IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 6TH DAY OF APRIL, 2011 PRESENT THE HON’BLE MR. JUSTICE K U. MANJUNATH AND THE HON’BLE MR. JUSTICE H.N. NAGAMOHAN DAS RFA. No1349/ 2005 BETWEEN: MRKrishna Murthv S Ramaehandm Rao, Aged 75 years. P/a. I 2 Ward. Old 7 ehetaCie Market Has ei-55320. iClCrJ CI) 2 .MKA7tira.1akshmi Bai W/ o. K M. Krishna. M urthy. Aged 60 years, Rio. 1 2th Wa.rd, Old Veget.able M.arket. Ho 500 o58320, 0 c 5 1t Ad.aai Rama.nn.a Cot H ospe 1. - 20. ... 1 4. M.K.Raghunath, S/o. M.R.Krishna Murthy, Aged 35 years, R/o. 12th Ward, Old Vegetable Market, Hospet-58320. (Appellants 2 to 4 are treated as Legal representatives of the of appellant No.1) APPELLANTS (By SrI. Ravi Hedge, Advocate) AND: M.lCSampath Kumar Sb. M.R.Krishna Murthy Aged 48 years, 9th Ward, Cowipet, Hospet, Represented by guardian Smt. Vijayalakshmi W/o. M.K. Sampath Kumar, 9th Ward, Cowlpet, Hospet-58320 1. RESPONDENT (By Srnt. V. Vidya lycr. Advocate This RFA is filed u/s 96 R/W 041 R 1 of CPC against the judgment and decree dated 30.06.2005 passed in 0.S.No.80/2001 on the file of the AddI. Civil Judge (Sr.Dn.), Hospet, decreeing the suit for declaration, injunction and cancellation. 3 This R.F.A. coming on for Final hearing this day, H. N.Nagamohan Das, J., delivered the following: JUDGMENT This appeal is directed against the judgment and decree dated 30.06.2005 in O.S.No.80/2001 passed by the Additional Civil Judge (Sr.Dn.), Hospet. decreeing the suit for declaration of title and permanent injunction. 2. Appellants are the defendants and respondent is the plaintiff before the trial court. In this judgment for convenience the parties. are referred to their status before the trial. 3. Defendant Nos. 1 and 2 are the father and mother of plaintiff. Defendant Nos. 3 and 4 are the brothers of the plaintiff. According to the plaintiff, in a partition in the year 1965, plaint schedule property was allotted to the plaintiff and he is in possession and enjoyment of the same. Behind the back of the plaintiff the defendants by fabricating a false partition deed in the year 1990, got entered their name in the Revenue records. Aggrieved by this act of the r .1 deh’t,i lants. i hi !iiaIflt ill tiled .3 %I Lii I’ ‘r (In lar.iti in ‘‘1 lii Ic aflc’ p rInan” 1 t t u..t It’!. lt itn.Iwt rrpnsc ‘dh F I ,fr t I “u’ I inia I I ‘s all a a. — C ci hi:. ‘phreiim. 3 Tb 1 tj,’ten.I Irlis .‘lltrr.tC .mpr a.inr et’ ,. i• •‘. irtil etiurt tiled I.1c rLI1’ fl St.sDIThIIL inlet :1a • cliii. rit1ip ti. it I c Iiinils ir inpetiteill latcd 2b (1i CiC)( , t Sc i’.’d ic propcrt cii t c part tioicd and rcl)rc oliii till thc ‘absolute uxi uf tht rlan schedulc pr per’s ra tlier’ ‘re. liii t. br • 1.4! dtl’ SR ‘It Iii Ii• ,.. :;i)It 1.) 1• dismissed. D.-t,’;:d4nTs ‘Miii’! .1 that fl r ‘•: ‘) it ‘I. c , 199( Ft itt i’ ssi’•. C t ef Fn (itt o — ••. I • . •?.b... . : . .S •: •. fl• I LI..’. I .. t •‘ et( .;I .li.’ % ‘ ,iit T 1 •‘ •‘: • .,“( ‘a !‘“,. l; l•l •.• I I • . ‘a On tIit basis of thc plc dmgs tl e II ii , in frn cdthc hlloarJisshs and ddtoni ssues Whctlcr thc p1 ntff r s Ic ‘ ti ibs , te ‘ c f thc stat s hcd c prpcr u Whether that phintiff prntøt h s I posoc ssion and (fljO%flWflt C ‘icr thc suit scFcdulc propcrt’i) Whethcr thi plaintiff proies thi aflc°c I inttrfcrcn t 1,3 tIn defcndants’ Whether the plaintiff is entitled for the n hefs sought fo What order or deene) ADDITIONAl I$St ES Whethcr thc plaintiff is sullen i.g Ai h rnsound mmd or mcnt& infinnit In ii lit (plaintiff) is not en itled t pro cct ins itcicst in this suit and tbercb I c jpi a nufi; ant )t os 1c ate mc t csiIthnafc stoxpr ititd 2 iii id na IL lb C. ¾ * V1tfluSS irid reilaiti flncLirneflt% Welt itiartci’d. Fun)” mdi i flu’ t i €dit d th plain ft to i e a irt .ir d hi cirni’icd F,’ t iii tic’ ippr ‘‘tin I ‘F e .:‘i’I r! •‘ ‘ ar’ r.’r :. hi . b rt:c iLaic a ‘, I pcrniitted t h. plaintiff to flit ‘he suit md PlO Ct Lift. pr cc c’diiiu ilirt ph P’s “ II pi ii r 4 vi liii p r•i’ sulki in tr.ni schitnphr nia ‘3 1 hen ific i plaintiff e’can’ mcd 4 toPW1a,ido nwkcdf’cPlic Po c’xan,jptd ! v1tnesst’s ;is D.i 1 and D W 2 doc unwnts E 1) 1 to D ? hc tiM urt tin plc’.id ngs. nrc 1 .ind l’s un.c’n1a, f idt alit 1d Ijrnhi a’. nc (ill ir ‘ i p •1 itrd ) ‘p ri U ) S :..L— L • — C1’ I:- • I. i tie • ‘ • .. :. • ‘ • , ‘ •.; ii•• •, j’ • I •1 • ••• • •. .• ti’i • 1% 5’ a flit’ If,’, utnc isF 1 I he 1’ 1’ ndinl S iitl ii,)t iiiarkid n appr h 4 ticr Cf - t . lu d ‘ p ) on •1•”’(’ •, ,q a Ii C :::. ,; . ;.:a •14 :, •.:,,, ,•.. •1’*I• a:’ — i ‘d.:ct;i 7 10. We heard arguments on both the side and perused the entire appeal papers. The following point will arise for our consideration in this appeal: Whether the judgment and decree of the trial court is supported by evidence and the same is in accordance with law?’ 11. There is no dispute in regard to the relationship between the parties. It is the case of the plaintiff that in the year 1965 in a family partition, the plaint schedule property was allotted in favour of the plaintiff and since then he is in possession and enjoyment of the plaint schedule property. In support of this contention, the plaintiff has produced Ex.P. I to .1 I showing the plaintiff’s name as Kathedar and in possession of plaint schedule property. Trial court also noticed that D.W. 1 in his cross-examination specifically admitted that in a partition, in the year 1965 the schedule property had fallen to the share of plaintiff. This documentary evidence and admission of D.W. I manifestly establishes the fact that the plaintiff is the owner of plaint schedule property. It is also admitted by D.W. 1 that in V 8 terms of the partition in the year 1965, certain properties had fallen to the share of defendants and they have sold the same under the different sale deeds as per Ex.P.12 to P.15. Again this evidence on record establishes the fact that partition in the year 1965 is accepted and acted upon by the parties. 13. The defence taken by the defendants that on 29.06.1990 there came to be partition in respect of plaint schedule property between the plaintiff and the defendants. The original of this document was not produced before the court and on the other hand a xerox copy was produced. According to the defendants, this is only a family arrangement. A reading of this document discloses that it is a partition. If it is a partition deed, then it requires registration. In the instant case the alleged deed dated 29.06.1990 is not only disputed and the same was not registered. In the circumstances, the trial court refused to rely on this document. In the facts and circumstances of the case, the finding of the trial court is in accordance with law and we find no justifiable ground to interfere with the same. 9 For the reasons stated above, the appeal is hereby dismissed. Parties to bear there own cost. Sd/a JUDGE sd/a JUDGE Rms/