IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN REGULAR SECOND APPEAL No.1540 of 2011 (INJ) BETWEEN:
SRI NATARAJA S/O. LATE SIDDANANJAPPA, AGED ABOUT 47 YEARS, OCC: AGRICULTURIST, PERMANENT RESIDENT OF KODIHALLI VILLAGE, KESTURU POST, KORA HOBLI – 572 128, TUMKUR TALUK & DISTRICT.
(BY SRI K.R.KUMAR, ADV.,) AND:
RAJANNA S/O LATE NANJUNDAPPA, AGED ABOUT 66 YEARS, R/O KODIHALLI VILLAGE, KESTURU POST, KORA HOBLI – 572 128, TUMKUR TALUK & DISTRICT.
... APPELLANT ... RESPONDENT (BY SRI V.B.SIDDARAMAIAH, ADV.,) THIS RSA IS FILED UNDER SECTION 100 OF THE CIVIL PROCEDURE CODE, AGAINST THE JUDGMENT AND DECREE DATED 29.03.2011 PASSED IN R.A.No.218/2009 (OLD No.94 of 2007) ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT-1, TUMKUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 19.06.2007 PASSED IN O.S.NO.149/2001 ON THE FILE OF I ADDITIONAL CIVIL JUDGE (JR.DN) AND JMFC., TUMKUR.
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed by the appellant/defendant being aggrieved by the judgment and decree passed by the 1st Additional Civil Judge (Jr.Dn.) and JMFC, Tumkur (hereinafter referred to as the ‘trial Court’) in OS.No.149/2001 dated 19.06.2007 by decreeing the suit of the plaintiff. Assailing the same, the defendant filed RA.No.218/2009 before the Presiding Officer, Fast Track Court-I, Tumkur (hereinafter referred to as the ‘1st Appellate Court’) which came to be dismissed on 29.03.2011.
2. Heard the arguments of learned counsel for the appellant as well as the respondent.
3. The status of the parties before the Trial Court is retained for the sake of convenience.
4. The case of the plaintiff in brief before the trial Court is that the plaintiff filed a suit for permanent injunction restraining the defendant from interfering with the plaintiff’s peaceful possession and enjoyment of the suit schedule property contending that he had purchased the suit schedule property in Sy.No.31/6 measuring 17 guntas under a registered sale deed dated 22.04.1971 for valuable consideration. After purchase of the property, he has constructed two farm houses and raised tamarind and other valuable trees, which are now fruit yielding. The defendant without having any right, title or interest over the suit schedule property is trying to trespass into the said farm house and trying to pluck the tamarind fruits and also trying to interfere with the plaintiff’s peaceful possession and enjoyment of the property. Hence, he filed a suit against the defendant.
5. Pursuant to the notice, defendant appeared through his counsel and filed written statement by denying the averments made in the plaint as false and denied the plaintiff’s right, title, interest and possession over the suit schedule property based on the sale deed dated 24.04.1991. The plaintiff’s father and defendant’s father are brothers and they are the members of Undivided Hindu Joint Family. They were born at Hanchihalli village and later shifted their residence to Kodihalli village. Under the registered sale deed dated 22.04.1971 out of their joint family earnings purchased the suit schedule property in the name of father of the plaintiff who is the elder brother of father of the defendant. They effected partition of said suit schedule property during the year 1980 under oral partition. Accordingly, eastern half portion of the suit schedule property has fallen to the share of plaintiff’s father and western half portion of the suit schedule property has fallen to the share of defendants’ father. Later plaintiff’s father and defendant’s father had built houses in their respective portions and are living separately with their families. They have taken separate electric connections to their houses. After the demise of the plaintiff’s father the stamped paper document dated 15.12.1989 came into existence in between the plaintiff, his sons and the widow of Siddananjappa. The plaintiff was ready to get the document transferred to the defendant with respect to the property fallen to the share of the father of the defendant. Therefore, the suit for permanent injunction without possession is not maintainable. Hence, he prayed for dismissal of the suit.
6. Based on rival pleadings, the trial Court framed the following issues:
1. Whether the plaintiff proves that he is in possession and enjoyment of the suit schedule property as alleged at para 2 of the plaint?
2. Whether the plaintiff further proves that the defendant has interfered with his possession and enjoyment of the suit schedule property?
3. Whether the plaintiff proves that the cause of action for the suit arose as mentioned at para-4 of the plaint?
4. Whether the plaintiff is entitled for the relief as sought for?
5. What order or decree?
7. To substantiate the contentions, plaintiff’s son examined as P.W.1 and examined one more witness as P.W.2 and got marked 23 documents as Exs.P.1 to P.23 and on behalf of the defendant, he himself examined as D.W.1 and got marked 6 documents as Exs.D1 to D6.
8. After considering the evidence on record, the trial Court answered issue Nos.1 to 4 in affirmative and ultimately, decreed the suit by restraining the defendant from interfering with peaceful possession and enjoyment of the suit schedule property. Assailing the same, the defendant filed RA.No.218/2009 and also filed I.A.2 under Order 41 Rule 27 of CPC seeking permission of the 1st Appellate Court to produce the document left out in defendant’s evidence before the trial Court. After considering I.A.2 as well as the contentions of the parties, the 1st Appellate Court raised the following points for consideration, which are as under:
1. Whether learned trial Judge erred in holding that plaintiff is in lawful possession and enjoyment of the suit property and defendant interfered in the plaintiff’s peaceful possession and enjoyment of the property?
2. Whether findings of learned trial Judge is perverse, capricious and illegal and interference by this Court is required?
3. What order or decree?
9. Subsequently, the 1st Appellate Court rejected the application of the appellant filed under Order 41 Rule 27 of CPC and also dismissed the appeal by confirming the judgment and decree passed by the trial Court. Assailing the same, the defendant is before this Court by way of this second appeal.
10. Learned counsel for the appellant/defendant strenuously contended that the trial Court as well as 1st Appellate Court have committed an error in decreeing the suit of the plaintiff and disbelieving the evidence of the defendant, which was led before the trial Court. However, the defendant filed an application under Order 41 Rule 27 of CPC and produced the documents dated 15.12.1989, which is an agreement entered into between the plaintiff and defendant’s mother, which was left out by the counsel appearing for the defendant before the trial Court due to old age. The 1st Appellate Court rejected the application which is not correct. Therefore, the learned counsel submits that the substantial questions of law are involved in this appeal and prayed for allowing the appeal.
11. Per contra, learned counsel for the respondent/plaintiff has supported the judgment passed by the courts below and has contended that it is an admitted fact that the partition was effected between the plaintiff’s father and defendant’s father and along with other brothers as on 15.05.1970 vide Ex.P.18 produced by the plaintiff and in the recitals, there is clear mention that the property was purchased by the plaintiff on 15.05.1964 under a sale deed as per Ex.P.21, which was excluded from partition as it was a self acquired property of the plaintiff. The partition effected among the plaintiff’s father and defendant’s father and other brothers as on 15.05.1970. When there is no existence of joint family partition, then there is no question of purchasing the suit schedule property by the plaintiff by selling the property of the defendant on 14.04.1971. Hence, there is no question of purchasing the property from the source of income from selling the property from the defendant’s father and if at all the defendant claims that if the property is purchased by the father of the plaintiff and divided the property, but there is no document produced before the trial Court and even an agreement dated 15.12.1989 cannot be acceptable as it is only an unregistered document. If any property is shared by the persons not as a joint family members, the document is required to be compulsorily registered as per Sections 17, 18 and 49 of the Registration Act, 1908. Therefore, even if such an application is allowed by the 1st Appellate Court, an unregistered document cannot be considered and admissible in evidence. The plaintiff after the purchase of schedule property in his name, he is in possession and enjoyment of the property and he has grown tamarind trees and enjoying the fruits of trees. Such being the case, the contention of the defendant both in oral and documentary evidence cannot be acceptable. The property has been purchased by the defendant’s father. Hence, he submits that there is no substantial question of law involved in this appeal and prayed for dismissal of the appeal.
12. Upon hearing the arguments of both the counsel and on perusal of the record, it goes to show that it is an admitted fact that the father of plaintiff and father of defendant along with other brothers of their father got partitioned so many items of property on 15.05.1970 as per Ex.P.18 and there is recital in Ex.P.18-Palupatti that a property purchased by the plaintiff on 15.05.1964 which was a self acquired property; therefore, the same was excluded from partition and Ex.P.18 has not been disputed by the appellant/ defendant in respect of partition among the family members of their parents. The specific case of the defendant was that a share of property has fallen to the share of defendant’s father and the said property was sold to one Boramma on 14.04.1971 and out of the said sale proceeds, the defendant’s father purchased the suit schedule property in the name of father of the plaintiff, but the defendant has not produced the said sale deed or certified copy of the sale deed dated 14.04.1971 which was sold by the father of the defendant as well as father of the plaintiff jointly to Boramma in order to purchase the suit schedule property. Further it is the specific case of the defendant that the suit schedule property was purchased in the name of father of the plaintiff and in fact, Ex.P.2- registered sale deed dated 22.04.1971 shows that the suit schedule property was purchased in the name of plaintiff. Though, the defendant’s counsel tried to bring the evidence in the cross-examination of P.W.1 that the property was purchased and divided equally in the year 1989, but the same was denied by P.W.1.
13. The case of the defendant is that after the purchase of property, both plaintiff’s father and defendant’s father built two houses and they are residing separately. The defendant’s father is paying electricity bill. The defendant got marked Exs.D1 to D6- electricity bills which stands in the name of father of the defendant and it is also brought to the notice by appellant’s counsel that subsequently the plaintiff got changed his name in the electricity connections. The fact remains that the property was purchased by the plaintiff in his name under the sale deed dated 22.01.1971 vide Ex.P.2, but not in the name of plaintiff’s father as contended by the defendant in his written statement and absolutely, there is no document produced by the defendant before the trial Court to show that the suit schedule property was purchased out of the sale proceeds of the property by the defendant from Boramma on 14.04.1971. Once the jointly family properties are partitioned between the members of the joint family, by metes and bounds and acted upon, the question of continuing the joint family status does not arise. Ex.P.18 clinches the issue that the partition has already been effected among the brothers and there is no continuance of the status of joint family after the partition held during the year 1970. Such being the case, the contention of the defendant that after partition they continued to be as joint family cannot be acceptable and in a suit for injunction, the plaintiff is need not required to prove the ownership of property, but the possession which is proved, by marking the documents-Exs.P.1 to P18. Exs.P.13 and P.14 to 16- patta book and tax paid receipts and other documents shows that the plaintiff is in possession of the property as on the date of filing of the suit. Therefore, the trial Court has rightly appreciated the evidence on record and decreed the suit by disbelieving the oral evidence of the defendant.
14. On the other hand, the 1st Appellate Court while considering I.A.2 filed under Order 41 Rule 27 of CPC by the appellant/defendant that an unregistered document dated 15.12.1989 though it shows that the property was divided and eastern half portion of the suit schedule property was fallen to the share of plaintiff’s father and western half portion of the suit schedule property fallen to the share of defendants’ father, but the said document is not registered and based on the said document even if there was an oral partition in the year 1970, but no revenue records mutated in the name of defendant after 1989 and 1990. Therefore, only based on the electricity bills, defendant’s father cannot claim title over the suit schedule property. Therefore, 1st Appellate Court has rightly re-appreciated the evidence and held that an unregistered document without registration cannot be permitted to produce as additional evidence. Though, the learned counsel for the appellant has relied upon the judgment of this Court in the case of Kuberappa and Others Vs. T.C. Gopal and Others reported in ILR 2009 KAR 3182 wherein it has held that the collateral transaction is required to be effected by registered document, the contention of the plaintiff is that the property was purchased in the name of plaintiff’s father out of the sale consideration of the property sold by the defendant’s father and the said document cannot be considered. As per Section 17 of the Registration Act, if any property is divided among the persons for value of more than Rs.100.00/- registration is compulsory. Once the partition held between the father of plaintiff and defendants’ father and joint family status cannot be continued and no documents to show that father of plaintiff and defendant have continued to reside as joint family and property has been purchased out of sale proceeds of the defendant’s father’s property which cannot be acceptable. Once the plaintiff able to show that he has purchased the property in the year 1964 prior to partition among the family members, which was proved by the plaintiff, the question of continuity of joint family cannot be acceptable. If at all the defendant claims right over the property, the defendant could have chosen to file a suit for division of the property from the plaintiff, but not chosen to do so in the trial Court. Such being the case, question of taking the plea that the property purchased by the defendant in the name of plaintiff cannot be acceptable in view of the sale deeds produced by the plaintiff before the trial Court. Therefore, absolutely there is no substantial question of law involved to admit this appeal. The appeal is devoid of merit and hence, is liable to be dismissed.
Accordingly, the appeal is dismissed.
In view of dismissal of the appeal, Misc.Cvl.Nos.14507/2011 and 14508/2011 do not survive for consideration and are also dismissed.
SD/- JUDGE PB