Tejanna and Others vs Bhimashankar and Others

K.N. Phaneendra, J.—This Regular Second Appeal is preferred by defendant Nos. 1 and 2 in O.S. No. 171/2011 being aggrieved by the judgment and decree passed by the Senior Civil Judge, Indi, in O.S. No. 171/2011 dated 31.1.2011 which was confirmed by the III-Additional District Judge, Bijapur, in R.A. No. 182/2011 dated 11.09.2014.

I have heard the arguments of the learned counsel for the appellants and the learned counsel appearing for the respondents. I have perused the judgment of the Trial Court as well as the First Appellate Court.

This appeal is disposed of at the admission stage itself, on the following reasons holding that there arises no substantial question of law to be framed in this case.

For the purpose of easy understanding and convenience, I would like to retain the ranks of the parties as per their rankings before the Trial Court.

Exposition of facts as per the pleadings of the parties are as follows:

"One Bhimashankar son of third defendant-Ganapati filed a suit for declaration and injunction against the defendants. It is submitted that the land bearing Sy. No. 115/1 measuring 2 acres 20 guntas of Gotyal village, Bijapur, was the property belonging to the plaintiff. Defendant Nos. 2 and 3 are the brothers to each other. Defendant No. 1 is the son of defendant No. 2, and plaintiff is the son of defendant No. 3. It is alleged that defendant Nos. 2 and 3 have divided their ancestral properties in the year 1991. In the said partition, northern portion of the land in Sy. No. 115 and southern portion of the land in Sy. No. 43 have fallen to the share of defendant No. 3 and the remaining portion of the land in the said survey numbers fallen to the share of defendant No. 2. The mutation was accepted in the year 1991 itself and the podi work has also been effected by giving sub numbers to the said survey numbers as Sy. Nos. 115/1 and 115/2. There was severance of joint family of defendant Nos. 2 and 3. Out of the properties fallen to the share of defendant No. 3, suit land in Sy. No. 115/1 fallen to the share of the plaintiff in the partition between himself and his father defendant No. 3 in the year 1992 and Sy. No. 43/2 fallen to the share of defendant No. 3. The mutation was also accepted in M.E. No. 2693. Defendant No. 3 has sold his property in Sy. No. 43/2 in favour of one Rayagondappa Baburao Biradar. The plaintiff claims that he has been residing separately from defendant No. 3. In fact, the plaintiff started cultivating his land personally and he went in search of job after getting graduated himself in the year 1996. In the meanwhile, he also wanted to start some industry, therefore, he purchased some land. Due to some technical grounds and for other work, the plaintiff has entrusted the suit land to defendant No. 2 only for cultivation purpose in the year 1996. Thereafter, defendant No. 2 claiming himself to be the owner, denying the title of the plaintiff behaved himself as the absolute owner in possession of the property. The plaintiff then enquired in the revenue department and came to know that defendant No. 1 has got entered his name in the ROR then he came to know about the illegal attitude of defendant No. 2. Therefore, he filed a suit for declaration and injunction.

The defendants, in fact defendant No. 2 entered his appearance in pursuance of summons and filed his written statement. He has denied the allegations made by the plaintiff, but specifically admitted the partition that has been taken place between defendant Nos. 2 and 3 and also admitted that northern portion of the land bearing Sy. No. 115 fell to the share of defendant No. 3 and southern portion fell to the share of defendant No. 2. He denies the allegations that there was partition between defendant No. 3 and plaintiff and the plaintiff has got the land in Sy. No. 115/1 in the partition between himself and defendant No. 3. It is also admitted by defendant No. 2 that defendant No. 3 has sold the Sy. No. 43/2 to one Rayagondappa Baburao Biradar. Having admitted the partition, defendant No. 2 has taken special plea that after partition between defendant Nos. 2 and 3, they have cultivated their respective lands and thereafter, plaintiff and defendant No. 3 were living together as joint family members and real partition has not taken place between themselves. It is alleged that plaintiff and defendant No. 3 colluding with each other with the village accountant got bogus entry in the revenue records. It is specifically contended that the plaintiff and defendant No. 3 have approached defendant Nos. 1 and 2 expressing their intention to sell Sy. No. 115/1 to defendant No. 2 for valuable consideration of Rs. 1,20,000/-. On 26.02.1996 the said amount was paid to defendant No. 3 in the presence of plaintiff and in order to avoid sale deed and to avoid registration and stamp duty the said amount was not mentioned in the relinquishment document alleged to have been executed by defendant No. 3. It is stated by virtue of the said watni or relinquish deed at Ex. D2 and also wardi at Ex. D1 given by the Tahsildar, defendant No. 2 came into the possession of the suit schedule property and since then, he has been enjoying the said property as absolute owner and the plaintiff has no right, title and interest over the said property. Therefore, defendant Nos. 1 and 2 have purchased the said land for consideration of Rs. 1,20,000/- and defendant No. 3 and relinquished the said property in favour of defendant No. 2."

On the basis of the above said rival pleadings of the parties, the Trial Court has framed the following issues:

"i. Whether the plaintiff proves that he is the absolute owner of the suit property?

ii. Whether the plaintiff further proves that the defendant No. 1 and 2 have illegally ousted the plaintiff from possession of the suit property?

iii. Whether the plaintiff further proves that the alleged obstruction caused by the defendants?

iv. Whether the defendant No. 1 and 2 further prove that they are the bona fide purchasers of the suit land for a valuable consideration Rs. 1,20,000/- and in lawful possession of the suit land property as contended in para 16 of W.S.?

v. Whether the defendant No. 2 proves that the plaintiff colluding the defendant No. 3 have filed this false suit?

vi. Whether the plaintiff is entitle for the relief of declaration and possession as prayed for?

vii. What order or decree?"

The plaintiff in order to prove his case examined himself as P.W. 1 and got examined one more witness as P.W. 2 and got marked Exs. P1 to P5. Defendant No. 1 examined himself as D.W. 1 and got examined four witnesses as D.Ws.2 to 5 and got marked Ex. D1 to D6.

After analyzing the oral and the documentary evidence on record, the Trial Court answering issue Nos. 1 to 3 and 6 in the affirmative and issue Nos. 4 and 5 in the negative ultimately, decreed the suit of the plaintiff declaring that the plaintiff is the absolute owner of the property. However, in view of admission given by the plaintiff himself that defendant Nos. 1 and 2 were held to be in possession of the property and decree was granted in favour of the plaintiff to recover the possession of the suit schedule property if defendant Nos. 1 and 2 fail to deliver the possession within two month from the date of the decree.

The said judgment and decree was challenged before the First Appellate Court in R.A. No. 182/2011 on the same allegations as taken up in the written statement. Defendant Nos. 1 and 2 have contended that the Trial Court has not properly appreciated the documents at Exs. D1 and D2 and failed to accept that the documents by way of relinquishment deed or watni need not be registered and Exs. D1 and D2 have valid title in favour of defendant Nos. 1 and 2 and they have in possession and enjoyment of the suit schedule property as absolute owners. It was also contended that the Trial Court has not properly appreciated the factual aspects and wrongly recorded the judgment and decree in favour of the plaintiff. The said appeal was contested by the plaintiff. The First Appellate Court has formulated a point for consideration which is as follows:

"Whether the appellants/defendant Nos. 1 and 2 have made out grounds to show that the impugned judgment and decree passed by the lower Court under appeal are contrary to evidence on record, probabilities of the case and not sustainable under law?" 10. After hearing both sides, the First Appellate Court answering the point for consideration in the negative dismissed the appeal.

On careful evaluation of the judgment of the Trial Court and the First Appellate Court, the deciding factor between the parties is Exs. D1 and D2, the documents on which defendant Nos. 1 and 2 claimed the ownership over the suit schedule property. Whatever may be the nature and magnitude of the oral evidence given by the parties, the documentary evidence prevail over the oral evidence. As could be seen from the pleadings of the parties and the oral evidence and the documentary evidence, there is absolutely no dispute with regard to partition between defendant Nos. 2 and 3 in the year 1991. It is also admitted by the defendants that northern portion of the land in Sy. No. 115 fell to the share of defendant No. 3 and southern portion of the land in the said survey number fell to the share of defendant No. 2. It is also admitted that the land in Sy. No. 43/2 fell to the share of defendant No. 3 in the partition was sold to one Rayagondappa. This particular aspect is also fortified by further defence of defendant Nos. 2 that defendant No. 3 has relinquished the suit schedule property in favour of defendant Nos. 1 and 2 by means of executing watni (alleged relinquishment) by taking an amount of Rs. 1,20,000/- on 26.02.1996. It also clears out the doubt that defendant No. 2 has categorically admitted the absolute ownership and possession over the suit schedule property by defendant No. 3 having acquired the same by means of partition in the year 1991. It is the claim of the plaintiff that Sy. No. 115/1 fell to the share of plaintiff in the partition between defendant No. 3 his father and himself. He admitted in the plaint that he was in search of some job and he was doing some other business therefore, he requested defendant Nos. 1 and 2 to cultivate the said land. Therefore, nature of possession of defendant Nos. 1 and 2 according to them is that they have acquired the property by means of Exs. D1 and D2. According to the plaintiff, they entered into the possession for cultivation inducted by the plaintiff himself. This makes amply clear that from 1996 onwards, defendant Nos. 1 and 2 have been in possession and enjoyment of the suit schedule property. Admittedly, both the plaintiff and defendant Nos. 1 and 2 claim rival title over the suit schedule property. Defendant No. 3 appears to have not filed his written statement nor entered the witness box and stated that there was any partition between himself and his son and Sy. No. 115/1 exclusively belong to him in order to execute any document in favour of defendant Nos. 1 and 2. Another important point to be taken note of is that defendant Nos. 1 and 2 have taken the contention that plaintiff and defendant No. 3 were in joint possession of the property and they in fact, requested defendant Nos. 1 and 2 to purchase the said property for valuable consideration of Rs. 1,20,000/-. Therefore, in the presence of the plaintiff, defendant No. 2 has paid an amount of Rs. 1,20,000/- to defendant No. 3 and acquired the property.

It goes without saying that the law of the land requires if any immovable property worth more than Rs. 100/- is sold or any right, title and interest over the said immovable property is transferred, it should be by way of a registered document. Though defendant No. 1 examined himself and got marked Exs. D1 and D2 and also examined so many witnesses to show his possession, he has not produced any material to show that he has acquired the suit schedule property by means of any lawful document executed by defendant No. 3 or plaintiff in his favour in accordance with law.

Exs. D1 and D2 are admittedly unregistered documents i.e., worthy given by the Tahsildar and watni pathra. Admittedly, when partition has already been taken place between defendant Nos. 2 and 3, there cannot be any further watni pathra or vyavastha pathra or partition deed between defendant No. 2 and defendant No. 3 in order to allocate the ancestral properties or joint family properties amongst themselves. Once it is admitted that defendant No. 3 became the absolute owner of the suit schedule property after the partition in the year 1991, if at all, defendant Nos. 1 an 2 have acquired the title over the property it should be by way of registered document. Even if it is considered that Ex. D2 Watni pathra is relinquished deed, it definitely conveys right, title and interest in favour of defendant No. 2 therefore, it should have been done by way of a registered document. Any quantity of oral evidence or documentary evidence cannot substitute a registered document which is recognized by the law of the land. If a particular transaction has to be done, in a particular manner as contemplated under law, if it is not done, then it will not convey any right, title and interest over the property. Therefore, the Trial Court as well as the First Appellate Court have properly appreciated that the documents at Exs. D1 and D2 though they show name of defendant Nos. 1 and 2, they will not convey any right, title and interest over the property. Even on the basis of such documents any mutation is accepted by the revenue authorities, it should be of without any foundation or any basis and those revenue records also would not confer any right, title and interest in favour of defendant Nos. 1 and 2.

The learned counsel for the appellants tried to convince the Court by relying upon the decision of the Apex Court reported in Digambar Adhar Patil Vs. Devram Girdhar Patil (died) and another, to bring out the principles that even relinquishment deed between the members of the family convey right, title and interest over the property despite registration of the document. In my opinion, the above said ruling is not in the tone and tenor as argued by the learned counsel and hence, it is not applicable to the facts of this case. At head note (c) the Apex Court has observed as hereunder:

"(C) Hindu Law-Partition-Not necessary that partition should be effected by registered partition deed.

Under the Hindu Law, it is not necessary that the partition should be effected by a registered partition deed. Even a family arrangement is enough to effectuate the partition between coparceners and to confer right to a separate share and enjoyment thereof."

There is absolutely no dispute so far as the above said principle is concerned because of the simple reason that partition itself presupposes or indicates that it is not a transfer of any right, title or interest in favour of any 3rd person or any person, it is the allocation of the properties on the basis of the preexisting rights of the parties over the joint family properties or ancestral properties. Therefore, it is only an arrangement between the parties with regard to allocation of the shares amongst themselves. Earlier to the partition all of them are the owners for each and every inch of the joint family property or ancestral property. Therefore, there is no question of divesting of any title from one person to another, it is already in existence in their favour. Therefore, in such an eventuality, there need not be any registration of the partition deed because it will not convey any transfer of property divesting the right from one person and investing the same in favour of another.

The above said principle is not applicable so far as this case is concerned. Because there is partition already taken place between defendant Nos. 2 and 3. After partition they became the owners of their respective shares. Once they became the owners, there is no question of relinquishment of person in favour of another and at any stretch of imagination, Ex. D2 cannot be called as relinquished deed or vyavastha pathra. Therefore, in my opinion, the above said ruling is not applicable to the facts and circumstances of this case.

Looking to the above said oral and the documentary evidence, the Trial Court and the First Appellate Court have properly appreciated the oral and the documentary evidence and came to the conclusion that the plaintiff has proved his case and also admitted the possession of the property with defendant Nos. 1 and 2. Though some question of law is involved in this case as noted above, but it cannot be called as substantial question of law. Mere question of law is not sufficient to entertain the Regular Second Appeal. The substantial question of law requires to be framed by this Court in order to entertain the Regular Second Appeal.

In view of the above observations, I do not find any substantial question of law to be framed in this case. I have also observed that neither the Trial Court nor the First Appellate Court have framed any legal issues between the parties to be decided, it is only on the basis of the factual aspect, the Courts have decided the rights of the parties. Therefore, there is no need for this Court to dwell further by framing any substantial question of law. Therefore, the appeal deserves to be dismissed at the admission stage itself. Accordingly, the appeal is dismissed.