Ningavva vs Gangavva and Others

B. Veerappa, J.—The unsuccessful 1st defendant is before this Court against the judgment and decree dated 5.9.2011 made in RA No. 78/2008 on the file of the Court of Fast Track at Gadag, confirming the judgment and decree dated 11.8.2008 made in O.S. No. 19/2006 on the file of the Civil Judge (Sr.Dn) & CJM Court, Gadag decreeing the suit of the plaintiff declaring that the plaintiff is entitled for partition and separate possession of 1/3rd share in all the suit properties by metes and bounds.

The 1st respondent was the plaintiff in O.S. No. 19/2006 filed suit for partition and separate possession against the appellant and the 2nd respondent contending that the suit properties originally belong to one Neelappa Sanna Yallappa Kooragund. On his death in 1947 names of his two sons Mallareppa and Yallappa were entered in the records of suit schedule properties. Suit 2(d) and (g) were ancestral properties of the propositus Nmgappa. After the death of Mallareppa and Yallappa, the plaintiff, wife of Yallappa and defendant No. 1, wife of Mallareppa have succeeded to the properties and their names have been mutated. They being in joint possession and enjoyment of the properties, taking undue advantage of illiteracy of plaintiff, defendant No. 2, the sister of Mallareppa and Yallappa together with defendant No. 1 have got entries made illegally without the plaintiffs knowledge creating documents showing that plaintiff has relinquished her share in the properties, only on obtaining certified copies plaintiff came to know in 2005 that suit 2(c) land has been got entered in the name of Kiran Kumar by defendant No. 2. Plaintiff has not given up her right in any of the properties nor as she executed any relinquishment deed nor any partition has taken place between plaintiff and defendant No. 1. Only showing that plaintiff is given 3 acres by creating false documents 7 acres 27 guntas, a house and backyard have been shown to have been allotted to defendant No. 2, which is illegal. Plaintiff has half share and defendant No. 2 has half share in all the properties, whereas defendant No. 2 has no right, title or interest in any of the properties. Hence, the documents created by the defendants are not binding on plaintiffs share. Therefore, plaintiff filed the suit for partition and separate possession.

Defendant No. 1 has filed written statement and the same is adopted by defendant No. 2 admitting the relationship between the parties and suit properties belonging to the family of the properties and they have denied all other averments and contended that the plaintiff has relinquished her share in respect of the suit properties, her husband was suffering from veneral disease and after female child was born, plaintiff withdrew from the society of her husband and started living with her parents and never came back. Defendant No. 2 was looking after the plaintiffs husband till his death. It is only after her husband''s death plaintiff has claimed partition. Accordingly, an equitable partition was effected by the elders, looking to the valuation of the joint family properties as R.S. No. 31/8 was a fertile land, plaintiff was given 3 acres as plaintiff and defendant No. 1 knew that defendant No. 2 has a share in the suit properties. She looked after deceased Yallappa, they consented together suit 1(e) properties to defendant, which was not a fertile land; so also suit 1(a) and (b) properties were not fertile and they are allotted to defendant No. 1. Both plaintiff and defendant No. 1 have filed a joint wardi and the names have been accordingly mutated. This family arrangement has been acted upon and all are making vahiwat being in exclusive possession of their respective lands since 1980 as plaintiff has relinquished her share and interest in favour of defendants in respect of suit 1(i) and (g) properties she is estopped from denying the title of the defendants, etc. Therefore, sought for dismissal of the suit.

Based on the pleadings, the trial court framed the following issues:

"1. Whether plaintiff proves the genealogy?

Whether plaintiff proves that he is the joint owner in possession of the suit properties along with defendant No. 1?

Whether defendants prove that plaintiff has relinquished her right in suit 1(f) and (g) and 2(c) properties?

Whether defendants prove that partition was already effected in the family?

Whether plaintiff proves that defendants have created the documents showing relinquishment and that partition has taken place between them?

Whether plaintiff proves that defendants in collusion with each other have got entered name of defendant No. 2 in the records illegally for the suit properties?

Whether suit is liable to be rejected under Order 7 Rule 11 C.P.C.?

Whether suit is hit by principles of estoppel?

Whether the suit is properly valued and court fee paid is sufficient?

Whether this court has no jurisdiction to entertain the suit?

Whether plaintiffs are entitled for the reliefs sought for?

What order or relief?"

In order to establish the plaintiffs case, the plaintiff examined as PW.1 and a witness PW.2 are examined and marked documents as Ex. P.1 to P.14. On behalf of defendants, DWs.1 to 4 are examined and Ex. D.1 to D.21 are marked.

After considering the entire material on record, the trial court recorded a finding that the plaintiff has proved the genealogy and also proved that she is the joint owner and in possession of the suit schedule properties along with the 1st defendant. Defendants failed to prove that the plaintiff has relinquished her right in suit 1(f) and (g) and 2(c) of the properties. The defendants further failed to prove that there was already partition effected in the family. The plaintiff proved that defendants have created the documents showing relinquishment and that partition has taken place between them. The plaintiffs also proved that the defendants in collusion with each other have got entered name of defendant No. 2 in the records illegally for the suit properties. Accordingly, the trial court decreed the suit holding that the plaintiff is entitled to 1/3rd share in all the suit schedule properties by metes and bounds.

Against the said judgment and decree of the trial court, the defendants filed R.A. No. 78/2008 on the file of the Fast Track Court at Gadag, who after hearing the parties, by his impugned judgment and decree dated 5.9.2011 has dismissed the appeal, confirmed the judgment and decree of the trial court.

Against the said concurrent findings of facts recorded by the courts below did not deter the 1st defendant/appellant from preferring the regular second appeal as a last ditch attempt. Admittedly, the LRs of 2nd defendant have not filed any appeal against the said judgment and decree of the lower appellate court.

I have heard the learned Counsel for the parties to the lis.

Sri. Mrutyunjaya Halliken, learned Counsel for the appellant, strenuously contended that both the courts below have not considered the mutation entries in Ex. D.2, D.3 and not considered the Relinquishment Deed-Ex. D.5, which clearly depicts that there was partition. He also contended that the entries in Ex. P.1 to P.6 (RTC extracts), clearly indicates that there was partition and mutation entries were made in respect of each of the appellants and therefore, the trial court ought to have drawn presumption under Section 133 of the Land Revenue Act. He also relied upon the judgment of the Hon''ble Supreme Court in the case of Digambar Adhar Patil v. Devram Giridhar Patil (died) and another, reported in (1995) 2 Suppl. SCC 428 to the effect that the entries in the revenue records are factum of partition and there is no necessity to produce the partition deed. On these grounds, he sought to set aside the judgment and decree of the courts below.

Sri. S.M. Tonne, learned Counsel appearing for respondents 2(c) and (d), sought to support the arguments of the learned Counsel for the appellant.

Per contra, Sri. G.N. Narasammanavar, learned Counsel for 1st respondent/plaintiff sought to justify the impugned judgment and decree of the courts below.

I have given my thoughtful consideration to the arguments advanced by the learned Counsel for the parties to the lis and perused the entire material on record.

The entire substance of the plaintiffs case is that plaintiff and defendants are members of the joint family and all the suit schedule properties are joint family properties and there was no partition. The substance of the defendants in the written statement is that there was a partition in the joint family and in terms of the partition the mutation entries were effected as well as the RTC also effected and subsequently plaintiff relinquished her right in respect of the suit 2(c), 1(f) and 1(g) in favour of defendant No. 2. In order to prove her case, the plaintiff produced the material documents Ex. P.1 to P.14 and contended that there was no partition. In order to disprove the plaintiffs contention, the defendants produced Ex. D.1 to D.21 and contended that there was partition.

The trial court considering the entire material on record and evidence of PWs.1 and 2 and evidence of DWs.1 to 4 has recorded a finding that there was no partition in the joint family and the defendants failed to produce any material documents before the Court to prove that there was partition in the joint family properties. The trial court relied upon the evidence of DW.1 who stated on oath as under:

DW.3 the witness has stated that there was partition. In the cross-examination he has stated as under:

Thus, when the defendants and their witnesses categorically asserts about the execution of a document regarding partition, non-production of the same being not explained, adverse inference can be drawn in this regard to the effect that there was no such partition deed or that if partition deed is produced it would have gone against the defendants.

DW.4, the 2nd defendant also stated in the examination-in-chief that there was a partition. In the cross-examination she has stated as under:

DW.4 does not assert about the document having come into existence regarding partition. Ex. P.12 and Ex. P.13 i.e., extracts of M.E. No. 607 and 775 which are also at Ex. D.3 and Ex. D.2 respectively are the documents relied upon by defendants. Though the heading is given as "Apsat Watni", while giving recitals reference has been made to watni patra. Thus, documentary evidence also shows that there was a document evidencing partition and it not being placed before the court, all the contentions of defendants seems to be doubtful, suspicious and it cannot be believed that there was such a partition as contended by defendants. Further, in the cross-examination of PW.1 and 2 nothing worth is elicited to hold that factum of partition has been proved. It is only bare suggestion to the plaintiff regarding the contentions of defendants that is elicited in cross-examination. There is nothing in her evidence to show that plaintiff is making out a false case of family being joint and she not having been given any property as contended by the defendants. If the entire evidence on record is considered together the cumulative effect is that it is difficult to believe that there was such a partition and that plaintiff has come up with a false case. Hence, mere entries in the mutation extracts are not sufficient to dislodge the plaintiffs case nor they can be taken as satisfactory or reliable documents to prove the factum of partition. The trial court also observed that it is not the case of the defendants that there was a family arrangement. But it is their specific case that there was a partition and also as per evidence there was a document and it is not the case of defendants that the partition is an unregistered document, which has come into existence between plaintiff and defendants and it is not their case that there was some family arrangement to settle the dispute between the parties. On the other hand, they have specifically contended that after the death of her husband, plaintiff demanded for partition in 1980 and partition has been effected by the elders of the village and document also has been executed. Therefore, there is no scope for appreciating the contentions of the parties as to family arrangement. There is no proof about plaintiff having given up or relinquishing her rights in respect of the properties, which are standing in the name of defendant No. 2, nor evidence of D.W.1 to D.W.4 satisfactorily establishes their contentions. Hence, mere mutation entries as per Ex. P.14 is not sufficient to hold that there was such a relinquishment deed. The 1st defendant who is examined as D.W.1 in the cross-examination has admitted as under:

D.W.4 in the cross-examination has admitted as under:

The evidence of these defendants only show that they are making out a false defence and neither the documents as stated by DW.2 or relinquishment deed said to have been executed by plaintiff as stated by DW.1 have seen the light of the day. No reason is forthcoming for non-production of these documents before the court. Such being the case, the only inference that can be drawn is that there are no such documents nor plaintiff has relinquished her rights in any of these properties, which are now standing in the name of defendant No. 2 and which defendants contend as being given to her. All these contentions urged by defendants in this regard falls to ground and it is nothing but a falsehood which defendants are trying to bring in on the record to substantiate their contention. Totally inconsistent and contradictory statements are given by the defendants and their witnesses and therefore, their testimony cannot be based for any purpose. Thus, the defendants'' contentions have been shown to be false, whereas, defendants have failed to disprove the plaintiffs case and prove their own contentions. Accordingly, the trial court decreed the suit granting 1/3rd share to the plaintiff.

On re-appreciation of the entire material on record and concurring with the finding of fact recorded by the trial court, the lower appellate court recorded a specific finding that the defendants who are examined along with their witnesses DWs.1 to 4 have admitted in the cross-examination that partition in the year 1980 has taken place as per written partition deed. But the said partition deed said to have been executed in the year 1980 for effecting partition between plaintiff and defendants 1 and 2 for allotment of shares in respect of suit properties between plaintiff and defendants 1 and 2 is not produced by defendants before the court. On going through mutation entries, there is a recital in them regarding effecting partition deed in the year 1980. However, partition deed effected between plaintiff and defendants 1 and 2 in the year 1980 has not been produced by defendants. Therefore, an adverse inference can be drawn for non-production of the said written partition deed into court. In view of non-production of alleged partition deed by these defendants, it can be said that, there is no written partition deed as alleged by defendant No. 1 and 2 and therefore, the allotment of shares, such as, suit 1(e) property to plaintiff, allotment of suit (a)(b) and (d) properties to defendant No. 1 and allotment of suit (c)(f) and (g) properties in favour of defendant No. 2 said to have been allotted in the written partition deed in the year 1980, cannot be accepted and therefore, the contention of plaintiff that there was no partition in the year 1980 as alleged by the defendant No. 1 and 2 has been proved. Accordingly, the appellate court held that there was no partition in the year 1980 and defendants failed to prove written partition deed between plaintiff and defendants 1 and 2 in the year 1980 and accordingly dismissed the appeal confirming the judgment and decree of the trial court.

It is relevant to mention here, that the trial court granted 1/3rd share in favour of the plaintiff Both the defendants filed an appeal before the lower appellate Court and the lower appellate court dismissed the appeal and confirmed the judgment and decree of the trial court. Being aggrieved by the said judgment and decree of the lower appellate Court, only the 1st defendant has filed the present appeal and the 2nd defendant or her LRs have not field any appeal and they have accepted the decree passed by the courts below.

The mam grievance of the learned Counsel for appellant is that Ex. D.2, D.3 and D.5 and Exhibits P.1 to P.6, mutation entries and RTC entries/revenue documents clearly indicates that there was a partition and presumption has to be drawn under Section 133 of the Land Revenue Act, cannot be accepted for the simple reason that it is a specific case of the plaintiff that all the suit schedule properties are joint family properties and there was no partition. The relationship and the joint family status are not disputed by defendants. The case of the defendants in the written statement is three folds., namely, in one breath both defendants stated that there was family arrangement, in another breath they stated that there was partition effected in the year 1980 and it was a written document and in the last, they stated that plaintiff has relinquished her right as per Ex. D.5. Admittedly, the defendants have not produced any material documents either for family arrangement or the partition deed or the relinquishment deed. Both the courts below disbelieved the contention of defendants specifically held that mere entries in the revenue records cannot be considered as partition effected between the parties. Since it is not the case of defendants that it is only for family arrangement and on the basis of family arrangement revenue entries have been effected. It is the specific case of defendants that there was a written partition deed executed in the year 1980. If that is so, why the defendants have not produced the written document is not forthcoming as rightly recorded by both the courts below.

In the written statement the 1st defendant has stated that in the partition,

"(i) The plaintiff was allotted suit 2(e) property bearing R.S. No. 31/8 measuring 3 acres. The said land is fertile land and valued at Rs. 45,000/-.

(ii) The 2nd defendant was allotted suit item 1(e) i.e. Sy. No. 34/2 of Govankoppa village which is not fertile land and in the written statement they have not mentioned the extent and valuation of the land.

(iii) The suit 1(a) and 1(b) and properties which are not fertile as compared to suit 1(e) property were allotted to defendant No. 1."

The defendants have not mentioned the extent and value of the A-schedule property, which clearly falsify the case of the defendants as recorded by the courts below concurrently. According to the learned Counsel for the defendants, defendant No. 1 was allotted 6 acres 22 guntas in Sy. No. 35/1, 1 acre 8 guntas in Sy. No. 52/4. 7 acres 27 guntas was allotted to defendant No. 2 in R.S. No. 34/2 of Govankoppa village, and 7 acres 30 guntas was allotted to defendant No. 1. The written statement filed by defendant No. 1 clearly indicates that the alleged partition is not proved and was not equally made. It clearly indicates that there was no partition in the joint family as rightly contended by the plaintiff in the plaint.

In the cross examination of DW.1 he has specifically denied the suggestion that:

It clearly indicates that DW.1 specifically denied the suggestion made in the cross-examination, which clearly depicts that there was partition deed and relinquishment deed. Inspite of the admission made in the cross-examination, both DW.1 and DW.4 have not produced any document with regard to partition deed as well as relinquishment deed. Therefore, the contention of learned Counsel for appellant that there was partition as per mutation entry and RTC cannot be accepted as the revenue records are not documents of title.

In so far as the judgment relied upon by the learned Counsel for the appellant in the case of Digambar Adhar Patil v. Devram Giridhar Patil (Died) and another, reported in (1995) 2 Suppl SCC 428. There is no quarrel with regard to the principles laid down by the Hon''ble Supreme Court that, "under Hindu Law, it is not necessary that the partition should be effected by a registered partition deed or between co-parceners to confer rights. Under those circumstances, when the factum of partition was evidence by entries in the record of rights, which was maintained in official course of business, the correctness thereof was not questioned, it corroborates the oral evidence given by the brother and lends assurance to accept it."

In the present case it is not the definite case of the defendants that it was only a family arrangement in between them. According to defendants there was written partition and in another breath defendants contended that there was a family arrangement and again they stated that there was a relinquishment deed. But no material document was produced before court to prove that there was partition. Therefore, judgment relied upon by the learned Counsel for appellant in the case of Digambar Adhar Patil is not applicable to the facts and circumstances of the present case.

In another judgment relied upon by the learned Counsel for appellant in the case of Municipal Corporation, Faridabad Vs. Siri Niwas, , wherein while deciding the provisions of Industrial Disputes Act, 1947, and Indian Evidence Act, 1947, the Hon''ble Supreme Court has held, presumption under Section 114 of Indian Evidence Act is not obligatory and it is not applicable to the case where the workman even did not summon the muster rolls although the management had not produced the muster rolls but his appointment was not disputed. Therefore, under those circumstances the Hon''ble Supreme Court has held that production of muster roll is not applicable to the presumption that he was a worker. The facts of that case and the facts of the present case are entirely different and therefore, the contention of the learned Counsel for appellant that presumption has to be drawn under Section 133 of the Land Revenue Act cannot be accepted for the simple reason that both the courts below have concurrently held that the plaintiff has proved that plaintiff and defendants are members of the joint family and there was no partition in the joint family. The defendants failed to prove that there was partition in the joint family properties. Therefore, both the courts below concurrently held that plaintiff is entitled to 1/3rd share in all the suit properties and the same is in accordance with law.

The appellant has not made out any prima facie case to interfere with the findings of facts recorded by the courts below is based on the cogent legal evidence on record, while exercising power under Section 100 of the Code of Civil Procedure.

No substantial question of law involved in the present regular second appeal. Accordingly, the regular second appeal is dismissed.