintiffs’ claim was based on earlier partition which was admitted by defendants in written statement and noted by both Courts, dismissal of suit was not justified. It was submitted, while passing impugned judgment, first appellate Court had observed in paragraph 19 that total extent of Sy.no.205 of Mirkhal village was 8 Acres 20 guntas including 6 guntas of phot kharab which was partitioned between plaintiff no.1 and defendant no.1 in 1998 and further that parties were in possession and enjoyment of their respective shares. It noted that dispute was about extent of land allotted to parties. It observed, plaintiffs’ claim about allotment of 4 Acres 28 guntas to them and 3 Acres 32 guntas to defendant no.1 was sought to be established on basis of

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HC-KAR

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Ex.P4-application stated to have been filed before Tahasildar, Basavakalyan and Ex.P9-Sketch prepared by Surveyor.

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It was submitted, first appellate Court erred in disbelieving Ex.P4 on ground that it did not bear seal or signature of Tahasildar, though it was marked without any objection. And merely on ground of erroneously mentioning Sy.no.216 instead of Sy.no.205, it disbelieved Ex.P9, though it was relevant material to show possession of plaintiffs over suit property.

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It also erred in ignoring specific pleading that plaintiffs were in possession of 4 Acres 28 guntas and dealt with same while defendant no.1 had illegally got names entered in respect of 4 Acres 10 guntas each. It mislead itself by relying on mutation entries and referring to sale/repurchase by plaintiffs. Therefore, proposed substantial question of law arose for consideration :

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“Whether first appellate Court erred in dismissing appeal in spite of observations and reasoning in paragraphs no.14, 16 and 19 of its judgment?”

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HC-KAR

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On other hand, Sri Sachin M. Mahajan, learned

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counsel for defendants opposed appeal contending that both Courts had by assigning detailed reasons, concurrently held plaintiffs failed to sustain their claim on basis of unequal or equitable partition. It was submitted, same could not be interfered with in second appeal and sought for its dismissal.

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Heard learned counsel, perused impugned

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judgment and decree and records.

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This second appeal is by unsuccessful plaintiffs in suit for declaration, permanent injunction and rectification of revenue records.

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As per plaintiffs, land bearing Sy.no.205 of Mirkhal village totally measuring 8 Acres 20 guntas with 6 guntas of kharab land was ancestral property of husband of plaintiff no.1 and defendant no.1 and partitioned by them in 1998, wherein plaintiff no.1 was allotted extent of 4 Acres 10 guntas while defendant no.1 was allotted 3 Acres 32 guntas, based on fertility. They further stated, since then, plaintiff no.1 and defendant no.1 were enjoying their respective portions.

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HC-KAR

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And in pursuance of same, defendant no.1 had filed application on 01.03.1999 before Tahasildar, Basavakalyan for mutation of entries in Record of Rights (RoRs) as per partition. But, subsequently in collusion with Revenue Officials and behind back of plaintiffs, defendants illegally got their names entered in respect of 4 Acres 10 guntas. Despite same, plaintiffs continued to be in possession of 4 Acres 28 guntas and had continued to enjoy ownership rights over suit property until they realized about wrong entries, approached defendants for rectification and on refusal, filed suit.

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On other hand, defendants admitted partition but claimed it to be equal partition corroborated by entries in RoRs. Referring to dismissal of OS no.56/2013 filed for partition and separate possession as withdrawn, present suit was contended to be barred by principles of res-judicata/estoppel. To substantiate their claim, plaintiffs examined plaintiff no.1 and three others as PWs.1 to 3 and got marked RoRs of Sy.no.205/4, 5 and 6; application filed before Tahasildar; application; RoR of Sy.no.205/4; postal acknowledgment and certified copy of plaint in OS no.56/2013 as Exs.P1 to P8.

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HC-KAR

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In rebuttal, defendant no.1 examined himself and

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two others as DWs.1 to 3 and got marked RoRs of Sy.no.205/4, 5 and 6; land revenue receipts; Akarband; ME no.8/1998-99; certified copies of registered Sale Deeds; copy of plaint and order-sheet in OS no.56/2013 as Exs.D1 to D12 respectively.

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While passing impugned judgment and decree, trial Court took note of rival pleadings and evidence. On issues no.1 to 4, it observed, there was no explanation why 4 Acres 28 guntas was allotted to plaintiff no.1 in partition between her husband - Vittal Rao and defendant no.1. It also entertained doubt about possibility of plaintiffs being declared as owners of suit property without specific pleading about when and how they had acquired ownership right over suit property.

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It observed, oral partition could be established only by pleading about particulars of joint family, its members, properties held and shares allotted to each member, about which plaint was silent and as inheritance/succession was integral part of plea of partition and plaintiff had not disclosed how and from whom they had got suit properties, while PWs.2

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HC-KAR

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and 3 were totally ignorant about facts of case, it concluded against plaintiffs.

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Trial Court also observed, there was no explanation for entering names of only wife and daughter-in-law, if partition had taken place between plaintiff no.1 and defendant no.1. It observed, above facts and circumstances tilted preponderance of probabilities in favour of defendants.

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Trial Court held plea of res judicata as inapplicable on ground that relief sought in OS no.56/2013 was for partition and separate possession while present suit was for declaration of title.

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While passing impugned judgment and decree, first appellate Court also adverted to pleadings, evidence led as well as contentions urged. It noted plaintiff no.1 though filed her examination-in-chief by way of affidavit, she later appointed her son as her power of attorney to depose on her behalf. Therefore, deposition of PW.1 was discarded. It noted in deposition, PWs.2, 3 and 4 reiterated plaint assertions, and denied suggestion that in oral partition, property was divided

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HC-KAR

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equally. It noted defendant no.1 deposed as DW.1 in terms of written statement averments and denied suggestion that he had given application as per Ex.P.4 for mutation of names in RoRs. It noted admission about partition having taken place in year 1998 but denial of preparation of sketch by surveyor in Ex.P9.

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First appellate Court also referred to deposition of DW-2. It observed, his admission in cross-examination about lack of knowledge of extent of lands held by plaintiff no.1 and defendant no.1 and about properties fallen to share of parties to conclude that he had turned hostile. Likewise, it referred to admission by DW.3 in cross-examination that he did not know family history of plaintiffs and defendants, about boundaries of suit properties and partition between plaintiffs and defendants. It observed that there was no dispute about Sy.no.205 measuring 08 Acres 20 guntas was joint property of defendant no.1 and husband of plaintiff no.1 and partition was effected in 1998. Though it was specific case of plaintiff that based on fertility of land 04 Acres 28 guntas was allotted to plaintiff no.1, defendant no.1 was allotted with 03 Acres 32 guntas, sought to be substantiated by producing application filed by defendant

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HC-KAR

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no.1 before Tahsildar, Basavakalyan. It noted, mutation sanctioned by Tahsildar was not based on partition and Ex.P.4 - application stated to have been filed did not bear seal and signature of Tahsildar or concerned official. It held mere production of application without corroboration amounted to failure to prove it.

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It noted, in Ex.P9 – sketch survey number of land measured was mentioned as Sy.no.216 and not suit property. It also observed, author of said document was not examined and thus disbelieved same. On perusal of Ex.P6 - RoRs for years from 1993-1994 to 1997-1998 showed Sy.no.205 to be owned by defendant no.1 and in 1998 mutation as per Ex.D.8 was sanctioned allotting 04 Acres 10 guntas to share of plaintiff no.1 and defendant no.1 based on partition and subsequently in year 2007, plaintiff no.1 had sold 02 Acres in land bearing Sy.no.205/4 out of 04 Acres 10 guntas and repurchased it in name of plaintiff no.2, it held plaintiffs cannot seek to establish their claim for declaration about allotment of more extent of land in oral partition to plaintiff no.1 based only on oral statements, therefore trial Court was justified in dismissing suit. On said finding, it dismissed appeal.

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HC-KAR

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Since plaintiffs are seeking for relief of declaration

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of title on basis of earlier oral partition that they were allotted 04 Acres 28 guntas in Sy.no.205 of Mirkhal village, they would require to establish same with specific evidence especially as their earlier suit for partition was got dismissed as withdrawn. Plaintiffs claim depended mainly on Ex.P4 alleged application filed by defendant no.1 before Tahsildar on 01.03.1999 and Ex.P9 – survey sketch showing extent of possession by plaintiffs and defendants respectively.

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On perusal of Ex.P.4, both Courts concurrently held that it does no bear any seal or signature of concerned government office. They also observed lack of effort on part of plaintiffs to examine any official to substantiate same. Likewise, Ex.P.9 – sketch alleged to be drawn by a surveyor also did not bear any seal. Failure to examine its author would be fatal regardless of alleged mistake in mentioning survey number of land measured. Besides, there is no basis in pleading to explain mistake in mentioning incorrect survey number.

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