C. Rajanna and Others vs Mune Gowda and Others

Ravi V. Malimath, J.—Respondents 1, 2 & 3 claim that one Venkataramanappa was their grand-father. He had 3 sons by name Chikkbachappa, Byrappa and Muniyanna. Byrappa died about 50 years prior to the filing of the suit leaving behind his wife Byramma and two minor sons Muniyappa and Byrappa. There was a family partition in the year 1939 among the sons and daughters-in-law of Venkataramanappa. In the said partition, the southern half portion of the suit schedule property fell to the share of Muniyappa and Byrappa, the minor children of late Byrappa, represented by their guardian Byramma. The northern half portion of the suit schedule property fell to the share of Chikkabachappa. After the death of Chikka bachappa, his son continued to enjoy the northern portion and after his death his sons succeeded to the same. Muniyanna was allotted land bearing Sy. No. 335 measuring 3 acres 36 guntas of Kasaba Devanahalli. He died issueless. His share ought to have been shared equally between the sons of Chikkabachappa and Byrappa and that the entire land in Sy. No. 335 be given to the defendants. On 7-7-1969 Chikka Papaiah, the elder son of Kolathur Byrappa sold 1 acre in favour of M. Krishnappa. Chikka Papaiah died one year later leaving behind the defendants. During the year 1982 the widow of Chikka Papaiah, namely Chikka Gowramma alienated 1 acre 18 guntas in favour of Krishnappa. The remaining land was sold by the defendants in favour of Narayanaswamy by virtue of a registered sale deed dated 24-8-1994. Hence, the defendants have no right over the suit schedule property. Notwithstanding the same, they continued to interfere with the peaceful possession of the plaintiffs over the suit schedule property. Hence, they filed the instant suit for injunction to restrain the defendants from interfering with their peaceful possession of the suit land and for a declaration that they are the absolute owners of the suit schedule property and consequential reliefs.

On service of suit summons, the defendants entered appearance. They denied the relationship as well as the partition. The rest of the averments were denied. It is their case that the family partition was effected by the registered deed dated 11-2-1939 between Chikkabachappa and minor sons of late Byrappa and the southern half portion fell to the share of Chikkabachappa. Later Chikkabachappa died leaving behind him his son Venkataramanappa who died leaving behind him the plaintiffs and two minor sons who continue to reside jointly and mange the properties. The second son of Byrappa died about 20 years back leaving behind him his wife and a daughter. It is said that at the time of partition, the survey number of the suit land was mentioned as 433 and only in the partition the same was renumbered by the authorities as Sy. No. 379. At the time of death of the defendants'' father, the defendants were all minors. They were not aware of the facts & circumstances involving their properties. Taking undue advantage of the same, the plaintiffs got their names entered in the revenue records for the entire suit property. In terms of the partition deed they are not entitled for the entire subject matter but however to the extent of northern portion. Hence, they plead that the suit be dismissed.

Based on the pleadings, the trial court framed the following Issues:--

"1. Whether plaintiff proves his exclusive and lawful possession over the entire suit schedule land as on the date of suit?

Whether plaintiff proves the alleged interference by the defendants?

Whether plaintiff is entitled for the relief of permanent injunction as prayed?

What decree or order?

ADDITIONAL ISSUES:

Whether the plaintiffs prove that they are the absolute owner of the suit schedule property?

Whether the plaintiffs are entitle for the relief of declaration.?"

The plaintiffs examined 3 witnesses and marked 5 documents. Two witnesses were examined on behalf of the defendants and 6 documents were marked. The three issues were held in the affirmative. The Additional Issues were held in the negative. The suit of the plaintiffs was partly decreed. The relief of declaration of title was dismissed. The defendants were restrained from interfering with the plaintiffs'' peaceful possession and enjoyment of the suit schedule property. Aggrieved by the same, the defendants filed a Regular appeal which was also dismissed. Hence, the present appeal.

The learned counsel for the appellants contends that the courts below committed an error in misreading the material evidence on record. That Ex. D-1 partition deed clearly indicates the division of the suit schedule property. The northern portion fell to the share of the plaintiffs and the southern portion fell to the share of the defendants. That on an imaginary agreement, the names of the plaintiffs have been entered in the revenue records. The trial court has disbelieved the agreements set up by the plaintiffs and has accordingly dismissed the suit for declaration. Having dismissed the suit for declaration, the same reason should have been assigned so far as the plea of injunction is concerned. Therefore, the trial court as well as the appellate Court committed an error in decreeing the suit for injunction.

On the other hand, the learned counsel for the 3rd respondent, defends the impugned order. He contends that the revenue records stand in the name of the plaintiffs and therefore the trial court has rightly decreed the suit in favour of the plaintiffs. Therefore, no interference is called for.

Sri P.V. Chandrashekar, the learned counsel appearing for respondents 1 & 2 supports the said contention and pleads that the appeal be dismissed. Respondent No. 4 is served and unrepresented.

On hearing learned counsels, I am of the view that the following substantial question of law arises for consideration in this appeal:

"1) Whether the courts below committed an error in misreading Ex. D-1 namely, the partition deed of 1939?

2) Whether the courts below misread Ex. P-1, the mutation register, Ex. P-2 the RTC Extract and Exs. P-3 to 4 the tax paid receipts while holding that the plaintiffs are in lawful possession of the suit schedule property?"

It is undisputed that Ex. D-1 is the partition deed executed in the year 1939. In terms of the said partition deed, the northern portion of the suit schedule property fell to the share of the plaintiffs and the southern portion fell to the share of defendants. In considering the said issue the trial court was of the view that except producing the said Exhibits, the plaintiffs have not adduced any independent evidence in order to show how the entries came to be made in the RTC extracts. Therefore the RTC extracts are not helpful to prove the case of the plaintiffs, so far as title is concerned. Therefore, as to whether the plaintiffs prove that they are in exclusive and lawful possession of the suit schedule property on the date of the suit, was negatived. However, it was of the view that they are entitled for an order of injunction. The reasoning assigned by the trial court was that the defendants have failed to show that they are in possession of the southern portion of the suit schedule property. Therefore based on the documents, even though the trial court applied the very same evidence in holding that the plaintiffs have failed to prove their title, by relying on the same evidence came to the conclusion that they have proved their possession over the suit schedule property. The trial court committed an error in misreading Ex. D-1 as well as Exs. P-1 to P-5. Having accepted the contents of Ex. D-1 to the effect that the properties were divided into two portions, the southern portion being allotted in favour of the defendants, the plea set up by the plaintiffs that on an oral agreement between the parties wherein the southern portion was allotted to the defendants was not accepted by the trial Court. Having not accepted the same, Exs. P-1 to 5 could not have been believed by the trial court. Exs. P-1 to 5 and the mutation register, RTC Extract and the tax paid receipts for the schedule property, have come into being as a result of the oral agreement entered into by the plaintiffs. It is on the basis of the oral agreement that the mutation was effected and the RTCs were altered. When the agreement itself is not accepted by the trial court, it committed an error in holding that Exs. P-1 to P-5 have been proved. Exs. P-1 to 5 were got marked only to show that the names of the plaintiffs have been lawfully entered into the records. The trial court does not hold so. It holds that the oral agreement set up by the plaintiffs has not been proved. Therefore, Exs. P-1 to 5 cannot be documents to show lawful possession of the plaintiffs over the suit schedule property. Under these circumstances, the trial court therefore committed an error in holding to the contrary. Even otherwise the suit of the plaintiffs with regard to title has been dismissed. They have accepted the same. Therefore so far as injunction is concerned in view of holding that Exs. P-1 to 5 are documents which do not indicate lawful possession of the defendants, the reasoning assigned by the trial court therefore cannot be accepted.

Furthermore, the specific case of the defendants is that the deed on which the names of the plaintiffs were entered in the mutation register as well as the RTC Extracts, the defendants were minors as on that date. Necessarily their names could not have been entered in the records. It is only by taking undue advantage of the same, the names have been entered. Consequently, the substantial question of law is answered by holding that the Courts below committed an error in misreading Ex. D-1, namely, the partition deed of 1939. That the Courts below misread Exs. P-1 to P-5 while holding that the plaintiffs are in lawful possession of the suit schedule property. Hence, both the substantial questions of law are accordingly answered.

At this stage, the learned counsel appearing for the respondents submits that the Court having held that the suit of the plaintiffs requires to be dismissed, they plead that in terms of Ex. D-1, since the northern portion has been given to them, the injunction may be granted only so far as northern portion is concerned.

At the request of both counsels the suit of the plaintiff is partly decreed. He is entitled for injunction for the northern portion of the suit schedule property.

Hence, the appeal is partly allowed.

"a) The Judgment & decree dated 5-1-2005 passed by the Additional Civil Judge (Junior Division) & JMFC, Devanahalli, in O.S. No. 224/1992 and the Judgment & decree dated 19-11-2007 passed by the Civil Judge, (Senior Division) & JMFC, Devanahalli, in R.A. No. 28/2006 are modified.

b) The suit of the plaintiffs is partly decreed. They are entitled for an injunction against the defendants by restraining the defendants from interfering with the plaintiffs peaceful possession of the northern portion of the suit schedule property.

c) The suit of the plaintiffs with regard to the southern portion of the suit schedule property is dismissed.

d) The decree is modified accordingly."