BASAPPA Vs. NAGARATHNAMMA

JUDGEMENT

(1.) RFA.No. 1665/2006 is filed by the original defendant - Basappa against the judgment and decree dated 16.2.2006 passed in O.S.No. 483/2000, by the learned II Addl.Civil Judge (Sr.Dn.,) & CJM, Davanagere. Whereas RFA.No. 1195/2011 is filed by the original plaintiff - Basappa against the judgment and award passed in O.S.No. 136/2006 (old No. 118/1997). O.S.No. 483/2000 was filed for partition and separate possession, whereas O.S.No. 136/2006 was filed for permanent injunction. Since the properties and the parties involved in both the matters are common, they were heard together. O.S.No. 118/1997 came to dismissed, whereas O.S.No. 483/2000 filed for partition was decreed. Genealogy of the parties is as under:-

(2.) The first son of Shivalingappa, viz., Chigterappa divided and went out of the joint family in the year 1951 which is evidenced by the document at Ex.P1. The third son viz., Narappa also divided and went out of the joint family in the year 1953 as per Ex.P2. Thus, Chigterappa and Narappa started living separately from 1951 and 1953 respectively. From that day onwards, they ceased to be joint family members. Joint family continued with other co-parceners, viz., Shivalingappa (father), Rudrappa, Basappa and Muddappa, (sons of Shivalingappa). Out of them, Rudrappa remained unmarried. He is now no more. He has not left any Will. Basappa is the appellant in both the appeals. Muddappa died on 14.2.1994, leaving behind his wife and children, who are the plaintiffs in O.S.No. 120/1997 (Respondents in both the appeals). There was partition among Basappa and Muddappa in the year 1962 through registered partition deed dated 23.5.1962 as per Ex.P3. By then, unmarried Rudrappa who was granted share under Ex.P1 and P2 had sold his share in favour Basappa and Muddapa. Thus, Rudrappa was not assigned any share in the partition that took place on 23.5.1962, at Ex.P3.

(3.) When the facts stood thus, the legal representatives of Mudappa (respondents) claimed that an unregistered partition deed (palupatti) came to be executed mutually by Basappa and Mudappa as per Ex.P4 on 25.4.1984; Under the said palupatti, partition between Basappa and Muddappa took place once again of all the properties, which are separately standing in the names of Basappa and Muddappa and that the said Palupatti needs to be acted upon. In other words, according to the legal representatives of Muddappa there was a reunion among Basappa and Mudappa after 1962 and consequently they started cultivating the agricultural lands and living jointly. According to them, palupatti which came to be executed in the year 1984 depicts a final partition among them by metes and bounds. On the basis of such palupatti, the legal representatives of Muddappa filed application before the revenue authorities to enter their names for their respective share said to have been allotted under it. The said application was not granted. Hence, O.S.No. 120/1997 (new No. 483/2000) came to be filed by the legal representatives of Muddappa for partition and separate possession with the prayer to get the properties divided through registered partition deed in accordance with the allotment of shares in palupatti. The said suit came to be decreed by the Court below with the direction to the defendant i.e., Basappa to execute requisite registered partition deed in tone and tenor with palupatti (unregistered Partition Deed) at Ex.P4, dated 25.4.1984. In the meanwhile, Basappa filed O.S.No. 118/1997 (new No. 136/2006) for permanent injunction restraining the legal representatives of Muddappa from interfering with the peaceful possession and enjoyment of Sy.No. 69/A of Jodi Thimalapura Village, Santhebennur Hobli, measuring 4 acres and Sy.No. 70 of Jodi Thimalapura village, Santhebennur Hobli to an extent of 2 acres. According to Basappa, Sy.No. 69/A of Jodi Thimalapura Village was regranted in his favour in the year 1963 as per Ex.P17 and that he purchased 2 acres 20 guntas in Jodi Thimalapura Village through registered sale deed as per Ex.P7 on 21.1.1972. Since the Trial Court had held that all the properties are liable to be divided as per palupatti between Basappa and legal representatives of Muddappa, the decree of injunction is refused to Basappa. Questioning both the decrees, these appeals are filed.