Karnataka High Court
Sri Guruswamy vs Sri Nagamallappa on 18 August, 2021
Author: H.P.Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF AUGUST, 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.F.A.NO.1115/2005 (DEC)
BETWEEN:
1. SRI GURUSWAMY
AGED ABOUT 43 YEARS
S/O.BASAPPA
2. SMT.GURUSHANTHAMMA
AGED ABOUT 35 YEARS
W/O.GURUSWAMY
BOTH ARE RESIDING AT
KODAGAPURA VILLAGE
SHIGAVADI DHAKLE
BEGUR HOBLI, GUNDLUPET TALUK
CHAMARAJANAGAR DISTRICT. ... APPELLANTS
[BY SRI T.N.RAGHUPATHY, ADVOCATE (THROUGH VC)]
AND:
1. SRI NAGAMALLAPPA
AGED ABOUT 63 YEARS
S/O.DODDABELLAPPA
2. SRI CHANNABASAPPA
AGED ABOUT 58 YEARS
S/O.DODDABELLAPPA
3. SMT.THAYAMMA
AGED ABOUT 48 YEARS
D/O DODDABELLAPPA
2
4. SMT.NEELAMMA
AGED ABOUT 46 YEARS
W/O. SUBBANNA
5. SRI CHANNABASAVADEVARU
AGED ABOUT 30 YEARS
S/O.SUBBANNA
6. SMT. NEELAMMA
AGED ABOUT 28 YEARS
D/O.SUBBANNA
7. SRI SHEKARAPPA
AGED ABOUT 25 YEARS
S/O.SUBBANNA
ALL ARE RESIDING AT
KABBAHALLI, BEGUR HOBLI
GUNDLUPET TALUK
CHAMARAJANAGAR DISTRICT-571 313.
... RESPONDENTS
[BY SRI R.C.NAGARAJ, ADVOCATE FOR R1 TO R7]
THIS R.F.A. IS FILED UNDER ORDER 96 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 04.04.2005 PASSED IN
O.S.NO.231/2002 ON THE FILE OF THE CIVIL JUDGE, (SR. DN.)
AND CJM, CHAMARAJANAGAR, DECREEING THE SUIT FOR
DECLARATION AND POSSESSION.
THIS R.F.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 03.08.2021 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
This appeal is filed challenging the judgment and decree passed in O.S No.231/2002 dated 04.04.2005, on the file of Civil Judge (Senior Division) & C.J.M., Chamarajanagar. 3
2. The factual matrix of the case is that the plaintiffs' in the suit in paragraph No.4 have given the genealogical tree stating that, one Lingappa is the propositus of the family. He is having one son and two daughters, son Subbappa had married two wives, he was not having any issues. The other two daughters are survivors of said Lingappa. The 1st daughter Subbamma is having a son by name Kadappa @ Basappa. The other daughter Bellamma is having two daughters namely, Doddasubbamma and Chikkabasamma. The said Doddasubbamma is having four sons and a daughter i.e., Nagamallappa, Basappa @ Chinnappa, Channabasappa, Subbanna and Tayamma. The first son Nagamallappa, second son Channabasappa and daughter Smt.Tayamma are the plaintiffs No.1 to 3. The other son Subbanna died leaving behind his wife Neelamma, who is defendant No.4 and son Channabasavadevaru as plaintiff No.5, daughter Neelamma as plaintiff No.6, Shekarappa as plaintiff No.7. It is the claim of plaintiffs that, Bellamma, daughter of Lingappa was not having male issues but, she was having sakumaga (foster-son) Basappa 4 and said Basappa also passed away living behind his son and wife and they are defendant Nos.1 and 2.
3. It is the claim of plaintiffs' that after the death of Lingappa and his son Subbappa who died issueless, Smt.Subbamma and Bellamma, who are the daughters of Lingamma were succeeded as owners to the suit schedule property and other properties and they were in possession over the same. It is claimed that both of them executed registered settlement deed dated 15.02.1951 in which, 'A' schedule property had fallen to the share of Kadappa @ Basappa, who is the son of Subbamma. 'B' schedule property had fallen to the share of Basappa, who is the foster-son of Bellamma. 'C' schedule property had fallen to the share of Basappa @ Chinnappa i.e., grandson of Smt.Bellamma. It is the case of plaintiffs that sharers were put into separate possession and they were in possession of the said properties. It is also their case that son Basappa @ Chinnappa died without marrying and as per Hindu Law, his brothers and sisters were the legal representatives and succeeded to his estate including item Nos.1 to 4 of the suit schedule properties. Another brother Subbanna 5 also died and his legal representatives are plaintiff Nos.4 to 7, who are the brothers and sister and they became the owner of item Nos.1 to 4 of the suit schedule properties. It is their claim that, Basappa @ Chinnappa was in possession of item Nos.1 to 4 as owner, after his death, the plaintiffs have become owners and they are in possession over the same. The suit item No.5 also belongs to them having inherited the same from Doddasubbamma, the grand-mother of the plaintiff Nos.4 to 7. It is their case that they were residing at kodagapura, as the properties situated at Sheegavadi and Kodagapura village, taking advantage of the same, about eight years back, the defendants had illegally squatted over the suit schedule properties and when the same was demanded, the defendants postponed the same by putting forth all sorts of excuses and denied the possession. The plaintiffs, recently came to know that defendants have got Khatha changed into their names, which was illegal and the defendants are not the owners of the suit schedule properties and they are in illegal possession and they are bound to give possession of the properties to the plaintiffs.
6
4. In pursuance of the suit filed by the plaintiffs, the defendants have appeared and filed written statement admitting that the suit properties originally belong to late Lingappa, who died about 50 years back. He had a son by name Subbappa and two daughters namely, Subbamma and Bellamma @ Channabasamma. It is their claim that the said Subbamma had a son and Smt.Bellamma had two daughters and one sakumaga. The said Subbamma was looking after her son, who was born to her. The genealogy furnished by the plaintiffs is not correct. The defendants have produced separate genealogical tree and admits that plaintiffs are residing at Kabbahalli and the properties are situated at Sheegavadi and Kodagapura village. But it is contended that plaintiffs were never in possession of the suit schedule properties at any time and they have no right, title or interest over the same. It is their claim that Subbappa had three wives namely Basamma, Heggotarada Madamma and Kodagapura Madamma and he had no Issues from two wives but he got one son Basappa through third wife who is the foster-son of Bellamma i.e., father of the 1st defendant and third wife was alive at the time of filing the suit and subsequently passed away. 7 The said third wife has filed an affidavit before the Court at Gundlupet, in O.S No.83/96 stating that she gave birth to a son Basappa through Subbappa and he was given custody of Bellamma, since the Subbappa pre-deceased Lingappa.
5. It is the claim of the defendants' that suit schedule properties are ancestral properties and first defendant has succeeded to the estate of his father by law of inheritance. The settlement deed executed by Bellamma and Subbamma had no valid right, as they had no right to settle the properties of Lingappa. The first plaintiff had filed O.S No.83/96 against the defendants in respect of certain other properties of Lingappa, he has not included all the properties either in O.S No.83/96 or 73/96, and also plaintiffs have not impleaded the said Kodagapura Madamma as she is a necessary party to the suit. Hence, suit is bad for non-joinder of necessary parties and not maintainable and barred by law of Limitation. The plaintiffs are not in possession of the suit schedule properties for more than 13 years and they have not filed any suit for recovery of possession within 12 years of their dispossession. They lost their right even if they had share in the properties. The third 8 wife of Subbappa was very much alive. The suit cannot be adjudicated upon in her absence. The defendants are in lawful possession and enjoyment of the suit schedule properties for more than 12 years. It is also their contention that the suit is hit by Order II Rule 2 of CPC, based on these pleadings the Trial Court has framed the following issues:
"1. Whether the plaintiffs prove that Subbamma and Bellamma @ Channabasamma succeed to the suit schedule property?
2. Whether the plaintiffs prove that Subbamma and Bellamma settled the schedule property under Registered settlement deed on 15.2.1951?
3. Whether the plaintiffs prove that Basappa @ Chinnappa was in possession fo suit item No.1 to 4 and after his death, they became owners?
4. Whether the plaintiffs prove that they inherited suit item No.5 from Doddasubbamma?
5. Whether the 1st defendant proves that the schedule property are ancestral property of his father Basappa?
6. Whether the suit is fit by Order 2 Rule 2 CPC?
7. Whether the suit is barred by Limitation?
8. Whether the suit is bad for non-joinder of parties?9
9. Alternatively whether defendants have perfected their title by adverse possession?
10. Whether the plaintiffs are entitled to declaration of title?
11. Whether the plaintiffs are entitle to possession of schedule property?
12. To what relief?"
The Trial Court has also framed the following additional issue:
"1. Whether the defendants prove that Basappa was the son of Subbappa through Kodagapura Madamma?"
6. The plaintiffs in order to prove their case have examined two witnesses i.e., 1st plaintiff as P.W.1 and also one witness as P.W.2 and got marked the documents Ex's.P1 to 14 . On the other hand defendants have examined the 1st defendant as D.W.1 and other three witnesses as D.W.2 to 4 and they relied upon documents Ex.D.1 to D.36. The Trial Court after considering both oral and documentary evidence answered issues No.1 to 4 as affirmative and comes to the conclusion that plaintiffs have proved that Subbamma and Bellamma have succeeded to the suit schedule properties and both of them 10 executed a Registered Settlement Deed dated 15.02.1951. The plaintiffs have proved that Basappa @ Chinnappa was in possession of item Nos.1 to 4 and after his death they become owners and plaintiffs have inherited suit item No.5 from Doddasubbamma. The Trial Court negatives the contention of the defendants and answered issue Nos.6 to 9 as negative and comes to the conclusion that issue No.5 does not arise for consideration. The conclusion of the Trial Court is that the plaintiffs are entitled for declaration of title and they are also entitled for possession of the suit schedule property. Hence, the present appeal is filed by the defendants.
7. The main contention of the defendants before this Court that, the Trial Court seriously erred in holding that Subbamma and Bellamma had succeeded to the suit schedule properties. Admittedly, it is claimed that Basappa was the sakumaga of Bellamma. It is contended that this foster-son Basappa was none other than the son of Subbappa through his third wife Kodagapurada Madamma. The defendants have also led oral and documentary evidence to prove the same and by ignoring the material evidence and the documents, the Trial 11 Court has seriously erred in holding issues No.1 to 4 as affirmative. The finding of the Trial Court was perverse and capricious.
8. The reliance on the Settlement Deed which was itself in dispute and same was erroneous. In the first place, the settlement deed itself has not been proved according to law.
9. The Trial Court has seriously erred in holding issues Nos.2 to 4 in the affirmative. Admittedly, an earlier suit in O.S No.83/1996 had been filed by the first plaintiff herein and in that suit relief of injunction was sought against the defendants herein only in respect of certain properties. When this suit schedule property has not been included and the same is hit by provisions of Order II Rule 2 CPC and hence, the finding of the Trial Court in respect of the suit schedule property is erroneous.
10. The Trial Court also committed an error in answering issues No.7 to 9 as negative and in spite of the findings that they were not in possession of the suit schedule property erroneously passed an order to deliver the possession. The same is against 12 the evidence and they were not in possession for more than 12 years and ought not to have granted relief of possession.
11. It is also contended that suit is bad for non joinder of necessary party viz., for non-impleading of Kodagapurada Madamma, third wife of Subbappa. Ex.D-36 establishes that the said Madamma was the second wife of Subbappa and she was the mother of Basappa. Hence, the finding given by the Trial Court in all the issues is erroneous.
12. The learned counsel vehemently contend that in the written statement the defendants have claimed the adverse possession and erroneously observed that the defendants have also claimed the ownership.
13. Per contra, learned counsel appearing for the plaintiffs' would vehemently contend that daughter of original propositus-Lingappa i.e., Subbamma and Bellamma have executed a Settlement Deed on 15.02.1951 which is marked as Ex.P13. It is also contended that there was an earlier settlement deed of the year 1933 which is marked as Ex.P14. 13
14. The counsel would vehemently contend that he had only two wives and not three wives, Madamma is not third wife of Subbappa. It is not in dispute that Kadappa is son of Subbamma and Bellamma was having foster son i.e., Basappa. The counsel would vehemently contend that in the written statement they claimed that they were in adverse possession and also they claims ownership and the defence of the defendants is contradictory to their own stand. The counsel would vehemently contend that two documents of Settlement Deed dated 14.10.1933 and 15.02.1951 are registered documents and more than 30 years old documents and hence, the Trial Court rightly accepted those two documents. The Trial Court rightly comes to the conclusion that defendants have not proved Basappa is the son of Subbanna through third wife and in order to substantiate the same they have not placed any documentary proof. Hence, there are no grounds to interfere with the findings of the Trial Court.
15. In reply to the arguments of the plaintiffs' counsel, the Learned counsel for the defendants vehemently contend that Subbamma and Bellamma were not having any right to execute 14 the settlement deed in the year 1951 since already there was an arrangement made by the original owner Sri.Lingappa in 1933 itself. The learned counsel would submit that Madamma not arrayed in the suit and in the absence of arraying all the parties to the suit the Court cannot decide the issues involved between the parties. The suit is also filed for declaration of title and possession. The plaintiffs' have suppressed the earlier settlement deed of 1933, wherein specifically mentioned in the 1933 document that son Subbappa was having a daughter and the Basappa is the son of the said daughter.
16. Having heard the arguments of learned counsel appearing for the appellants and the learned counsel appearing for the respondents and the materials available on record, the points that would arise for consideration of this Court are:
(i) Whether the Trial Court has committed an error in accepting the document of settlement deed dated 15.02.1951?
(ii) Whether the Trial Court has committed an error in coming to the conclusion that Basappa @ Chinnappa was in possession of suit item Nos.1 to 4 and after his death the plaintiffs' become the owners?
(iii) Whether the Trial Court has committed an error in coming to the conclusion that plaintiffs' 15 have inherited suit item No.5 from Doddasubbamma?
(iv) Whether the Trial Court has committed an error in coming to the conclusion that 1st defendant failed to prove suit schedule properties are ancestral property of his father Basappa and committed an error in answering issue Nos.6 to 9 as negative?
(v) Whether the Trial Court has committed an error in passing the order that plaintiffs' are entitle to the relief of declaration of title and possession?
(vi) What order?
Point Nos.(i) to (v)
17. Having considered the respective submissions of the learned counsel for the appellants/defendants and also the learned counsel appearing for the respondents/plaintiffs, this Court has to re-appreciate the material available on record both on question of fact and question of law as the First Appellate Court.
18. The main contention of the appellants in this appeal is that the Trial Court has committed an error in coming to the conclusion that the defendants have not proved that Basappa is not the son of Subbappa and also committed an error in not 16 considering the defence of the defendants that suit is barred by limitation and hit by Order II, Rule 2 of C.P.C. The Trial Court also failed to consider the claim made by the defendants with regard to adverse possession over the suit schedule properties.
19. In keeping the contentions of the learned counsel for the appellants, this Court has to consider both oral and documentary evidence placed on record. It is the claim of the plaintiffs before the Trial Court that the suit schedule properties originally belong to one Lingappa. After his death, his two daughters have inherited the properties of Lingappa. It is also their claim that one Subbappa died issueless and though he married two wives, one joined Mutt and another became lunatic. The daughters of Lingappa i.e., Subbamma and Bellamma have executed settlement deed in the year 1951 and suit schedule properties belong to the plaintiffs.
20. Now, let this Court consider the evidence of the parties. P.W.1, the first plaintiff in his oral evidence reiterated the averments of plaint and also claims that one Basappa was the foster son of Bellamma, apart from the two daughters she was having. P.W.1 claims that he is the son of 17 Doddasubbamma. The second plaintiff is his brother and third plaintiff is his sister. He was having brother by name Subbanna and he is no more. The fourth plaintiff is the wife of said Subbanna and plaintiff Nos.5 to 7 are the sons of said Subbanna. The other brother Basappa @ Chinnappa is also no more and he passed away 20 years ago. It is the claim of the plaintiffs that the suit schedule properties originally belong to his grand- mother, Bellamma and she executed the settlement deed in favour of Basappa @ Chinnappa. The properties were in possession of said Basappa @ Chinnappa. After his death, the properties are in possession of the plaintiffs. But, the defendants took the possession about 8 years ago, taking the advantage of the fact that they are residing at Kabbahalli and not allowed the plaintiffs to enter the land and in spite of the demand, they did not handover possession and hence, the present suit is filed seeking the relief of declaration and possession.
21. The plaintiffs, in support of their claim, examined the first plaintiff as P.W.1 and examined a witness as P.W.2 and got marked the documents as Exs.P1 to P14. P.W.1 was subjected 18 to cross-examination. In the cross-examination, he admits that Bellamma and Subbamma have executed the settlement deed and he does not know the contents of the said document. He admits, he is having a house at Kabbahalli. It is suggested that, the first defendant's father name is Subbappa and the same was denied.
22. The plaintiff also examined one witness by name K.P. Mahadevappa as P.W.2 and he speaks with regard to the relationship between the parties and deposes that, from the past 7 to 8 years, first defendant is cultivating the land and prior to the same, the first plaintiff and his brothers were cultivating the land. It is also his evidence that the fifth item of the suit schedule properties is in possession of the first defendant. In the cross-examination, he admits that, P.W.1 is his relative and also he does not know to which property, they have filed the suit. It is suggested that, at no point of time, the first defendant has cultivated the land and the said suggestion was denied.
23. On the other hand, the defendants have examined four witnesses accused D.Ws.1 to 4. D.W.1 is the first defendant. In his evidence, he claims that suit schedule 19 properties originally belong to his grand-father, Lingappa and those properties are ancestral properties of said Lingappa. It is his claim that, he is the son of one Subbappa, who is the son of Lingappa through third wife and said Subbappa was not having issues from the first and second wife and hence, he married Kodagapurada Madamma and his father is born to said Madamma. His grand-father passed away, when his father was three years old and hence, he was staying along with his grand- mother and Lingappa. The daughter of Lingappa, Smt. Bellamma, after the death of her husband joined her father's house. He was subjected to cross-examination. In the cross-examination, he admits that Subbappa, son of Lingappa married two wives i.e., Basamma and Heggotarada Madamma. However, he admits that Heggotarada Madamma became lunatic. It is suggested that, Basamma joined Mutt and the said suggestion was denied. But, he admits that, thereafter, Subbappa did not contract any marriage. He also admits that Madamma is the wife of Subbappa and she was also called as Heggotarada Madamma. He also admits that Chinnappa and Madamma were having two sons i.e., Kadappa and Basappa. It is suggested that his father is the said Basappa and the said 20 suggestion was denied. However, he admits that his father is the son of Kodagapurada Madamma. He also admits that his father is the foster son of Bellamma. He also admits that D.W.2 is his relative. It is also his evidence that Bellamma passed away 17 years ago. He does not know whether Kodagapurada Madamma took divorce from Chinnappa or not.
24. D.W.2 is one of the witnesses. He gives contrary evidence to the evidence of D.W.1. He admits that second defendant is the daughter of his sister. In the cross-examination also, he admits that, till the death of Bellamma, suit schedule properties were in possession of said Bellamma and his evidence is contrary to the evidence of P.W.1.
25. D.W.3 is the another witness and he also gives evidence with regard to the relationship and cultivation of the land by the defendants. D.W.3 is the son of Chinnappa. He claims that when he was 8 years old, his mother married Subbappa and he claims that he is the only one son to his mother Madamma. The evidence of D.W.3 is contrary to evidence of D.W.1, who claims to be the son of Chinnappa and D.W.3, who is the son of Chinnappa claims he is the only son to 21 his father. also claims that first defendant is the foster son of Bellamma and Bellamma passed away 20 years ago.
26. D.W.4 is also a witness, who speaks with regard to the fact that Subbappa married two wives and he also deposes that Madamma earlier married Chinnappa and also claims that, through Madamma, Subbappa has got a son i.e., the first defendant, father of Basappa. He was subjected to cross- examination. In the cross-examination, he denies that father of the first defendant is the foster son of Bellamma. He also admits that he is aware of the suit schedule properties but, does not know the survey numbers, boundaries and also not seen the suit schedule properties. He also admits that he cannot state, who are cultivating the suit schedule properties. The evidence of D.W.4 is not helpful to the defendant No.1 regarding possession of suit schedule properties.
27. Having considering the oral evidence and also the documentary evidence available on record, it is clear that, originally, the properties belong to propositus Lingappa. It is also not in dispute that said Lingappa was having a son Subbappa and two daughters Subbamma and Bellamma. It is 22 also emerged in the evidence that the said Subbappa, son of Lingappa married two wives i.e., Basamma and Madamma. In terms of the document at Ex.P14, it is clear that, first wife- Basamma had joined the Mutt and second wife Madamma became lunatic and there is no dispute with regard to the said fact. It is also emerged that, daughter-Subbamma had a son by name Kadappa and other daughter-Bellamma through her husband got two daughters. It is also emerged that Bellamma's husband passed away and thereafter, she has joined the house of her father Lingappa, after the death of her husband along with two daughters. The first daughter-Subbamma was staying along with her father Lingappa after her marriage along with her husband.
28. It is also important to note that, in terms of Ex.P14, the properties were settled by the original propositus Lingappa. In terms of the said settlement deed, the first defendant's father Basappa is recognized as the foster son of Bellamma. It is also important to note that, in terms of the settlement deed, 'A' schedule property consisting of a house and three lands were allotted in favour of the first defendant's father, who is the foster 23 son of Bellamma. 'B' schedule property was given to Bellamma and 'C' schedule property was retained by the propositus, Lingappa for him and his wife. It is also important to note that, on perusal of the recitals of the document at Ex.P14, it is clear that, son of Lingappa married two wives i.e., Basamma and Madamma and nowhere in the document at Ex.P14, it is mentioned that Subbappa is having a son by name Basappa as claimed by the defendants. If really, the defendants' father is the son of Basappa through the third wife, the same ought to have been mentioned in the document at Ex.P14 but, instead it is mentioned that first defendant's father is foster-son of Bellamma.
29. It is also important to note that, propositus- Lingappa, recognizing the father of the defendant No.1 would have made the provision allotting 'A' schedule property to said Basappa. The other conditions are also enumerated in the said document at Ex.P14 that, in case of early death of Bellamma, the property should go to the daughters and also directed the other daughter, Subbamma to take care of the properties i.e., item Nos.2 to 3. It is the very claim of the first defendant is 24 that, he is the son of third wife of Subbappa and he becomes the coparcener in respect of the properties of the Lingappa which are joint family properties. In order to substantiate the said fact that he is the son of Subbappa through the third wife Kodagapurada Madamma, no documents are placed before the Court. Instead, D.W.1, who claims to be the son of Basappa categorically admits in the cross-examination that said Kodagapurada Madamma married one Chinnappa and the said Chinnappa and Madamma were having two sons, Kadappa and Basappa. But, Kadappa, who has been examined as D.W.3 claims that he is the only son to Chinnappa and Madamma and hence, the evidence of D.Ws.1 and 3 not inspires the Court that they are deposing the truth.
30. It is also pertinent to note that D.W.1 categorically admits that Subbappa married only two wives i.e., Basamma and Heggotarada Madamma and also categorically admits that said Subbappa not contracted any other marriage. Hence, it is clear that the very claim of the defendant that Subbappa married Kodagapurada Madamma is baseless and the evidence of D.W.1 clearly falsifies his claim. It is the claim of the plaintiffs that 25 Basappa, who is the father of the first defendant is the son of Chinnappa and Madamma. However, the first defendant categorically claims that his father is the son of Madamma, but through Subbappa. But, no material has been placed before the Court to substantiate the same. It is emerged in the evidence that, father of the first defendant is the foster son of Bellamma and the same is also evident from the document at Ex.P14 which came into existence in the year 1933 itself. The defendants not disputing the Ex.P14.
31. I have already pointed out that the status of the father of the first defendant has not been mentioned in the document at Ex.P14 that he is the son of Subbappa which came into existence in the year 1933. If really, he is the son of Subbappa, the father of Subbappa, i.e., Lingappa while making the family arrangement would have mentioned the same. The other circumstance falsifies the claim that his father was the son of Subbappa. The Trial Court has considered this aspect while appreciating the material available on record. The right of the father of the first defendant has been recognized by the original propositus-Lingappa and gave 'A' schedule property in terms of 26 Ex.P14. When this Court comes to the conclusion that first defendant is a foster son of Bellamma and not the son of Subbappa, the question of contending that he is one of the coparcener of the family cannot be accepted.
32. It is also important to note that, in terms of the document at Ex.P14, the propositus-Lingappa has given the property in favour of other two daughters and also created life interest and ultimately, the children of the said daughters became the owners of the property, no doubt the Subbamma and Bellamma have executed the settlement deed in the year 1951 in terms of Ex.P13. It is not in dispute that they are the daughters of original propositus-Lingappa and they have not only executed the settlement deed in respect of the properties which have been derived but, also settled the claim in respect of other properties left by their father, Lingappa. The propositus- Lingappa not only made the arrangement to the father of the first defendant and also made the provision to other family members. Hence, the very contention of the defendants that the plaintiffs were not having any right cannot be accepted. 27
33. It is also important to note that the first defendant is also not having any locus to question the same when this Court comes to the conclusion that his father was not a coparcener as contended by him. Hence, I do not find any force in the contention of the learned counsel for the appellants that the Trial Court has committed an error in not accepting the case of the defendants with regard to relationship between the father of the defendants and also the family members of the original propositus-Lingappa. The document at Ex.P14 evidences the fact that substantive property, including a house was given to the father of the first defendant.
34. The second count of argument of the learned counsel for the appellants is that the Trial Court has committed an error in answering the issue of limitation holding that the suit is not barred by limitation. In order to substantiate the said contention, nothing is elicited from the mouth of the witnesses. It is also a specific plea of the plaintiffs before the Trial Court that, 8 years ago itself, the defendants took possession and caused obstruction in entering the suit schedule properties. No doubt, there is a limitation to seek for possession and same is 28 not barred by limitation and though the defendants contend that it is more than 12 years, in order to substantiate the same, nothing is placed before the Court. Hence, I do not find any substance in the argument of the learned counsel for the appellants. Nothing on record to show that the suit is barred by limitation and nothing is elicited in the cross-examination that he has been in possession for more than 12 years.
35. The third count of argument before this Court is that the Trial Court has committed an error in not considering Order II, Rule 2 of C.P.C. on the ground that entire family properties are not included in the earlier original suit. The Trial Court, while answering the said issue comes to the definite conclusion that, in order to invoke Order II, Rule 2 of C.P.C., the defendants have to place the documents i.e., plaint, written statement or the issues and what was the relief claimed in the earlier suit. In the absence of the same, it cannot be held that the suit is barred under Order II, Rule 2 of C.P.C. Hence, I do not find any error committed by the Trial Court in not invoking Order II Rule 2 of C.P.C and the Court has to see what is the relief sought in the earlier suit and the present suit. Apart from that, when the first 29 defendant is not the coparcener of the family, he cannot raise the said issue before the Trial Court.
36. The fourth count of argument of the learned counsel for the appellants is that the daughters of the original propositus were not having any right to make any settlement deed. I have already pointed out that the right of the father of the first defendant is only limited that the original propositus has made the provision to his father recognizing him as foster-son of his daughter, Bellamma and not the son of original propositus- Lingappa. But, Lingappa, who had right in respect of the properties in question has made the provision and the same cannot be questioned by others. Hence, the very contention that, in terms of the document of the year 1951 as at Ex.P13, the daughters of the original propositus-Lingappa were not having any right cannot be accepted and they have not touched upon the properties which have been allotted in favour of the first defendant in terms of the earlier document of the year 1933 in respect of 'A' schedule property which has been allotted in favour of the father of the first defendant. Hence, the said contention also cannot be accepted. The original propositus 30 recognizing the status of the family of the defendant No.1 as foster-son of Bellamma made the provision to allot the properties in which he is having absolute right and the same cannot be questioned by any of the parties.
37. The fifth count of argument of the learned counsel for the appellants is that the defendants have pleaded adverse possession over the suit schedule properties. In order to invoke adverse possession and perfected title by adverse possession, there must be possession for more than 12 years and the said possession also should be with the knowledge of the original owner for allowing the defendants to continue in an uninterrupted possession. But, in the case on hand, the plaint averments discloses that the defendants dispossessed the plaintiffs 8 years ago and they were causing obstructions to the plaintiffs to enter into the suit schedule properties and unless the animus is proved, cannot contend that the possession is adverse to the original owner.
38. The learned counsel for the appellants would also vehemently contend that the document at Ex.P14 discloses that Subbappa was having a daughter and given in marriage to 31 Aragada Lingappa and the same also substantiates the claim of the defendants that the first defendant's father is also the member of the family and the said contention also cannot be accepted, since the very same document at Ex.P14 clearly discloses that Subbappa married only two wives and no issues. When such being the categorical mention made in Ex.P14, the very contention of the learned counsel for the appellants cannot be accepted.
39. It is also important to note that, in the cross- examination of D.W.2, he categorically admits that, till the death of Bellamma, she was in possession of the suit schedule properties. It is the claim of the plaintiffs that, after her death, her grand son Basappa @ Chinnappa was in possession of the suit schedule properties and the first defendant has dispossessed plaintiffs 8 years ago. When such being the facts and circumstances, the defendant are also not disputing the fact that the plaintiffs are the owners of the suit schedule properties but, the only claim is that his father is also one of the coparcener. Under the circumstances, the claim of adverse possession cannot be accepted. The Trial Court has considered both oral and 32 documentary evidence placed on record while answering all the issues and rightly answered issue Nos.1 to 4 as 'affirmative' and issue Nos.6 to 9 as 'negative' and rightly comes to the conclusion that the plaintiffs are entitled for the relief of declaration and so also they are entitled for possession of the suit schedule properties from the defendants and directed the defendants to deliver the suit schedule properties in favour of the plaintiffs. The Trial Court also rightly comes to the conclusion that the first defendant not proved that his father is the son of Subbappa through his third wife. The evidence emerged before the Court is clear that the said Subbappa married only two wives and the same has been admitted by the first defendant himself. Hence, I do not find any merit in the appeal to come to an other conclusion, accepting the argument of the learned counsel for the appellants.
Point No.(vi)
40. In view of the discussions made above, I proceed to pass the following:
33
ORDER
(i) The appeal is dismissed. No cost.
(ii) The Registry is directed to transmit the TCR forthwith.
Sd/-
JUDGE SKS/ST