1 OS.52/07
IN THE COURT OF THE JUNIOR CIVIL JUDGE:: BHAINSA.
Present : Sri V. Srinivas, B.Sc.,LL.M Junior Civil Judge, Bhainsa.
Friday, the 28th day of April, 2017
O.S. NO. 52/07
Between: Sonai Naganna S/o Govindu age 60 yrs
... Plaintiff
// And //
1. Sonai Bhojanna S/o Govind age 65 yrs
2. Sonai Narayan S/o Yadav age 54 years. … Defendants
This petition is coming on 10.04.2017 for final hearing before me in the presence of Sri. Venkatesh Pardikar, Advocate for the Plaintiff and Sri Dilieep Kulkarni ,Advocate for the defendant No.1 and D-2 exparte upon perusing the material papers on record, heard on sides and having stood over for consideration till this day, the Court delivered the following :-
J U D G M E N T
1.The plaintiff filed this suit for partition and separate possession of house No.1-2-28 (part) situated at Battigalli, Bhainsa which is more categorically described in the schedule of property annexed with plaint and shown in red colour in the plan (herein after this house is referred as the suit house ).
2.The case of the plaintiff is that the defendant No.1 is step brother of plaintiff and defendant No.2 is cousin of plaintiff . The suit house is joint ancestral family property of the plaintiff and defendant no.1. The remaining part of the
H.No.1-2-28 is owned and possessed by the D-2 . Further it is the case of the plaintiff is that originally one Govind was owner and possessor of the suit house,
Govind had first wife by name Posani who ia the mother of D-1. After the death of
Posani Govind was married one Bhageeratha Bai who is the mother of plaintiff . This
Govind died long back living behind the plaintiff and D-1 as his heirs and successors and also late Govind left agriculture lands and house at Taroda village which were partitioned among the plaintiff and D-1 in equal share and the suit house was kept in joint. The plaintiff further case is that the plaintiff and D-1 each 2 OS.52/07 hold equal share in the suit house, the plaintiff and D-1 are joint owners and possessors of the suit house, but the plaintiff came to know the defendant No.1 trying to grab the entire suit house by preparing forged and fabricated municipal records for mutation. The plaintiff further case is that he got issued a legal notice to
D-1 calling upon to effect the partition of suit house within (15) days of the receipt of notice on 21.5.2007. The D-1 on 12.6.2007 issued a reply through his advocate claiming falsely that the suit house was partitioned and he is owner of the suit house . The allegation in the reply sent by D-1 is incorrect, false and baseless. The plaintiff further submitted that after receiving this reply immediately plaintiff made application to the commissioner of Municipality , Bhainsa to issue copies of the municipal records of revision register. As the municipal authorities did not cooperate with the plaintiff he was filed an application before the Commissioner of
Municipality, Bhainsa under Right to Information Act on13.7.2007 and obtained true copy of the property tax assessment extract of the suit house for the year 2002-03.
Then the plaintiff got a shock after verifying this copy wherein the name of D-1 alone by excluding the name of plaintiff was shown as owner of suit house and name of D-2 was also shown as owner of the H.No. 1-2-28 suit house. The plaintiff further submitted that the suit house never partitioned between plaintiff and D-1, the revision register entry of the municipality, Bhainsa in respect of suit house is not legal and it was made without any enquiry issuing notice to the plaintiff. , the mutation entry in favour of the D-1 for the suit house does not confer any right , title or interest in favour of the D-1 since the D-1 illegally the mutated the suit house in his name. , hence prayed to decree the suit.
3.After serving the summons the D-1 contested this suit by filing written statement and the D-2 remained exparte . The D-1 submitted his written statement denying all the allegations levelled by the plaintiff in the suit plaint and submitted that while admitting the relationship between the plaintiff and D-1 that the suit house is not the joint property of the plaintiff and defendant. It is denied by the D-1 that after the partition remaining properties. the suit house was kept joint.
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The D-1 submitted his case that the plaintiff is the step brother to the defendant
No.1 and they inherited land and a house at Taroda village and also they inherited hereditary right of barber ship of Taroda and a house at Bhainsa from their father.
Further he submitted that approximately half portion in the house at Bhainsa belongs to the D-2 who is their cousin and he inherited it from his father Yadav.
The D-1 further submitted that the plaintiff and the defendant partitioned their properties in the year 1989 in the presence of their community elders at Bhainsa in this partition half of the land, H.No.1-80 and right of Barber ship in the village
Taroda were exclusively given to the plaintiff share as the plaintiff insisted for the same and voluntarily accepted by him. The D-1 further submitted that for his share was given the suit house exclusively and was directed to pay Rs. 7500/- to compensate the plaintiff for which the defendant accepted the amount under the receipt. The defendant further submitted that the elders got executed the document for the plaintiff and defendant and kept the original document in the community sangam office and they give the photostat copies to the defendant and plaintiff. The D-1 further submitted that entire property was partitioned and the parties accepted the partition and partition was acted upon and also submitted that from the mutation of the houses and lands made by the both the plaintiff and defendant it is evident that partition was effected between the parties therefore, the contention of the plaintiff that the defendant got mutation of the suit house without knowledge of the plaintiff is uncalled for and irrelevant and further submitted that the suit is not maintainable as it is not for asking reopening of the partition and for separation of the facts. Hence prayed to dismiss the suit with the costs.
4.The D-1 filed IA.No. 201/12 where in he sought for amendment of the written statement by substituting the word “ half “ for the word “ entire” in para
No.4 , in line No.3 of the written statement the same was allowed vide orders dated 6.10.2012 and permitted the D-1 to amend the written statements substituting the word "half" for the word "entire" in para No.4 line 3 of the written statement. After 4 OS.52/07 carrying out the amendment the Defendant filed additional written statement, having received the notice of additional written statement , the plaintiff filed rejoinder where in the plaintiff further alleged that the D-1 first pleaded that the entire lands situated at Taroda village given to the share of the plaintiff and while now through this amendment is admitting that half of the lands situated at Taroda village are given to him, further he alleged that the D-1 is doing this amendment after filing the chief affidavit of Pw.1 in the court and when the matter was coming for cross examination. Further he submitted that the plaintiff has categorically stated the names of the persons who had purchased the half share of D-1 at
Taroda village therefore , the D-1 amended written statement and also stated that the D-1 is changing his versions from time to time only to defeat the claim of the plaintiff.
5.Based on the rival pleadings of the both parties this court framed to following issues for trial 1.Whether the plaintiff and D-1 are in joint possession and enjoyment of the suit schedule property 2.Whether there was partition in writing between the plaintiff and the defendant in the year 1989 as pleaded by the defendant No.1?
3.Whether the plaintiff is entitled to half share in the suit schedule property?
4. What relief?
6.The plaintiff to substantiate his case filed chief affidavit in lieu of the examination in chief and himself examined as Pw.1 and brought on the record Ex.
A1 to A5. Ex.A1 is the office copy of legal notice dated 21-5-2007, Ex.A2: reply notice issued by D-1,dt. 12.6.2007, Ex.A3: office copy of application given by plaintiff to the commissioner ,Municipality, dt. 21.6.2007, Ex.A4 office copy of application given by plaintiff to the commissioner ,Municipality dt. 13.7.2007. Ex.A5 true copy of revision register for the H.No. 1-2-28 for the year 2002-03. The defendant to substantiate his case himself examined as Dw-1 and also his caste 5 OS.52/07 elders examined as Dw.2 and Dw.3 and brought on the record Ex.B1 original compromise cum partition deed dt. 4.4.1999 containing the signature of plaintiff ,
Ex.B2 original compromise partition deed, dt. 4.4.1989 containing the signature of defendant , Ex. B3 original compromise partition deed, dt. 4.4.1989 containing the signature of both parties.
7.The case of the plaintiff is that the D-1 is the step brother of the plaintiff their father Govind left behind D-1 and plaintiff along with landed properties , a house, rights of barber ship at Taroda village and a house at Bhainsa village. Both the parties have partitioned the landed properties and house at
Taroda village in equal shares but the house at Bhainsa was not partitioned as the plaintiff frequently used to visit Bhainsa from Taroda village the house was kept for joint between the parties. Further it is the case of the plaintiff is that the said house is joint family ancestral property which is inherited from their father and both the parties are in possession of the suit house. On the other hand it is the case of the defendant is that first the properties is at Taroda village was partitioned between the parties and thereafter house at Bhainsa also partitioned wherein the house at Taroda village was given to the plaintiff along with hereditary rights of barber ship and also the suit house was given to the share of D-1 and it is decided by the panchayati elders to give Rs. 7500/- excess to the plaintiff in partition between the parties, and thereafter executed a compromise cum partition deed under cover of
Ex.B1 to B3 in the presence of the panchayati elders. The controversy involved in this case is that whether the suit house was not partitioned between the parties as claimed by the plaintiff and which is kept in joint at the time of the partition between the parties.
8.Issue No.1 to 3 All the issues No.1 to 3 are interlinked to avoid repetition of the facts they are discussed all together. The Pw.1 in his examination in chief stated that late Govind have agriculture wet land and dry lands and a house at Taroda village and the suit house at Bhainsa. Further he stated that himself and 6 OS.52/07
D-1 partitioned agriculture lands in equal shares and kept the house situated at
Bhainsa in their joint possession . The D-1 is ex- president of barber community of
Bhainsa village and he is influential politician and habitual litigant he have intention to grab the suit land and got mutated his name in municipal record by muslim the municipal authorities, by submitting forged documents. Pw.1 further made it mention in his chief examination that he did not want to live jointly with the D-1 therefore he was asked to D-1 through the lawyer notice dated 21.5.2007 to effect the partition of the suit house Further Pw.1 stated that the D-1 issued a reply notice
dated 12.6.2007 falsely claiming that the suit house is already partitioned and he
is owner of the suit house, the claim of the D-1 is false and he made enquires before the municipal authorities and came to know that in the year 2002 the D-1 got entered his name as owner of the suit house. The Pw.1 further made it mention that till this day no partition of the suit house took place in between Pw.1 and defendant No.1 still himself and the D-1 are in joint ownership and joint possession of the suit house and he legally entitled for the half share in the suit house . The
Pw.1 denied that in the year 1989 himself and D-1 partitioned the property of
Taroda village and suit house and that he was received Rs. 7500/- from D-1 and he was received entire property situated at Taroda village.
9.To prove this contention of the Pw.1 he relied upon Ex.A1 to A5 where in under Ex. A1 a notice was issued by the plaintiff to D-1 for partition of the suit house through his counsel , further as seen Ex.A2 a reply notice was issued by the the D-1 denying the claim of the plaintiff further as seen Ex. A3, the plaintiff was addressed a letter to the Municipal Commissioner, Bhainsa where in Pw.1 was put his grievance about mutation of the suit house in favour of the D-1 where also the plaintiff claimed his right in the suit house . Ex.A4 is the application filed by the plaintiff before the municipal Commissioner Bhainsa for issuing of revision register for H.No. 1-2-28 and the copy of the mutation order. Ex. A5 is the property tax assessment list of suit house where in it was shown that by the municipal authorities that one Narayana and D-1 are the owner of the H.No. 1-2-28 . As 7 OS.52/07 seen the oral evidence of the Pw.1,during the cross examination of Pw.1, he stated that the land at Taroda was partition in the presence of panchas and no documents were executed regarding this partition. Further Pw.1 deposed that they were partitioned their lands but the house at Taroda is not partitioned and also the profession of barber is also not partitioned between himself and D-1. Pw.1 further stated that he have no objection if the D-1 works as barber in his village . Further
Pw.1 deposed that he is only barber in Taroda village and the lands at Taroda village were partitioned about 20 years back . Pw.1 further deposed that he have not paid the property tax of the suit house at any time and the D-1 never given him any rent of the suit house to the plaintiff . The Pw.1 during his cross examination admittedly stated that father of the D-1 and D2 were died more than 40 years back and since then D-1 and D2 are in possession of the suit house in their respective shares. Pw.1 further deposed that the house at Taroda village stands in his name in
Gram panchayat records .
10.As seen the cross examination of the Pw.1 he stated that they were partitioned their lands, and the house at Taroda village is not partitioned . As seen the case the plaintiff, he included the suit house only in this case he omitted the house at Taroda village in this suit, if the partition not taken place between the
Pw.1 and D-1 why the plaintiff failed to include the house at Taroda village in this suit is not explained. Now it is pertinent to mention the averments of the plaintiff which he had pleaded in his plaint. At page No.2 in para no.4the plaintiff pleaded that this Govind died long back living behind the plaintiff and the defendant No.1 as only heir s and successors of late Govind. He had agriculture lands and house at
Taroda village which were partitioned among the plaintiff and D-1 in equal share and the suit house was kept in joint. Coming to the evidence of the Pw.1 in his chief examination he reverted from the pleadings and stated that the house at
Taroda was not partitioned and the landed parties only partitioned between the parties . Further as seen the cross examination of Pw.1 admittedly stated that the house at Taroda village stands in his name in the gram panchayat records The Pw.1 8 OS.52/07 admittedly stated that the house at Taroda village in his name in the records of
Gram panchayat record from the above piece of evidence it can be inferred that the landed properties and the house at Taroda village was partitioned and the house at Taroda village fell in to the share of the plaintiff now the plaintiff to get the share in the suit house falsely representing that the house at Taroda village was not partitioned . The plaintiff is not consistent in his version during his pleadings and his evidence before the court.
11.In addition to that the Pw.1 during his cross examination he admittedly stated that since 40 years the D-1 and D-2 are in possession of the suit house in their respective shares and also he stated that he have not paid the property tax of the suit house at any time and the D-1 never given him any rent of this house . If the suit property is in joint possession of the Pw.1 and D-1, both the parties have to pay the property tax to the Municipality, but Pw.1 admittedly stated that he never paid the property tax of the suit house to the municipality and also deposed that since 40 years the defendant No.1 is in possession of the suit house in his respective share if the suit house is not partitioned between the parties the D-1 has to pay the rent to the Pw.1 as the D-1 used the portion of the Pw.1. But the Pw.1 admittedly stated that the D-1 not paid any rent to him for the suit house. The plaintiff failed to explain why the suit house was kept in joint possession of the both the parties when the landed properties , house, hereditary rights of barber ship of Taroda village partitioned between the parties.
12.On the other hand it is the case of the defendant is that both the parties have partitioned the landed properties house, hereditary rights of barber ship at Taroda village and house at Bhainsa village between the Pw.1 and D-1 out of which the properties at Taroda village fell into the share of the Pw.1 and house at
Bhainsa was fell into the share of the DW-1 and also he was paid excess amount of
Rs. 7500/- to the Pw.1 for getting house at Bhainsa. To substantiate his version he examined as DW-1 by filing chief affidavit wherein he was reiterated the pleadings 9 OS.52/07 in the written statement and exhibited Ex.B1 to B3. During the cross examination he was stand in his version and also categorically stated that his father Govind had 5 acres dry land and 1 acre wet land at Taroda village and one residential house at Taroda village, Dw.1 further deposed that at the time of death of his father they had suit house at Bhainsa, in the year 1985 himself and Pw.1 partitioned him agriculture land situated at Taroda village . Further deposed that in that partition he got 3 acres of land and Pw.1 got 3 acres of land and accordingly patta was mutated in their names in revenue records. DW.1 further deposed that immediately 4 months after partition of the agriculture lands himself and Pw.1 partitioned house property situated at Taroda and Bhainsa villages. He further deposed that the agriculture lands and houses and partitioned at Taroda village, but for the house of
Bhainsa they felt that there shall be some documents hence for the house of
Bhainsa the document was written before the caste elders sangam . Dw.1 further deposed that there was no dispute regarding the partition between himself and
Pw.1 prior to approaching for scribing Ex.B1 to B3 before the caste sangam . DW.1 further deposed that he was sow his agriculture land situated at Taroda village to one Peddolla Sayanna in the year 1989 and he was executed the registered sale deed infavour of Peddolla Sayanna in the 1990. Finally DW-1 deposed that himself and Pw.1 amicably partition and their properties in the presence of
Sayanna comp under and they simply got executed Ex.B1 to B3 in the caste sangam for their partition was effected in the year 1985. The Dw-1 denied that they were partitioned only agriculture land situated at Taroda village and suit house was not partitioned between himself and Pw.1 at any time. The DW.1 further denied that he got mutated the suit house in his name alone without knowledge ,consent and permission of the Pw.1, basing on false and forged document and he denied that Pw.1 and himself are joint owner and possessors of the suit house.
13.In support of the case of the the Dw-1 he examined Dw.2 who said to have panchayati elder at the Nayibrahmana sangam Bhainsa . DW.2 during his cross examination categorically stated that he was called for settlement of partition 10 OS.52/07 of the house between plaintiff and D-1 further he deposed that they called both the plaintiff and Defendant and asked them to settle the dispute and they also agreed to obey their decision . DW.2 further deposed that himself, DW.3, Ganapathi and
Manohar were acted as panchayati elders and they gave a decision the house at
Bhainsa shall be given to the D-1 and the D-1 shall give Rs. 7500/- to the plaintiff and the D-1 sought installments of Rs. 7500/- after 4 months of the panchayat one
Ganapthi told to him that the DW-1 paid to Rs. 7500/- to the plaintiff. DW. 2 further deposed that he was the scribe of Ex.P1 and Ex.B1 consisting the signature of plaintiff . DW.2 also supported the case of the DW.1 that there was a partition between plaintiff and Dw.1, suit house fell to the share of Dw.1.
14.DW. 3 who also one of the panchayati elder to the dispute between plaintiff and defendant ,during his cross examination he also categorically stated in the year 1989 one settlement was took place between the parties and he was present. And the settlement took place in the summer. DW. 3 further deposed that there was a partition dispute between the parties with regarding to agriculture land , house at Taroda village and house at Bhainsa town. Dw. 3 further deposed that the dispute regarding houses of Taroda and Bhainsa came before them and there was no land property dispute between the parties. DW.3 further categorically stated the parties approached the Sangam elders for partition of houses situated at
Taroda village and Bhainsa town and their community elders of Taroda , Bhainsa and
Nirmal participated in the panchayat and the elders settled that house of Taroda village and barber profession rights were given to the plaintiff and house of
Bhainsa was given to the Dw.1 . Dw.3 further deposed that the Dw.1 was asked Rs.
7500/- to the plaintiff , he further deposed that prior to settlement made by the elders no partition was took place between the parties regarding the houses. Dw- 3 further categorically stated that 15 days after execution of Ex.B2 and B3 the
Dw.1 paid Rs.7500/- to the plaintiff and he was present at that time further he stated that the Dw.1 paid Rs. 7500/- in two installments within the 15 days of execution of Ex.B2 and B3 and no receipt was executed.
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15.As seen the evidence of the DW.1 to Dw.3 they categorically stated that in the presence of the panchayati elders the house at Bhainsa was partitioned between the parties and which fell into the share of DW.1 and after settlement between the parties they were executed Ex.B1 to B3 in the presence of the caste elders . The learned counsel for the plaintiff extensively cross examined not diluted to establish the case of the plaintiff, the Dw. 1 to Dw. 3 but their evidence in their cross examination and the evidence of the Dw. 1 to Dw. 3 is supporting the case of the D-1 and their evidence inspiring the confidence of the court to hold that the house at Bhainsa fell into the share of the D-1.
16.The plaintiff disputed the Ex.B1 to B3 documents which are said to have executed between the parties after settlement took place at the community sangam in the presence of Panchayat elders. The plaintiff during his cross examination stated that he do not know reading and writing but he can sign and he can sign in telugu Pw.1 further deposed that the signature on the document dated 4.4.1989 regarding the compromise does not belongs to him. Pw.1 further deposed that the another stamped document dated 4.4.1989 regarding the same compromise also not bear his signature and also stated that the signatures shown as that of one Naganna(Plaintiff) is not signed by him. The learned counsel for the
D-1 shown the signatures on Ex.B1 to B3 and the plaintiff disputed that signatures not belongs to him and he stated that never signed on Ex.B1 to B3. The learned counsel for the plaintiff at this junction draw the attention of the court towards the cross examination of the DW.3 to prove that Ex.B1 to B3 are the created document by the defendant for the purpose of this case, where in the Dw.3 stated that it is a system of their sangam to bring stamp papers and take signatures of the parties prior to the decision so that they shall not disobey the decision of the panchayati. In the matter of the parties they applied same thing and took their signatures on stamp papers prior to the decisions and argued that the signatures obtained by the sangam elders on empty stamp papers and the decision was not 12 OS.52/07 taken by the sangam elders and the Dw.1 as he was ex president of the sangam prepared the Ex.B1 to B3 for the purpose of this case. But as seen the evidence of the DW. 3 in his further cross examination he denied that they scribed Ex.B2 and B3 already signed blank stamp papers at the instance of Dw.1. And also he denied that the house of the Bhainsa between the parties and there did not settle any disputes regarding the house between the parties. The Dw.3 further denied that the plaintiff did not execute Ex.B1 and B2 and they were prepared by the Dw.1 for the purpose of this case. In addition to that as seen the signatures of the Pw.1 which is disputing on Ex.B1 and B2 compare with the signatures on depositions of Pw.1, signatures on plaint, and verification , proof affidavit and rejoinder are similar with that of signatures of Ex.B1 and B2, even though the plaintiff denied that the signatures on Ex.B1 and B2 belongs to him, on comparison of his signatures on the plaint as well as Ex.B1 and B2 both are similar and it is appearing that plaintiff to dispute the documents under cover of the Ex.B1 to B3 he denying the signatures of Pw.1 contains on it . It is appearing that to defect the claim of the defendant only, he disputing the signatures on Ex.B1 and B2 and even of the Ex.B1 and B2 in the presence of the caste elders.
17.As seen the entire oral evidence of the plaintiff and defendant and the documents filed by the D.1 under cover of the Ex.B1 to b3 proved that there is a partition was took place between the plaintiff and Dw.1 regarding the suit house and the suit house was fell into the share of the Dw.1 and since the partition the
D.1 is possession of the suit land , further as seen the Ex.A5 extract copy of revision assessment bearing year2002-03 it is categorically proved the ownership of the D-1 over the suit house . The plaintiff failed to brought on the record cogent evidence to prove that the suit house was not partitioned and it is in the joint possession of the plaintiff and defendant No.1 on the other hand the D-1 able to prove his case that the properties already partitioned between the parties way back in the year 1989. therefore the issue NO.1 to 3 are answered in favour of the defendant No.1 and against the plaintiff.
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18.Issue No.4 the plaintiff failed to prove that the D-1 and plaintiff were in joint possession of the suit house and the suit house was not partitioned between the parties with cogent evidence on the other hand the defendant established his case the suit house was partitioned he brought on the record overwhelming evidence on record to prove his case. hence the suit is liable to be dismissed.
19.In the result the suit is dismissed with costs.
Typed to my laptop and after correction pronounced by me in the open court on this the 28th day of April, 2017.
JUNIOR CIVIL JUDGE,
BHAINSA
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PLAINTIFF: FOR DEFENDANT: PW-1: Sonai Naganna DW-1: Sonai Bhojanna DW-2: L. Kishan DW-3: Babu.
DOCUMENTS MARKED
FOR PLAINTIFF:
Ex.A-1: is office copy of legal notice dated 21.5.2007 Ex.A-2: is reply notice issued by D1 dated 12.6.2007 Ex.A-3: is office copy of application given by plaintiff to the Commissioner Municipality, Bhainsa,dated21.6.2007 Ex.A-4: is office copy of application given by plaintiff to the Commission, Municipality dated 13.7.2007 Ex.A-5: True copy of Revision Register for House No. 1-2-28 for the year 2002- 03.
FOR DEFENDANT:
Ex.B-1: is original compromise cum partition deed dt. 4.4.1989 containing the signature of plaintiff Ex.B-2: is original compromise cum partition deed dated 4.4.1989 containing the signature of defendants Ex.B-3: is original compromise cum partition deed dated 4.4.1989 containing the signature of both parties.
(Ex.B1 to B3 are impounded by paying Rs. 2,376/- towards deficit stamp duty and penalty)
JUNIOR CIVIL JUDGE,
BHAINSA.