9911796707
TMI Blog2016 (7) TMI 1645X X X X Extracts X X X X X X X X Extracts X X X X ..... family property of late Narayana. Narayana died in the year 1962. Plaintiffs No.3 and 4 were working in the army and were sending money to the joint family and the joint family affairs were run by the appellant-defendant. Respondents No. 3 and 4 retired from the army in the years 1988 and 1989 respectively. House in item No.2 was constructed in the year 1980 from out of the joint family income and the contribution made by respondents No.3 and 4. Late Narayana was in possession of suit property item No.3 and had converted the same from forest land to a wetland and the same was further developed from out of the joint family income and the contribution made by respondents No.3 and 4. Respondents-plaintiffs averred that taking advantage of absence of the plaintiffs, appellant filed an application to the Tehsildar for grant of patta for item No.3-S.No.69/5C2 which was opposed by the respondents. Alleging that the appellant is attempting to grab the suit properties, respondents-plaintiffs filed the suit for partition claiming 1/5th share to each of them. 4. In the written statement, appellant-defendant claimed that so far as items No.1 and 2 are concerned, plaintiffs No.1 and 2 have s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fs No.3 and 4 is transferred to the defendant. So far as item No.3 is concerned, High Court held that the patta was granted in favour of the defendant after filing of the suit and the defendant has failed to prove his independent income to pay the amount for grant of land and on those findings dismissed the appeal filed by the appellant. Being aggrieved, the appellant is before us. 8. Learned counsel for the appellant submitted that so far as items No.1 and 2 are concerned, plaintiffs have forfeited their right after receiving the money paid by the defendant and the courts below have failed to appreciate the oral and documentary evidence. It was submitted that courts below failed to appreciate that the item No.3 was developed and cultivated by the defendant, in recognition of which patta was granted by the Government to the defendant on 19.06.1997 and courts below erred in treating item No.3 of the suit scheduled property as a joint family property. It was submitted that item no.3 was never in the possession of late Narayana and that patta had been granted to the defendant after rejecting the objections made by plaintiffs No.3 and 4, which was not properly appreciated by the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llage on 18.03.1995 in which plaintiffs No. 3 and 4 and defendant participated and a resolution (Ex.D22) was passed in the panchayat. Ex.D22 is the resolution of the village panchayat which is signed by panchayatdars, defendant and plaintiffs No.3 and 4 in the presence of panchayatdars. The said resolution reads as under:- "....... It has been decided that Subraya will be given the residential house and 40 cents of coffee estate being the shares of Gopal and Lingappa agreed to be sold absolutely to Subraya at Rs.50,000/- each. Out of the amount of Rs.20,000/- has already been paid by Subraya to Gopal and Lingappa and remaining amount of Rs.30,000/- is agreed to be paid by Subraya in two installments i.e. at Rs.15,000/- each and the 1st instalment of Rs.15,000/- will be paid before 30.4.1996 to the said Gopal and Lingappa and can obtain receipt therefor and the balance of Rs.15,000/- is agreed to be paid by Subraya on 15.04.1997 along with the bank rate of interest that is to say, effective from 18.03.1996 to be discharged through the panchayat and obtain necessary receipt for the same. Gopal and Lingappa have relinquished their rights over the property and handed over the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.1 and 2 of the suit scheduled property and mere production of Ex.D14 and Ex.D23 receipts are not helpful to the appellant-defendant to contend that plaintiffs No.3 and 4 have forfeited their rights in respect of their shares in items No. 1 and 2. Even though Exs. D14 and D23 do not contain the survey number, as noticed earlier, Ex.D22 panchayat resolution refers to suit scheduled property items No.1 and 2 in S. No.69/69 measuring 1.00 acre and S.No.69/70 measuring 0.25 acre and that amount of Rs.20,000/- has already been paid by the defendant to plaintiffs No.3 and 4. As pointed out earlier, Ex.D22 resolution is signed by the plaintiffs No.3 and 4 and also by the panchayatdars. In our considered view, the trial court as well as the High Court was not right in brushing aside the oral and documentary evidence adduced by the defendant to prove that plaintiffs No.3 and 4 have relinquished their right in items No.1 and 2 of suit scheduled property. 16. Under Section 17 of the Registration Act, the documents which purport or operate to create, declare, assign, limit or extinguish any right, title or interest of the value of one hundred rupees and upwards, are to be registered. Unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in the construction of the house in item No.2 of the suit scheduled property. Plaintiff No.4-Gopal has also produced money order receipts Exs.P-33 to P-36 to show that he was sending money to the defendant for cultivation of the land and also produced Ex.P-30 and P-31 regarding purchase of building material. Money order receipts produced by plaintiffs No.3 and 4 show that they have sent money to the defendant. But the fact remains that mother of the plaintiffs and defendant was residing with the defendant and she died in the year 1987. Money order could have been sent by plaintiffs No.3 and 4 for maintenance of the mother. In fact, second plaintiff-Ananthaiah (CW2) has stated that plaintiffs No.3 and 4 used to send small amount of money to their mother when they were in the army. That being so, case of the plaintiffs No.3 and 4 that the amount was sent only for development of land and construction of the house ought not to have been accepted by the trial court and the High Court. 19. As discussed earlier, when the terms of the family settlement/arrangement between the parties have been reduced to writing, it has to be registered. But in the facts and circumstances of this cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the evidence and ignored the weight of evidence on record and findings suffer from perversity, this Court would certainly examine whether the findings are consistent with facts and evidence on record and interfere with the conclusion. As held in Gujarat Mineral Development Corporation vs. P.H. Brahmbhatt, (1974) 3 SCC 601:(1974) 2 SCR 128, where there is gross or palpable error, the Supreme Court can also consider whether the finding is wholly inconsistent with the material on record or whether the lower court has dealt with the evidence in a perfunctory manner. In the present case, courts below erred in ignoring the oral and documentary evidence adduced by the defendant regarding items No.1 and 2 and the findings of the courts regarding items No.1 and 2 are palpably erroneous and the same is to be reversed. 22. So far as item No.3 in S.No.69/5C2 measuring 1.00 acre, case of defendant is that Saguvali Chit (patta) was granted to him and item No.3 is his self-acquired property. For item No.3, defendant gave application for grant of patta on 08.08.1989 and again submitted another application on 28.05.1991. By the proceedings of Tehsildar dated 08.12.1995 under Rule 108 of Karna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erted the same into wetlands and revenue authorities had regularized his encroachment". Father-Narayana died in or about 1962. After the death of Narayana, admittedly, defendant was running the family affairs. After death of Narayana, family must have continued the cultivation of item No.3. The defendant cannot claim that he had individually encroached upon item No.3 even in the year 1962 and was cultivating the same in his individual capacity by his own exertion. Evidence amply shows that possession and cultivation of item No.3 was by the family and patta was granted in the name of the defendant and it is to be held that the patta was granted for the benefit of the entire family. 26. As discussed earlier, there was division of status among the brothers, the defendant and plaintiffs No. 3 and 4 during the year 1995 or at the time when the defendant paid Rs.20,000/- to plaintiffs No.3 and 4 for relinquishment of their interest in items No.1 and 2 or on 18.03.1995 when before panchayat resolution (Ex.D22) was passed. As noticed earlier, appellant had given the application for grant of patta of item No.3 in 1989 and the same was renewed in 1991 during which time there was no divisio ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
