Karnataka High Court
Sri Munikrishnappa vs Sri Nanjappa on 26 March, 2025
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS 26TH THE DAY OF MARCH 2025
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
REGULAR SECOND APPEAL NO.2511 OF 2010 (DEC-INJ)
BETWEEN:
1. SRI MUNIKRISHNAPPA
AGED ABOUT 65 YEARS
2. SRI MUNISWAMY
AGED ABOUT 63 YEARS
3. SRI VENKATAPPA
AGED ABOUT 60 YEARS
4. SRI KANYAPPA
AGED ABOUT 58 YEARS
ALL ARE SONS OF MUNIYAPPA
R/AT DODDATHOGUR VILLAGE
BEGUR HOBLI
BENGALURU NORTH TALUK-560 100
... APPELLANTS
(BY SRI B.K.CHANDRASHEKAR, ADVOCATE)
AND:
1. SRI NANJAPPA
SINCE DEAD BY HIS LRS.
1(a) SMT.YELLAMA
W/O.NANJAPPA
AGED ABOUT 65 YEARS
1(b) SMT.RATHNAMMA
D/O.NANJAPPA
AGED ABOUT 44 YEARS
2
1(c) SRI GULLAPA
S/O.NANJAPPA
SINCE DEAD BY HIS LRS.
1(c)(a) SMT.NETHRA S.
W/O.LATE GULLAPPA
AGED ABOUT 37 YEARS
1(c)(b) CHI.SUJAN G.
S/O.LATE GULLAPPA
AGED ABOUT 16 YEARS
1(c)(c) CHI.MOHAN G.
S/O.LATE GULLAPPA
AGED ABOUT 14 YEARS
1(c)(d) KUM.MONIKA G.
D/O.LATE GULLAPPA
AGED ABOUT 12 YEARS
R-1(c)(b) to R-1(c)(d)
ARE MINORS
REP.BY THEIR
NATURAL GUARDIAN
SMT.NETHRA S., R-1(c)(a)
R-1(c)(a) to R-1(c)(d) ARE
R/AT DODDATHOGUR VILLAGE
BEGUR HOBLI
BENGALURU SOUTH TALUK
1(d) SMT.KAVITHA
D/O.NANJAPPA
AGED ABOUT 35 YEARS
R-1(a), 1(b) and 1(d) ARE
R/AT DODDATHOGUR VILLAGE
BEGUR HOBLI
BENGALURU SOUTH TALUK
3
1(e) SRI MUNISWAMY
SINCE DEAD BY HIS LRS.
1(e)(a) LAKSHMAMMA
W/O.LATE MUNISWAMY
AGED ABOUT 52 YEARS
1(e)(b) VARALAKSHMI M.
D/O.LATE MUNISWAMY
1(e)(c) MANJUNATH M.
S/O.MUNISWAMY
AGED ABOUT 28 YEARS
1(e)(d) KARTHIK M.
S/O.MUNISWAMY
AGED ABOUT 26 YEARS
1(e)(e) MUNIRAJU
S/O.MUNISWAMY
AGED ABOUT 23 YEARS
R-1(e)(a) to R-1(e)(e) ARE
R/AT NO.1184 , VELANKINI ROAD
NEAR YELLAMMA TEMPLE
DODDATHOGUR VILLAGE
BENGALURU SOUTH TALUK
BENGALURU
1(f) SMT.SANJEEVAMMA
D/O.LATE NANJAPPA
W/O.RAJANNA
AGED ABOUT 40 YEARS
R/AT HUSKUR
SARJAPURA HOBLI
ANEKAL TALUK
BENGALURU RURAL DISTRICT
BENGALURU-560 099
4
1(g) SMT.YELLAMMA
D/O.LATE NANJAPPA
W/O.MARIYAPPA
AGED ABOUT 38 YEARS
R/AT CHIKKATHOGURU
BEGUR HOBLI
ELECTRONIC CITY POST
BENGALURU-560 100
2. THE LAND ACQUISITION OFFICER
KARNATAKA KAIGARIKA
PRADESHABHIVRUDDHI
MANDALI (KAIDB) BUILDING
1ST CROSS, GANDHI NAGAR
BENGALURU-560 009
... RESPONDENTS
(BY SRI N.R.NAIK, ADVOCATE FOR R-1(a) to R-1(d),
R-1(f) AND R-1(g);
SRI G.L.VISHWANATH, SENIOR COUNSEL FOR
SMT.MANASA B.RAO AND SMT.DHRITHI VISHWANATH,
ADVOCATES FOR R-1(e)(a) to R-1(e)(e);
SRI P.V.CHANDRA SHEKAR, ADVOCATE FOR R-2)
THIS REGUALR SECOND APEPAL IS FILED UNDER SECTION
100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
DATED 29.11.2008 PASSED IN O.S.NO.508/1998 BY ADDITIONAL
II CIVIL JUDGE (JR.DVN.), BENGALURU RURAL DISTRICT,
BENGALURU AND JUDGMENT AND DECREE 13.07.2010 PASSED IN
RA.NO.24/2009 BY THE PRINCIPAL DISTRICT AND SESSIONS
JUDGE AND I/C. I ADDITIONAL DISTRICT AND SESSIONS JUDGE,
BENGALURU RURAL DISTRICT, BENGALURU AND CONSEQUENTLY
DECREE THE SUIT FILED BY THE APPELLANTS.
THIS REGULAR SECOND APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
5
CORAM: HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
CAV JUDGMENT
This Regular Second Appeal is preferred by the plaintiffs
being aggrieved by the impugned judgment and decree dated
13.07.2010 passed in RA.No.24/2009 by the Principal District
and Sessions Judge and I/c. I Additional District and Sessions
Judge, Bengaluru Rural District, Bengaluru (for short, ‘the first
Appellate Court’), wherein the judgment and decree dated
29.11.2008 passed in O.S.No.508/1998 by Additional II Civil
Judge (Jr.Dvn.), Bengaluru Rural District, Bengaluru (for short,
‘the trial Court’), came to be confirmed dismissing the appeal.
2. For the sake of convenience, the parties shall be
referred to as per their status before the trial Court.
3. Brief facts of the case are as under:
One Nanjappa was the propositus of the joint family and
he had two sons namely, Kanyappa and Jhuttappa. Kanyappa
had a son by name, Muniyappa and the plaintiffs are the
6children of the said Muniyappa. On the other hand, Jhuttappa
had two sons, namely, Nanjappa and Munigowdappa.
Nanjappa is defendant No.1 before the trial Court and the
contesting defendant.
3.1 It is the case of the plaintiffs that the partition took
place between the family members on 26.07.1980. The
plaintiffs claimed that they are in peaceful possession and
enjoyment of the suit schedule properties, namely four items
in different survey numbers as mentioned in the schedule to
the plaint. It is admitted that the khatha/revenue entries of
the properties has not been changed in the names of the
plaintiffs.
3.2 It is the specific plea of the plaintiffs that defendant
No.1 has absolutely no manner of right, title and interest over
the suit schedule properties, which are fallen to the share of
the plaintiffs and they are in peaceful possession and
enjoyment of the same. Therefore, defendant No.1 is
7unnecessarily interfering with the plaintiffs’ peaceful
possession and enjoyment of the suit schedule properties. It is
the further plea of the plaintiffs that on 10.10.1998, defendant
No.1 along with his henchmen came to the suit property
making a claim that he is also the joint owner of the suit
schedule properties, which was strongly resisted by the
plaintiffs, but defendant No.1 warned that he would come with
men and material and take possession of the property as he is
the joint owner. Hence, the plaintiffs were constrained to file a
Police complaint. It is further case of the plaintiffs that since
no protection was extended by the jurisdictional Police on the
ground that it is a civil dispute, the plaintiffs were constrained
to file a suit seeking relief of partition, declaration and
consequential relief of permanent injunction against defendant
No.1 over the suit schedule properties.
3.3 Defendant No.1, on appearance, filed detailed written
statement denying the claim of the plaintiffs over the suit
schedule properties including their right over the same and
8took up a plea that the entire suit schedule properties belong
to his father, Jhuttappa and that Muniyappa, who is none
other than the father of the plaintiffs had already relinquished
his right over the ancestral properties by executing a
registered release deed. Therefore, the plaintiffs or their father
do not have any right, title or interest over the suit schedule
properties, in view of the registered release deed having been
executed way back on 19.03.1956. It is also pleaded by
defendant No.1 categorically that in view of the execution of
the release deed, defendant No.1 and his brother became the
absolute owners and are in possession and enjoyment of the
suit schedule properties. Defendant No.1 also pleaded that the
plaintiffs are not in possession of any of the suit schedule
properties, thereby the entire claim so made by the plaintiffs
is not sustainable and is false and frivolous. However, no
cause of action arose as the same is made only for the
purpose of filing the present case. On these grounds,
defendant No.1 sought for dismissal of the suit.
9
3.4 During pendency of the suit, ‘the Land Acquisition
Officer, KIADB’ came to be impleaded. However, no written
statement has been filed by defendant No.2 (KIADB).
3.5 On the basis of the pleadings, the trial Court framed
the following issues:
“1. Whether the plaintiffs prove that they got title
over the suit schedule property by virtue of
partition deed dated 26.07.1980?
2. Whether the plaintiffs prove that they are in
actual possession of the suit schedule
property as on the date of the suit?
3. Whether the plaintiffs prove the alleged
defendant interfere in the suit schedule
property?
4. What order or decree?”
3.6 In order to substantiate their case, plaintiff No.1 got
examined himself as PW.1 and other two witnesses as PWs.2
and 3 and got marked documents as Exs.P1 to P5, whereas
defendant No.1 examined his son as his Power of Attorney
10
Holder as DW.1 and got marked documents as per Exs.D1 to
D7.
3.7 On the basis of the materials placed on record, both
oral and documentary, the trial Court did not agree with the
contentions put-forth by the plaintiffs and dismissed their suit
holding that there was no partition and the same was not
acted upon.
3.8 Being aggrieved by dismissal of suit, the plaintiffs
preferred an appeal in RA.No.24/2009 on several grounds
urged therein.
3.9 The first Appellate Court, after hearing learned
counsel for plaintiffs as well as learned counsel for defendants,
formulated the following points for consideration:
“1. Whether the document marked as Ex.P.1 is a
memorandum of partition reiterating the earlier
partition as contended by the plaintiffs?
2. Whether any interference is called for by this
court? If so to what extent?
11
3. To what reliefs and decree the parties are
entitled for?”
3.10 On re-appreciation and re-evaluation of the entire
evidence, the first Appellate Court came to the conclusion that
the document so relied on by the plaintiffs at Ex.P1 is a
partition deed by itself and not a Memorandum of Partition
reiterating the earlier partition. It has also come to the
conclusion that Ex.P1 is a partition deed in presenti. The first
Appellate Court, therefore, came to a conclusion that Ex.P1 is
inadmissible in evidence, as the same is not registered under
the Registration Act, 1908 (for short, ‘the Act’) which
contemplates mandatory registration under Section 17. Hence,
the first Appellate Court did not find favour with the
contentions of the plaintiffs and the materials placed on record
and also did not find any need or cogent reason to interfere
with dismissal of the suit by the trial Court and accordingly,
dismissed the appeal preferred by the plaintiffs and
12
consequently, upheld the judgment and decree of the trial
Court.
3.11 Being aggrieved by the concurrent findings of
dismissal passed by the trial Court as well as the first
Appellate Court, the plaintiffs are before this Court questioning
the same raising substantial questions of law to be considered
by this Court.
4. It is the vehement contention of
Sri B.K.Chandrashekar, learned counsel that the impugned
judgments and decree passed by the trial Court and the first
Appellate Court are illegal and contrary to the materials placed
on record, both oral and documentary. He further contends
that both the Courts have not appreciated the documentary
evidence produced by the plaintiffs as well as defendant No.1.
The trial Court as well as the first Appellate Court have totally
failed to appreciate Ex.P1, the original paalu patti which talks
about the partition having been effected earlier between the
13
parties and the plaintiffs and their father having enjoyed the
suit schedule properties by way of an oral partition. Despite
production of Ex.P1, this aspect has been conveniently ignored
and brushed aside by both the Courts, which is illegal and
unsustainable.
4.1 Learned counsel further contends that the trial Court
as well as the first Appellate Court have conveniently ignored
to look into the contents of Ex.D2, the original release deed
dated 19.03.1956 and committed a gross error in not framing
any proper issue on the said release deed. It is also
vehemently contended by learned counsel that the first
Appellate Court has failed to appreciate both Exs.P1 and D2
and though has come to the conclusion in the reasoning that
the issue with regard to validity of genuineness of the binding
effect of Ex.D2 not being framed, the trial Court has not
justified in observing the same has been acted upon and it has
further held that the observation so made in respect of Ex.D2
is not sustainable in law. Learned counsel contends that the
14
first Appellate Court by making such observation with regard
to validity of Ex.D2, dismissed the appeal by affirming the
suit, which is unsustainable, illegal and same is liable to be
set-aside and reversed by this Court.
4.2 Learned counsel contends that on a plain reading of
Ex.P1, it is apparently clear that there was an oral partition
between Sri Muniyappa, the father of the appellants and two
sons of Jhuttappa and therefore, the factum of oral partition
between these two branches of the family of Nanjappa came
to be reduced into writing as per Ex.P1. Therefore, he
vehemently contends that the said document Ex.P1 is only a
mere statement of fact of reiteration and therefore, this
document does not require any registration much less as
contemplated under Section 17(1)(b) of the Act. He further
contends that both the Courts have committed a serious error
in appreciating Ex.P1 and have failed to understand the
document to be paalu patti, which is a statement and
15
reiteration of earlier partition between the parties and not a
fresh partition deed by itself.
4.3 Learned counsel further contends that defendant
No.1 has relied upon Ex.D2, release deed dated 19.03.1956.
However, it was the duty of the trial Court to frame an issue
on the validity or effectiveness or binding nature of the said
deed and it would have been the onus on defendant No.1 to
establish and prove the same. Both the Courts having not
framed any such issue on Ex.D2, the release deed, the entire
judgment and decree is vitiated and the same requires to be
set-aside and reversed. Consequently, the suit of the plaintiffs
to be allowed in toto.
4.4 Learned counsel, on the basis of these submissions,
contends that it is a well established rule of law that once a
partition has taken place between the parties as oral or written
and the same is acted upon and thereafter, the paalu patti,
statement or memorandum is executed or put in writing by
16
the parties, the question of such document whatever
nomenclature it is called, need not be registered and would
not come within the purview of Section 17 of the Act. Learned
counsel further contends that after the release deed executed
in the year 1956, in order to maintain good relationship, peace
and harmony, the plaintiffs executed paalu patti, which is in
furtherance of the oral partition and thereby lost three
properties only with an intention to maintain amicable
relationship between the family members, who are admittedly
related to each other. It is also contended by learned counsel
that the plaintiffs have only taken four properties, whereas
defendant No.1 gets nine properties. Therefore, defendant
No.1 got more properties than that of the plaintiffs. Hence,
learned counsel for plaintiffs contends that the trial Court as
well as the first Appellate Court have not properly considered
Exs.P1 and D2 while rendering the impugned judgments and
decree. Under these circumstances, he contends that both the
Courts have miserably failed to appreciate these two
17
important documents and have committed a serious error in
dismissing the suit.
4.5 Learned counsel relied on the following judgments in
support of his case:
i) Thulasidhara & another v. Narayanappa & Others in Civil Appeal No.784/2010 [DD.01.05.2019]; ii) Ravinder Kaur Grewal & Ors. v. Manjit Kaur & Ors. in Civil Appeal No.7764/2014 [DD.31.07.2020]; iii) Kale & Others v. Deputy Director of Consolidation reported in 1976 AIR 807; iv) Rangappa vs. Jayamma reported in ILR 1987 KAR 2889; v) Sheetal Prasad (Dead) through LRs. & Ors. v. Ram Krishna & Ors. in Second Appeal No.877/2004 [DD.08.05.2017]; 18 vi) Jagdish Singh v. Natthu Singh reported in AIR 1992 SC 1604; vii) Bondar Singh and Others vs. Nihal Singh and Others reported in ILR 2003 KAR 2253;
viii) Kashmir Singh v. Harnam Singh and Anr.
reported in 2008 AIR SCW 2417.
5. Per contra, Sri G.L.Vishwanath, learned Senior
Counsel representing some of the legal representatives
defendant No.1 vehemently contends that there is no
illegality, perversity, arbitrariness or any error apparent on the
face of the records or non-appreciation of the materials placed
before the Court and therefore, the judgments and decree
rendered by both the Courts are justifiable. Hence, he sustains
the impugned judgments and decree passed by both the
Courts.
5.1 It is the vehement contention of learned Senior
Counsel that the trial Court going into the details of Ex.P1, the
partition deed so also taking into consideration of Ex.D2, the
19
release deed has clearly and categorically come to the
conclusion that Ex.P1, partition deed is not a reiteration or a
statement of earlier partition, but a partition deed by itself.
Therefore, it is vehemently contended that Ex.P1 which is now
tried to portray as paalu patti is not reiteration of earlier
partition between the family members but it is the partition
deed executed on the said date i.e. 26.07.1980 providing
certain rights. Therefore, it is to be acted on that said date of
execution of the partition i.e. 26.07.1980. It is also contended
that as per Ex.P1, there is only ‘A’ schedule property, which is
mentioned and there is no ‘B’ schedule property. Under the
circumstance, he contends that when a document is executed
by the parties where rights are being provided in the guise of
the partition, it requires mandatory registration under the Act.
Since Ex.P.1 is not a registered document, it is inadmissible in
nature. This aspect of the matter has been clearly appreciated
and carefully analysed by the trial Court and a finding is given
that the said document cannot be taken into consideration
20
even for collateral purposes and therefore, it is inadmissible in
evidence.
5.2 In the second limb of argument, learned Senior
Counsel contends that Ex.D2, the release deed is executed by
Late Muniyappa, the father of the plaintiffs in favour of
defendant No.1 and his brother and the said document is a
registered document dated 19.03.1956. He further contends
that this document is very much within the knowledge of the
plaintiffs and so also it was within the knowledge of their
father, Muniyappa as he is the party to the said document and
Late Muniyappa himself having relinquished his rights in
favour of defendant No.1, the question of plaintiffs getting any
right over the relinquished properties does not arise. Hence,
no rights flow to the plaintiffs which did not exist in favour of
their father.
5.3 Learned Senior Counsel vehemently contends that
when the suit is filed by the plaintiffs asserting the partition
21
having taken place or their rights over the suit schedule
property, the onus is on the plaintiffs to prove and establish
the same. Firstly, to show that the properties are ancestral
and joint family properties and they remain in the nature of
joint family or that it was the partition between the family
members and acted upon or that pursuant to the release deed
in the year 1956, there was jointness and reunion of the
family, thereby making it once again joint family properties.
All these aspects have not been pleaded or elaborated by the
plaintiffs in their pleadings. In fact, he contends that Ex.D2,
the release deed has been conveniently suppressed by the
plaintiffs in their plaint. It is only after defendant No.1 took up
his plea in his written statement. The theory is being
concocted or made up to cover and overcome the registered
release deed which unfortunately the plaintiffs are
unsuccessful in doing and so also, the release deed being a
registered document quite prior to the alleged Ex.P1, paalu
patti, the same would not come to their aid and benefit.
22
5.4 Learned Senior Counsel further contends that
pursuant to registered release deed, defendant No.1 has been
in peaceful possession and enjoyment and the revenue entries
are in the name of defendant No.1, which are not disputed. It
is also contended that no satisfactory explanation is given as
to why the brother of defendant No.1 is not made as a party
to the suit proceedings. It is also vehemently contended by
learned Senior Counsel that at the stage of the second appeal,
a new case has been put and canvassed with regard to Ex.D2,
the release deed to have been proved and established by
defendant No.1. He further contends that all these aspects
have been elaborately gone into by the trial Court as well as
the first Appellate Court and all the issues framed have been
negatived against the plaintiffs and decided in favour of
defendant No.1.
5.5 It is vehemently contended by learned Senior
Counsel that the present proceedings are filed under Section
100 of CPC and therefore, the scope of Section 100 of CPC is
23
very narrow and this Court cannot go into the facts of the case
or new facts put up in this second appeal which have not been
pleaded or placed before both the Courts below and there
being concurrent finding of fact after appreciation of the
evidence, both oral and documentary, there is very little to be
considered and decided by this Court only as to whether if
there is any substantial question of law to be considered in the
case on hand, which according to learned Senior Counsel is in
the negative. Therefore, it is the vehement contention of
learned Senior Counsel that the judgment and decree passed
by the trial Court, affirmed by the first Appellate Court is
absolutely justifiable and does not call for any interference,
much less at the stage of the second appeal under Section 100
of CPC to go back to the facts of the case, which have already
been considered by the first Appellate Court in details. Hence,
he seeks dismissal of this appeal and consequently, to affirm
the judgments and decree passed by both the Courts.
24
5.6 Learned Senior Counsel relied on the following
judgments in support of his case:
i) S Arumugham & another v. Rajshekhar in
Regular Second Appeal No.5384/2010
[DD.22.07.2022];
ii) Madasamy Thevar S. v. A.M.Arjuna Raja reported
in 2000(3) Law Weekly 793, Madras High Court;
iii) S.Subramanian v. S.Ramaswamy and Others
reported in (2019)6 SCC 46;
iv) Roshan Singh v. Zile Singh reported in AIR 1988
SC 881;
v) Sita Ram Bhama v. Ramatar Bhama reported in
(2018)15 SCC 130;
vi) Sri P.Anjanappa and Others v. Sri
A.P.Nanjundappa and Others in
RFA.No.700/1998 [DD. 30.08.2005];
25
vii) Hullappa v. The State of Karnataka, through
Deputy Commissioner, Bidar and Others reported
in AIR 2013 KAR 37;
viii) Thakamma Mathew v. M.Azamathulla Khan
reported in 1993 Supp (4) SCC 492;
ix) Om Prakash and Others vs. Ram Kumar and
Others reported in (1991)1 SCC 441;
x) Shiv Kumar Sharma vs. Santosh Kumari reported
in 2007(8) SCC 600;
xi) Land Acquisition Officer & Mandal Revenue
Officer v. V.Narasaiah reported in (2001)3 SCC
530;
xii) Pushpalatha N.V. vs. V.Padma and Ors. reported
in 2019(1)KCCR 256.
6. Sri N.R.Naik, learned counsel representing some of
the legal representatives of defendant No.1 and
Sri P.V.Chandra Shekar, learned counsel for defendant No.2-
KIADB support the case of defendant No.1 and sustain the
26
impugned judgments and decree passed by the trial Court as
well as the first Appellate Court and adds that the onus is
absolutely on the plaintiffs to establish and prove the case and
not to rely upon the weakness of the defendants. It is also
contended by him that it was for the plaintiffs to prove as to
whether there was subsequent reunion of the joint family and
the status of joint family having revived by placing cogent
materials on record. However, the same having not done
either by way of oral evidence or documentary evidence, it
cannot be construed and presumed that the joint family status
revived to the benefit of plaintiffs. He also contends that the
plaintiffs have suppressed facts with an intention to take a
favourable order but have been unsuccessful in establishing
their case. Hence, he seeks dismissal of the appeal.
7. This Court vide order dated 04.02.2021, formulated
following substantial question of law for consideration:
“i) Whether the Courts below could have decided
the suit filed by the plaintiffs without framing
27an issue on the validity of the registered
Release Deed-Ex.D2 dated 19.03.1956 put
forward by the defendants?”
8. I have heard learned counsel Sri K.B.Chandrashekar
for appellants-plaintiffs and Sri G.L.Vishwanath, learned Senior
Counsel appearing on behalf of some of the legal
representatives of respondent No.1-defendant No.1,
Sri N.R.Naik, learned counsel appearing on behalf of some of
the legal representatives of respondent No.1-defendant No.1
and Sri P.V.Chandra Shekar, learned counsel for respondent
No.2-defendant No.2.
9. One Nanjappa being the propositus and the
relationship of the plaintiffs and defendant No.1 are not in
dispute. The question before the trial Court and the first
Appellate Court is only with regard to whether Ex.P1 is a
memorandum of partition reiterating earlier oral partition? and
whether Ex.D2, the release deed executed by the father of the
plaintiffs is binding? These two documents have been
28
elaborately and exhaustibly dealt with by the trial Court and
the first Appellate Court. It is not in dispute that the plaintiffs
relied on Ex.P1 and did not make any mention of Ex.D2, which
is an earlier executed document by the father of the plaintiffs
with defendant No.1 and his brother.
10. Though it is claimed by the plaintiffs that Ex.P1 is
only a paalu patti, which is reiteration of an earlier oral
partition, does not require registration as contemplated under
Section 17 of the Act, the same is not agreed by the trial
Court as well as the first Appellate Court. This document Ex.P1
has been discussed by both the Courts and have come to a
conclusion that Ex.P1 is a partition deed in presenti. Therefore,
when the partition deed talks about the present and executed
in the present by providing certain rights, the same requires to
be registered under Section 17 of the Act and the said
document having not been registered, it is not admissible in
evidence. Therefore, the trial Court and the first Appellate
Court by dealing with Ex.P1 elaborately by appreciating the
29
contents of the document, held that Ex.P1 is an inadmissible
evidence.
11. Secondly, coming to the aspect of Ex.D2, the release
deed, nothing prevented the plaintiffs to disclose the release
deed in the pleadings as it is the case of the plaintiffs that by
virtue of the release deed, they get certain properties. If that
was the situation, the plaintiffs ought to have mentioned the
release deed in their pleadings and should have come clean
with the contents of the release deed and the properties
released and if any retained. It is also seen that this
registered document of release deed is not questioned or
challenged by the plaintiffs till date. This aspect has been
considered by both the trial Court as well as the first Appellate
Court while deciding the matters.
12. In a suit filed for partition or for that matter any
other suit, the onus is always on the plaintiffs to prove and
establish and it is a fundamental rule of law that the plaintiffs
cannot rely/stand on the weakness of the defendants.
30
Therefore, the plaintiffs having failed to establish Ex.P1 to be a
paalu patti in pursuance to an oral partition deed, cannot now
try to rely on the document produced by defendant No.1 at
Ex.D2 to substantiate their case, as it was not the case of the
plaintiffs initially or even later questioning the release deed
Ex.D2.
13. Learned counsel for plaintiffs has heavily relied upon
the judgments with regard to the paalu patti or memorandum
of partition reiterating earlier partition not required to be
registered under the Act. This aspect of the matter and the
law laid down by the Hon’ble Apex Court are not disputed.
But, unfortunately, for the plaintiffs, the same is not applicable
to the present facts and circumstances of the case for the
reasons stated by the trial Court as well as the first Appellate
Court. This Court does not find any good ground or cogent
reason to differ with the said findings of both the Courts.
14. Under the circumstances, the present appeal which is
filed to consider the substantial questions of law has to be
31
seen by this Court to decide as to whether the question of law
framed by this Court as stated earlier is to be answered in the
affirmative or negative. This Court sitting in the second appeal
is required to consider the substantial question of law under
Section 100 of the CPC, which is limited in scope to decide not
only mere question of law but substantial question of law,
hence, it will have to be very circumspect and careful in not
venturing into analysing or re-appreciating the question of fact
which has already been decided by the first appellate Court,
which is the last Court for appreciation of question of facts
and analysation of the evidence and unless there is a grave
error committed by the first appellate Court in not
appreciating any evidentiary matter which are placed by the
parties before both the Courts and having not considered the
same which are admitted by the parties available on record,
this Court would not interfere in the judgment passed by the
Court below on the question of fact. When two Courts have
already considered the question of fact and the question of law
32
to a large extent in detail, even if this Court finds third opinion
on the opinions already expressed concurrently by both
Courts, it is a general Rule that this Court should refrain from
imposing its third opinion merely for the sake of interference
when there is no cogent material placed on record as regards
substantial question of law.
15. It is also relevant to note that the release deed is
dated 19.03.1956 and paalu patti is claimed to be dated
26.07.1980 alleged to be reiterating the earlier partition. No
such partition is placed on record; no materials to show that
the partition has taken place; nobody has adduced with regard
to such a partition and the same having been acted upon. The
plaintiffs have filed the suit in the year 1998 i.e. after a period
of 40 years from the date of the registered release deed and
after a period of 18 years from the date of so called paalu
patti, which is claimed to be reiteration of the partition deed
effected much earlier. The huge delay is also to be taken into
consideration in filing the suit, for which, no explanation is
33
provided. The fact also remains that admittedly, the revenue
entries are not in the names of the plaintiffs in respect of any
properties. This itself belies the theory put-forth by the
plaintiffs. These aspects have been well considered by the trial
Court as well as the first Appellate Court. If it is the case of
the plaintiffs that there is a joint family status, there is no
material to produce on record to show when the parties are
reunited and when they started living together as a joint
family. The relevant portion of Ex.P1 reads as follows:
“…………………F ¢£À F PɼÀPÀAqÀ ¥ÀAZÁ¬ÄvÀgÀ ¸ÀªÀÄPÀëªÀÄ £ÀªÀÄä, £ÀªÀÄä
C£ÀĨsÀªÀzÀ jÃvÁå J.µÉqÀÆå$ï zÁUÉ 1£Éà PÀ£ÉߥÀà£À M§â£Éà ªÀÄUÀ
ªÀÄĤAiÀÄ¥Àà ©. µÉqÀÆå$ïzÁUÉ 2£Éà dÄlÖ¥Àà£À ªÀÄPÀ̼ÀÄ 1£Éà £ÀAd¥Àà
2£Éà ªÀÄĤUÉÆëAzÀ¥Àà JA§ÄzÁVAiÀÄÆ JgÀqÀÄ ¨sÁUÀUÀ¼ÁV
«AUÀr¹PÉÆAqÀÄ vÀ$Á MAzÉÆAzÀÄ ¥ÀAZÁ¬ÄÛ ¥Á®Ä ¥ÀnÖAiÀÄ£ÀÄß
ªÀiÁrPÉÆAqÀÄ ºÀAaPÉÆArgÀÄvÉÛêÉ. F $ÁUÁAiÀÄÄÛ DAiÀiÁ
µÉqÀÆå$ïzÁgÀgÉà CªÀgÀªÀgÀgÀ ¨sÁUÀzÀ ¸ÉÆvÀÛUÀ¼À ¨Á§vÀÄÛ PÀAzÁAiÀÄ
ªÀUÉÊgÉ ¥ÁªÀw ªÀiÁqÀÄvÁÛ SÁvÉ ªÀÄvÀÄÛ ¥ÀºÀtÂAiÀÄ£ÀÄß
ªÀUÁð¬Ä¹PÉÆAqÀÄ EµÀÖ §AzÀ jÃwAiÀÄ°è DAiÀiÁ µÉqÀÆå$ïzÁgÀgÀ
¨sÁUÀzÀ ¸ÉÆvÀÄÛUÀ¼À°è zÉÆgÉAiÀħºÀÄzÁzÀ ¤¢ü, ¤PÉëÃ¥À , d®, vÀgÀÄ,
¥ÁµÁuÁ¢ü, CµÀÖ¨sÉÆÃUÀ vÉÃd ¸ËªÀÄåAUÀ½UÀÆ D¢ PÀæAiÀiÁ¢
ªÀåªÀºÁgÀ ZÀvÀĵÀÖAiÀÄåAUÀ½UÀÆ CªÀgÀªÀgÉà ªÀiÁ°ÃPÀgÁV ¥ÀÄvÀæ ¥ËvÀæ
ªÀA±À¥ÁgÀA¥ÀgÀåªÁV ¸ÀÄR¢AzÀ C£ÀĨsÀ«¹PÉƼÀÀÄzÀÄ………………….”
16. The first relief sought in the plaint is admittedly for
partition, but the second relief is for permanent injunction. If
34
that is the case of the plaintiffs that they had partitioned the
properties and were in their respective peaceful possession
and enjoyment of their respective shares, then there was no
need for the plaintiffs to seek for relief of permanent
injunction. Admittedly, no documentary entries/revenue
entries are available in the names of the plaintiffs. Therefore,
the theory put-forth by the plaintiffs is hard to believe. The
trial Court and the first Appellate Court have rightly
appreciated the same and negatived the contentions of the
plaintiffs, which in my opinion, does not call for interference.
17. In view of the above, the appellants have neither
made out a good case or given cogent reason or placed any
material to consider the substantial question of law framed by
this Court in their favour. Having given my thoughtful
consideration to the entire materials placed on record and the
submissions of learned counsel for appellants as well as the
respondents, I do not find any good ground to consider the
question of law in favour of the appellants by disturbing the
35
concurrent finding of fact arrived at by the trial Court and the
first Appellate Court. Accordingly, this appeal does not deserve
any meritorious consideration of the substantial question of
law. Accordingly, I proceed to pass the following:
ORDER
i) The appeal preferred by the appellants-plaintiffs is
dismissed;
ii) The impugned judgment and decree 13.07.2010
passed in RA.No.24/2009 by the Principal District and
Sessions Judge and I/c. I Additional District and
Sessions Judge, Bengaluru Rural District, Bengaluru,
confirming the judgment and decree dated
29.11.2008 passed in O.S.No.508/1998 by Additional
II Civil Judge (Jr.Dvn.), Bengaluru Rural District,
Bengaluru, is hereby affirmed;
iii) Costs made easy.
Sd/-
(PRADEEP SINGH YERUR)
JUDGE
LB
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