Karnataka High Court
Veerabhadrappa And Anr. vs Smt. Gangamma And Anr. on 9 April, 2003
Equivalent citations: AIR2003KANT348, 2004(3)KARLJ13, AIR 2003 KARNATAKA 348, 2003 AIR - KANT. H. C. R. 1666, (2004) 3 KANT LJ 13, (2003) 3 KCCR 1672
JUDGMENT Rajendra Prasad, J.
1. Both these Regular First Appeals arise out of the common judgment. The parties and the subject-matter involved in both the appeals are common. Common arguments have been advanced by both sides. Hence, common judgment.
2. We have heard the arguments of both sides. In view of the grounds urged in the Memorandum of Appeals, the following points would arise for consideration :
(i) Whether the judgment and decree of the trial Court impugned under these appeals is legal and valid ?
(ii) Whether there is any need for this Court to interfere with the judgment of the trial Court ?
(iii) What judgment or decree ?
3. The parties, in the course of this judgment, are referred with respect to their ranking in the trial Court, for the purpose of convenience.
4. Smt. Nalini Venkatesh, learned counsel for plaintiffs, strenuously contended that the material on record clearly goes to show that the judgment and decree of the trial Court impugned in R. F. A. No. 435/1991 is illegal and invalid so far as it relates to negativing the claim of the second plaintiff. The material on record clearly shows that the second plaintiff has successfully proved her title and possession in respect of 'B' schedule properties. The learned Civil Judge, on appreciation of the evidence on record, had arrived at a conclusion that the second plaintiff had succeeded to the estate of deceased Smt. Shivalingamma and in spite of the same, the learned Judge had erred in holding that the second plaintiff is not entitled for the reliefs only on a technical point that the second plaintiff had not amended the plaint after being transposed in the original suit. She also contended that the material on record clearly shows that Smt. Shivalingamma, on whom 'B' schedule properties had been settled under a registered partition deed dated 31-12-1966, had died in the year 1974, leaving behind the second plaintiff as her only legal heir and the second plaintiff has been in possession and enjoyment of the 'B' schedule properties, exercising her proprietary and possessory rights in respect of the said properties as absolute owner. She also contended that on the material on record, the learned Civil Judge ought to have, decreed the suit of the plaintiffs even in respect of 'B' schedule properties in favour of the second plaintiff. The approach of the learned Civil Judge in this regard has been totally erroneous. Hence, the learned counsel prayed for allowing R.F.A. No. 435/1991.
The learned counsel further contended that the judgment of the trial Court impugned under the appeal so far as it relates to decreeing the suit of the plaintiffs so far as 'A' schedule properties is concerned is legal and valid. The material on record clearly shows that the first plaintiff, as legally wedded wife of Gavisiddappa, had succeeded to the estate of her husband and 'A' schedule properties had been settled in favour of first plaintiff under the registered partition deed dated 31-12-1966. She also contended that in pursuance of the partition deed, the first plaintiff has been in physical possession and enjoyment of the suit 'A' schedule properties. The defendant, an erstwhile member of the joint family, who has nothing to do with "A' schedule properties, had been casting clouds on the title of the first plaintiff in respect of the said properties and as such the first plaintiff had filed the suit for declaration of her title in respect of 'A' schedule properties and also for the relief of permanent injunction in respect of the said properties and also for possession of item No. 5 of 'A' schedule. The learned Civil Judge, after proper appreciation of the evidence on record, had arrived at the right conclusion. The material on record also shows that the claim of the defendant in this regard had been totally based on the plea of adverse possession and he had utterly failed to prove the said plea and consequently, the learned Civil Judge had turned down the claim of the defendant. The judgment of the trial Court in this regard is based on good reasoning and there is no need for this Court to interfere with the judgment of the trial Court in this behalf. Hence, the learned counsel prayed for dismissal of R. F. A. No. 372/1991.
5. On the contrary, Sri Jayakumar S. Patil, learned counsel for defendant, strenuously contended that the material on record clearly shows that the judgment of the trial Court in decreeing the suit of the plaintiffs in respect of 'A' schedule properties is illegal and invalid. The material on record clearly shows that the plaintiffs are not at all residing at Thippagondanahalli and have been residing at a far of place at Bhadravathi for three or four decades. The learned counsel for (sic) contended that though there had been a partition deed on 31-12-1966 between the defendant, first plaintiff, Shivalingamma and Neelamma, the defendant had been in physical possession and enjoyment of the same as a male heir. The material on record also goes to show that the defendant has been in continuous possession of the suit properties hostile to the interests of the plaintiff's and has perfected his title by adverse possession. The learned Civil Judge had not at all appreciated the facts in issue in the right perspective and had arrived at a wrong conclusion in negativing the claim of the defendant in respect of 'A' schedule properties and the same has resulted in miscarriage of Justice. Hence, the learned counsel prayed for allowing R.F.A. No. 372/1991.
The learned counsel for defendant also strenuously contended that the material on record clearly shows that the Judgment of the trial Court is legal and valid so far as it relates to negativing the claim of the second plaintiff in respect of 'B' schedule properties. The material on record clearly goes to show that the plaint was not amended after the second defendant got herself transposed as second plaintiff in the suit. In other words, there was absolutely no plea which could form the basis of the claim of the second plaintiff in this regard. In the absence of specific pleas being raised, the learned Civil Judge was totally justified in turning down the claim of the second plaintiff in this behalf. The approach of the learned Civil Judge has been well founded and the same does not call for any interference by this Court. Hence, the learned counsel prayed for dismissal of R.F.A. No. 435/1991.
6. We have carefully gone through the material on record and have also given our anxious thoughts over the rival contentions raised at the Bar.
7. Before proceeding further, it is felt necessary to mention the genealogy of the family of the parties at issue for better appreciation of the facts.
One Channabasappa is stated to be the propositus of the families of the parties at issue. He had two sons -- Basappa Gowda and Maralappa Gowda. Basappa Gowda had two sons -- Siddalingappa and Channabasappa, who died in the years 1949 and 1938 respectively. Said Siddalingappa had a wife by name Smt. Neelamma, who died in the year 1980 without issues. Said Channabasappa had a wife by name Gowramma, who died in the year 1984. They had a son by name Veerabhadrappa, who is the defendant in the suit. Now, coming to the branch of Maralappa Gowda, he had two sons -- Shankarappa Gowda and Gurusiddappa. Shankarappa Gowda died in the year 1943, leaving behind him his wife Smt. Shivalingamma, who died in 1974. Said Gurusiddappa died in the year 1949, leaving behind him first plaintiff Smt. Gangamma, his wife, and second plaintiff Smt. Parvathamma, his daughter.
8. The case of the parties at issue in brief runs as follows :
The plaintiffs contend that the suit 'A' and 'B' schedule properties had been settled by means of a registered partition deed on 31-12-1966 amongst the members of the joint family consisting of the defendant. Smt. Neelamma, Smt. Shivalingamma and first plaintiff. 'A' schedule properties fell to the share of Smt. Gangamma, whereas 'B' schedule properties fell to the share of Smt. Shivalingamma. After partition, respective parties had been put in possession of the respective properties and first plaintiff started managing 'A' schedule properties and after the death of Smt. Shivalingamma, the first plaintiff succeeded to the estate of Smt. Shivalingamma and as such the first plaintiff continues to be in possession and enjoyment of both 'A' and 'B' schedule properties. The house which fell to the share of Smt. Shivalingamma i.e. Item No. 5 of 'A' schedule, has fallen down and is incapable of being occupied. The defendant, who has absolutely no right, title or interest in the suit properties, has been casting clouds on the title of the first plaintiff and he is attempting to interfere with the possession of 'A' and 'B' schedule properties excepting Item No. 5 of 'A' schedule, which had been forcibly occupied by the defendant during July 1985. Hence, suit had been filed for the relief of declaration that the first plaintiff is the absolute owner of plaint 'A' and 'B' schedule properties, and also for permanent injunction in respect of the said properties, excepting Item No. 5 of 'A' schedule, for possession of Item No. 5 of 'A' schedule, and also for such other reliefs the Court deems fit.
9. The defendant had resisted the suit by denying the material averments therein. The relationship between the parties as stated by the plaintiffs is admitted. It is also admitted that there had been a partition of the family properties and a registered partition deed came into existence on 31-12-1966. But, it is contended that the said partition deed remained only on paper and the same had not been given effect to at all. The defendant, as the only surviving coparcener in the family, continues to be in possession and enjoyment of the suit properties as absolute owner, hostile to the interests of the plaintiffs and thereby he has perfected his title in respect of the suit properties by adverse possession. It is also contended that the first plaintiff is aged more than 80 years and she is incapable of managing the properties and the second plaintiff had got married to P.W. 2 Mahadevappa and thereafter she started living with her husband at Harohalli and later, both the plaintiffs started living at Bhadravathi. The plaintiffs have never exercised proprietary or possessory rights in respect of the suit schedule properties at any time and on the contrary, they have abandoned their claim in this regard. The second plaintiff Smt. Parvathamma, who was initially arrayed as the second defendant, had also filed a written statement, almost conceding the claim of the first plaintiff, had contended that subsequent to the death of Smt. Shivalingamma, her mother and herself succeeded to the 'B' schedule properties and they have been enjoying the same as absolute owners. It was also prayed by the second defendant that she is also entitled for the relief of declaration in respect of 'B' schedule properties along with the first plaintiff.
10. The suit had become contentious and after framing of the issues, the parties went into trial. The power of attorney holder of the first plaintiff got himself examined as P.W. 1 and relied upon the oral evidence of P.Ws. 2 and 3 and Exs. P-1 to P-32. On the contrary, the defendants got themselves examined as D.Ws. 2 and 1 respectively and defendant-1 in particular relied upon the oral evidence of D.Ws. 3 to 5 and Exs. D-1 to D-31. When the matter was posted for arguments, the second defendant Smt. Parvathamma came to be transposed as the second plaintiff. After hearing both sides, the learned Civil Judge decreed the suit of the first plaintiff so far as 'A' schedule properties are concerned and turned down the claim of the plaintiffs in respect of 'B' schedule properties. Feeling aggrieved by the said judgment, defendant No. 1 Veerabhadrappa has come up with R.F.A. No. 372/1991 and the second plaintiff has come up with R.F.A. No. 435/1991.
11. In view of the statutory provisions and the settled law in this regard, we have to re-appreciate the evidence on record to see whether the Judgment of the trial Court is legal and valid.
12. In the first instance, we feel it necessary to take up R.F.A. No. 372/1991. At the cost of repetition, it should be mentioned that the defendant has resisted the claim of the plaintiffs mainly on the plea of adverse possession. As per his say, in spite of registered partition deed, he continued to be in peaceful possession and enjoyment of the suit properties continuously and openly, enjoying the same hostile to the interests of the rightful owners and has perfected his title by adverse possession. It is also contended that the registered partition deed had remained merely on paper. In other words, the parties had not acted upon the same. From the material on record, it is seen that the name of the first plaintiff came to be shown as kathedar in possession of 'A' schedule properties and the name of Smt. Shivalingamma as kathedar in possession of 'B' schedule properties, in pursuance of the said partition deed. Though oral evidence has been let in support of the plea raised by the defendant in this behalf, in view of the unequivocal entries in the revenue records, it would not be difficult to hold that the parties to the partition deed had acted upon the said document and the contention of the defendant in this behalf is of no consequence. In view of the overwhelming evidence in the form of documentary evidence placed on record by the plaintiffs, the oral evidence by the defendant and his witnesses in this behalf is also of no consequence.
13. Now. coming to the plea of defendant regarding adverse possession, it is necessary to mention that the Apex Court in a decision reported in AIR 1957 SC 314, has held that the ordinary classical requirement of adverse possession is that it should be nee vi nee clam nee precario. The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. It is also felt necessary to mention another decision of the Apex Court , wherein the Apex Court has held as under (Para 12) :
"Adverse possession means a hostile assertion i.e. a possession which is expressly or impliedly in denial of title of the true owner. Under Article 65, burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. Where possession could be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another, does not by mere denial of that other's title make his ' possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all."
Bearing the said cardinal principles of law in mind, on perusal of the material on record, it is seen that the first plaintiff got her name entered as kathedar and also in possession of 'A' schedule properties in pursuance of the partition deed right from the years 1969-70 till filing of the suit. In the same manner, the name of Smt. Shivalingamma came to be entered as of the first plaintiff, in respect of 'B' schedule properties, in pursuance of the partition deed. In other words, the names of first plaintiff and Smt. Shivalingamma appeared continuously in the revenue records. Suit 'A' and 'B' schedule properties consists of agricultural lands excepting item No. 5 of 'A' schedule and it is needless to say that the best documents to prove possession of an agricultural land would be revenue records. These documents do not make a mention of the name of the defendant as a person in possession of the said lands. The defendant has also placed on record two receipt pattas as Exs. D-1 and D-2 to show that receipt patta had been issued in his name. In this regard, it is necessary to mention that the Apex Court, in the second mentioned decision, has held that even if mutation had been effected in respect of Joint family properties, the same is not sufficient to prove adverse possession. Such being the case, Exs. D-1 and D-2 are also of no legal consequence. In addition, it is also pertinent to mention that the defendant has placed on record a number of tax paid receipts and electric bills. These documents would go to show that the defendant had paid kandya in respect of the agricultural lands on the account of first plaintiff and Smt. Shivalingamma. At any rate, they do not evidence his possession. An uncontroverted submission was made at the Bar by the learned counsel for plaintiffs to the effect that when electricity meter was got installed, the name of the defendant was mentioned as a male person of the family. The documentary evidence in this behalf is also not of any consequence. On the contrary, the documentary evidence placed on record by the plaintiffs is clear, cogent and convincing and the same is sufficient to disprove the case putforth by the defendant. Having regard to the nature of the properties involved in the suit, the oral evidence placed on record will not be of much assistance as the Courts of law are required to proceed by best available documentary evidence on record. Having regard to the nature and quality of evidence placed on record by the defendant, in our opinion, the defendant had utterly failed to prove the plea of adverse possession. The learned Civil Judge had rightly appreciated the evidence on record and had arrived at the right conclusion. In spite of spending our anxious moments and in spite of total re-appreciation of the facts in issue, we are of the considered opinion that the finding recorded by the trial Court in this behalf is totally Justifiable in law, and we do not find any necessity to interfere with the finding of the trial Court and hence we hold that R.F.A. No. 372/1991 is devoid of merit and is liable to be dismissed.
14. Now, coming to R.F.A. No. 435/1991, it has to be mentioned that there is absolutely no dispute with regard to the relationship between the parties at issue. It is also not disputed that 'B' schedule properties had fallen to the share of Smt. Shivalingamma, wife of Shankarappa, and she died in the year 1974. Though the defendant contends that the partition deed merely remained on paper and none of the parties had acted upon the same, the discussion supra and the documentary and oral evidence placed on record clearly show the contrary. The trial Court, while considering the claim of the plaintiffs with regard to 'B' schedule properties, has made a thorough and detailed exercise with regard to the legal aspects and also with regard to whether the plaintiffs had succeeded to the estate of Smt. Shivalingamma and ultimately held that the second plaintiff alone had succeeded to the estate of Smt. Shivalingamma. But, the trial Court had turned down the claim of the second plaintiff only on the ground that the plaint had not been amended subsequent to transposition of second defendant as second plaintiff. It is-pertinent to mention that the learned counsel for respondent in this appeal had not whispered anything to the contrary with regard to the legal position in this behalf. In view of the admitted relationship between the parties and in view of the settled principles of law. there is absolute no difficulty in concurring with the finding of the trial Court that the second plaintiff alone had succeeded to the estate of deceased Shivalingamma.
15. At this stage, it is also necessary, to mention that when a defendant gets transposed as one of the plaintiffs, me written statement filed by such defendant gets transposed and would form part of the plaint. The necessity of amendment of a plaint at that stage is only for convenience-sake. In other words, the original plaint and the written statement of the defendant No. 2 who had got transposed as a plaintiff will have to be read together. In other words, such a written statement would partake the nature of plaint and the Courts of law administering justice in an adversary system of administration of justice cannot afford to take any other view and should read the said written statement as a plaint. At this stage, it is necessary to refer to a decision of the apex Court, relied upon by the learned counsel for plaintiffs, reported in AIR 1987 1242, wherein the Supreme Court has held that the object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial, it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction, no pedantic approach should be adopted to defeat justice on hair splitting technicalities. The Supreme Court has further held that it is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleadings is raised the enquiry should not be so much about the form of pleadings, instead the COURT must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal. On careful perusal of the said written statement, there has been a specific mention that the second plaintiff and her mother first plaintiff succeeded to the estate of deceased Smt. Shivalingamma and in fact, there had been a specific prayer for joint declaration of title in respect of 'B' schedule properties in favour of both the plaintiffs. In view of the discussion supra and the legal position in this regard, in the opinion of this Court, there is absolutely no legal hurdle in upholding the claim of the second plaintiff in this behalf. P.W. 1, P.W. 3, and D.W. 1 have unequivocally deposed with regard to the possession of the suit 'B' schedule properties by the plaintiffs. On the contrary, the contra evidence placed on record, in our opinion, is not sufficient to cast thick clouds over the overwhelming evidence placed by the plaintiffs on record. Taking into consideration the legal aspects and in view of the admitted relationship between the parties, it is clear that the second plaintiff alone is entitled to the 'B' schedule properties and appropriate reliefs will have to be granted to her to meet the ends of justice, particularly in view of the fact that the second plaintiff had sought for joint declaration and the Court is conferring title only on the second plaintiff in respect of 'B' schedule properties, 'B' schedule properties consist of four agricultural lands, a house, a cattle shed and a vacant site. In view of the nature and quality of evidence placed on record, we are of the considered opinion that the second plaintiff has to be declared as the owner of 'B' schedule properties and consequential permanent injunction will have to be granted in her favour. The trial Court, though had arrived at a right conclusion in holding that the second plaintiff had succeeded to the estate of Smt. Shivalingamma, had erred in turning down her claim merely on technicalities. The approach of the learned Civil Judge in this behalf, in our opinion, is erroneous and consequently, we are constrained to hold that the judgment and decree of the trial Court in this behalf is illegal and invalid and the same will have to be set at naught by this Court.
16. For the foregoing reasons, R.F.A. No. 372/1991 is dismissed and R.F.A. No. 435/1991 is allowed. Consequently, the suit of the plaintiffs stands decreed as prayed in toto.
Parties to bear their own costs.