JUDGMENT
K. Ramanna, J.
1. It is the plaintiff’s appeal for setting aside the judgment and decree dated 2.2.2002 passed in R.A. No. 16/99 by the Civil Judge(Br.Dn.) Yadgir, reversing the judgment and decree passed in O.S. No. 393/95 dated 13.1.99 passed by the Civil Judge(Jr.Dn.) Shahapur and further to restore the judgment and decree of the trial court and set aside the finding of the trial court on Issue No. 4 held against the appellant/plaintiff and consequently to decree the appellant’s suit in its entirety.
2. The case of the appellant/plaintiff is that himself and Defendants No. 1 and 2 are the brothers. Respondent No. I/Defendant No. 1 is the elder brother and defendant No. 2 is the younger brother. They are the sons of one late Abdul Sab Kadpe who died 6 years prior to the filing of the suit. Therefore, the appellant and respondents have succeeded the property left by the father late Abdul Sab Kadpe. Father of the appellant and defendant was the owner in possession of the lands bearing fay. No. 571/1 and sy. No. 290/1 measuring 9 acres 3d guntas and 3 acres 18 guntas respectively of Dornahalli village, Shahapur Taluk. Apart from that the father of the appellant and respondents own house bearing No. 7/119 of that village. It is the further case of the appellant/plaintiff that since their father was whimsical man having peculiar mentality, therefore, the above said properties wore transferred and mutated in the name of the first respondent as he was the elder male member of the family. The appellant and respondents got divided the said properties and that 1/3 share each in land in sy. No. 571/1 and 1/2 share each in land in sy. No. 290/1 fell into the share of appellant and respondent No. 2. Whereas Respondent No. 1 has relinquished his share in the land sy. No. 571/1 in favour of the appellant and respondent No. 2 and took the house including the share in sy. No. 2 90/1. Therefore, the appellant is the owner in possession of the lands in sy. No. 571 and sy. No. 290/1 measuring 3 acres 13 guntas and 1 acre 29 guntas respectively which are the B schedule properties to the plaint in respect of which the appellant/plaintiff has filed this suit. It is the further case of the appellant/plaintiff that himself and respondent No. 2 filed an application before the revenue authorities seeking mutation of their names in the revenue records. Since the first defendant filed objections, therefore, the matter was referred to the Tashildar Shahapur as a dispute case. After holding enquiry, the Tahsildar passed an order to enter the names of the appellant and respondents No. 1 and 2 in the record of rights. Therefore, the appellant is in peaceful possession of the lands. But the first respondent is denying the ownership of the appellant over the lands in the “B” schedule. The first respondent denied the share of the appellant and respondent No. 2 and the appeal filed by him before the Assistant Commissioner Yadgir challenging the order passed by the Tahsildar shows himself as owner of the land and he has obtained stay order from the Assistant Commissioner Yadgir with a sole intention to grab the entire properties. Hence he has filed a suit for declaration and injunction.
3. After receipt of the summons, the respondent No. I/defendant No. 1 appeared through his counsel. The respondent No. 2-defendant No. 2 remained exparte. Respondent No. 1 Who filed the written statement contended that the father of the defendant No. 1 was the owner and in possession of the land in sy. No. 571/1 measuring 9 acres 39 guntas of land and he sold it to him for Rs. 500/- under a registered sale deed dated 7.1.1966 and that hie father was the owner of the land in sy. No. 2 90/1 measuring 3 acres 18 guntas till his death and after the death of his father, the same was subject to partition among the three brothers. On the basis of the available pleadings, the trial court in all has framed 8 issues. After considering the oral and documentary evidence as well as considering the argument a, issue No. 1 and 2 are answered in the affirmative, and issue No. 3 to 6 in the negative, whereas issue No. 7 was answered partly in affirmative. Ultimately the suit filed by the appellant/plaintiff came to be partly allowed declaring that the appellant/plaintiff is the owner of the land measuring 3 acres 13 guntas out of 571/1 and the respondent No. 1 is restrained from interfering in the appellant’s peaceful possession and enjoyment of the suit property i.e., 3 acres 13 guntas,
4. Being aggrieved by the said judgment and decree, the first respondent herein preferred an appeal in R.A. No. 16/99 before the Civil Judge (Sr.Dn.) at Yadgir. After re-appreciation of the evidence, the first appellate court has allowed the appeal and set aside the judgment and decree dated 13.1.99 passed in O.S. No. 393/95 by the Civil Judge(Jr.Dn.) Shahapur and consequently dismissed the suit, assailing the same the appellant/plaintiff has come up with this second appeal on various grounds.
5. At the time of the admission this Court has formulated the following substantial questions of law involved in this appeal:
i) Whether the court below is justified in reversing the judgment and decree passed by the trial court discarding the material evidence on record especially oral evidence of independent witnesses?
ii) Whether the court below is right in holding that the suit in the form filed by the plaintiff is not maintainable?
6. Heard the arguments of the learned Counsel for the appellant Sri. Veeresh Patil and Sri. B.S. Malipatil for Respondent No. 1. It is argued by the learned Counsel for the appellant that it is no doubt, the relationship of the appellant and respondents is undisputed. The appellant is none other than the brother of respondent No. 1 and 2, Both the parties are the sons of late Abdul Sab Kadapi. It is contended that father of both the parties owns two items of landed property at Doranahalli bearing ay. No. 571/1 measuring 9 acres 39 guntae and sy. No. 2 90/1 measuring 3 aces 16 guntas. But it is agreed that the first Appellate court has wrongly come to the conclusion that the land bearing sy. No. 571/1 measuring 9 acres 39 guntas was sold to the first respondent under a registered sale deed. It is contended that there was a partition in between the appellant and respondents No. 1 and 2. In that partition, land bearing sy. No. 571/1 and sy. No. 290/1 measuring 3 acres 13 guntas and one acre 29 guntas respectively fell into the share of the appellant. It is further argued that at the time of execution of the alleged sale deed executed by their father in favour of Respondent No. 1, respondent No. 1 was a minor and the alleged sale consideration of Rs. 500/- fixed by his father is totally incorrect. Therefore, respondent No. 1 is not entitled to get 9 acres 39 guntas of land in respect of sy. No. 571/1. Therefore, the appellant is entitled to got 1/3 share in all the properties. But the first appellate court has wrongly come to the conclusion in believing the version of the respondent No. 1 that the father of the appellant has sold 9 acres 39 guntaa in the name of the first respondent. The first appellate court has not properly appreciated the evidence on record and the trial court has rightly held that relinquishment of 1/3rd share of appellant in sy. No. 571/1 is not at all been proved. Therefore, the appellant is entitled to 1/3 share in all the properties including the house. Though the evidence of P.M.3 discloses that there was three divisions made in the land bearing ay. No. 571/1, bunds have been put in the said lands. But the first appellate court has not properly appreciated the evidence and come to a wrong conclusion in allowing the appeal filed by the respondent No. 1 herein and set aside the judgment and decree passed by the trial court. Even, the trial court has discarded the materiad evidence placed on record by the appellant and recorded its wrong finding on issue No. 4 framed by the trial court, and that though the appellant filed a suit fox declaration and injunction, the court can mould the prayer and pass the decree for partition and separate possession. Therefore, it is argued that the suit filed by the appellant seeking declaration is maintainable, and the finding recorded by the first appellate court without proper appreciation of the evidence on record for interference at the hands of this Court under Section 100 of C.P.C. which is a substantial question of law. Therefore, it is argued that the appeal is to be allowed by setting aside the judgment and decree passed by the Civil Judge(Sr.Dn.) and declare that the appellant-plaintiff is entitled to partition and separate possession of his 1/3 share in respect of land in sy. No. 571/1 and sy. No. 290/1 and also in house bearing NO 7/119 of Doornahalli village, Shahapur Taluk. In this behalf the learned Counsel for the appellant has relied on the Division Bench decision reported, in (Division Bench) in the case of Rangappa v. Jayamma, wherein it has been hold thus: Order VII Rule 7- is widely worded to enable grant of relief , though not specifically sought, if plaintiff entitled thereto on facts established on evidence-Court to look into substance of claim in determining nature of relief-such relief to be based on same cause of action, not inconsistent with plaint claim, not occasioning prejudice or embarrassment to other side, not barred by time on date of presentation of plaint and plaint amended in case of larger relief- In suit for declaration of title and possession where plaintiff not entitled to whole of suit property relief to parties by passing decree for partition according to shares.
7. This decision has been followed in the subsequent decision of the Division Bench of this Court in the case if Indira Bai v. Prof. Shyamasundar repotted in wherein it has been held Under Order VII Rule 7, in a suit for partition shares of the parties have to be determined according to the findings arrived at by the court. The court is also required to take into account the events that take place subsequent to the filing of the suit and also determine the shares according to such events if these events have a bearing on the quantum of share of the parties to the suit. That the reliefs prayed for in the suit can be moulded as long as such relief flow from the same cause of action even though such reliefs are specifically prayed for or not.
8. Hence, he prays for allowing the appeal by setting aside the judgment and decree passed by the first appellate court i.e., Civil Judge(Sr.Dn.) and to declare that the appellant is entitled to partition and separate possession of 1/3 share in all the three items of the property. It is further submitted that in case this Court has come to the conclusion that the appellant is entitled to partition and separate possession to the extent of 1/3 share the appellant is prepared to pay the court fee if so ordered.
9. On the other hand, Sri. Mali Patil learned Counsel for the respondent No. 1 submitted that the land in question in sy. No. 571/1 is the self acquired property of late Abdul Sab Kadpi. Therefore, the sons of late Abdul Sab Kadpi are not entitled to question the sale deed executed by their father in favour of the respondent. It is further argued that the trial court has disbelieved the version of respondent No. 1 only on the ground of not producing the sale original sale deed. Since the original sale deed has lost. Respondent has lead secondary evidence by producing the certified copy of the sale deed Ex.D.I. and that his father late Abdul Sab Kadpi executed sale deed in favour of the first respondent even if he was a minor, his mother has bean appointed as his guardian. Therefore, the appellant as well as Respondent No. 2 are not entitled to any share in the land bearing ay. No. 571/1. It is further argued that the first appellate court is right in allowing the appeal and setting aside the judgment and decree passed by the trial court. When the first respondent has taken a specific contention in para 4 and 6 of the written statement that the plaintiff-appellant herein is not entitled to be declared as the owner of the land measuring 3 acres 13 guntas out of sy. No. 571/1. likewise, he is not entitled to 1/3 share in two items of the property i.e., sy. No. 290/1 and the house bearing No. 7/119. When P.W.2 has made a statement with regard to the partition again the question of seeking declaration that ho is the owner of 3 acro 13 guntas out of sy. No. 571/1 is totally incorrect. In para 36 of the first appellate court’s judgment, the first appellate court has rightly considered the oral and documentary evidence placed on record and come to a right conclusion in reversing the findings. It is arguod that the land bearing No. 571/1 is sold by his father to D.W.I i.e., Respondent No. 1 and consequently his name has been entered in the pahani which has been challenged by the appellant before the Asst. Commissioner. But the appellant has not cross-examined respondent on this aspect i.e., with regard to the execution of the registered sale deed. Since the trial court is not justified with the explanation given by him for not producing the original sale deed. The trial court wrongly came to the conclusion that the contents of Ex.D.I cannot be taken into consideration that his father sold the entire 9 Acres 39 guntas of land in his favour under a registered sale deed. It is further contended that it is for the appellant to prove how he got 3 acres 13 guntas of land without partition. Therefore, the first appellate court is right in allowing the appeal filed by him by setting aside the judgment and decree passed by the trial court.
10. Having heard the argument of the learned Counsel for both the parties, the additional substantial question of law that has arisen for my consideration is “whether the court can mould the prayer sought for by the appellant/plaintiff and grant the relief of partition even though the suit is filed for the relief of declaration and injunction?”
11. It is an undisputed fact that the appellant as well as respondent No. 1 and 2 are the sons of Abdul Sab Kadapi. Abdul Sab Kadapi was the owner of the land bearing sy. No. 571/1 and 290/1 measuring 9 acres 39 guntas and 3 acres 18 guntas respectively of Doranahalli village Shahapur Taluk so also house bearing No. 7-119. The case of the plaintiff/appellant is that in a family partition he got the suit schedule “B” properties i.e., land in sy. No. 571/1 and 290/1 measuring 3 acres 13 guntas and 1 acre 29 guntas respectively. It is further the case of the appellant that the respondent No. 1 with malafide intention is denying the ownership of the appellant and interfering with the possession of the suit schedule properties. Hence he filed the suit for declaration and permanent injunction. The defence set up by the first respondent is that during the life time of his father his father has executed a registered sale deed in his favour even though he was a minor at that time and that his mother was appointed as his guardian. In the sale deed consideration of Rs. 500/- has been fixed. No doubt, that the first respondent is the elder son of Abdul sab Kadapii on the guise of the registered sale deed dated 7.1.66 as per Ex.D.1 his name has been entered in the record of rights as shown in Ex.D.2 to 6. However, it is clear that on the application of appellant and respondent No. 2, the Tahsildar ordered to enter their names in the record of rights and the same has been challenged by the respondent No. 1 before the Asst. Commissioner and obtained stay order. It is also clear from the records that when there was a dispute with regard to the possession of the land bearing sy. No. 571 proceeding under See. 143 of Cr.P.C. came to be initiated by the Taluk Executive Magistrate in case No. REV.212/2000-01 and passed order dated 7.5.2002 directing the receiver to hand over the possession of the property in favour of the respondent No. 1 herein, the said order has been challenged by the appellant in Crl.R.P. No. 67/2002 wherein the learned Sessions Judge by an order dated 29.7.2003 set aside the order passed by the Executive Magistrate and remanded the matter to the Executive Magistrate for fresh disposal. Thereafter the executive Magistrate passed an order dated 26.8.2003 directing the receiver to take possession of the land in sy. No. 571 measuring 9 acres 39 guntas. Against these orders the respondent No. 1 herein preferred Cri. R.P. 1050/2003 wherein this Court by its order dated 12.8.2004 ordered that the appellant herein has to be in possession of 3 acres 13 guntas of land in sy. No. 571/1 and the remaining 6 acres 26 guntas was ordered to be in possession of respondent No. 1 herein until the disposal of this second appeal.
12. As could be seen from the records Ex.P.2 Record of rights extract in respect of land in sy. No. 571/1 for the year 1963-64 and 1965-66 in the said document the name of respondent No. 1 is shown by deleting the name of his father, Ex.P.3 R.O.R, extract for the year 1994-95 in respect of land in sy. No. 571/1-4 wherein the names of appellant and respondent No. 1 and 2 ax(c) mentioned, Ex.P.4 the R.O.R. in respect of sy. No. 290/1 for the year 1994-95 and Ex. P. 5 mutation extracts are all standing in the names of both appellant and respondents, therefore, it is clear that the evidence of appellant and his documents are contrary to each other. The evidence of court commissioner and his report at Ex.P.8 and sketch prepared by him at Ex.p.7 also does not support the case of the appellant that there was a partition in the family. Therefore, the lower appellate court has rightly held that there was no partition between the parties by metes and bounds.
13. The first appellate court has also rightly recorded its finding against the respondent No. 1 that he is not exclusively entitled to the entire extent of the land bearing sy. No. 571 measuring 9 acres 39 gutnas and held that the respondent No. 1 has utterly failed to show that his father has executed a registered sale deed in respect of the entire extent of the land measuring 9 acres 39 guntas in sy. No. 571, the respondent No. 1 has only produced the certified copy of the said sale deed said to have been executed by his father, but he has not assigned any reasons for not producing the original document and further he has not proved the contents and the valid execution of the said sale deed by his father. Here production of a document by itself does not become a evidence in the absence of proof of its valid execution. So also mere entering the names of the respondent No. 1 in the revenue records does not gives him title and right over the property. Therefore, in view of the facts and circumstances of the case and the finding recorded by the appellate court that there was no partition as such by meets and bounds between the parties the first appellate court ought to have ordered for partition of said properties owned by late Abdul Sab Kadapi, instead of merely allowing the appeal by setting aside the order of the trial court.
14. Of course, the appellant’s/Plaintiff a prayer is only to declare him as the owner in possession of the land shown in “B” Schedule. But in view of the law laid down by the Division Bench of this Court in the aforesaid decision that even if the plaintiff sought for relief of declaration and injunction, under order VII Rule 7 of CPC the court can mould the prayer and grant such other relief though not specifically sought for by the plaintiff, if there is sufficient evidence available on record in that regard and that the court can go into the substance of the claim in determining the nature of the relief sought for by the plaintiff and can grant appropriate alternative relief if there is sufficient evidence in that regard and if the same is based on the same set of facts and same cause of action, without prejudice to the other side. In the instant case also, the appellant has sought the relief of declaration and permanent injunction on the basis of the alleged partition, so also the respondent No. 1 claiming right over the property on the basis of the alleged sale deed but ultimately, both the appellant and respondent No. 1 have failed to prove their case and the evidence on record has made it clear that the father of the appellant and respondent is the owner of the land in sy. No. 571/1 and sy. No. 290/1 measuring 9.39 acres and 3. 18 acres respectively and he also owned house property No. 7/119 of Dornalli village ,Shahapurt Taluk. Therefore, when the parties have failed to prove the alleged partition that has alleged to have been taken in the family and so also when the respondent No. 1 failed to prove the alleged sale deed, alleged to have been executed by his father in his favour, automatically after the death of their father both the appellant and respondents get right over the property. Therefore, though the appellant may not be entitled to the relief of declaration he is definitely entitled to the relief of partition even at the date of presentation of the plaint by the appellant/plaintiff.
15. Therefore, considering the nature of the relief sought for by the appellant and also considering the available evidence on record, it may not be proper on the part of this Court to direct the appellant to go for a fresh trial to get his right by way of partition. Therefore, to secure the ends of justice and also to avoid unnecessary litigation between the parties, the suit filed by the appellant/plaintiff has to be decreed, though may not be on its entirety and also may not be in the same form.
16. Therefore, considering the facts and circumstances of the case and also the law laid down by the Division Bench of this Court in the aforesaid decisions, it is just and proper on the part of this Court to mould the prayer sought for by the appellant and grant him the relief of partition.
17. For the reasons the appeal is allowed. The judgment and decree passed by the Civil Judge (Sr.Dn.) Shahapur in R.A. No. 16/2002 is hereby set aside. The appellant is entitled to partition and separate possession of 1/3 share in all the three items of the properties owned by his father i.e., land in sy. No. 571/1 and sy. No. 290/1 measuring 9 acre 39 guntas and 3 acres 18 guntas respectively of Doornahalli village and also in house property No. 7-119 of the same village. There shall be a preliminary decree for partition and separate possession of the appellant’s/plaintiff’s 1/3 share in the suit schedule lands. As far as the house property is concerned, there shall be a partition through court commissioner. There shall be an enquiry into the mesne profits. The appellant is liable to pay deficit court fee before drawing preliminary decree.
18. In view of the relationship between the parties no order as to costs.