N. Mahadeva and Others vs P. Devaiah and Others

Ravi V. Malimath, J.—Aggrieved by the concurrent findings recorded by both the Courts below in dismissing the plaintiffs'' suit seeking for mandatory injunction and possession, the plaintiffs have filed this appeal.

The case of the plaintiffs is that the suit schedule property consists of a house and vacant space bearing No. 19A, situated at 6th cross, Karnataka Housing Board Colony, Rajendra Nagar, Mysuru. It exclusively belongs to the plaintiffs'' father P. Nanjundaiah. It was allotted to Nanjundaiah by the Karnataka Housing Board in the year 1984 followed by the sale deed in the year 1996. Ever since the date of allotment, the plaintiffs'' father was regularly paying the taxes and the revenue records stood in his name. The defendant is the elder brother of the plaintiffs father. About 10 years prior to the filing of the suit the defendant requested their father to grant him permission to put up a shed for his residence in the vacant space. It is described as ''B'' schedule property. It was assured that the defendant would vacate the same as and when demanded. Therefore, the plaintiffs have permitted the defendant to put a shed and reside in the ''B'' schedule property. Therefore the possession of ''B'' schedule property is purely a permissive possession. Another brother by name Chandru also sought permission to put up a construction temporarily in the vacant space. He also assured the plaintiffs'' father that he would vacate the premises as and when demanded. However, the whereabouts of the said Chandru were not known during the five years before filing of the suit. In the interregnum, the plaintiffs'' father gifted the plaint schedule property in favour of the plaintiffs through the registered gift deed dated 6-8-2003 and delivered possession of the same in favour of the plaintiffs. Thereafter the plaintiffs have demanded the defendant to hand over possession of this property. A legal notice was issued to him. The same was denied by the defendant. Since even after the receipt of notice the defendant attempted to put up a construction on the North-West corner of the ''A'' schedule property, the instant suit was filed seeking to:

"(a) restrain the defendant permanently from putting up the construction on the ''A'' schedule property

(b) to direct the defendant to vacate and deliver the vacant possession of ''B'' schedule property in favour of the plaintiffs

(c) to grant mesne profits from the date of receipt of notice till the date off delivery of possession."

On service of summons the defendant entered appearance and denied the suit averments. It was his case that the entire property mentioned in the suit schedule was originally allotted in the year 1952 on lease-cum-sale basis by the Karnataka Housing Board in favour of late Puttamadaiah namely, the father of P. Nanjundaiah. Accordingly, P. Nanjundaiah complied with the terms of the lease-cum-sale agreement and katha was also transferred to his name conveying the property. On the death of Puttamadaiah, the property devolved upon Devaiah(defendant) and another son Nanjundaiah namely, the father of the plaintiffs and 3 sons P. Shankaraiah, P. Chandru and P. Nagaraju. Subsequently, the father of the plaintiffs secretly and fraudulently managed to get the records in his favour and obtained the sale deed. That after the death of Puttamadaiah, the property continued as undivided property. On 3-2-1985 all the 5 children of Puttamadaiah effected an unregistered partition deed and as per the terms of the partition, a portion of the property measuring 12 1/2 x 20 ft. was allotted to the defendant and likewise to others. On 26-1-1989 P. Shankaraiah released his share in favour of the defendant by virtue of release deed. Therefore, the defendant received 12 1/2 x 20 ft. in ''A'' schedule and 12 1/2 x 20 ft. in ''B'' schedule. The defendant has constructed a building in his portion of the property by spending huge amounts and keeping the vacant site in his possession and enjoyment. That the alleged gift deed executed by P. Nanjundaiah in favour of the plaintiffs is illegal and void and Nanjundaiah had no right to execute the alleged gift deed in favour of the plaintiffs. Hence, he sought dismissal of the suit.

On the basis of the pleadings, the trial court framed the following Issues:--

"1. Whether plaintiffs prove their title over the ''A'' schedule property?

Whether defendant proves entire ''A'' schedule property allotted to his father Puttamadaiah from Karnataka Housing Board and after his death ''B'' schedule property fell to his share through a partition as stated in his written statement?

Whether the plaintiffs prove that the defendant has been in permissive possession of ''B'' schedule properties?

Are the plaintiffs entitled for possession of ''B'' schedule property?

Are the plaintiffs entitled for permanent injunction?

Are the plaintiffs entitled for mesne profits?"

In support of case of the plaintiffs, plaintiff No. 1 examined himself as P.W. 1, and marked 27 documents. The defendant was examined as D.W. 1 along with other defendants and marked 37 documents. Issues 1,3 to 6 were held in the negative and Issue No. 2 partly in affirmative. The suit of the plaintiffs was dismissed. Aggrieved by the same, they preferred a regular appeal which was also rejected. Hence, the present second appeal.

By the order dated 16-7-2008 the appeal was admitted to consider the following substantial question of law.

"Whether the Courts below were justified in denying the relief to the plaintiffs based on Ex. D.29 which is an unregistered document?"

Sri V.N. Madhava Reddy, the learned counsel appearing for the appellant contends that both the Courts have committed an error in accepting Ex. D-29 which is an unregistered document. The Courts could not have relied upon a document which is unregistered. It is compulsorily registrable in law. Therefore reliance placed on Ex. D-29 which is the partition deed while dismissing the suit of the plaintiffs is opposed to law. Hence, he pleads that the appeal be allowed by answering the substantial question of law by decreeing the suit of the plaintiffs.

On the other hand, Sri K.V. Narasimhan, the learned counsel appearing for respondents defends the impugned order. He contends that the question of accepting Ex. D-29 calling for registration does not arise for consideration. That Ex. D-29 is only a memorandum of partition. The same is not compulsorily registrable. The document itself would read that the partition had taken place earlier at the behest of the father and that was reduced into writing in terms of Ex. D-29. Therefore, it is not compulsorily registrable.

Heard learned counsels and examined the records.

Ex. D-29 is said to be a document which evidenced partition between the 5 children of Puttamadaiah, namely, P. Devaiah, P. Nanjundaiah, P. Shankaraiah, P. Chandru and P. Nagaraju. The plea of the plaintiffs is that the property was allotted by way lease-cum-sale agreement by the Karnataka Housing Board in favour of P. Nanjundaiah in the year 1984. Thereafter the sale deed was executed in favour of P. Nanjundaiah on 2-2-1996. Therefore, he is the exclusive owner in possession of the suit schedule property. The question of dividing the property between the brothers does not arise for consideration. He is the absolute owner of the suit schedule property having derived title and interest from the Karnataka Housing Board. It is the further contention that the suit schedule property has been gifted to him by his father Puttamadaiah in terms of the registered gift deed. The case of the plaintiffs is that their father P. Nanjundaiah has gifted the said property in their favour in terms of the registered gift deed dated 6-8-2003, which is at Ex. D-29, that calls for an interpretation.

I have considered Ex. D-29 in detail. The averments therein are with reference to the manner in which the payments have been made to the Karnataka Housing Board. Para-3 therein would narrate that their father namely, Puttamadaiah had decided to divide the suit schedule property in favour of his 5 sons. As such the decision to divide the property between the 5 sons was reduced into writing in terms of the instant document Ex. D-29. The language used in para-3 of the document is clear and cogent. It does not call for any interpretation. It is narrated that a decision to effect partition of the property was since taken by the father much earlier to this document and therefore this document has been created to evidence such a prior partition. Therefore this document cannot be construed as a partition deed wherein the property is sought to be partitioned. The partition has since taken place much earlier. Hence the document is a memorandum of partition. It is needless to state that a memorandum of partition does not call for registration. Therefore, the contention of the appellant-plaintiffs that Ex. D-29 being a partition deed calls for a registration cannot be accepted. Ex. D-29 is to be considered as a memorandum of partition. It does not warrant any registration.

In the instant case, both the Courts on considering the said document have come to the very same conclusion with regard to the registrability of Ex. D-29. The trial court while considering the said issue held that the document clearly shows that it is not a partition deed but it is only a memorandum of partition. Under these circumstances, I'' am of the view that the findings recorded by the trial court on reading of the document and as affirmed by the appellate Court is a true interpretation of the said document. It does not call for any inference.

Therefore, the substantial question of law is answered by holding that both the Courts below were justified in denying relief to the plaintiff based on Ex. D-29, notwithstanding the fact that it is an unregistered document in view of the fact that Ex. D-29 is not a document that is compulsorily registrable.

Even so far as the merits of the claim is concerned, Ex. D-31 is the proceedings before the Panchayatdars dated 22-1-1985. It is signed by Nanjundaiah, namely, the father of the plaintiffs. The same would narrate the distribution of the property between all the brothers of P. Nanjundaiah. This too would evidence the fact that the property in question was sought to be divided between all the brothers and therefore the plea of the plaintiffs that it is the exclusive property of Nanjundaiah is not backed by any material on record.

The Courts below having considered the material evidence on record have rightly come to the conclusion that the plaintiffs have failed to prove their case. Therefore, even on merits, I do find any good ground to interfere in the findings recorded by both the Courts below. Hence, on answering the substantial question of law, the appeal fails and is dismissed. No costs.