MAHESHWARAPPA v. GANESHAPPA

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and 2 are the children of one B. Halappa. Plaintiff has contended that during the life time of his father, there was a partition in the ancestral properties and the said partition was effected under the registered partition deed 31.1.1998. The plaintiff has specifically pleaded that in Survey No.101 totally measuring 9 acres, the father of plaintiff was allotted 2 acres in the southern side block and one acre in the Northern side block. Plaintiff contended that as per the registered partition deed, the plaintiff and defendants 1 and 2 along with their father Hallappa agreed that in Survey No.101, the coconut garden land measuring half acre shall be allotted to plaintiff. It was further agreed that all the three sons of Halappa i.e. plaintiff and defendants 1 and 2 would get the ancestral properties distributed equally. The plaintiff alleges that after the death of Hallappa, the plaintiff is in peaceful possession and enjoyment of half acre i.e. coconut garden land in Survey No.101 and when he requested his brothers to effect partition in terms of the arrangement made in the registered partition deed dated 31.1.1998, the defendants

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tried to sell the suit schedule properties with a view to deprive plaintiff's share. Since defendants failed to heed to the request made by the plaintiff, the present suit is filed.

5. The defendants on receipt of summons though admitted the partition, however, disputed the allotment of half acre of coconut garden land in Survey No.101 exclusively to plaintiff. Defendants on the contrary contended that after the death of their father Hallappa, plaintiff and defendants have effected partition in all the suit schedule properties and hence, prayed for dismissal of the suit.

6. The trial Court having examined the pleadings and oral and documentary evidence has dismissed the suit.

7. The plaintiff feeling aggrieved by the judgment and decree of the trial Court preferred an appeal in R.A.No.46/2022. The appellate Court as a final fact

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authority has independently examined the admitted registered partition deed dated 31.1.1998 which is produced and marked at Ex.P1. Having examined the recitals in the registered partition deed, the relevant portion which is now undisputed, is culled out by the appellate Court at para 29. The appellate Court having culled out the relevant portion of the recitals and having examined the recitals, disagreed with the reasons assigned by the trial Court. The appellate Court referring to the recitals found that under the registered partition deed to which defendants 1 and 2 are signatories have accepted the terms of the registered partition deed wherein father of defendants 1 and 2 agreed that half acre of coconut garden land is exclusively allotted to plaintiff and all the three sons have further agreed that after the death of their father Halappa, they would take equal share in all other ancestral properties. Taking cognizance of this relevant recital, the appellate Court found that the trial Court has not properly appreciated the evidence. The appellate Court was also of the view that defendants have

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not produced any rebuttal evidence that after the death of their father all the three sons have effected partition. The appellate Court has also taken cognizance of the suggestions made by the learned counsel appearing for defendants wherein a specific suggestion is made that the contents of partition deed are true and correct to which the plaintiff has acknowledged and accepted that the recitals indicated in the partition deed are true and correct. Referring to this evidence, the appellate Court has reversed the findings and conclusions recorded by the trial Court.

8. The contention of the learned counsel appearing for defendants that a clause in the partition deed violates Section 10 of Transfer of Property Act has no application to the present case on hand. If plaintiff and defendants 1 and 2 have not disputed the registered partition deed vide Ex.D1 and if they are signatories to the registered partition deed then they are bound by the terms and conditions incorporated in the partition deed. If during the

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life time of Hallappa, all the three sons had agreed to give half acre of coconut garden land exclusively to plaintiff under registered partition deed with an agreement that the remaining properties will be divided into three parts after the death of Halappa, the defendants cannot retract from the terms and conditions and any defence let in by defendants pursuant to the registered partition deed are inadmissible as per Sections 91 and 92 of the Indian Evidence Act. It is also worth to note that defendant No.1 has not challenged the registered partition deed. On the contrary, he has accepted the registered partition deed. In that view of the matter, the findings and conclusions recorded by the trial Court suffers from perversity and serious infirmities. The trial Court has not properly appreciated the recitals of the admitted document while deciding the controversy between the parties. The finding of the trial Court that plaintiff is bound to seek relief of declaration insofar as half acre of coconut garden land is concerned is misconceived. If a document is not disputed and if a party to the registered partition deed has acquired

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right over the property, the plaintiff need not seek relief of declaration as his rights have stood crystallized insofar as half acre of coconut garden land is concerned. The fact that defendants have not questioned the partition deed, there was no need for the plaintiff to seek relief of declaration. No substantial question of law arises for consideration.

Accordingly, the appeal is dismissed.

Sd/-

JUDGE

ALB

List No.: 1 Sl No.: 34