Eswaraiah v. B.S. Siddalingappa. ILR 1999 Kar 3037
Full Judgment below.
T.N. VALLINAYAGAM, J.:—Defendant No. 2 is the appellant who is aggrieved by the grant of injunction against him alone by the Courts below.
2. The facts are not in serious dispute. The plaintiffs who are the sons of one Siddamallaiah have filed a suit against their uncle Siddappa. Siddamallaiah and Siddappa being the brothers, Defendant No. 2 Eswaraiah is the person who purchased the share of Siddappa in the suit property. Claiming the entire property as joint family property belonging to joint family of Siddappa and Siddammallappa the suit for injunction came to be filed. The first defendant claim that there was a partition in the family on 16.2.76 and on the basis of the partition he is in possession of the suit property and only on that basis he has sold the property to the second defendant. Consequently, neither Siddamallaiah nor Siddappa the owners are entitled to any share in the property. The first defendant resisted the suit contending that in view of the fact that he is entitled to the value of the property there cannot be any injunction against him or against his purchaser. The second defendant claim that his purchase is valid in the eye of law and he is in possession consequently no injunction shall follow.
3. The Courts below despite holding that the possession of the suit property between the plaintiff and the first defendant deemed to be in joint possession, granted the relief of injunction on the ground that defendant No. 2 has failed to prove partition. Hence, the second appeal.
4. The question to be considered before this Court is whether the second defendant who claims under first defendant can be treated as co-owner and if that be the case whether injunction can be issued against such co-owner.
5. Even according to the learned Counsel for the appellant there is no difficulty in getting into general proposition of law that there shall not be any injunction against co-owner or persons in joint possession. Infact, the finding of the Trial Court, in respect of such a possession is as follows:
“These documents and evidence show that plaintiff is in joint possession and enjoyment of the suit schedule property by the plaintiff and defendant No. 1.”
The appellate Court confirmed and maintained the finding as follows:
“The plaintiffs contend that themselves and defendant-1 have been in lawful possession and enjoyment of the suit land and in its entirety.”
Therefore, so long, as there is joint possession even according to the claim of the plaintiff, there can never be an injunction against defendant-1.
6. Now what is the position of the second defendant. Even the I prayer for injunction is against the defendant or anybody claiming under them. Now, certainly the second defendant claims under him and this factum cannot be disputed because he is the purchaser under the registered sale deed. It is also claimed by him that he is in exclusive possession of the portion purchased by him. Therefore, prima facie on general principle of law, which is not disputed by the learned Counsel for the appellant and which cannot be disputed no injunction can lie against either defendant No. 1 or defendant No. 2.
7. There was one document Ex. D.1 which has come into operation. This is what the appellate Court says against Ex. D.1.
“It is true that there is Ex. D.1 which acknowledges the contention regarding partition and separate possession of half suit land by defendant No. 2. But, in this regard, it has to be stated that this document has come into existence in the Police Station on account of the dispute that arose between the plaintiffs and defendant-2. Having regard to its origin in the Police Station and having regard to the other documentary evidence, discussed above, in the foregoing paragraphs, this is a stray document which cannot over-weigh the other documentary and oral evidence and the circumstances discussed in the foregoing paragraphs. Therefore, from this document, defendant-2 cannot derive any benefit to contend that he has been in possession and enjoyment of half share in the suit land.”
Simply because the document is executed, it does not lose its evidentially value. So long as the document is disputed for a period of nearly 9 years this document has not been challenged. In any event, that will only go to show that the possession of the second defendant in respect of that particular portion of the property which the first defendant claim to have been in enjoyment was not disputed atleast before the authority who is there to maintain law and order.
8. Looking at any point of view, there can never be injunction against the second defendant as well. The question whether there is a partition or not is not necessary to decide in this case. In any event, the learned Counsel for the appellant relies upon the following passages in Rustomji on Registration 4th edition 104.
“But a document which is not itself the instrument of partition but is merely an acknowledgment or statement of fact that there had, in time past, been a partition between the parties, is not compulsorily registrable.”
“Thus, a mere written memorial or recital of a partition that had already taken place (i.e. of a previously completed transaction) does not require registration.
“In dealing with cases relating to partition, the question to be determined is in effect, does the document constitute the bargain between the patties (i.e. is it a deed of partition effected in praesenti) or is it merely the record (or recital) of an already completed transaction (i.e. Partition).
According to him, if what is recorded is past transaction no registration is necessary of such record. He also relied upon the ditcum in Roshan Singh v. Zile Singh1 to the following effect.
“It is well-settled that while an instrument of partition which operates or is intended to operate as a declared volition constituting or severing ownership and causes a change of legal relation to the property divided amongst the parties to it, requires registration under Section 17(1)(b) of the Act, a writing which merely recites that there has in time past been a partition, is not a declaration of will, but a mere statement of fact, and it does not require registration. The essence of the matter is whether the deed is a part of the partition transaction or contains merely an incidental recital of a previously completed transaction. The use of the past tense does not necessarily indicate that it is merely a recital of a past transaction, it is equally well settled that a mere list of properties allotted at a partition is not an instrument of partition and does not require registration. Section 17(1)(b) lays down that a document for which registration is compulsory should, by its own force, operate or purport to operate to create or declare some right in immovable property. Therefore, a mere recital of what has already taken place cannot be held to declare any right and there would be no necessity of registering such a document. Two propositions must therefore flow; (1) A partition may be effected orally; but if it is subsequently reduced into a form of a document and that document purports by itself to effect a division and embodies all the terms of bargain, it will be necessary to register it. If it be not registered, Section 49 of the Act will prevent its being admitted in evidence. Secondly, evidence of the factum of partition will not be admissible by reason of Section 91 of the Evidence Act, 1872, (2) Partition lists which are mere records of a previously completed partition between the parties, will be admitted in evidence even though they are unregistered, to prove the fact of partition.”
There can be no dispute that whenever the past transaction is recorded in a document and so long as the document by itself does not create any right between the parties such a document does not require registration; but only those documents under which right is created are hit by Section 17(1) of the Registration Act. In this case a reference is made by the learned Counsel for the appellant to a sale deed which he wanted to file as additional document wherein the factum of partition has been recorded and it has been made clear that what has been sold by the first defendant was a divided portion of the property. Therefore, prima facie I am satisfied that the factum of partition as relied upon by the first defendant evidences the fact that partition has taken place. But it has got to be decided between the parties if the plaintiff disputes such factum of partition. Therefore, the plaintiff is given right to question such memorandum or to claim partition in respect of the property. In any event, I am convinced that the defendant is in possession of the property which has been sold to him by the first defendant and there can be no injunction against him at the instance of the plaintiff.
9. In this view, setting aside the judgment and decree of the Courts below and answering the question in favour of the appellant this second appeal is allowed and the suit is dismissed with costs.
* R.S.A. No. 612/1996.
1. AIR 1988 SC 881.
Compiled by S. Basavaraj, Advocate, Daksha Legal.
Daksha Legal 