IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 12TH OCTOBER 2010/20TH ASWINA 1932 AS.No. 501 of 1996() -------------------- OS.46/1992 of SUB COURT, KASARAGOD .................... APPELLANT(S): PLAINTIFFS 1 TO 4: ----------------------------------------------------- 1. SHEKHARA RAI, 2. VEDAVATHI 3. INDIRAVATHI 4. BALAKRISHNA RAI ALL ARE CHILDREN OF SHIVAPPA RAI , NOS. 1 AND 4 ARE RESIDING AT SHIRIBAGILU HOSAMANE, SHIRIBAGILU VILLAGE AND POST, KASARAGOD TALUK. NO.2 IS RESIDING AT KARNOOR BARA, NETTANIGE MUDNOOR VILLAGE P.O., KARNOOR, PUTTUR TALUK, KARNATAKA STATE. NO3 IS RESIDING AT BAMBRANA KELAGINAMANE, BAMBRANA VILLAGE AND POST, KASARAGOD TALUK. BY ADV. SRI.K.G.GOWRI SHANKAR RAI RESPONDENT(S): DEFENDANT AND PLAINTIFFS 5 AND 6: -------------------------------------------------------------------------------------- 1. MALINGA ALVA, SON OF KARIYAPPA ALVA, RESIDING AT KARINJA OF ICHLAMPADY VILLAGE AND POST, KASARAGOD TALUK. Kss ..2/- ..2... A.S.NO.501/1996 2. CHANDRAHASA S.RAI, S/O.SHIVAPPA RAI, RESIDING AT AVINASH GENERAL STORE, SUKARWADI, MG. ROAD NO.9, BORUVILI (EAST), BOMBAY - 66. 3. RAVINDRA S.RAI, S/O. SHIVAPPA RAI, RESIDING AT SHIRIBAGILU HOSAMANE, SHIRIBALIGU VILLAGE AND POST, KASARAGOD TALUK. BY ADVS. MR.D.KRISHNA PRASAD, MR.JOJI VARGHESE, MR.HARISHARMA M. THIS APPEAL SUITS HAVING COME UP FOR ADMISSION ON 12/10/2010 ALONG WITH A.S.NO.100 OF 1997, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 501 OF 1996 & A.S. NO. 100 OF 1997 = = = = = = = = = = = = = = = Dated this the 12th day of October, 2010. J U D G M E N T These appeals are preferred against the judgment and decree passed by the Subordinate Judge, Kasaragod in O.S.Nos.46/92 and 56/92. A.S.100/97 which was originally instituted as A.S.81/96 before the District Judge, Kasaragod has been withdrawn to this Court to be heard along with A.S.501/96. The simple facts are that both the suits are one for recovery of possession on the strength of title with future mesne profits. The plaintiffs in both the suits and the defendant are the members of the same family. They have entered into an agreement, Ext.A1 on 7.2.91 wherein they have recalled an oral partition and subsequently divided the A.S. NOs. 501/96 & 100/97 -2- properties among the executants in Ext.A1. So really the properties had been set apart to the respective persons only on the basis of the terms and conditions of Ext.A1 partition agreement. 2. It is a settled principle of law that parties can have oral partition of the properties. It is also well settled that the parties can have a family arrangement. Neither the oral partition nor the family arrangement is a compulsory registrable instrument. But when the parties choose to divide the property in accordance with an agreement for partition in writing the two methodologies are one is to register the instrument of partition or to enforce agreement of partition of immovable properties. A.S. NOs. 501/96 & 100/97 -3- 3. So far as this case is concerned there is nothing remains to be enforced for the reason that though the document is styled as an agreement for partition in effect it divides the property and sets apart shares to the members therein. So in other words Ext.A1 document virtually is a document of partition whereby property worth more than Rs.100/- is divided among the sharers and therefore it is a compulsorily registrable. When it is a compulsorily registrable document and it is not registered it cannot be looked into for the purpose other than for the corollary purpose of the instance of possession and nothing else. Such a document cannot confer title on the parties. Therefore Ext.A1 does not confer any title on the plaintiffs in the suit. Since the suit is filed for recovery of possession on the A.S. NOs. 501/96 & 100/97 -4- strength of title as the exclusive title cannot be found in favour of the plaintiff the suits are liable to be dismissed and therefore I do not want to interfere with that judgment. But I make it clear that the learned Subordinate Judge had gone and had discussed about the oral partition set up by the defendant in the suit in 1963. The trial court itself had observed in the judgment that the title of the defendant is not a necessary issue in the suit. Further it is crystal clear that when a suit for recovery of possession on the strength of title is filed the plaintiff has to succeed or fail on the documents relied upon by him and not on the weakness or loopholes of the defendants' case. Therefore any observation with respect to the title of the defendant can be only considered as passing observations which does not have the A.S. NOs. 501/96 & 100/97 -5- impact of deciding an issue in the suit. Therefore I hold that any discussion with respect to the defendant's title shall not be used as a weapon in a later proceeding contemplated. But I make it very clear that all the defences which are available can be made by the defendant in that suit when it comes for consideration if it is filed. Therefore both the appeals are dismissed without costs with the above observations making it clear that the plaintiffs are entitled to proceed if there are other remedies left open to them and available under law. M.N. KRISHNAN, JUDGE. ul/- A.S. NOs. 501/96 & 100/97 -6- M.N. KRISHNAN, J. = = = = = = = = = = A.S. NO. 501 OF 1996 & A.S. NO. 100 OF 1997 = = = = = = = = = = = J U D G M E N T 12th October, 2010.