In the absence of evidence to support an alleged oral partition and where the plaintiff is not in possession of the suit land, a suit for declaration of title cannot be maintained under Section 34 of the Specific Relief Act.

Headnote:
ORAL PARTITION - SUIT FOR DECLARATION OF TITLE - ABSENCE OF EVIDENCE - SECTION 34 OF THE SPECIFIC RELIEF ACT - NO POSSESSION - SUIT NOT MAINTAINABLE
Fact of the Case:

Plaintiff filed a suit for declaration of title based on an alleged oral partition, claiming that he was allotted 1 acre 20 guntas of land while his brother was allotted 1 acre. The defendants, who were the plaintiff's cousin brothers, denied the oral partition and claimed that their father had purchased the suit land from a third party.
Finding of the Court:

The trial court and the appellate court dismissed the plaintiff's suit, holding that there was no evidence to support the plaintiff's claim of oral partition and that the suit was hit by Section 34 of the Specific Relief Act as the plaintiff was not in possession of the suit land.
Issues: 1. Whether the plaintiff had established the oral partition and his title to the suit land?2. Whether the suit was barred by Section 34 of the Specific Relief Act?
Ratio Decidendi: 1. The plaintiff failed to produce any evidence to substantiate his claim of oral partition and the existence of a nucleus between his family and the defendants' family.2. The plaintiff was not in possession of the suit land, which barred him from maintaining a suit for declaration and injunction under Section 34 of the Specific Relief Act.
Final Decision: The appeal was dismissed, upholding the concurrent findings of the courts below that the plaintiff had failed to prove his title to the suit land and that the suit was not maintainable.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5^TH DAY OF JANUARY, 2023 BEFORE THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM REGULAR SECOND APPEAL NO.747 OF 2014 (DEC/INJ)

BETWEEN:

DODDA KARIYAPPA SINCE DECEASED BY LR:

MUNIRAJU S/O LATE DODDA KARIYAPPA AGED ABOUT 55 YEARS R/O: ANGARAHALLI BIDADI HOBLI RAMNAGAR TALUK AND DISTRICT – 562117 ... APPELLANT (BY SRI.D.S.HOSMATH, ADVOCATE)

AND

1. RANGANATHA S/O CHIKKA KARIYAPPA AGED ABOUT 60 YEARS

2. C.NAGARAJU S/O CHIKKA KARIYAPPA AGED ABOUT 54 YEARS

3. C.NARAYANASWAMY S/O LATE CHIKKA KARIYAPPA AGED ABOUT 47 YEARS ALL ARE RESIDENTS OF ANGARAHALLI VILLAGE HEGGADEGERE DAKHALE BIDADI HOBLI RAMNAGAR TALUK AND DISTRICT – 562 117 …..RESPONDENTS (BY SRI.RAGHUPATHI M.J, ADVOCATE FOR SRI.T.NARAYANASWAMY, ADVOCATE FOR R.1 TO R.3)

THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 11.04.2014 PASSED IN R.A.NO.33/2011 ON THE FILE OF I ADDITIONAL DISTRICT AND SESSIONS JUDGE, RAMANAGARA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED 03.03.2010 PASSED IN O.S.NO.560/2006 ON THE FILE OF ADDITIONAL SENIOR CIVIL JUDGE, RAMANAGARA AND ETC.

THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT The captioned second appeal is filed by the unsuccessful plaintiff, who has questioned the concurrent findings of the Courts below, wherein the plaintiff’s suit seeking relief of declaration and injunction is dismissed by both Courts.

2. For the sake of brevity, the parties are referred as they are ranked before the Trial Court.

3. The plaintiff has filed the present suit seeking relief of declaration and injunction. The plaintiff is asserting title on the basis of the alleged oral partition in the family. The plaintiff claimed that in an oral partition, his brother – Chikkakariyappa was allotted 1 acre of land and remaining 1 acre 20 guntas of land was retained by the plaintiff. The plaintiff has further alleged that his brother – Chikkakariyappa has sold 1 acre of land in favour of one Thimmaiah and therefore, plaintiff contended that he is the absolute owner of the suit land measuring 1 acre 20 guntas. The present suit is filed seeking relief of declaration of title based on oral partition.

4. On receipt of summons, defendant Nos.1 to 3 tendered appearance and filed written statement and stoutly denied the entire averments made in the plaint. The defendants on the contrary contended that there is no direct blood relationship between the plaintiff and the defendants.

Defendants, however, pleaded that they are the cousin brothers and the suit land was, in fact, purchased by defendants father - Chikkakariyappa from one Rajashekaraiah under registered sale deed dated 05.08.1957. Therefore, defendants contended that the plaintiff has no semblance of right and title over the suit property and hence, sought for dismissal of the suit.

5. The plaintiff and defendants to substantiate their respective claims have led in oral and documentary evidence. The Trial Court having assessed the oral and documentary evidence taking cognizance of the rebuttal evidence led in by the defendants held that suit land was in fact purchased by the defendants’ father. Referring to Ex.D.2, which is a registered sale deed, the Trial Court held that there is absolutely no evidence indicating that the defendants’ father purchased the property on behalf of the family. Referring to the revenue documents, the Trial Court held that property extract was found to be standing exclusively in the name of the defendants’ father. Trial Court has also taken note of categorical admissions elicited in the cross-examination of the plaintiff, who has admitted that the defendant is in possession of the suit land. On these set of reasonings, the Trial Court proceeded to dismiss the suit.

6. The Appellate Court having independently assessed the oral and documentary evidence was not inclined to entertain the belated appeal. Having found that th

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