w w w . L a w y e r S e r v i c e s . i n

Shivappadevaru, Since deceased by LRs, & Others v/s Shivarudramma & Others

    RSA No. 873 of 2017

    Decided On, 17 January 2018

    At, High Court of Karnataka


    For the Appellants: M.B. Rajashekar, Advocate. For the Respondents: -----------

Judgment Text

(Prayer: RSA filed under Sec.100 of CPC., against the judgment and decree dated 19.09.2016 passed in RA.No.23/2013 on the file of the Senior Civil Judge and JMFC Kollegala dismissing the appeal and confirming the judgment and decree dated 04.01.2012 passed in OS.No.315/1992 on the file of the Additional Civil Judge and JMFC, Kollegala.)

1. Though there is a delay of 97 days in filing this appeal. I have nevertheless heard learned counsel for the appellants on merits of the case in order to ascertain as to whether any substantial question of law would arise in this appeal.

2. The appellants have filed this second appeal, being aggrieved by judgment and decree passed in RA No.23/2013 by the Senior Civil Judge and JMFC, Kollegala dated 19.09.2016 which, dismissal of the suit in O.S.No.315/1992 by the Additional Civil Judge and JMFC, Kollegala by the judgment and decree dated 04.01.2012, has been confirmed.

3. For the sake of convenience, parties herein shall be referred to, in terms of their status before the Trial Court.

4. The original plaintiff, whose legal representatives are the appellants herein, had filed the suit seeking the relief of declaration that he is the owner in possession of suit schedule properties and for the relief of permanent injunction against the defendants. According to the plaintiff, he is the owner in possession of suits schedule properties consisting of two parcels of land measuring 3.73 acres and 4.56 acres, in survey Nos.179 and 181 respectively in Hoogyam Village, Kollegala Taluk. According to the plaintiff, he and his ancestors were in possession of the plaint schedule properties. The defendants (Original defendant Shivarudramma, since deceased, represented by legal representatives) has no right, title or interest over the said properties; that the defendant with a malafide and fraudulent motive approached the Thasildar of Kollegala for change of Khatha of the suit properties in her name by contending that she is the absolute owner of said suit schedule property. She colluded with the revenue authorities for getting her name entered in the revenue records. Plaintiff was unable to resist her illegal acts, that is, she had changed name, title and interest of the properties in the revenue records and thus, he filed the suit seeking the aforesaid relief.

5. In response to the suit summons, the defendant appeared through her counsel and filed her written statement stating that her husband late Shivalankaradevaru had three elder brothers namely, Veerabadrappa, Mallappa and Mallikarjuna Swamy. Except Mallappa who is the father of original plaintiff, the other three brothers including the husband of the defendant died issueless. Defendant’s husband Shivalankaradevaru, during his life time, had acquired the first item of the suit schedule property and he was in exclusive possession and enjoyment of the same in his own right as an absolute owner thereof till his death and the Thasildar has issued patta in respect of ‘A’ schedule property on 29.05.1939. That ‘B’ schedule property belonged to Smt. Mallamma, W/o Mallikarjunaswamy who died issueless, both these lands devolved on defendant’s husband and plaintiff who were the only heirs living at the time of death of Mallamma. Subsequently, it was partitioned between them orally and in that partition survey No.180 was allotted to the share of the plaintiff and survey No.181 was allotted to defendant’s husband share. Since then they have been in exclusive possession and enjoyment of their respective properties.

6. Defendant further averred that on 01.11.1947, Shivalankaradevaru has bequeathed his two lands, namely, survey Nos.179 and 181, his house and movable properties in favour of defendant-his-wife by executing a registered Will. Thereafter, he died leaving behind the defendant as his only heir and successor to the aforesaid estate; that defendant became the absolute owner in respect of two schedule properties. The defendant had no children, therefore, she executed registered settlement deed on 19.07.1964 in favour of her close relatives Smt. Sharadamma and Sundrappa settling the first item of the suit schedule property i.e. survey No.179 and on the same day, she executed another registered settlement deed in favour of Smt. Kamalamma who is another close relative conveying the second item but reserving her right to be in possession and enjoyment of both these lands for her maintenance till her death; that on 04.11.1992, the defendant along with Sharadamma and Sundrappa has sold some portion of land in 1st item to one Jadegowda and his brothers and also delivered possession to them.

7. Defendant has not filed any application be3fore Thasildar but plaintiff has filed application for change of khata in the suit schedule property in his name on 12.06.1990 in R.R.P.R.No.26/90-91 and false allegations have been made by the plaintiff against the defendant. Plaintiff got his name entered in RTC in collusion with the Revenue Inspector and village accountant; that the plaintiff attempted to oust the defendant from the suit schedule property. Hence, she prayed for dismissal of the suit.

8. The second defendant purchaser-Jadegowda filed his written statement and contended that the defendants are the absolute owners in possession of suit schedule property having acquired the same by way of registered sale deed dated 04.11.1992. Hence, they sought for dismissal of the suit.

9. Defendant Nos.3 and 4 are the brothers of defendant No.2-Jadegowda.

10. On the basis of rival pleadings the trial Court framed as many as eleven issues which are extracted as below;

'1. Does plaintiff prove that he is the owner of suit schedule properties and that he has acquired title over suit schedule properties from his ancestors?

2. Does plaintiff prove, in alternative, that he has perfected title to suit schedule property by adverse possession?

3. Does plaintiff prove that he was in possession of suit schedule property as on the date of suit?

4. Whether the plaintiff is entitled to relief of declaration that he is the owner in possession of suit schedule properties?

5. Whether there is cause of action for the suit?

6. Whether the plaintiff is entitled for the relief of perpetual injunction against defendant in respect of suit properties as sought for?

7. Whether the suit is bad for non-joinder of parties namely the vendees in respect of a portion of 1st item of suit property?

8. Whether the defendant prove that her husband late Shivalingadevaru acquired the 1st item of suit schedule property and he was in possession thereof till his death?

9. Whether the defendant proves that 2nd item of suit schedule property developed on her husband late Shivalingadevaru on the death of Smt. Mallamma, issueless and in partition between defendant’s husband and plaintiff?

10. Whether the defendant proved that her husband bequeathed suit schedule properties in her favour under Will dated 01.11.1947?

11. To what reliefs, the plaintiff is entitled to?'

11. In support of his case, plaintiff examined six witnesses as PW1 to PW6 and produced eight documents which were marked as Exs.P1 to P8. The defendant examined four witnesses as DW1 to DW4 and produced nine documents, which were marked as Exs.D1 to D9. On the basis of the said evidence, the Trial Court answered issue Nos.1 to 4, 6, 7 and 10 in the negative. Issue NO.5, 8 and 9 were answered in the affirmative. By judgment dated 04.01.2013, the Trial Court dismissed the suit.

12. Being aggrieved by the dismissal of the suit, the plaintiff preferred RA.No.23/2013 before the first appellate Court. After hearing the respective parties Appellate Court framed the following points for its consideration:

'1. Whether the judgment and decree under appeal is contrary to law and evidence on record and deserved to be set-aside and matter need to be remanded back to the Court below?

2. Whether there are may grounds for this Court to interfere with the judgment ad decree passed by the Court below under appeal?

3. What order?’

13. The first appellate Court answered point Nos.1 and 2 in negative and dismissed the appeal by confirming the judgment and decree passed by the trial Court. Aggrieved by the concurrent finding arrived at by the Courts below and dismissal of the suit, the plaintiff has preferred the second appeal.

14. I have heard the learned counsel for the appellants-plaintiffs and perused the material on record.

15. Appellants counsel drew my attention to the genealogy as delineated in para-8 of memorandum of appeal and submitted that one Channamallappa was the original propositus of the family and he had four sons, namely Veerabadrappa, Chanamalladevaru @ Mallikarjuna Swamy, Mallappa and Shivalankaradevaru @ Shivalingadevaru; that the original plaintiff Shivappadevaru was the son of Mallappa. He had three other brothers who died issueless; that the original defendant Shivarudramma is the widow of Shivalankaradevaru @ Shivalingadevaru; that even she died issueless. In the circumstances, the original plaintiff, now represented by his legal representatives, are the only persons who are entitled to succeed to the suit properties as there is no other heir to succeed to the said properties. 16. Learned counsel contended that the original plaintiff being the only son and his three uncles having died issueless, he was entitled to succeed to the joint family properties particularly the suit schedule properties i.e. survey No.179 and survey No.181; that the original plaintiff sought to enter her name in the revenue records and started interfering with the suit properties. Therefore, original plaintiff was constrained to file the suit.

17. Learned counsel for the appellants further submitted that the Courts below have not appreciated the aforesaid aspects of the case and have erroneously dismissed the suit. He submitted that substantial questions of law would arise in this appeal and therefore, the appeal may be admitted for a detailed hearing after condoning the delay in filing the appeal.

18. Having heard learned counsel for the appellants, I find that detailed narration of facts and contentions would not call for a reiteration except to highlight the fact that the original plaintiff sought for the relief of declaration of title and permanent injunction against the original defendant who was none other than his aunt. It may be that his three uncles and aunt died issueless and therefore, he could claim in law that he would succeed to the said properties entirely but there are two aspects of the case that require consideration. The first aspect is with regard to survey No.179 which is proved to be a separate property of the husband of the first defendant which was purchased by him in his name and that patta was also issued in respect of said properties as far back as during 1939 in his name. Therefore, Courts below held that ‘A’ schedule property bearing survey No.179 being separate property of the husband of the original defendant, on his demise, his wife succeeded to the said property as his widow and it became her absolute estate. Therefore, the original plaintiff could not have sought for a declaration of title and permanent injunction with regard to suit ‘A’ schedule property. 16. As far as the second item of suit schedule property survey No.181 is concerned, it is the case of the defendant that there were two items of joint family properties i.e. survey Nos.180 and 181 which devolved on the original plaintiff and the original defendant on death of Mallamma, wife of Channamalladevaru @ Mallikarjuna Swamy who died issueless and aforesaid two persons being legal heirs succeeded to the two items. It is the case of the original defendant that the suit items were partitioned between original plaintiff and original defendant and survey No.180 was allotted to the share of original plaintiff and survey No.181 which is now the suit ‘B’ schedule property was allotted to the husband of the original defendant. In fact, the plaintiff does not refer to survey No.180 at all in the course of pleading or evidence. As far as survey No.181 which is ‘B’ schedule property is concerned, the courts below have concurrently held that on death of Chennamallappa, the said survey number was allotted to original defendant’s husband and it became his separate property. On his death, his wife succeeded to the said property as the absolute owner.

20. Of course, the defendants have pleaded that the husband of the original defendant had made a Will and the same was registered two years prior to his death; that under said testament, the original defendant became the original and absolute owner of suit schedule property. Even if it is held that the defendants have not proved the said registered Will, in accordance with law, the fact remains that the original defendants as class-1 heir to her husband succeeded to the second item of the suit property also along with item No.1. Therefore, testament if any said to have been made by the husband of the original defendant pales into insignificance. Once the original defendant succeeded to the properties, she had every right to settle the properties in the names of persons she favoured either by wa

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y of registered Settlement Deed or in any other manner known to her. 21. The defendants have relied upon Ex.D4 and D5 which are registered Settlement Deeds, on the basis of which the first item of the suit schedule property was settled on Sharadamma and Sundrappa and the second item was settled on Kamalamma who are stated to be close relatives of the original defendants. Having been the beneficiaries of the registered settlement deeds, they have become absolute owners of the suit items. Therefore, they were entitled to deal with the suit items as absolute owners including alienating the suit properties. It is only on 04.11.1992 that Sharadamma and Sundrappa, along with original defendant, sold some portion of land in item No.1 to defendant Nos.2 to 4 and delivered possession; that the suit was filed by the original plaintiff. 22. The Courts below after considering the evidence on record, in light of the pleadings have concurrently held that the original plaintiff was not entitled to seek a decree for declaration of title as he did not have any right, title or interest in the suit schedule property. Consequently, the said relief was also declined; both Courts resultantly dismissed the suit.23. I do not find any infirmity in the pleadings of the Courts below. In my opinion, no substantial question of law would arise in this second appeal. Hence, the second appeal is dismissed. In view of dismissal of the appeal, IA.Nos.1/2017 and 2/2017 also stand dismissed.

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