IN THE HIGH COURT OF KARNATAKA, CIRCUIT BENCH AT DHARWAD DATED THIS THE 16th DAY OF JUNE 2011 BEFORE THE HOWBLE MR. JUSTICE K. GOVINDARAJULU RFA NO.1303/2002 BETWEEN Sri.Imamsab Sb Hydersab Nashipudi, Age: about 56 years, 0cc: Agrl, RIo Paledvar Oni, Kundgol,Dist: Dharwar. 2. Sri. Abdul Khader S/o Hydersab Nashipudi, Age: about 53 years, 0cc: Agrl. R/o Paledvar Oni, Kundgol, Dist: Dharwar. Appellants (By SrLT.M.Nadaf for Mallikarjun S Mylar, Adv.) AND Sri.Modinsab S/o Hydersab Nashipudi, Age: 74 years, 0cc: Agri, R/o Paledvar Oni, Kundgol, Dist: Dharwar. 4— 1(a) Smt.Hjirabi W/o Late Madinsab Nashipudi, Age: 62 years, C/o Abdulshah Gorwale Walvekar Plot, Ward No.30, Hubli, dist: Dharwad. 2. Smt.Aminabi W/o Ameersab Mulla, Age major, 0cc: House hold, Rio Tadas, Tq: Shigaon, Dist: Haveri. Respondents (R1(A) served, R2 Notice D/W) This RFA is filed u/s. 96 R/W Order 41 Rule 1 of CPC against the Judgement and Decree dated 13.09.2002 passed in 0.S.No.128/ 1991 on the file of the Addl. Civil Judge(Sr.Dn.), Hubli, decreeing the suit for partition and separate possession of 2/7th share in the suit properties and for mesne profits. This RFA coming on for final hearing this day, the court delivered the following: JUDGMENT The defendants 1 & 2 on the file of the Civil Judge(Sr.Dn.) Hubli, are the appellants in this appeal u/s.96 CPC. 2. Parties will be referred to according to their status found in the court below for convenience. 3. Suit is filed seeking declaration of 2/7th share of the plaintiffs and a consequential relief of possessin. The case of the plaintiff is that the plaint schedule properties are enjoyed jointly and defendant No.1 & 2 are the brothers and defendant No.3 is the sister, parents of the defendant died intestate. The properties being enjoyed jointly, the father of the defendants, plaintiff namely Hvdersab being a tenant died intestate on 20.1.1964 at Kundgol. Thereafter, the plaintiff was managing the entire suit properties, the plaintiff filed an application before the Land Tribunal. The Land tribunal granted occupancy rights jointly in favour of the plaintiffs and defendant Nos. 1 & 2. Thereafter, plaintiffs sought for partition. It was refused, so the plaintiff is obliged to file a suit seeking partition. 4. It is the case of the defendants that there is already a partition, in view of there being a partition, in the 4 presence of the elders, the money being quantified, there being a relinquishment deed executed by plaintiff, the suit of the plaintiff for partition is not maintainable. So, pray for dismissal of the suit. 5. After framing of the issues, the learned trial Judge has directed the parties to lead evidence. PW1 is examined and Exhibits P1 to P23 are marked. DWs. I & 2 are examined and Exhibits Dl to D22 are marked. The learned trial Judge has answered the following issues with the following reasons: 1. Whether the plaintiff is entitled to 2/7th share as claimed by him? 2. Whether the plaintiff is entitled for mesne profits? 3. Whether defendants No.1 and 2 prove that there was partition on 25.4. 1983? 4. Whether the defendants further prove that the plaintiff has given up his share in the suit property by accepting a sum of Rs.30,770/- on 23.4.1983? 5. Whether the suit in the present form is not maintainable? 6. Whether the suit is barred by time? 7. Whether the suit is hit by principles of mis joinder of parties? 8. Whether the defendants No.1 and 2 prove that they have improved their lands? 9. Whether the defendants 1 and 2 are entitled for compensatory costs of Rs.3,000/-? 10. Whether the plaintiff proves that the defendant No.3 is entitled to 1/7th share and plaintiff and defendants 1 and 2 are entitled to 2/7th share? 11. Whether defendant No.3 proves that the partition dated 25.4.1983 is prepared fraudulently as pleaded in para6 of her written statement? 12. What order or decree? Answers to the above issues are as under: Issue No.1 : In the Affirmative. Issue No.2 : In the Affirmative. Issue No.3 : In the negative. Issue No.4 : In the negative. Issue No.5 : In the negative. Issue No.6 : In the negative. Issue No.7 : In the negative. Issue No.8 : In the negative. Issue No.9 : In the negative. Issue No.10 : In the affirmative. Issue No. 11: In the affirmative. Issue No.12 : As per the final order. 6. The learned trial Judge has disbelieved the defendants’ case on the ground that the relinquishment and partition relied by the defendant is not registered, 6 such documents are compulsorily registerabie instrument. So, allowed the claim petition for partition. 7. It is settled law, partition is permissible, even if there is a oral division of partition. 8. in the light of the above, the point that arise for consideration by this court is as follows: “Whether the decreeing of the suit by the learned trial Judge for partition is in accordance with law. ?“ 9. The positive case of the plaintiff is that the properties are not partitioned. They have a joint right. So, seek for partition. Suit is filed valuing u/s.35(2) of the Karnataka Court Fees and Suits Valuation Act, 1958. The plaintiff claims joint possession along with the defendant. 10. As against the case of the plaintiff, the defence is that there is already a partition. It is a oral partition in the presence of the elders of the village. So, the evidence of PW1 relied by the learned advocate for the defendant is C. 7 extracted to give a finding regarding this aspect. PW1 in the course of his cross examination states as follows: •ft is true to suggest that my wife was present during the talks in the presence of elders. ft is true that I signed in English language. ft is true that my wife signs in Urdu. Now I see a document which bears my signatura Said signature of the witness is marked at Ex.D1. Said documents also bears signature of my wife, same is marked At’ 11. The evidence brought in would probabilise that elders having decided to divide the properties. Thereafter, the document comes into existence. Therefore, the happenings reflected in the facts of the case would probabilise separate possession and enjoyment from the date of the oral partition rather than joint possession as the one pleaded by the plaintiff. This crucial subject is not considered by the learned trial Judge. The learned trial Judge reads the documents along with the evidence, it is not permissible because the positive case of the defence is that there was a oral partition in the presence of the 8 elders, This oral partition is admitted by PWI in the course of his evidence. So, it proves that there is a separation. So, it improbabilise the case of the plaintiff of joint possession. So, the reasoning of the learned trial Judge is set aside. Appeal is allowed. In the circumstances, parties to bear their own costs. JUDGE pl*/pv