Smt. Seethamma Vs Sri B J Ashok

THIS RFA IS FILED U/SEC.96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 07.12.2010 PASSED IN O.S.210/2001 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE, CHIKMAGALUR, DISMISSING THE SUIT FOR DECLARATION AND PERMANENT INJUNCTION.

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

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CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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ORAL JUDGMENT

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The captioned appeal is filed by the unsuccessful plaintiffs assailing the judgment and decree dated 07.12.2010 rendered in O.S.No.210/2001, wherein the plaintiffs' suit seeking relief of declaration and injunction is declined by the Trial Court.

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For the sake of brevity, the parties are referred to

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as per their rankings before the Trial Court.

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Brief facts leading to the case are as under;

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The plaintiffs, being the legal heirs of late B.J.Mahesh, instituted the suit in O.S.No.210/2001 asserting rights flowing from a registered Partition Deed dated 10.03.1975 executed between their predecessor-ininterest, B.J. Mahesh and defendant No.1. It is specifically

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pleaded that under the said registered instrument,

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Schedule ‘A’ property was allotted to the share of B.J. Mahesh, whereas Schedule ‘B’ property fell to the share of defendant No.1. Though the original Partition Deed is stated to be unavailable, the plaintiffs have placed reliance on its certified copy. The plaint further discloses that, consequent upon the said partition, revenue entries in respect of Schedule ‘A’ property stood mutated in the name of B.J.Mahesh and similarly, the katha pertaining to Schedule ‘B’ properties was transferred to the name of defendant No.1 thereby evidencing severance in status and recognition of distinct allotments.

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The plaintiffs have, however, pleaded that notwithstanding the execution of the registered Partition Deed and specification of respective shares therein, the properties were not subjected to actual survey, measurement, and physical demarcation at the time of partition. It is contended that absence of metes and bounds demarcation has led to confusion in identifying the exact portions in possession of the parties.

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It is the specific case of the plaintiffs that though

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Schedule ‘A’ property was allotted to B.J.Mahesh under the Partition Deed, he was in actual, exclusive possession and enjoyment of properties now described as Schedule ‘C’ in the plaint. Placing reliance on a private sketch, wherein the portion marked in blue colour is shown as being in exclusive possession of late B.J.Mahesh and after his demise, in the possession of the plaintiffs, they have sought a declaration of title in respect of Schedule ‘C’ properties and consequential relief of permanent injunction. In the alternative, the plaintiffs have sought recovery of possession of Schedule ‘D’ properties, particularly item Nos.10 to 16.

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The defendants, upon service of summons,

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entered appearance and filed a detailed written statement. Defendant No.1 filed the written statement, which was adopted by defendant Nos.2 and 3. While admitting the execution of the registered Partition Deed dated 10.03.1975, the defendants have categorically contended

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that possession was delivered strictly in terms of the allotments specified therein. They have seriously disputed the plaintiffs’ claim over Schedule ‘C’ properties and asserted that B.J.Mahesh was put in possession only of the properties allotted to his share under the Partition Deed. It is further contended that neither B.J.Mahesh nor the plaintiffs were ever in possession of Schedule ‘B’ property, and therefore, the suit is liable to be dismissed.

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On the basis of the rival pleadings, the Trial Court framed appropriate issues and relegated the parties to trial.

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In support of their case, the plaintiffs examined plaintiff No.1 as P.W.1 and two other witnesses as P.Ws.2 and 3 and produced in all eighteen documents. The defendants, by way of rebuttal, examined defendant No.1 as D.W.1 but did not adduce any documentary evidence.

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Upon appreciation of the oral and documentary

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evidence placed on record and after hearing the learned counsel for the parties, the Trial Court dismissed the suit.

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This Court has heard the learned counsel

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appearing for the plaintiffs and the learned counsel appearing for the defendants and has carefully perused the entire material available on record.

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In the light of the pleadings, evidence and findings recorded by the Trial Court, the following points arise for consideration:

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(i) Whether the finding of the Trial Court that the plaintiffs have failed to establish their title over Schedule ‘C’ properties is vitiated by perversity or misappreciation of evidence so as to warrant interference?

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(ii) Whether the finding of the Trial Court that the plaintiffs have failed to prove their possession and enjoyment of Schedule ‘C’ properties and that the defendants are in

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possession of Schedule ‘D’ properties, is perverse and calls for interference?

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(iii) What order?

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Findings on point No.(i) :-

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Before this Court proceeds to examine as to whether plaintiffs have succeeded in substantiating their title and exclusive possession over Schedule 'C' properties, it would be absolutely necessary to advert to the pleadings in the plaint. Para Nos.2 to 4 of the plaint are relevant and the same are extracted, which reads as under;

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"2. The properties detailed in the A and B schedules hereunder originally belonged to the H.U.F. of late B.J.Mahesh and the first defendant. Under the registered Partition Deed dated 10.03.1975 effected in the H.U.F of late B.J.Mahesh and the first defendant, Schedule A properties fell to the share of late B.J.Mahesh - husband and father of the plaintiffs hereto, whereas the B schedule properties fell to the share of the first defendant. The original registered partition deed is not available with

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the plaintiffs. Hence, they have produced the certified copy of the partition deed so effected in the H.U.F of late B.J.Mahesh and the first defendant.

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3. In pursuance and in furtherance of the partition katha of the A schedule properties came to be mutated in the name of late B.J.Mahesh whereas the katha of the B schedule properties came to be mutated in the name of the first defendant.

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4. it is reliably learnt that though the different properties have been mentioned to each shares under the aforesaid registered partition deed, the shares were not actually measured and demarcated at the spot at the time of or subsequent to the registered partition deed in the H.U.F. It is further learnt that the parties were shown the portions at the spot by the panchayathdars and parties were put in possession of those portions to the respective shares at the spot."

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(emphasis supplied)

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On a careful reading of the extracted plaint averments, it becomes manifest that the plaintiffs have unequivocally admitted the factum of partition effected under the registered Partition Deed dated 10.03.1975, which is marked in evidence as Ex.P.18. The plaintiffs have, in clear terms, acknowledged that the properties were divided between their predecessor-in-interest, late B.J.Mahesh and defendant No.1 under the said registered instrument and that specific schedules were allotted to their respective shares.

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However, what is striking is that, notwithstanding

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this categorical admission, the plaintiffs have proceeded to set up a case in the plaint which runs directly contrary to the recitals, allotments and mode of division reflected in Ex.P.18. While Ex.P.18 delineates the properties allotted to each branch with specificity, the plaintiffs now seek to assert possession and title over properties not in consonance with the allotment made therein, thereby

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attempting to traverse beyond the boundaries of the registered instrument which they themselves rely upon.

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In effect, the pleadings disclose an inherent inconsistency: on the one hand, the plaintiffs accept the binding nature of the registered Partition Deed and the severance in status brought about thereunder; on the other hand, they seek to reconfigure the manner of allotment and possession in a fashion at variance with the documentary record. Such a plea, which seeks to depart from the express terms of a registered document, assumes significance and therefore warrants closer scrutiny.

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In that view of the matter, and in order to appreciate the precise nature of the departure sought to be made by the plaintiffs from the recitals of Ex.P.18, this Court deems it appropriate to extract paragraph Nos.5 to 9 of the plaint, which read as under:

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"5. Since the date of partition late B.J.Mahesh and after his death, the plaintiffs continued to be in possession and enjoyment of the portions of the properties allotted to late B.J.Mahesh and as shown at the spot situated in one block, which are morefully detailed and described in the C schedule hereunder and the location of thee properties detailed in the C schedule have been shown in the annexed sketch drawn to scale within blue lines. The portions of different survey numbers shown within blue colour line 8 in the annexed sketch were/are in possession and enjoyment of late B.J.Mahesh and the plaintiffs. With in this area, Sy. Nos.290 measuring 24 guntas, 291 measuring 10 acres 07 guntas and 291 measuring 1 acre 08 guntas, in all measuring 11 acres 39 guntas once shown to the share of the first defendant under the registered partition deed were/are in possession and enjoyment of late B.J.Mahesh and later of the plaintiffs.

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6. So far as first defendant is concerned, he is in possession and enjoyment of the portions o the properties detailed in D schedule

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hereunder which include 1-09 in Sy. No.272, 4- 15 in Sy. No.273/1, 0-30 in Sy. No.281, 3-09 in Sy. No.282, 1-20 in Sy. No.283, 0-30 in Sy. No.287 and 1-09 in Sy. No.288 once allotted to the share of Late B.J.Mahesh under the Registered partition deed.

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7. Thus the plaintiffs are in possession of 11 acres 39 guntas of three Sy. Nos. once allotted to the share of the first defendant whereas the first defendant is in possession of an extent of 13 acres 2 guntas once allotted to the share of the late B.J.Mahesh.

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8. However, the total extent which was/is in possession and enjoyment of late B.J.Mahesh and the plaintiffs is 31 acres 29 guntas, whereas the total extent in possession and enjoyment of the first defendant was/is 32 acres 05 guntas.

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9. The respective parties i.e., the plaintiffs and first defendant are in possession and enjoyment of C and D schedule properties respectively since the time of partition referred to above."

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(emphasis supplied)

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This Court also deems it fit to extract the prayer

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sought in the plaint, which reads as under;

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"The plaintiffs wherefore pray for a judgement and decree against the defendants as follows:-

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A) To declare that the plaintiffs are the owners in possession of the 'C' schedule properties;

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B) For permanent injunction restraining the defendants, either through themselves or their agents or their servants from disturbing the plaintiffs peaceful possession and enjoyment of the plaintiffs of the 'C' schedule properties;

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ALTERNATIVELY:

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C) For possession of D schedule Item Nos.10 to 16 shown in the red colour in the annexed sketch drawn to the scale in consideration of the plaintiffs surrendering 'C' Schedule item Nos.14 to 16.

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D) For court costs and such other reliefs as the Court deems fit under the circumstances of the case."

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(emphasis supplied)

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In a suit seeking declaration of title, the initial and primary burden squarely rests on the plaintiffs to establish a clear and lawful title to the property in question. In the present case, it is significant to note that both the plaintiffs and the defendants trace their respective rights exclusively to the registered Partition Deed dated 10.03.1975 marked as Ex.P.18. The execution and validity of the said Partition Deed are not in dispute. Under Ex.P.18, Schedule ‘A’ properties were unequivocally allotted to the share of late B.J.Mahesh, whereas Schedule ‘B’ properties were allotted to defendant No.1. The covenants contained in Ex.P.18 clearly delineate the division of properties and record severance in status between the parties.

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Despite this admitted position, the plaintiffs have now ventured to assert title over Schedule ‘C’ properties on the premise that, dehors the registered Partition Deed, their predecessor continued in exclusive possession of such properties. This plea is fundamentally inconsistent

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with the binding terms of Ex.P.18. Once parties have consciously effected a partition through a registered instrument and have accepted specific allotments thereunder, the covenants of such deed operate with full force and bind the parties and their successors-in-interest. A registered partition deed is not merely evidentiary in character; it embodies a concluded arrangement and crystallizes proprietary rights inter se the sharers. The parties are therefore governed by the terms of the instrument and cannot, at a later stage, assert rights contrary to the express allotments contained therein.

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On re-appreciation of the entire oral and documentary evidence, this Court finds that it is an admitted position that the suit properties were originally joint family ancestral properties and that the joint status between late B.J.Mahesh and defendant No.1 came to an end upon execution of the registered Partition Deed dated 10.03.1975. From that date onwards, their rights stood separated and defined exclusively by Ex.P.18. The revenue

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records produced by the plaintiffs themselves at Exs.P.1 to P.16 (RTC extracts) indicate that the parties acted upon the partition, as the properties allotted to their respective shares were mutated in their individual names. This conduct unmistakably demonstrates acceptance and implementation of the covenants of the Partition Deed.

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In that backdrop, the question that arises is whether the plaintiffs can ignore the allotment under Ex.P.18 and seek declaration of title over Schedule ‘C’ properties merely on an assertion of alleged possession. The answer must necessarily be in the negative. Once the partition has been effected and acted upon, the doctrine of estoppel squarely applies. A party who has accepted the benefits of a registered partition and whose predecessor has derived title thereunder is estopped from disputing its terms or claiming rights inconsistent with its covenants. The plaintiffs, claiming through B.J. Mahesh, stand in his shoes and are equally bound by the recitals and allotments in Ex.P.18. They

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cannot approbate and reprobate, accept the partition for certain purposes and simultaneously disown its operative effect in respect of other properties.

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Further, there are no specific pleadings in the plaint explaining the legal foundation upon which title to Schedule ‘C’ properties is claimed contrary to the registered Partition Deed. In the absence of pleadings of subsequent re-partition, exchange, adverse possession, rectification, or any legally recognized mode of acquisition, a bare assertion of continued possession cannot displace the title flowing under a registered instrument. Thus, once the plaintiffs admit the partition and its mode under Ex.P.18, they are precluded from seeking a declaration in derogation of its terms.

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A careful reading of paragraph Nos.5 to 9 of the plaint reveals that the said averments are in clear contradiction to paragraph Nos.2 to 4. In paragraph Nos.2 to 4, the plaintiffs have unequivocally acknowledged the

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manner in which the ancestral properties were divided between B.J. Mahesh and defendant No.1 in terms of the registered Partition Deed. Those pleadings are in consonance with Ex.P.18. However, in the subsequent paragraphs, the plaintiffs attempt to assert rights inconsistent with the very settlement they have admitted. Such mutually destructive pleadings undermine the plaintiffs’ case.

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When a party admits the execution, validity, and operative effect of a registered partition and further demonstrates that the same has been acted upon, any plea contrary to the express terms of the instrument is legally impermissible. The principle of estoppel by deed precludes a party from denying the truth of recitals in a document under which he claims. The plaintiffs, having traced their title exclusively to Ex.P.18, cannot be permitted to travel beyond its covenants and seek declaration over properties not allotted to their predecessor. Therefore, in the absence of proof of any

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legally cognizable right over Schedule ‘C’ properties, the relief of declaration sought by the plaintiffs cannot be entertained.

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In this factual and legal background, this Court, upon independent assessment of the entire oral and documentary evidence, finds no infirmity in the reasoning adopted by the Trial Court. While answering Issue Nos.1 and 2 in the negative, the Trial Court has rightly adverted to the binding nature of the registered Partition Deed and has correctly concluded that late B.J. Mahesh was allotted only Schedule ‘A’ properties under Ex.P.18. The plaintiffs, being his legal heirs, cannot enlarge the scope of his allotment by setting up a claim over Schedule ‘C’ properties, which do not form part of his share under the partition.

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Any assertion of title inconsistent with the covenants of a registered and acted-upon Partition Deed is clearly unsustainable in law. Mere allegations of

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possession, even if assumed for argument’s sake, do not confer title in the absence of pleadings and proof of a recognized mode of acquisition. Consequently, this Court finds that the findings recorded by the Trial Court are

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neither perverse nor contrary to the evidence on record. Accordingly, point Nos.(i) and (ii) are answered in the

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“Negative.”

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