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IN THE HIGH COURT OF KARNATAKA AT KALABURAGI BENCH
P.G.M.PATIL, J.
Gopal S/o Venkaji Kulkarni – Appellant
Versus
Baburao S/o Venkaji Kulkarni – Respondent
Regular Second Appeal No.7456 of 2013
Decided on : 27-04-2019
TP Act - Section 54 - Registration Act, 1908 - Section 49 - Transfer of Property Act, 1882 - Section 17 – Civil Procedure Code – Section 23 - Rule 1 - Possession and enjoyment of suit property - Immovable Property - Transfer of land - Whether plaintiff proves that he is exclusive owner of suit property as per oral partition held - Whether plaintiff further proves that defendant No.1 began to manage suit land on account of illness of plaintiff - Whether plaintiff proves that defendants on strength of certification of M.E. defendants causing obstruction possession and enjoyment of suit property then plaintiff had file suit OS for relief of declaration and injunction with respect to suit land against present defendants - Whether plaintiff further proves that defendants voluntarily approached plaintiff and requested plaintiff to withdraw suit that they will knob obstruct him then plaintiff has withdrawn suit by filing application U/Sec. 23 Rule 1 of CPC - Whether plaintiff further proves that on strength of withdrawal of suit order passed defendants forcibly dispossessed plaintiff from suit property and now defendants are in illegal possession of suit property - Whether defendants prove that plaintiffs voluntarily relinquish and allotted suit land to defendant No.1 and they together gave waradi - In response to summons defendant Nos. 1 to 3 appeared through their counsel and filed written statement contending that suit of plaintiff is false frivolous and not maintainable in law - Relationship between parties was admitted - Defendants have denied that plaintiff due to illness entrusted suit property to defendant No.1 for management and defendant No.1 got certified without notice of plaintiff - It is case of defendant No.1 was helping his younger brother from time to time inspire of partition – Held, It may not be proper to approach to analyze rights of parties on basis of nature and character of suit property that it is a self acquired property or a joint property - Plaintiff no doubt in his pleadings and evidence has not specifically coined word Estoppels in his defense – But sum effect of pleadings and evidence would indicate all required definitive ingredients of Doctrine of Estoppels and warrant its application instead of coining defense by raising plea of estoppels plaintiff has rambled in so many words which in effect would fulfill definition of estoppels - It is clear that in this case efforts to mislead authorities and courts have transmitted through three generations and conduct of appellant and his son to mislead High Court and this Court cannot but be treated as reprehensible - They belong to category of persons who not only attempt but succeed in polluting course of justice – Therefore court do not find any justification to interfere with order under challenge or entertain appellant’s prayer for setting aside orders passed by Prescribed Authority and Appellate Authority - Principles stated in these decisions cannot be disputed – However respondents would not get any assistance from said decisions in order to support their contention that by virtue of unregistered settlement deed and joint waradi plaintiff has given suit schedule property to defendant No.1in exchange of defendant No.1 - On other hand principles stated in case stated supra Hon’ble Supreme Court has held that after partition even for exchange of properties registered document is necessary in order to divest title where value of property exceeds in view of section 17 of Indian Registration Act - It is also further held that mode of transfer in case of exchange is same as in case of sale – Therefore unless there was a registered deed of exchange or registered deed of relinquishment or registered deed of settlement executed by plaintiff in favor of defendant No.1 suit schedule property would not get right title or interest over suit schedule property - Plaintiff does not divest nor defendant No.1 acquired any title right or interest over suit schedule property - Admittedly in present case no such registered document was executed by plaintiff in favor of defendant No.1 in respect of suit schedule property - It is settled law that mere entry in revenue records does not create any right title or interest in property - There cannot be estoppels against statute or law - Estoppels against plaintiff would not exempt defendants from getting registered deed in order to acquire suit property – Appeal allowed
Certainly. Based on the provided legal document, the key points are as follows:
The case involves a dispute over ownership and possession of a specific immovable property, arising from a family partition and subsequent transactions (!) (!) .
The plaintiff claims exclusive ownership of the suit property based on an oral partition conducted in 1979, which was admitted by both parties, and contends that no registered transfer or relinquishment deed was executed to transfer or divest his title (!) (!) (!) .
The defendant asserts that after the partition, the parties continued joint cultivation and that the plaintiff voluntarily transferred rights through a settlement deed and joint waradi, which led to the mutation of the defendant’s name in revenue records (!) (!) (!) .
It is admitted that the suit property was allotted to the plaintiff in the 1979 partition and that his name was entered in the revenue records. However, the defendant claims that subsequent transactions, including sale and exchange of land, were supported by settlement deeds and joint waradis, which they argue effectively transferred or altered ownership rights (!) (!) .
The legal requirement for a registered deed for the transfer of immovable property, especially in cases of exchange or relinquishment involving properties exceeding a certain value, is emphasized. The absence of such registered documents is a critical point against the validity of the transfer claimed by the defendant (!) (!) (!) (!) .
The court recognizes that mere entries in revenue records do not create or confer legal title or interest in the property. Registration is necessary to effectuate transfer of ownership rights, and estoppel cannot override statutory requirements (!) (!) .
The plaintiff’s suit for declaration of ownership and possession was initially decreed by the trial court, but this was reversed by the appellate court, which held that the subsequent transactions and entries in revenue records indicated a transfer of rights, thus dismissing the plaintiff’s claim (!) (!) .
The appellate court’s decision was challenged on the grounds that the alleged settlement deed and joint waradi were not registered, and that the original allotment in the family partition remained valid, with no legal transfer having been executed (!) (!) (!) .
The court emphasizes that after a valid family partition, subsequent exchanges or transfers of property require proper registration to be legally effective. Without registration, such transactions cannot divest the original owner of their title (!) (!) .
The court concludes that the plaintiff retained absolute ownership rights over the suit property since the 1979 partition, and that the entries in revenue records or subsequent transactions without proper registration do not alter this fact. Therefore, the appeal is allowed, the appellate court’s judgment is set aside, and the original decree in favor of the plaintiff is restored (!) (!) .
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JUDGMENT :
The plaintiff being aggrieved by the judgment and decree dated 26.10.2013 passed in R.A.No.87/2013 on the file of III Additional District Judge at Bijapur who reversed the judgment and decree dated 18.04.2013 passed in O.S.No. 44/2011 by the III Additional Civil Judge and JMFC, Bijapur has filed this second appeal.
2. The parties are referred with their ranks before the Trial Court.
3. The suit of the plaintiff before the trial Court in brief is as follows;
One Venkaji S/o Melagirirao Kulkarni was the father of plaintiff and defendant No.1. Said Venkaji owned and possessed land bearing R.S. Nos. 88, 104, 128, 136, 98/1B, 127 and 133 situated at Babalad village in Bijapur taluka. The said Venkaji died in the year 1957 leaving behind him plaintiff and defendant No.1 as his sons, Laxmibai as his widow, Kantabai, Lalitabai and Indumati as his daughters who have succeeded to the suit properties left by deceased Vankaji. On the death of Venkaji mother of the plaintiff and defendant No.1 and their sisters have orally relinquished their right and interest over the suit properties in favour of the plaintiff and defendant No.1. Therefore, plaintiff and defendant No.1 became joint owners of suit property having half share each. There is partition between plaintiff and defendant No.1 in the year 1979 which resulted in ME No. 530. The lands bearing R.S. No. 88/2 measuring 08 acres 1 guntas, R.S. No. 104/2 measuring 09 acres 03 guntas, R.S. No. 98/1B measurinig 09 acres 03 guntas, R.S. No. 127 measuring 02 acres 09 guntas and R.S. No. 133 measuring 03 acres 06 guntas have fallen to the share of plaintiff Gopal Venkaji Kulkarni. The land bearing R.S. No. 88/1 measuring 08 acres 12 guntas, R.S. No. 104/1 measuring 09 acres 03 guntas, R.S. No. 128 measuring 04 acres 06 guntas and R.S. No. 136 measuring 01 acre 30 guntas have fallen to the share of defendant No.1 Baburao Venkaji Kulkarni. The name of the plaintiff and defendant No.1 were accordingly entered in the records of the suit properties. The plaintiff has denied the certification of ME No. 915 and transfer of land bearing R.S. No. 104/2 in favour of defendant No.1 which is subject matter of the suit. After partition of 1979 if any property is to be exchanged in between plaintiff and defendant No.1 then the same requires registration. The plaintiff due to illness entrusted the suit property to defendant No.1 for management and went to Hospet. The defendant No.1 got created ME No. 915 and managed to enter his name in the records. On assurance of defendant No.1, the plaintiff who had filed O.S.No. 43/2008 withdrew the same. However, defendant No.1 did not change the records pertaining to the suit properties and started asserting his own right. Therefore, the plaintiff was constrained to file the suit for declaration and possession in respect of suit schedule land R.S. No. 104/2 measuring 09 acres.
4. In response to the summons defendant Nos. 1 to 3 appeared through their counsel and filed written statement contending that the suit of the plaintiff is false, frivolous and not maintainable in law. The relationship between the parties was admitted. Defendants have denied that the plaintiff due to illness entrusted the suit property to the defendant No.1 for management and defendant No.1 got certified ME No. 915 without notice of the plaintiff. It is the case of the defendant No.1 was helping his younger brother from time to time inspite of partition of 1979. The plaintiff and defendant No.1 were cultivating the lands together till the year 1990-91. Out of the family income land bearing R.S. No. 96/1 and 95/1 together measuring 16 acres was purchased in the name of plaintiff. The land bearing R.S. No. 92/B measuring 04 acres 04 guntas was purchased in the name of defendant No.1. The plaintiff was due of society and bank loan and in order to make one compact of R.S. No. 104, the plaintiff has given his land bearing R.S. No. 104/2 measuring 09 acres 03 guntas. It is further contended that
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