Parties cannot claim rights inconsistent with the covenants of a registered partition deed affecting their respective shares.

ORAL JUDGMENT

The captioned appeal is filed by the unsuccessful plaintiffs assailing the judgment and decree dated 07.12.2010 rendered in O.S.No.210/2001, wherein the plaintiffs' suit seeking relief of declaration and injunction is declined by the Trial Court.

2. For the sake of brevity, the parties are referred to as per their rankings before the Trial Court.

3. Brief facts leading to the case are as under;

The plaintiffs, being the legal heirs of late B.J.Mahesh, instituted the suit in O.S.No.210/2001 asserting rights flowing from a registered Partition Deed dated 10.03.1975 executed between their predecessor-in- interest, B.J. Mahesh and defendant No.1. It is specifically pleaded that under the said registered instrument, Schedule ‘A’ property was allotted to the share of B.J. Mahesh, whereas Schedule ‘B’ property fell to the share of defendant No.1. Though the original Partition Deed is stated to be unavailable, the plaintiffs have placed reliance on its certified copy. The plaint further discloses that, consequent upon the said partition, revenue entries in respect of Schedule ‘A’ property stood mutated in the name of B.J.Mahesh and similarly, the katha pertaining to Schedule ‘B’ properties was transferred to the name of defendant No.1 thereby evidencing severance in status and recognition of distinct allotments.

4. The plaintiffs have, however, pleaded that notwithstanding the execution of the registered Partition Deed and specification of respective shares therein, the properties were not subjected to actual survey, measurement, and physical demarcation at the time of partition. It is contended that absence of metes and bounds demarcation has led to confusion in identifying the exact portions in possession of the parties.

5. It is the specific case of the plaintiffs that though Schedule ‘A’ property was allotted to B.J.Mahesh under the Partition Deed, he was in actual, exclusive possession and enjoyment of properties now described as Schedule ‘ C ’ in the plaint. Placing reliance on a private sketch, wherein the portion marked in blue colour is shown as being in exclusive possession of late B.J.Mahesh and after his demise, in the possession of the plaintiffs, they have sought a declaration of title in respect of Schedule ‘ ’ properties and consequential relief of permanent injunction. In the alternative, the plaintiffs have sought recovery of possession of Schedule ‘D’ properties, particularly item Nos.10 to 16.

6. The defendants, upon service of summons, entered appearance and filed a detailed written statement. Defendant No.1 filed the written statement, which was adopted by defendant Nos.2 and 3. While admitting the execution of the registered Partition Deed dated 10.03.1975, the defendants have categorically contended that possession was delivered strictly in terms of the allotments specified therein. They have seriously disputed the plaintiffs’ claim over Schedule ‘ C ’ properties and asserted that B.J.Mahesh was put in possession only of the properties allotted to his share under the Partition Deed. It is further contended that neither B.J.Mahesh nor the plaintiffs were ever in possession of Schedule ‘B’ property, and therefore, the suit is liable to be dismissed.

7. On the basis of the rival pleadings, the Trial Court framed appropriate issues and relegated the parties to trial.

8. In support of their case, the plaintiffs examined plaintiff No.1 as P.W.1 and two other witnesses as P.Ws.2 and 3 and produced in all eighteen documents. The defendants, by way of rebuttal, examined defendant No.1 as D.W.1 but did not adduce any document