Sri. Pandurangaiah Since Dead by Lrs Vs Sri. Devaraj

RESPONDENTS 1 TO 3 ARE R/AT C/O MANJUNATH BAKERY MARASANDRA, OPP: TO GOVT PRIMARY SCHOOL, DODDATUMKUR ROAD, HESARAGATTA HOBLI BANGALORE NORTH TALUK, BANGALORE-561203

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HC-KAR

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SMT MUNIRATHNAMMA D/O LATE PANDURANGAIAH W/O RAMESH AGED ABOUT 34 YEARS R/AT DODDBYLADAKERE, HESARAGHATTA HOBLI BANGALORE NORTH TALUK BANGALORE-560089

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SMT KOMAL D/O LATE PANDURANGAIAH AGED ABOUT 25 YEARS R/AT DODDABANAVARA, HESARAGHATTA HOBLI BANGALORE NORTH TALUK BANGALORE-560089

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…APPELLANTS

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(BY SRI. KISHAN G.M., ADVOCATE & MS. PUNYA KK., ADVOCATE FOR SRI. M VINOD KUMAR., ADVOCATE)

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AND:

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SRI. DEVARAJ S/O LATE RAJANNA AGED ABOUT 32 YEARS R/AT MALLOHALLI VILLAGE MADHURE HOBLI DODDABALLAPUR TALUK BANGALORE RURAL DIST BANGALORE-561204

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…RESPONDENT

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(BY SRI. V F KUMBAR, ADVOCATE FOR SRI. BOJANNA K.T., ADVOCATE)

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THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 16.10.12 PASSED IN R.A.NO.21/2010 ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT, DODDABALLAPUR, ALLOWING THE APPEAL AND

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HC-KAR

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SETTING ASIDE THE JUDGEMENT AND DECREE DTD 15.3.2010 PASSED IN OS.NO.158/2002 ON THE FILE OF ADDITIONAL CIVIL JUDGE (JR.DN.) AND J.M.F.C., DODDABALLAPUR.

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IN RSA NO. 367/2013

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BETWEEN:

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SRI PANDURANGAIAH

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SINCE DEAD BY LEGAL REPRESENTATIVES

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KEMPARASAMMA W/O LATE PANDURANGAIAH AGED ABOUT 58 YEARS

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SRI. ANNEGOWDA AGED ABOUT 28 YEARS, S/O LATE PANDURANGAIAH,

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SRI. NARAYANASWAMY AGED ABOUT 22 YEARS, S/O LATE PANDURANGAIAH

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RESPONDENTS 1 TO 3 ARE R/AT C/O MANJUNATH BAKERY, MARASANDRA, OPP. TO GOVT. PRIMARY SCHOOL, DODDATUMKUR ROAD, HESARAGATTA HOBLI, BANGALORE NORTH TALUK, BANGALORE – 561 203

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SMT. MUNIRATHNAMMA AGED ABOUT 34 YEARS, D/O LATE PANDURANGAIAH, W/O RAMESH, R/AT DODDABYLADAKERE, HESARAGATTA HOBLI, BANGALORE NORTH TALUK, BANGALORE- 560089

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HC-KAR

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SMT. KOMAL AGED ABOUT 25 YEARS, D/O LATE PANDURANGAIAH, R/AT DODDABANAVARA, HESARAGATTA HOBLI, BANGALORE NORTH TALUK, BANGALORE – 560090

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...APPELLANTS

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(BY SRI. KISHAN G.M., ADVOCATE & MS. PUNYA KK., ADVOCATE FOR SRI. M VINOD KUMAR, ADVOCATE)

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AND:

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SRI MUNIYAPPA AGED ABOUT 67 YEARS, S/O LATE ANNAYAPPA

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SMT. RANGAMMA AGED ABOUT 57 YEARS, W/O LATE RAJANNA,

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BOTH ARE R/AT MALLOHALLI VILLAGE, MUDHURE HOBLI, DODDABALLAPUR TALUK, BANGALORE RURAL DIST.

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....RESPONDENTS

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(BY SRI. V F KUMBAR, ADVOCATE FOR R1 SRI. BOJANNA K.T., ADVOCATE FOR R2)

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THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 16.10.2012 PASSED IN R.A.NO.20/2010 ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT, DADDABALLAPUR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND

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HC-KAR

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DECREE DT 15.3.10 PASSED IN OS.NO.120/2000 ON THE FILE OF ADDITIONAL CIVIL JUDGE (JR.DN.) AND JMFC, DODDABALLAPUR.

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THESE APPEALS, COMING ON FOR FINAL HEARING, 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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These Regular Second Appeals are filed by the appellants challenging the common judgment and decree dated 16.10.2012 passed in R.A.Nos.20/2010 and 21/2010 by the learned Fast Track Court, Doddaballapura.

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For convenience, parties are referred to based on

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their rankings before the trial Court in O.S.No.120/2000. The appellants in RSA No.366/2013 the appellants were the plaintiffs and the respondent was the defendant and in RSA No.367/2013 the appellant was the defendant and respondents were the plaintiffs.

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HC-KAR

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Brief facts leading rise to the filing of these appeals are as follows:

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The plaintiff in O.S.No.158/2002 i.e., Pandurangaiah filed a suit against the defendant i.e., Devaraju for declaration of title and injunction and the Muniyappa and

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Smt. Rangamma, who were the plaintiffs in O.S.No.120/2000 filed a suit against Pandurangaiah i.e., plaintiff in O.S.No.158/2002 for the relief of declaration to declare the registered release deed dated 24.01.1977 is not binding on them and also for an order of permanent injunction.

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O.S.No.158/2002:

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Brief facts leading rise to the filing of suit in O.S.No.158/2002 are that the one Annayyappa was having 5 children, namely, Kempaiah, Maluvaiah, Muniyappa, Pandurangaiah i.e., the plaintiff in O.S.No.158/2002 and Rajanna. The Rajanna had a son by name Devaraj, i.e., the defendant in O.S.No.158/2002. It is the case of the plaintiff that the plaintiff is the absolute owner and in

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HC-KAR

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lawful possession of the suit property through the registered release deed dated 24.01.1977. He had constructed a house on the suit property about 10 years ago as of the filing of this suit measuring East to West 20 feet, North to South 30 feet and the remaining land was kept vacant. The defendant has no right title or interest in the suit property and is trying to interfere with the peaceful possession and enjoyment of the plaintiff i.e., Pandurangaiah and tried to put up illegal construction in the vacant portion of the suit property. Hence, a cause of action arose for the plaintiff Pandurangaiah to file a suit for injunction.

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On the other hand, the defendant filed a written statement denying the averments made in the plaint. It is denied that the plaintiff i.e., Pandurangaiah is the owner in possession of the suit schedule property and it is also denied that the plaintiff, Pandurangaiah had acquired the title of the suit schedule property by way of a registered release deed dated 24.01.1977 and constructed a house.

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HC-KAR

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It is contended that the suit schedule property is their ancestral and joint family property. It belonged to Annayyappa S/o. Kempaiah, who acquired it from his ancestors. The said Annayyappa had 5 sons by name Kempaiah, Maluvaiah, Muniyappa, Pandurangaiah i.e., the plaintiff herein and Rajanna, the father of the defendant.

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It is further contended that sons of Annayyappa

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got divided the ancestral properties under a Palupatti dated 10.01.1960 and in the said partition, the suit property fell to the share of Muniyappa and Rajanna under ‘C’ and ‘D’ schedules, respectively. Since from the date of deed of partition, the defendants father and Muniyappa were in possession of the suit schedule property. After the death of defendant’s father i.e., Rajanna, the plaintiff, Pandurangaiah, attempted to dispossess the Devaraj and Muniyappa. The Muniyappa and defendant’s mother filed a suit in O.S.No.120/2000 seeking for a decree of permanent injunction against the plaintiff. Hence, prays to dismiss the suit.

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HC-KAR

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The plaintiff filed an application to amend the plaint. The said application was allowed vide order dated 23.10.2009 and the plaintiff in O.S.No.158/2002 has amended the plaint. The defendant filed an additional written statement and prayed to dismiss the suit in O.S.No.158/2002.

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O.S.No.120/2000:

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Brief facts leading rise to the filing of suit in O.S.No.120/2000 are as follows:

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The plaintiffs in O.S.No.120/2000 are Muniyappa and Smt. Rangamma i.e., wife of Rajanna and mother of the defendant in O.S.No.158/2002. It is contended that the suit schedule property is the ancestral and joint family property of the plaintiffs and the defendant and the suit property was belonged to one Annayyappa who had 5 children, namely Kempaiah, Maluvaiah, Muniyappa, Pandurangaiah and Rajanna. The sons of Annayyappa got divided into their ancestral properties in a palupatti dated

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10.01.1960 and the schedule property fell to the share of the plaintiffs under ‘C’ and ‘D’ schedule in presence of said palupatti. The plaintiffs in O.S.No.120/2000 became the owners and in possession of the suit schedule property. The defendant, being a brother of plaintiff No.1 and brother-in-law of plaintiff No.2, was also a party to the partition and attested his signature on the said Palupatti.

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It is contended that Pandurangaiah got created the registered release deed to deprive the legitimate right of the plaintiffs in O.S.No.120/2000. It is contended that the defendant has not disclosed the alleged registered release deed. It is contended that the defendant Pandurangaiah and his agents attempted to demolish the old house existing on the suit schedule property. Hence, a cause of action arose for the plaintiffs to file a suit for declaration and permanent injunction in O.S.No.120/2000.

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The defendant in O.S.No.120/2000 i.e., Pandurangaiah filed a written statement denying the

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averments made in the plaint. It is contended that the defendant has acquired the suit property under the registered release deed dated 24.01.1977 and it is denied regarding the partition in the year 1960. It is contended that the suit filed by the plaintiffs in O.S.No.120/2000 is barred by limitation and hence, prays to dismiss the suit.

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The trial Court, based on the pleadings of the

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parties, framed the following issues and additional issues.

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In O.S.No.120/2000

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ISSUES

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1. Whether the plaintiffs prove that they are in lawful possession of the suit schedule property?

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2. Whether the plaintiffs prove that defendant interfered in the plaintiffs possession of the suit schedule property as pleaded by them in plaint para Nos.3 & 6?

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3. Whether the plaintiffs are entitle for the relief of permanent injunction?

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4. What order or decree?

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Additional Issues

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1. Whether the plaintiffs prove that the registered release deed dated 24.01.1977 is not binding on them?

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2. Whether suit is barred by limitation?

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In O.S.No.158/2002

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ISSUES

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1. Whether the plaintiff proves that he is the absolute owner of the suit schedule property?

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2. Whether the plaintiff proves that he is in lawful possession of the suit schedule property as on the date of the institution of the suit?

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3. Whether the plaintiff proves that defendant interfered in the plaintiff’s possession of the suit schedule property?

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4. Whether the plaintiff is entitle for the declaration as sought for?

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5. Whether the plaintiff is entitle for the permanent injunction as sought for?

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6. What order or decree?

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The trial Court has clubbed both suits and recorded common evidence. The Pandurangaiah-plaintiff in O.S.No.158/2002 was examined as PW-1 and examined 3 witnesses as PW-2 to PW-4 and marked 25 documents as Ex.P.1 to Ex.P.25. On the other hand, the defendant in O.S.No.158/2002 was examined as DW-1, examined 5 witnesses as DW-1 to DW-6 and marked 38 documents as Ex.D.1 to Ex.D.38.

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HC-KAR

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The trial Court, after recording the evidence and assessing verbal and documentary evidence, answered the following issues in O.S.No.158/2002 i.e., issues No.1 to 5 in the affirmative and issue No.6 as per the final order and answered following issues in O.S.No.120/2000, i.e., issue No.1 to 3 and additional issue No.1 in the negative, additional issue No.2 in the affirmative and issue No.4 as per the final order.

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The trial Court decreed the suit in

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O.S.No.158/2002 with costs and it is declared that the plaintiff in O.S.No.158/2002 i.e., Pandurangaiah is the absolute owner of the suit schedule property. The defendant in O.S.No.158/2002 was restrained from causing interference over the suit schedule property. The suit in O.S.No.120/2000 was dismissed with cost. The defendant in O.S.No.158/2002 and the plaintiffs in O.S.No.120/2000, aggrieved by the judgment and decree passed in aforesaid suits, preferred the appeals in

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R.A.Nos.20/2010 and 21/2010 respectively. on the file of

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learned Fast Track Court, Doddaballapura.

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The first appellate Court after hearing the learned counsel for the parties, framed the following common points for consideration.

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POINTS

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1. Whether the judgment and decree passed by the trial Court under appeals in R.A.No.20/2010 and R.A.No.21/2010 is perverse, capricious and arbitrary and it calls for any interference by this Court?

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What order or decree?

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The first appellate Court after reassessing

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verbal and documentary evidence, answered point No.1 in the affirmative in both the appeals and point No.2 as per the final order.

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The appeals filed by the appellants before the first appellate Court were allowed and the first appellate Court, set aside the common judgment and decree dated 15.03.2010 passed by the trial Court. Consequently,

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dismissed the suit in O.S.No.158/2002 and decreed the suit in O.S.No.120/2000 and restrained the defendant i.e., Pandurangaiah in O.S.No.120/2000 from interfering with

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the peaceful possession and enjoyment of the suit schedule property of the plaintiffs in O.S.No.120/2000. The Pandurangaiah-plaintiff in O.S.No.158/2002 and defendant in O.S.No.120/2000, aggrieved by the impugned judgment passed in R.A.No.20/2010 and 21/2010, preferred these Regular Second Appeals.

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Heard the arguments of the learned counsel for the parties.

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Learned counsel for the plaintiff in O.S.No.158/2002 submits that Pandurangaiah had acquired the suit schedule property by a registered release deed dated 24.01.1977 and on the basis of the said registered release deed the name of the Pandurangaiah was entered in the revenue records. He submits that Pandurangaiah is in possession and enjoyment of the suit

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schedule property. He submits that said release deed was executed in 1977 and the sons of Annayyappa were aware of the execution of the registered release deed. None of the brothers of the Pandurangaiah, challenged the registered release deed till 2000. Only in 2000, the Muniyappa and w/o. Rajanna i.e., Smt. Rangamma challenged the said registered release deed. He submits that suit filed in O.S.No.120/2000 is barred by limitation.

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He also submits that when an instrument is registered, it is a notice to the whole World as per Section 3 of the Transfer of Property Act. He also submits that the stand taken by the plaintiffs in O.S.No.120/2000 regarding the partition and execution of the Palupatti is untenable. The said Palupatti was created and he submits that as on the date of execution of the alleged Palupatti, Annayyappa was alive and he was not given any share and the said Palupatti does not bear the signature of Annayyappa. Thus, it create a doubt about the execution of the alleged palupatti. The trial Court has rightly

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appreciated the entire evidence on record and passed the judgment. He submits that the first appellate Court without considering all these aspects, has proceeded to pass the impugned judgment only on the ground that there was a partition in between the sons of Annayyappa.

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He submits that the first appellate Court committed an error in passing the impugned judgment. Hence, on these grounds, he submits that the impugned judgment passed by the first appellate Court in R.A.Nos.20/2010 and 21/2010 is arbitrary and erroneous and perverse. Hence, the same is liable to be set aside. Accordingly, prays to allow the appeals.

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Per contra, learned counsel for the plaintiffs in O.S.No.120/2000 submits that the suit schedule property

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was acquired by Annayyappa and subsequently, there was a partition effected between the sons of Annayyappa in 1960 and the said partition was reduced into writing in the name and style as Palupatti. He submits that

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Pandurangaiah is also a party to the palupatti and is a signatory to the said Palupatti. He also submits that Pandurangaiah had got created a registered release deed. The said release deed is not binding on the plaintiffs in O.S.No.120/2000.

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He submits that the first appellate Court was justified in arriving to conclusion that there was a partition between the Pandurangaiah and his siblings and in the said partition, the schedule ‘C’ and ‘D’ properties fell to the share of Muniyappa i.e., plaintiff No.1 in O.S.No.120/2000 and Rajanna i.e., husband of plaintiff No.2, Smt. Rangamma in O.S.No.120/2000. By virtue of partition the Muniyappa and Rajanna became the absolute owners and they were put in possession of the suit schedule property. Pandurangaiah has failed to prove the execution of alleged release deed. He submits that other brothers were also alive. The execution of the registered release deed is behind the backs of Muniyappa and other siblings of Pandurangaiah. Hence, the first appellate Court was

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justified in passing the impugned judgment. Hence, on these grounds, he prays to dismiss the appeals.

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This Court admitted the appeals on 30.03.2015

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to consider the following Substantial Question of Law:

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“Whether the lower appellate Court has committed an error in discarding the release deed dated 24.01.1977 when the trial Court had referred the said document in the background of the other documents and had thereafter declared the right in favour of the plaintiff?”

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Reg: Substantial Question of Law:

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The plaintiff in O.S.No.158/2002 was examined as PW-1 and he has deposed that he had acquired the suit schedule property under a registered release deed dated 24.01.1977 and further based on the said registered release deed, name of Pandurangaiah was entered into revenue records and further the Pandurangaiah is in possession and enjoyment of the suit schedule property. Devaraj i.e., son of Rajanna, who is defendant in O.S.No.158/2002, tried to interfere with the plaintiffPandurangaiah’s peaceful possession and enjoyment of the

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suit schedule property. Pandurangaiah to prove his case

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has produced the documents.

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Exs.P.1 and P.2 are the tax payment register extracts. Exs.P.3 and P.4 are the tax paid receipts. Ex.P.5 is the registered release deed which discloses that Annayyappa relinquished his right in the suit schedule property in favour of Pandurangaiah and the said deed was registered on 24.01.1977. Exs.P.6 to P.8 are the certified copies of the demand register, which discloses the name of Pandurangaiah, plaintiff in O.S.No.158/2002. Ex.P.9 is the RTC extract of land bearing Sy.No.54A stands in the name of Pandurangaiah, Ex.P.10 is the copy of the mutation register, which discloses that the name of Pandurangaiah was mutated based on the registered release deed. Ex.P.11 is the certificate issued by the Gram Panchayat i.e., the Hiduvali certificate. Ex.P.12 is the Genealogical Tree, which discloses that Annayyappa had a wife and 5 children i.e., Kempaiah, Maluvaiah, Muniyappa, Pandurangaiah and Rajanna. Exs.P.13 to P.22 are the tax

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paid receipts. Ex.P.23 is the Patta book. Ex.P.24 is the vakalat of Munyappa, who entrusted an Advocate in O.S.No.120/2000. Ex.P.25 is the Pahani, which stands in the names of Muniyappa and Rangamma, Devaraj, M. Anand and K. Venkatesh.

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It is elicited that Annyyappa had 5 children and partition was effected on 10.01.1960 into five shares. He admitted that in the said partition ‘C’ schedule property fell to the share of Muniyappa, ’E’ schedule property fell to the share of Rajanna and he denied that the suit schedule property fell to the share of Muniyappa and Rajanna. He admits that the said suit land included one old house and open space and it is elicited that he got constructed the house in the suit schedule property in 1977 but he has not obtained any license and he admits that at the time of execution of release deed, his 4 brothers were not present and they are not parties to the registered release deed. He denies that the Muniyappa, wife and children of Rajanna

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were residing in the suit schedule property and they were

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running a petty shop in the suit schedule property.

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He admits that he sold one item of the property to one Lakshmamma and the sale deed executed by the PW-1 in favour of Lakshmamma, is marked as Ex.D.38 and he identifies his signature and his signature was marked as Exs.D.38(a) to D.38(e). He also submits that Exs.D.7 and D.8 contains the signature of Rajanna. It is stated that he has a document to show that a property bearing khanesumari No. 122/1 belongs to their family and he denies that property bearing khanesumari No. 122/1 is not the property belonging to their family. The plaintiff Pandurangaiah also examined one witness as PW2 who has deposed that the plaintiff is the absolute owner and in possession and enjoyment of the vacant site property bearing khanesumari No.235/149 of Malohalli village and the suit schedule property was acquired by Pandurangaiah by registered release deed dated

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24.01.1977 and enjoying the suit schedule property by

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remaining in possession.

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During the cross-examination it is elicited that he is an attesting witness to the release deed. Annayyappa executed a release deed in favour of Pandurangaiah in 1977 and he do not know in respect of how many items the said release deed was executed. It is denied that there is no said release deed executed in 1977 between Pandurangaiah and his father and he admits that there was a partition between plaintiff and his brothers. The plaintiff also examined one Uday Kumar as PW-3, who deposed that plaintiff-Pandurangaiah is the absolute owner of the suit schedule property and he acquired the suit property under a registered release deed on 24.01.1977 and the plaintiff has been enjoying the suit schedule property. During the course of cross-examination it is elicited that he is not an attesting witness to the registered release deed. He has seen Annayyappa executing the release deed in favour of Pandurangaiah in 1977 and the

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said release deed was executed in respect of one item measuring 35 x 45 feet bearing khanesumari No.235/149.

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The plaintiff also examined one Seetaram as PW-4 who is a deed writer. He has deposed that the plaintiff is the absolute owner and in possession of suit schedule property and the plaintiff had acquired the suit schedule property under a registered release deed dated 24.01.1977 and he identified his signature on Ex.P.5 and his signature is marked as Ex.P.5A. During crossexamination it is elicited that he obtained a license in 1981-82. Before the preparation of release deed he had notified khata which stands in the name of Maluvaiaha, who has not referred in the Genealogical tree.

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On the other hand, the defendant i.e., Devaraj in O.S.No.158/2002 was examined as DW-1. He has deposed that the suit schedule property was acquired by Annayyappa and a partition was effected between the sons of Annayyappa, in the said partition, schedule ‘C’ and ‘D’

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properties fell to the share of Muniyappa i.e., plaintiff No.1 in O.S.No.120/2000 and Rajanna the husband of plaintiff No.2 in O.S.No.120/2000 i.e., the father of defendant in O.S.No.158/2002 and the said partition was reduced into writing in the name and style as Palupatti in 1960. Based on the Palupatti the plaintiffs in O.S.No.120/2000 are in possession and enjoyment of the suit schedule property. Pandurangaiah had no right, title or interest over the suit schedule property and he submits that Pandurangaiah got created the alleged registered released deed behind the backs of his siblings. Pandurangaiah had played fraud on the siblings. The plaintiffs in O.S.No.120/2000 were not aware about the execution of alleged release deed by Annayyappa in favour of Pandurangaiah. He had deposed that Pandurangaiah had not acquired any right by virtue of the alleged registered release deed.

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To prove the defence, the defendant in O.S.No.158/2002 produced documents, where Ex.D.1 is the residence certificate, Ex.D.2 and Ex.D.3 are the

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certified copy of the Mahazar, Ex.D.4 is the tax paid

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receipt, Ex.D.5 and Ex.D.6 are the mutation register extracts, Ex.D.7 and Ex.D.8 are the original partition deed, Ex.D.9 to Ex.D.14 are the positive photographs, Ex.D.9a to 14a are the negatives. Ex.D.15 is the record of rights, Ex.D.16 is the index of land. Ex.D.18 is the license. Ex.D.19 to D.21 are the receipts. Ex.D.22 is the pass book. Ex.D.23 and Ex.D.24 are the KEB bills. Ex.D.25 is the receipt, Ex.D.26 is he certificate issued by the Panchayat, Ex.D.27 and Ex.D.28 are the true copy of the identity cards. Ex.D.29 is the telephone bill. Ex.D.30 is voters list. Ex.D.31 to Ex.D.35 are the residential certificates. Ex.D.36 and Ex.D.37 are the mutation extracts, Ex.D.38 is the sale deed.

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During the course of cross examination, it was suggested to DW1 that Annayyappa had executed a registered release deed in favour of Pandurangaiah i.e. plaintiff in O.S.No.158/2002 and the said suggestion was denied by DW1 and it was suggested that, the parties

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HC-KAR

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have not acted upon partition alleged to have been effected in 1960. The said suggestion was denied by DW1.

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Further, plaintiff No.1 in O.S.No.120/2000 was examined as DW2 i.e., Muniyappa, who reiterated the plaint averments of O.S.No.120/2000, in the examinationin-chief and during the cross examination vakalath was confronted to DW-2, filed in the said suit. He denied his signature on the vakalath and the said vakalath is marked as Ex.P24 and his signature was marked as Ex.P24(a) and the defendant in O.S.No.158/2002 has also examined other witnesses to establish that there was a prior partition between the Pandurangaiah and his brothers and in the said partition, schedules ‘C’ and ‘D’ fell to the share of Muniyappa i.e.DW2 and husband of plaintiff No.2 in O.S.No.120/2000 and father of defendant in O.S.No.158/2002 and they have denied the execution of Ex.P5. From the perusal of the entire evidence on record, it is the case of the Pandurangaiah that Annayyappa executed a registered release deed as per Ex.P5 in favour

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of Pandurangaiah and delivered possession of the suit schedule property and said release deed was registered on 24.01.1977. Based on the registered release deed, the name of Pandurangaiah was entered in the revenue records. Although the plaintiffs in O.S.No.120/2000 contended that there was a partition between the Pandurangaiah and his siblings in 1960 and 'C' and 'D' schedule properties fell to the share of Muniyappa and Rajanna.

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However, to prove the partition of the year 1960, the defendant in O.S.No.158/2002 and plaintiffs in O.S.No.120/2000 have not examined any witnesses. Though they have produced Palupatti, marked as Ex.D7 and Ex.D8 and the said documents were executed in 1960. Since from 1960 to 1984-1985, none of the parties submitted an application to enter their names in the revenue records based on Ex.D.7 and Ex.D.8 and further, the plaintiffs in O.S.No.120/2000 did not explain why Annayyappa was not a party to the Ex.D7 and Ex.D8.

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HC-KAR

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Annayyappa i.e. father of Pandurangaiah and plaintiff No.1 in O.S.No.120/2000 is not a signatory to Ex.D7 and Ex.D8.

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Thus, the execution of Ex.D7 and Ex.D8 creates

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doubt in the mind of the Court. The plaintiffs in O.S.No.120/2000 failed to establish that there was a partition in 1960 and Palupatti was executed as per Ex.D.7 and Ex.D.8. As observed above, though the plaintiffs in O.S.No.120/2000 alleged that partition was effected in 1960, the parties have not acted upon it till 1984-1985. Further, Annayyappa executed a registered release deed in favour of Pandurangaiah.

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A registered release deed constitutes a constructive

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notice to the whole world, unless it is a case of fraud, forgery, coercion or misrepresentation and therefore the presumption in law is that the plaintiffs in O.S.No.120/2000 had knowledge of the said release deed. They did not make any attempt to challenge the registered release deed until 2000 and filed a suit in 2000, challenging the registered release deed. The suit filed by

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the plaintiffs in O.S.No.120/2000 is barred by limitation.

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The said aspect was considered by the trial Court and has rightly passed the judgment. The first appellate Court, reversed the judgment and decree of the trial Court only on the ground that the plaintiffs in O.S.No.120/2000 had proved that there was a partition and in the said partition, schedule 'C' and 'D' property fell to the share of Muniyappa and Rajanna. The first appellate Court, without considering why Annayyappa was not a party to Ex.D.7 and Ex.D8 and why he is not a signatory to Ex.D7 and Ex.D8, passed the impugned judgment.

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Further the First appellate Court also did not

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examine whether the parties had acted upon the alleged Palupatti, which was executed in 1960, till 1984-85. The first appellate Court, without considering the said aspect, has passed the impugned judgment. The impugned judgment passed by the first appellate Court is arbitrary, perverse and erroneous and the same is liable to be set

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aside.

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The trial Court has not only considered Ex.P5

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but also considered the documents -revenue records,

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where, based on Ex.P.5, the name of the Pandurangaiah was entered in the khata regarding the suit property and the trial Court has rightly passed the impugned judgment. The first appellate Court has committed an error in passing the impugned judgment reversing the judgment and decree of the trial Court. In view of the above discussions, I answer the substantial question of law in the affirmative.

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Accordingly, I proceed to pass the following order.

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ORDER

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(i) The Regular Second Appeals are allowed.

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(ii) The common judgment and decrees passed by the first appellate Court is set aside and the common judgment and decrees passed by the trial Court is restored.

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