Karnataka High Court
Varadaraju vs Sri Yogananda on 12 November, 2021
Author: H.P.Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.F.A.NO.1067/2003 (INJ)
C/W.
R.F.A.NO.1068/2003 (INJ)
IN R.F.A.NO.1067/2003
BETWEEN:
VARADARAJU
S/O LATE V.NARAYANASWAMY
AGED ABOUT 46 YEARS
RESIDING AT NO.946/78
4TH CROSS, SRIRAMPURAM
BENGALURU-560 021
SINCE DEAD BY LRS'
(A) KIRAN V
S/O LATE VARADARAJU
AGED ABOUT 26 YEARS
(B) KISHORE V
S/O LATE VARADARAJU
AGED ABOUT 24 YEARS
BOTH ARE RESIDING AT D.NO.81
4TH CROSS, SRIRAMPURAM
BENGALURU-560 021.
(AMENDED VIDE COURT ORDER DATED 21.02.2017)
... APPELLANTS
[BY SRI S.SHAKER SHETTY, ADVOCATE (THROUGH VC)]
2
AND:
1. SRI YOGANANDA
S/O LATE B.V.SRIRAMULU NAIDU
AGED ABOUT 64 YEARS
RESIDING AT NO.81
4TH CROSS, SRIRAMPURAM
BENGALURU-560 021.
2. SMT.SHARADAMMA
W/O SRIRAMULU NAIDU
AGED ABOUT 70 YEARS
SINCE DEAD, BY R3 AND R4 IN THE APPEAL
ARE THE LRS OF R2 WHO ARE ALREADY ON RECORD
(AMENDED VIDE COURT ORDER DATED 18.11.2011)
3. SMT.TARA
D/O SMT. SHARADAMMA
AGED ABOUT 49 YEARS
4. SMT. CHANDRA
D/O SMT. SHARADAMMA
AGED ABOUT 46 YEARS
RESPONDENTS NO.2 TO 4 ARE
RESIDING AT NO.1220
4TH CROSS, SRIRAMPURAM
BENGALURU-560 021.
5. SMT.LAKSHMIDEVAMMA
W/O HANUMANTHA NAIDU
AGED ABOUT 75 YEARS
RESIDING AT NO.12
3RD CROSS, SWIMMING POOL
EXTENSION, MALLESHWARAM
BENGALURU-560 021.
6. SMT.PANKAJAMMA
W/O SRI ANNAPPA NAIDU
3
AGED ABOUT 80 YEARS
RESIDING AT NO.42
4TH MAIN ROAD, 7TH CROSS
MALLESHWARAM
BENGALURU-560 003.
7. SRI SHANMUGANANDA
S/O LATE B.V.SRIRAMULU NAIDU
AGED ABOUT 68 YEARS
RESIDING AT NO.U-12
6TH CROSS, MARUTHI
EXTENSION, SRIRAMPURAM
BENGALURU-560 021.
8. SMT.SARASWATHI
W/O VENKATACHALAPATHI
AGED ABOUT 60 YEARS
NO.1220, 4TH CROSS
SRIRAMPURAM
BENGALURU-560 021.
9. SRI VENKATARAMANAPPA
ADVOCATE AND COMMISSIONER
NO.5, III FLOOR
KURUBARA SANGHA BUILDING
1ST MAIN, GANDHINAGAR
BENGALURU-560 009. ... RESPONDENTS
[BY SRI RAMACHANDRA G. BHAT, ADVOCATE FOR R1;
SRI G.L.VISHWANATH, FOR C/R3 AND R4;
R2 - R3 AND R4 ARE THE LRS OF DECEASED R2,
VIDE ORDER DATED 18.11.2011;
R5 TO R7 & R9 SERVICE OF NOTICE DISPENSED WITH,
VIDE ORDER DATED 11.08.2004;
R8-SERVED UNREPESENTED]
THIS R.F.A. IS FILED UNDER SECTION 96 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 05.02.2003
PASSED IN O.S.NO.2857/1985 ON THE FILE OF THE XII
ADDITIONAL CITY CIVIL JUDGE, BENGALURU AND ETC.
4
IN R.F.A.NO.1068/2003
BETWEEN:
KAMALAKANNAN
S/O LATE V.NARAYANASWAMY
AGED ABOUT 45 YEARS
RESIDING AT NO.1146-A
4TH CROSS, SRIRAMPURAM
BENGALURU-560 021. ... APPELLANT
[BY SRI S.SHAKER SHETTY, ADVOCATE (THROUGH VC)]
AND:
1. SRI YOGANANDA
S/O LATE B.V.SRIRAMULU NAIDU
AGED ABOUT 64 YEARS
RESIDING AT NO.81
4TH CROSS, SRIRAMPURAM
BENGALURU-560 021.
2. SMT.SHARADAMMA
W/O SRIRAMULU NAIDU
AGED ABOUT 70 YEARS
SINCE DEAD BY LRs
R3, R4 ARE LRs OF R2
(AMENDED VIDE COURT ORDER DATED 18.11.2011)
3. SMT.TARA
D/O SMT SHARADAMMA
AGED ABOUT 49 YEARS
4. SMT. CHANDRA,D/O SHARADAMMA
AGED ABOUT 46 YEARS
RESPONDENTS NO.2 TO 4 ARE
RESIDING AT NO.1220
4TH CROSS, SRIRAMPURAM
BENGALURU-560 021.
5
5. SMT.LAKSHMIDEVAMMA
W/O HANUMANTHA NAIDU
AGED ABOUT 75 YEARS
RESIDING AT NO.12, 3RD CROSS
SWIMMING POOL EXTENSION
MALLESHWARAM
BENGALURU-560 021.
6. SMT.PANKAJAMMA
W/O SRI ANNAPPA NAIDU
AGED ABOUT 80 YEARS
RESIDING AT NO.42
4TH MAIN ROAD, 7TH CROSS
MALLESHWARAM
BENGALURU-560 003.
7. SRI SHANMUGANANDA
S/O LATE B.V.SRIRAMULU NAIDU
AGED ABOUT 68 YEARS
RESIDING AT NO.U-12
6TH CROSS, MARUTHI
EXTENSION, SRIRAMPURAM
BENGALURU-560 021.
8. SMT.SARASWATHI
W/O VENKATACHALAPATHI
AGED ABOUT 60 YEARS
NO.1220, 4TH CROSS, SRIRAMPURAM
BENGALURU-560 021.
9. SRI VENKATARAMANAPPA
ADVOCATE AND COMMISSIONER
NO.5, III FLOOR,KURUBARA SANGHA
BUILDING, 1ST MAIN, GANDHINAGAR
BENGALURU-560 009. ... RESPONDENTS
[BY SRI G.L.VISHWANATH, ADVOCATE FOR R3 AND R4;
R1, R5 TO R9 - SERVICE OF NOTICE DISPENSED WITH,
VIDE ORDER DATED 28.02.2005;
R2 - R3 AND R4 ARE THE LRs OF DECEASED R2]
6
THIS R.F.A. IS FILED UNDER SECTION 96 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 05.02.2003
PASSED IN O.S.NO.2855/1985 ON THE FILE OF THE XII
ADDITIONAL CITY CIVIL JUDGE, BENGALURU AND ETC.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 21.09.2021 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
These two appeals are filed by the respective plaintiffs in O.S.No.2857/1985 and O.S.No.2855/1985, challenging the judgment and decree of the dismissal of the suits filed for the relief of permanent injunction dated 05.02.2003 on the file of the XII Additional City Civil Judge at Bengaluru.
2. The parties are referred to as per their original rankings before the Trial Court to avoid the confusion and for the convenience of the Court.
3. The factual matrix of the case in O.S.No.2857/1985 that the 'A' schedule property is bearing No.1220, New No.81, located at 3rd Cross, Srirampuram, Bangalore measuring 71.9 + 32.3/2 and 109 + 100/2 totally measuring 603.80 sq. yards. One Venkataswamy Naidu was the owner of the said house 7 property measuring 603.80 sq. yards. It is contended that the first defendant being the owner and possession of the above said property, sold a portion of the house property together with vacant site thereon bearing No.1221, new No.81, measuring east to west 26 feet and north to south 41 feet and together with 2 square building which is more fully described in the 'C' schedule property of the plaint herein in favour of the plaintiff vide sale deed dated 12.09.1984. The very contention of the plaintiff that the said Venkataswamy Naidu had a son by name B.V.Sriramulu Naidu. The first defendant - Yogananda who is the son of B.V.Sriramulu Naidu and grandson of Venkataswamy Naidu. The father (B.V.Sriramulu Naidu) of the first defendant died in the year 1963 and he predeceased his father Venkataswamy Naidu. The said Venkataswamy Naidu executed a Will dated 31.10.1974 bequeathing the house property bearing No.1221, new No.81, measuring east to west towards north 41 feet, towards south 71.3/4 feet and north to south towards east 86½ feet, west 77½ feet and the same has been described as 'B' schedule property of the plaint. Consequent upon the death of Venkataswamy Naidu who died on 29.12.1974, the first defendant became the absolute owner and of the said property 8 and got transferred the katha in his favour and sold the 'C' schedule property in favour of the plaintiff for a valuable sale consideration of Rs.49,000/- and he had been put in possession of the suit schedule property. It is the claim of the plaintiff that subsequent to the date of purchase, the plaintiff submitted an application to the Bangalore City Corporation for bifurcation and transfer of katha and the Corporation had given a special notice dated 04.02.1985 and the same also subsequently assessed at annual rental value of Rs.4,000/- from 01.10.1984.
4. It is contended that he has reliably learnt that the sixth defendant has issued a public auction notice dated 19.07.1985 offering to sell the suit schedule 'A' property which is alleged to be the subject matter of O.S.No.327/1980. The 'B' and 'C' schedule properties of the plaint are different portions as per the order of the learned City Civil Judge, Bengalore and the said properties were auctioned in public on 01.09.1985 at 11.00 a.m. The plaintiff was not a party to the said suit and hence, the decree or order passed in the above suit are not binding upon the plaintiff. It is contended that the first defendant in collusion with the other defendants interse in the 9 said suit appears to have obtained fraudulent, collusive, ex parte decree on the basis of which the suit schedule property is brought to sale which is not binding on the plaintiff. The plaintiff is the absolute owner in possession of the suit schedule property as he being the bonafide purchaser of the same for the value. The plaintiff's right will be defeated as he is a bonafide purchaser and the first defendant who has got the property by virtue of the registered Will. Hence, sought for the relief of permanent injunction against the defendants in respect of 'C' schedule property which he had purchased.
5. In pursuance of the suit summons, the defendants No.2 to 4 appeared and filed their written statement denying the contents of the plaint and also did not admit the execution of the Will and delivery of possession in respect of 'B' schedule property and also denied the right created in favour of the plaintiff by virtue of the sale deed. It is contended that they have filed a suit (except the ninth defendant) in O.S.No.829/1972 seeking the relief of partition and separate possession in respect of the property No.1220 which is more fully described in the 'A' schedule in the said suit. The aforesaid property was the joint 10 family property and since the deceased Sriramulu Naidu was entitled to a share in the said property, the defendants No.2 to 4 are also entitled to 3/14th share in the said property. The said suit was decreed on 12.04.1976 holding that they are entitled to 19/56th share and preliminary decree was directed to be drawn in respect of defendants No.2 to 4. In the said suit it is held that the entire property No.1220 was the joint family property and it was not the self-acquired property of Venkataswamy Naidu and the said suit was renumbered as O.S.No.327/1980. The defendants then filed an application to draw a final decree and in pursuance of the said application, a court commissioner was appointed to divide the entire property and the commissioner filed a report stating that it is not possible to divide the property by metes and bounds. The said commissioner's report was accepted and directed to bring the said property for sale in public auction. In view of the said order, the ninth defendant was appointed as the Court Commissioner to sell the property. When the property was brought for sale, the plaintiff filed an application in O.s.No.327/1980 requesting the Court to implead himself in the suit on the ground that he has purchased a portion of the property from one of the defendants and the said 11 application was allowed with a direction that the plaintiff has to deposit a sum of Rs.5,000/- as fixed deposit for three years.
6. It is further contended that even assuming that the plaintiff has purchased the suit schedule property from one of the defendants, the same will not ensure to the benefit of the plaintiff since the alienation in favour of plaintiff would fell within the ambit of the doctrine of lispendens. The plaintiff will not get any right over the said property as he had purchased the same during the pendency of the suit for partition. The plaintiff is not at all in lawful possession of the suit schedule property as contended by him. In fact, the plaintiff's vendor had throughout participated in the proceedings from 1972 and the very fact that these defendants are not in position to derive the usufructs of the decree from 1972 till date and no material is placed to show that the said decree was collusive and ex parte decree.
7. Based on the pleadings of the respective parties, the Trial Court had framed the following issues:
(1) Whether the plaintiff proves his lawful possession over 'C' schedule property?12
(2) Whether the plaintiff further proves the cause of action as alleged in the plaint?
(3) What order or decree?
8. The plaintiff in order to prove his case, examined himself as PW1 and got marked the documents at Exs.P1 and P2. On the other hand, second defendant examined as DW1 and got marked the document at Ex.D1. The Trial Court after considering both the oral and documentary evidence dismissed the suit. Hence, the present appeal.
9. The factual matrix of the case in O.S.No.2855/1985 that in the said suit also, the plaintiff described the entire property No.1220 as 'A' schedule property. It is also contended that the said Venkataswamy Naidu was the owner of the property and it is his the self-acquired property and he had executed the registered Will dated 31.10.1974 which is more fully described in the 'B' schedule property. The said Venkataswamy Naidu died on 29.12.1974 and subsequent to the death of said Venkataswamy Naidu, by virtue of the Will, Yogananda became the absolute owner of the said property. 13
Since then, the first defendant had continued in possession and enjoyment of the suit schedule property in his own right as legatee of the Will. Even in the encumbrance certificate, it is pertinent to shows that the 'B' schedule property stands in the name of the first defendant. The first defendant being the owner in possession, sold the portion of the house property together with vacant site in new No.81 which is more fully described in the schedule 'C' property vide sale deed dated 24.05.1985 for a valuable consideration of Rs.49,000/-. It is contended that the said property stood in the name of the first defendant as on the date of the sale deed and even earlier thereto. It is further submitted that subsequent to the date of purchase, the plaintiff submitted an application to the Bangalore City Corporation and he was put in possession of the suit schedule property. The plaintiff has reliably learnt that the sixth defendant has issued a public auction notice dated 19.07.1985 offering to sell the suit schedule 'A' property which is alleged to be the subject matter of O.S.No.327/1980 of which 'B' and 'C' schedule properties of the plaint are different portions as per the order of the learned City Civil Judge, Bengaluru. The said property will be auctioned in public auction on 01.09.1985 at 11.00 a.m. It is contended that 14 the plaintiff was not a party to the said suit and decree obtained is not binds upon the plaintiff and the same is obtained in collusion with the defendants inter se. The plaintiff is the absolute owner of the suit schedule property as he being the bonafide purchaser for the value without notice of the alleged claim of the plaintiff in O.S.No.327/1980. The plaintiff will be put to irreparable loss and hardship and hence, he seeks the relief of bare injunction in respect of 'C' schedule property.
10. The defendants No.2 to 4 have also filed the written statement denying the execution of the Will and also denied that the first defendant was the absolute owner of the suit schedule property and contended that the first defendant not having any absolute right to sell the property and in O.S.No.829/1972 all the defendants are parties except the ninth defendant as the ninth defendant who has appointed as the Court Commissioner to bring the property for sale.
11. Based on the pleadings of the respective parties, the Trial Court had framed the following issues:
1. Whether the plaintiff proves his lawful possession over 'C' schedule property?15
2. Whether the plaintiff further proves the cause of action as alleged in the plaint?
3. What order or decree?
12. The plaintiff in order to prove his case, examined himself as PW1 and got marked the documents at Exs.P1 to P6. On the other hand, the second defendant examined as DW1 and got marked the document at Ex.D1 to D10. The Trial Court after considering both the oral and documentary evidence dismissed the suit. Hence, the present appeal.
13. In both the appeals, the similar grounds are urged by the appellants. The main contention of the appellants in these appeals are that the Trial Court ought to have held that the suit schedule property was the self-acquired property of the late Venkataswamy Naidu and the said Venkataswamy Naidu had got every right to execute the Will and accordingly, he had executed the registered Will in the year 1974 bequeathing the property in favour of his grandson - Yogananda and the said Yogananda in turn sold the suit schedule 'C' property in favour of the appellant and put in possession and hence, the respondents/defendants No.2 to 4 cannot claim any right in the said property. The Trial 16 Court ought to have held that it is a collusive decree as can be seen from the decree. Though the defendants No.2 to 4 are not entitled to the share of 19/56th share, the Trial Court had granted the said share. But under the Hindu Succession Act, they are not entitled for the said share even the property were to be the joint family property. It is contended that the Trial Court ought to have held that the defendants No.2 to 4 never produced any documents to show that it is a joint family property or at any time it was not treated as a joint family property. On the contrary, the property was standing in the name of Venkataswamy Naidu and it was the self-acquired property and he has rightly executed the Will.
14. The Trial Court ought to have held that there are other portions of the schedule 'B' property which are not in occupation of the first defendant. If it is not a collusive decree, the defendants No.2 to 4 would have asked the Court to put them in possession of the portion of the property which is in occupation of the first defendant in lieu of the partition decree. But the defendants No.2 to 4 are insisting upon the Court only to deliver the property in occupation of the appellant in this appeal 17 and also in another appeal. It is contended that it is a collusive decree and hence, the plaintiff has got every right to file a suit to treat the decree passed in the partition suit is a collusive and not binding on him. In fact, Section 52 of the Transfer of Property Act does not say that the property shall not be alienated. But it is subjected to the result of the suit. But, if a decree obtained is a collusive decree, it can be challenged by the purchaser and the suit is maintainable. It is contended that the appellant/plaintiff is in physical possession of the property and the appellant is in settled possession of the property and unless and until the possession is taken under due process of law, the Commissioner appointed by the Court cannot taken possession by force. It is contended that on the contrary, the pendentelite purchaser has got a right to challenge the decree either in execution or in appellate stage.
15. The counsel appearing for the appellants in both the appeals would vehemently contend that the suit filed by the second wife and her daughters are not entitled for partition. In this regard, the counsel relied upon the judgment reported in (2005) 7 SCC 653 in the case of DEVASAHAYAM (DEAD) BY 18 LRS vs P.SAVITHRAMMA AND OTHERS and brought to the notice of this Court in paragraphs 43 and 45 wherein, the Apex Court held that it is a fundamental principle well established that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject matter of the action, strikes at the very authority of the court to pass any decree and such a defect cannot be cured even by consent of parties. The Apex Court also in paragraph 45 held that any order passed or action taken pursuant thereto or in furtherance thereof would also be nullities. The counsel referring to this judgment vehemently contends that without jurisdiction, the court cannot entertain the suit for the relief of partition.
16. The counsel also vehemently contend that an alienee is also necessary party since he has sold the portion of the property. In support of his contention, he relied upon the judgment reported in AIR 1965 SC 271 in the case of 19 KANAKARATHANAMMAL vs V.S.LOGANATHA MUDALIAR AND OTHERS and brought to notice of this Court to paragraph
15. It is contended that the defendants have not justified their case and suit was filed and numbered as O.S.No.829/1972 in terms of Ex.D2 and also in the written statement they have not took the specific defence that the Will executed by Venkataswamy Naidu is a registered Will which is marked as Ex.P1 and the Will was executed in the year 1974 and a collusive decree was obtained and no material was placed while getting the decree with regard to the execution of the Will.
17. PW1 also not whispered the Will and not cross- examined. The defendants have also not led any evidence before the Trial Court. It is contended that the plaintiff is not a party to the suit. The counsel relied upon the judgment reported in AIR 1983 SC 684 in the case of STATE OF BIHAR AND OTHERS vs SRI RADHA KRISHNA SINGH AND OTHERS and brought to the notice of this Court to paragraph 122. When he was not a party to the suit and decree is obtained by collusion and the same is not binding. The counsel also vehemently contend that Section 11 also not attracts and he brought to the 20 notice of this Court to the judgment reported in AIR 2011 SC 3001 in the case of FIDA HUSSAIN AND OTHERS vs MORADABAD DEVELOPMENT AUTHORITY AND ANOTHER and paragraph 15. The counsel also brought to the notice of this Court to the judgments reported in 2009 (2) SCC 315 in the case of CHANDRABHAI K BHOIR AND OTHERS vs KRISHNA ARJUN BHOIR AND OTHERS and paragraphs 25 to 27 and 2005 (3) SCC 232 in the case of SONEPAT COOPERATIVE SUGAR MILLS LIMITED vs AJIT SINGH contending that no res-judicata applies and res-judicata applies only if judgment obtained in the competent court of law. The counsel also vehemently contend that the Yogananda-first defendant had executed the sale deed based on the Will under which he has derived the title. It is contended that the execution of the Will is admitted and an admitted fact need not be proved under Section 58 of the Evidence Act. No doubt, Will is executed during the pendency of the suit and Section 30 of the Hindu Succession Act clear that the executant can execute the Will in respect of his share. The counsel would also vehemently contend that the material discloses that it is a collusive decree and Will is not subject matter of the suit. The Court has to frame the issue and 21 give finding regarding Will. The counsel vehemently contend that the possession is delivered while executing the sale deed and when the possession is lawful, the Trial Court ought not to have dismissed the suit. The collusive suit is not binding on the plaintiff.
18. The counsel vehemently contend that the Trial Court observed that necessary documents are not filed and hence, an application under Order 41 Rule 27 of CPC is filed in this appeal. The counsel also relied upon the judgment reported in AIR 1954 SC 340 in the case of KIRAN SINGH AND OTHERS vs CHAMAN PASWAN AND OTHERS wherein it is held that if there is no jurisdiction and if the judgment is passed, the same is in nullity. The earlier suit was filed in the year 1976 and the Will is executed in the year 1974. Ex.D5 discloses that he got katha in the year 1982. The defendants have not denied the allegation of collusive decree. The counsel also relied upon the judgment reported in (2007) 6 SCC 401 in the case of M.VENKATARAMANA HEBBAR (DEAD) BY LRS vs M.RAJAGOPAL HEBBAR AND OTHERS and brought to the notice of this Court to paragraph 12. The counsel also 22 vehemently contended that in the earlier suit, no finding on the issue of Will. The counsel would vehemently contend that the question of lis pendens also does not arise and there is no bar, But well aware of the property under Section 30 of the Hindu Succession Act. Same is also subject to the result of the suit. The portion of transfer was made and the said transferred portion cannot be questioned.
19. The counsel vehemently contend that Section 52 is not applicable and no res-judicata and no lis pendens. Even if it is an ancestral property, the son Sriramulu Naidu would get the half share and the original owner Venkataswamy Naidu can bequeath only his share. It is also contended that the parties have suppressed the Will and obtained the collusive decree and in the earlier suit also they have not produced the Will. The counsel vehemently contend that in earlier suit, an ex parte decree was obtained and hence, the same is not challenged and after obtaining the decree, got the katha and there is no any sale agreement, directly obtained the sale deed. The counsel relied upon the judgment reported in AIR 1994 SCC 853 in the case of S.P.CHENGALVARAYA NAIDU (DEAD) BY LRS vs 23 JAGANNATH (DEAD) BY LRS AND OTHERS wherein it is held that lis pendens will not apply and the Court has to frame an issue regarding Will and also whether the possession is lawful or not. The counsel also vehemently contend that suppressed the Will and obtained the decree and it is nothing but an intentional fraud and knowing fully well that the property is a self-acquired property, all of them have joined to divide the rights of the plaintiff. No doubt, the Will was executed during the pendency of the suit and the same will not take away the case of the plaintiff. These plaintiffs have got every right to question the decree which is obtained fraudulently. The Trial Court ought to have considered the legal possession and the same has not been considered and in support of his argument contend that the issue ought to have been framed. He relied upon the judgment reported in AIR 1999 SC 647 in the case of STATE OF PUNJAB AND OTHERS vs DR.R.N.BHATNAGARAND ANOTHER and brought to the notice of this Court to paragraph 15.
20. The counsel vehemently contend that the legatee- Yogananda had executed the sale deed and when there is no finding with regard to the Will and the same is not binding. The 24 counsel vehemently contend that in the Will specifically mentioned that it is a self-acquired property and the first defendant not filed written statement and cross-examined. The counsel also relied upon the judgment of the Apex Court reported in MANU/SC/0580/2004 in the case of DAYAMATHI BAI vs K.M.SHAFFI and brought to the notice of paragraph 13. The counsel relied upon the judgment of the Apex Court reported in MANU/SC/1303/2004 in the case of VICE CHAIRMAN, K.V.S. AND OTHERS vs GIRDHARILAL YADAV and brought to the notice of paragraph 10 with regard to Section 58 of the Indian Evidence Act, facts admitted need not be proved.
21. The counsel also brought to the notice of this Court to the judgment reported in AIR 1994 SCC 853 referred supra and brought to notice of paragraphs 7 and 8 with regard to obtaining the preliminary decree by playing fraud. The counsel also relied upon the judgment reported in 2014 (2) SCC 269 in the case of UNION OF INDIA AND OTHERS vs VASAVI COOPERATIVE HOUSING SOCIETY LIMITED AND OTHERS and brought to notice of paragraphs 15 to 19 wherein discussed 25 with regard to the suit for declaration of title and possession succeeds only to the strength of its own title.
22. The counsel also relied upon the judgment reported in 2011 (9) SCC 788 in the case of GANDURI KOTESHWARAMMA AND ANOTHER vs CHAKIRI YANADI AND ANOTHER with regard to the modification of the preliminary decree before passing the final decree even if no appeal preferred against preliminary decree and the Court has to take note of changed circumstances and brought to notice of paragraph 21. The counsel also relied upon the judgment reported in (2014) 5 SCC 660 in the case of VASU P SHETTY vs HOTEL VANDANA PALACE AND OTHERS and to paragraph 20 wherein the Apex Court had discussed that in fact, this ground is not even raised in the special leave petition. The appellant's case rested with hammering the blameworthy conduct of the borrower by relying upon the observations of DRT to the effect that the borrower had been adopting dilatory tactics and delaying the recovery of amounts due to the Bank somehow or the other and held that no case of waiver is made out. The counsel also relied upon the judgment reported in ILR 1998 26 KAR 681 in the case of SRI TUKARAM vs SRI SAMBHAJI AND OTHERS wherein this Court held that suit for partial partition is not maintainable.
23. The counsel also in his argument vehemently contend that an application is filed seeking for amendment under Order VI Rule 17 of CPC praying the Court to permit the plaintiff to amend the plaint and in the proposed amendment it is contended that the decree obtained in O.S.No.829/1972 is nonest on the ground that widow and daughters have filed the suit for partition. Under the Hindu Law, female member cannot file a suit for partition of the joint family property and there was a Will in favour of the first defendant and the property in question is a self-acquired property of late Venkataswamy Naidu and the parties have failed to prove that it is a joint family property and under Section 30 of the Hindu Succession Act and other claim is subject to testamentary disposition. Under the Hindu Law, the purchaser of the joint family property should be made as a party for the partition suit. Late Venkataswamy Naidu sold the portion of the property in favour of one Krishna Murthy who is not arrayed as party and it suffers from non- 27 joinder of necessary party and the decree obtained in O.S.No.829/1972 is a nullity. In this application, the additional prayer is sought to declare that the plaintiff is the absolute owner of the suit schedule property and also declare that the decree passed in O.S.No.829/1972 is nullity and nonest. In support of this application, an affidavit is sworn to by the plaintiff that the original plaint reveals that the decree has been obtained by suppression of the fact regarding the execution of the Will dated 31.10.1974 by Venkataswamy Naidu in favour of the first defendant and the decree is obtained by collusion and nullity in the eye of law. It is contended that the plaintiff is not bound by the decree in O.S.No.327/1980 and in order to complete the final adjudication of the matter in controversy, it is necessary to seek amendment for declaration and hence, this application is filed.
24. Per contra, the counsel appearing for the respondent would vehemently contend that in paragraph 2 of the plaint, an averment is made with regard to the 'A' and 'C' schedule properties and claiming that the legatee Yogananda has sold the property and he is not a party in the suit. The counsel 28 vehemently contend that in both the suits, the schedule is one and the same. The counsel vehemently contend that the suit was filed in the year 1972, and in 1976, the Court granted 19/56th share. The counsel vehemently contend that decree has not been questioned and vendor was party to the said decree and hence, the earlier decree was attained its finality. The counsel further vehemently contend that the application is filed for the amendment of the plaint and no explanation is forthcoming in the affidavit. The FDP order which is marked as Ex.D10 is also reached its finality and the order passed in terms of Ex.D10 is also not challenged. The original Will also not produced. The widow is also a co-parcener and she can demand for partition.
25. The counsel in support of his arguments filed synopsis and also the written submissions, the list of dates and events. He would vehemently contend that the Sreeramulu Naidu died leaving behind his second wife and two daughters and they themselves have filed the suit for the relief of partition in the year 1972 against her father-in-law and also against her step-sons contending that the suit schedule properties were the 29 joint family properties. After the death of her husband, she was entitled to the share in the same. The defendants in the said suit contended that the suit schedule property was self-acquired property of Venkataswamy Naidu. During the pendency of the suit, Venkataswamy Naidu sold a portion of the schedule property to one Krishna Murthy and the said sale deed is not produced and the date of sale is not known to the respondent. The sale is to an extent of 810 sq. feet and it is mentioned in the Will. Venkataswamy Naidu had executed a Will in favour of his wife Venkatalakshamma and after her death, the property go to her grandson Yogananda. The original Will is not produced, only a certified copy is produced and Will also has not proved as per the Evidence Act and no attestor is examined. The sale is in favour of Krishna Murthy to the extent of 810 sq. feet leaving the balance. An extent of the property of the Will is 4527 sq. feet. The first defendant filed a memo stating that though they are entitled for a share in the schedule property, they do not lay any claim for the same. They relinquished the share of the first defendant in favour of the plaintiff. It is also held that Sharadamma was entitled to 1/3rd share and also further held that it is a joint family property and not a self-acquired property 30 and the judgment became final and the FDP was also filed and the Court Commissioner was also appointed and the Commissioners' report also accepted. The main contention of the appellant that he had purchased the property vide sale deed dated 12.09.1984 to the extent of 1209 sq. feet. The counsel also vehemently contend that the plaintiff also filed an application to implead himself in the FDP as per Ex.D7 and averred in the said application as similar to the plaint averments and an order has been passed rejecting the said impleading application in terms of Ex.D10 and order dated 30.03.1988 also became final and no appeal was filed against the said order.
26. The counsel vehemently contend that all the steps have been taken by the plaintiffs even in the FDP also. When such being the case, this suit cannot be entertained. The very contention of the plaintiff that in the earlier suit, a collusive decree was obtained cannot be accepted. The counsel vehemently contend that under the Hindu Law, a widow was a coparcener. Bearing in mind this status, under the Hindu Women's Right to Property Act, 1937 widows were invested with coparcenary interest or deemed to be coparceners giving them a 31 share in coparcenary property. The 1937 Act was in operation till Hindu Succession Act become effective. Under the 1937 Act, a widow was a coparcener and could demand partition.
27. The counsel relied upon the judgment reported in AIR 1967 SC 272 in the case of SATRUGHAN ISSER VS SUBUJPARI and also relied upon the judgment reported in AIR 1977 SC 2067 in the case of CONTROLLER OF ESTATE DUTY VS ALLADIKUPPUSWAMY. Under the Hindu Succession Act, 1956 the device of notional partition was introduced. If a male having interest in Mitakshara coparcenary died leaving behind a Class-I female heir, through the beneficial device of notional partition such Class-I female heir would also get a share. Hence, a widow being a Class-I female heir became entitled to a share in the share of Mitakshara male member in the coparcenary. Coparcenary may be restricted to sons, daughters but joint family is a larger body. The counsel relied upon the judgment reported in AIR 1978 SCC 1239 in the case of GURUPAD KHANDAPPA MAGDUM in respect of Section 6 of the Hindu Succession Act and also relied upon the judgment reported in AIR 1985 SC 716 in the case of STATE OF MAHARASHTRA 32 vs NARAYAN RAO SHAM RAO DESHMUKH AND OTHERS.
The counsel also relied upon the recent judgment reported in (2020) 9 SCC 1 in the case of VINEETA SHARMA vs RAKESH SHARMA and still hold the field that the widows can demand a partition to the extent of their share in coparcenary property under Section 6 of the Hindu Succession Act by instituting a suit is also affirmed by Mulla in Hindu Law, 23rd edition. The counsel also relied upon the judgment reported in AIR 2016 BOM 29 in the case of SANTOSH POPAT CHAVAN vs SULOCHANA RAJIV, regarding second Will is concerned. The counsel vehemently contend that the Will was executed during the pendency of the suit, neither the testator nor the legatee produced or brought to the notice of this Court regarding the alleged Will. Hence, the Court while deciding the case had no knowledge or noticed about the said Will. The vendor ought to have produced the same but he has not done and not proved the said Will under section 68 of the Evidence Act by examining at least one attesting witness. The present plaintiff cannot rely upon abstract proposition like Section 58 of Evidence Act. The counsel also relied upon the judgment reported in AIR 1959 SC 443 in the case of VENKATACHALA IYENGAR VS 33 THIMMAJAMMA and also the judgment reported in (2003) 2 SCC 91 in the case of JANAKI NARAYAN VS NARAYAN NAMDEO with regard to the other contention that the present plaintiff's vendor was a party to the proceedings, since the decree is binding on the plaintiff's vendor, to that extent, it binds upon the present plaintiffs also. The counsel other contention that it is a joint family property and not a self-acquired property and decree passed earlier has reached its finality, unless the said judgment is set aside or modified, it is binding on the present plaintiff and his vendor. There is a difference between fraud and collusion. The words cannot be used inter-changeably. The counsel relied upon the judgments reported in AIR 1956 SC 593 in the case of NAGUBAL AMMAL AND OTHERS vs B.SHAMA RAO AND OTHERS and AIR 1951 SC 280 in the case of BISHUNDEO NARAIN AND ANOTHER vs SEOGENI RAI AND OTHERS regarding where party pleaded fraud but did not press for issue to be raised, he is deemed to have abandoned such plea.
28. The other contention of the appellants' counsel that the suit schedule property in O.S.No.829/1972 measures 603 sq. 34 yards. The alleged Will was executed in favour of Yogananda for an extent of 4619 sq. feet. The plaintiff in O.S.No.829/1972 got decree for 19/56th share i.e., 5427 sq. feet. Her right, title and interest to this extent of property remained unchallenged. The rights of the plaintiff as lis pendens transferee will have to wait for the ultimate decision and rights of the decree holder in O.S.No.829/1972 and even assuming that Venkataswamy Naidu has right to bequeath the property and the Yogananda could have sold a portion of a property. In O.S.No.829/1972, the plaintiff was not aware and did not have knowledge about the alleged alienation to Krishna Murthy and the date of alienation is not even stated anywhere. It is only referred in executing the Will which was also not produced or proved in O.S.No.829/1972 and hence, the earlier decree is not vitiated for non-impleadment of the alienee.
29. The counsel vehemently contend that the question is only whether the plaintiff has proved the lawful possession and the same was not proved and in support of his contention, he relied upon the judgments reported in AIR 1974 SC 104 in the case of M.C.CHOCKALINGAM AND OTHERS vs 35 V.MANICKAVASAGAM AND OTHERS and ILR 1973 KAR 1264 in the case of E.K.GOVINDARAJ vs NARIA BEE AND OTHERS. The counsel vehemently contend that when there was a decree, the plaintiff could have sought for the relief of declaration of title and not merely filing a suit for bare injunction. The counsel vehemently contend that in the cross- examination of PW1 it is elicited that he is not a bonafide purchaser, no enquiries made regarding rights of his vendor and admits that Sharadamma is in possession of the portion of 'C' schedule property. When such being the case, the question of granting relief of permanent injunction does not arise.
30. The counsel vehemently contend that the Trial Court has rightly dismissed the suit in coming to the conclusion that the possession has not been proved. The counsel regarding the application filed for amendment under Order VI Rule 17, in his objection statement vehemently contend that this application is filed belatedly after the lapse of more than 38 years and suit was filed in the year 1985 and in the said suit, the averments is very clear that there was a decree and also taking the note that the property was brought for sale and also aware of the fact that the 36 suit was filed for the relief of partition in the year 1972 and the said suit also came to be decreed in the year 1976 granting 19/56th share in the said property. In the final decree proceedings, the Commissioner was appointed to consider the property for sale. The respective plaintiffs are seeking the relief in both the suits on the basis of the sale deeds, as they become the absolute owners. Admittedly, these sale deeds executed during the pendency of the final decree proceedings. The alleged Will dated 31.10.1974 has been denied and disputed that no steps were taken to prove the same and regarding the lawful possession, the same was disputed and suit was dismissed vide order dated 05.02.2003 holding that the plaintiffs have not proved the possession. Now, they have come up with the present application seeking for the relief of declaration after 45 years and the said amendment seems to be a fresh claim, is barred by limitation cannot be permitted as the decree was passed in the year 1976 and it has also reached its finality. The proposed amendment is not necessary to determine the question involved in the controversy in the present case which is only the plaintiffs are in lawful possession of the suit schedule property as alleged there is a gross delay in filing the application in which no 37 explanation is forthcoming and hence, the application is liable to be dismissed.
31. The appellant counsel in RFA No.1068/2003 also filed an application under order 41 Rule 27 of CPC to produce certain documents and to receive the same as additional evidence. In support of the said application, an affidavit is sworn to that the suit was disposed of on 05.02.2003 and he had purchased the property and put in possession of the said property and he has been exclusively enjoying the property in question and he could not produce the documents to show that the katha is in his name and he is having an account in Canara Bank showing the address of the property, voters list, water bill, electricity bills and also produced the assessment paid receipt and those documents goes to the very root of the case to show that he is in physical possession of the property. Unless and until the possession is taken under due process of law, he should not be dispossessed from the suit schedule property and in order to prove his possession, he relied upon these additional documents.
32. The counsel appearing for the respondent opposed this application contending that these documents will not help to 38 the appellant in order to prove the factum of possession and no reasons are assigned why those documents are not produced before the Trial Court and he has to make out a case to invoke Order 41 Rule 27 of CPC and in the absence of any reason for not producing these documents before the Trial Court, he cannot be permitted to produce those documents as additional documents in this appeal and no diligent effort is made in the said suit to produce these documents but also these documents will not help the appellant to determine the issue involved between the parties. Hence, prayed this Court to dismiss the application and also the appeal filed by the appellant.
33. In reply to the arguments of the respondent counsel, the appellant counsel would vehemently contended that the judgment which has been referred by the respondent on the Hindu Women's Right to Property Act, 1937 does not create any right on the female to file a suit for partition. Section 4 of the Hindu Succession Act reveals that women cannot file a suit under the said Act. The contention that Will is not proved cannot be accepted and the same only pendentelite and the Will is admitted. Once the Will has been admitted, the same cannot be 39 questioned. The counsel vehemently contended that in paragraph 5 of the written statement admitted the execution of the Will and admitted fact need not be proved under Section 58 of the Evidence Act. The original Will is not in possession and hence, the certified copy is produced and while marking the said document, it is not disputed and now cannot raise a new ground in the appeal. In support of his contention, he relied upon the judgment reported in (2004) 3 SCC 140 and brought to the notice of this Court to paragraph 13. The argument that alienee is not made as a party and partial partition cannot be sought and lis pendens never applies for the Will and no material is placed to show that it is a joint family property and Will was executed with regard to half share of Venkataswamy Naidu and hence, right of the parties cannot be defeated.
34. Having heard the learned counsel appearing for the parties, on perusal of the grounds urged in the appeals and also the principles laid down in the judgments referred supra, the points for consideration of this Court that:
40
(1) Whether the appellants in RFA Nos.1067/2003 and 1068/2003 have made out a ground to allow the amendment as sought in I.A.No.2/2021? (2) Whether the appellant in RFA No.1068/2003 has made out the ground to allow the application filed in I.A.No.2/2013 for production of additional documents invoking Order 41 Rule 27 of CPC? (3) Whether the Trial Court has committed an error in dismissing the suit in O.S.No.2857/1985 filed by the appellant seeking for the relief of permanent injunction and whether it requires interference of this Court?
(4) Whether the Trial Court has committed an error in dismissing the suit in O.S.No.2855/1985 filed by the appellant seeking for the relief of permanent injunction and whether it requires interference of this Court?
(5) What order?41
Point No.1:
35. The main contention of the appellants in both the appeals that appellants may be permitted to amend the plaint and they sought for an additional prayer to be added in the plaint seeking the relief of declaration to declare that the plaintiff is the owner of the suit schedule property and also to declare that the decree passed in O.S.No.829/1972 is invalid, nonest and void and in support of this prayer, the additional grounds are urged in paragraphs 10 to 10.8. Apart from that an affidavit is filed wherein it is also contended that there was a Will and the same was suppressed at the time of obtaining the decree in collusion and by virtue of the sale deed in favour of the plaintiff on 12.09.1984, they are entitled for the decree and for the final adjudication of the matter and also to resolve the controversy, it is necessary to seek for an amendment.
36. This application is opposed by the respondent by filing a detailed objections statement and particularly, the defendants No.3 and 4 contended that the relief is sought after 45 years and when the suit was filed in the year 1985 till filling of the application, no such prayer is sought and only after the 42 lapse of 45 years, the present application is filed and the same cannot be considered.
37. Having heard the respective counsel and also on perusal of the grounds urged in the supporting affidavits and also statement of objections, it is clear that suits are filed in the year 1985 and also specifically pleaded in the suit that there was a Will and apart from that in both the plaints it is contended that public auction notice was issued in the year 1985 itself offering to sell the suit schedule property which is allegedly to be the subject matter in O.S.No.327/1980 both in respect of 'B' and 'C' schedule properties and in the said suit itself they have contended that the said decree is obtained in collusion but prayer is not sought. Admittedly, the suit was dismissed in the year 2003 and even after dismissal of the suit in the year 2003, the present application is filed after 18 years seeking the relief of declaration to amend the plaint.
38. On perusal of the affidavit it is clear that except stating that on advise they have filed the said application and the amendment is necessary to resolve the issues involved between the parties. On the other hand, it is specifically 43 contended that the decree is in force and final decree proceedings is also filed and the commissioner was appointed is in the knowledge of the plaintiff. Apart from that the plaintiff made an application in the FDP for impleading. Hence, it is clear that it is in their knowledge about the earlier judgment and decree and also FDP and also suffers a dismissal of the suit and rightly pointed out that after the lapse of almost 35 years, the present application is filed seeking for the relief of declaration in a belated stage and no cogent reason is assigned for seeking the said amendment in the affidavit and no explanation is offered in filing the application belatedly seeking the relief of declaration. Under circumstances, I am of the opinion that the appellants/plaintiffs have not made out any ground to allow the application filed under Order VI Rule 17 of CPC for amendment of the plaint. The said application is filed after 35 years while hearing the matter for final disposal. Hence, it is not a fit case to give permission to amend the plaint since, the suit was filed in the year 1985 that too for bare injunction. Accordingly, the Point No.1 is answered as Negative.
44Point No.2:
39. The appellant in RFA No.1068/2003 has filed an application seeking permission to file the additional documents and to receive the same as the same are necessary to adjudicate the matter. The respondents have not filed any objections to the said application. The documents ought to be sought to produce before the Court are the bank statement to show that in respect of the suit schedule property only he had opened the account and hence, produced the passbook and also produced voters list to show that the appellant is residing in the suit schedule property and up to date receipts for paying the water bill and electricity bill and also the katha certificate and assessment of tax paid receipt. In support of this application, an affidavit is sworn to that he has been in exclusively enjoying the property in question and commissioner is appointed to sell the said property in auction. He could not produce any documents to show that the katha is stand in his name and also having an account in the Canara Bank showing the particulars of the property, voters list, water bill, electricity bills and those documents goes to the root of the case to show that he is in possession of the property and 45 he should not be dispossessed and hence, he may be permitted to produce the additional documents.
40. I have already pointed out that the respondent have not filed any objections to this application to contend that those documents are not necessary to decide the issue involved between the parties. On perusal of the records it is clear that the plaintiff in order to substantiate his contention he relied upon the documents at Ex.P1 to P6. Exs.P3, P4, P5 and P6 are water bill, electricity bill and tax paid receipt and also the assessment extract respectively. When these documents are already marked before the Trial Court and producing the same as the additional documents will not help the appellant to decide the issue involved between the parties and the appellant was not diligent and could not produce those documents and it is not his case that those documents are not in his custody. Under such circumstances, the appellate Court cannot permit the appellant to produce the documents and no grounds are made out except stating that those documents goes to the very root of the case and these documents will not tilt the issue involved between the parties even if permitted to produce the same. Hence, no 46 reason to allow the application filed under Order 41 Rule 27 of CPC. Accordingly, the Point No.2 is answered as Negative. Point No.3
41. The main contention of the appellant that the Trial Court has committed an error in dismissing the suit in O.S.No.2857/1985. The main contention that the suit schedule property was belongs to the Venkataswamy Naidu and the same is the self-acquired property and he executed a Will on 31.10.1974 in favour of his grandson Yogananda. The said Yogananda, in turn sold the property in favour of the plaintiff that is 'C' schedule property vide sale deed 12.09.1984 for the valuable consideration of Rs.49,000/-. The main contention of the defendants that the suit was filed for the relief of partition and there was a decree and the Court comes to the conclusion that they are entitled for the relief of partition. The plaintiff in order to prove his case, examined himself as PW1. PW1 in his cross-examination, reiterated the averments made in the plaint that he had purchased the property for valuable consideration of Rs.49,000/-. In the cross-examination, he admits that he had purchased the property from the first defendant and at that 47 time, the property was standing in the name of the first defendant. He categorically admits that when he was purchased the said property, the first defendant was residing in the said property. Further, he categorically admits that he did not know whether the house of the first defendant consists one hall, kitchen and bath room and also he admits that he had approached the Court to get evict the 'C' schedule property from Majoji Rao. He further admits that subsequent to the disposal of the eviction petition, the 'C' schedule property was come under his possession from Majoji Rao. It is important to note that in the cross-examination he categorically admits that a portion in the 'C' schedule property is in possession of the second defendant-Sharadamma and further admits that the said Yogananda is staying there only on the ground that he is also having the share in that property. It is further important to note that in the cross-examination it is elicited that when the suggestion was made that there was a decree in O.S.No.829/1972 that Venkataswamy Naidu and others having the share in the property and also he does not know about the decree passed in the year 1976 and also granting 19/56th share in the 'A' schedule property. Further admits that he has seen 48 Ex.P1 and purchased the property but he has not seen any other document except Ex.P1 and encumbrance certificate and further he admits that EC is for the year 1983 and also the Will as per Ex.P1 is concerned, he purchased the property. He further admits that prior to purchase of the property, he did not made any efforts to ascertain as to whether any litigation pending pertains to the 'C' schedule property. He also admits that prior to purchase of the property, he did not enquire in the office of the Sub-Registrar regarding the right of Venkataswamy Naidu pertains to 'A' schedule property and he did not make any efforts from the office of the Tahasildar regarding genealogical tree of Venkataswamy Naidu to find out who are other persons have interest over the said property. He did not make any enquiry with his vendor - Yogananda except Will and also not enquired about any pendency of litigation with respect of the 'A' schedule property. He admits that there is a separate electricity meter in respect of 'C' schedule property and he did not obtain any copy of the proceedings in O.S.No.829/1972.
42. On the other hand, DW1 who is the second defendant has been examined and she reiterated the averments 49 made in the written statement. In the cross-examination the only suggestion was made that the suit schedule property was the self-acquired property of Venkataswamy Naidu and the same was denied. It is also suggested that Venkataswamy Naidu had executed the Will and the same was denied. Further suggested that Yogananda was the absolute owner in terms of the Will in respect of 'B' schedule property and the same also denied. The only answer elicited in the cross-examination of DW1 that the plaintiff was not a party to the proceedings in O.S.No.829/1972. Having considered the oral and documentary evidence and particularly, Ex.P1, no doubt, sale deed was executed by the Yogananda in favour of the plaintiff. It has to be noted that Yogananda got the right over the schedule property based on the Will of the year 1974 and also it is important to note that on the very same year that is within two months, the said Venkataswamy Naidu was passed away. It is also important to note that during the pendency of the civil suit for partition, the alleged Will was executed. The main contention of the appellant counsel that the Will has been suppressed and decree has been obtained. On perusal of the records it is clear that there was a decree for partition in coming to the conclusion that the suit 50 schedule properties are joint family properties. The same has not been challenged by the vendor of the plaintiff and it has reached its finality and the final decree proceedings also initiated and in the final decree proceedings, the commissioner was also appointed and a public auction notice was issued and the same is also admitted by the plaintiff in the plaint itself. It has to be noted that when the plaintiff relied upon the documents at Ex.P1 ought to have produced the same by examining the attesting witness and no such witness was examined. The counsel would vehemently contend that the very execution of the Will was admitted but in the written statement it is specifically pleaded that no such Will was executed and in the cross-examination of DW1 also he specifically denied the suggestion that there was a Will. When such being the facts and circumstances, in order to prove the Will also ought to have examined the witnesses. The counsel vehemently relied upon the judgment that when the Will is admitted, no need to prove the same in view of Section 58 of the Evidence Act but when the profounder pleads that if there was a Will and the plaintiff himself has pleaded the Will in the plaint, ought to have proved the same. Apart from that when the suit in O.S.No.829/1972 was decreed in the year 1976 itself, 51 before purchasing the property in the year 1984, the plaintiff ought to have enquired the same but the admissions are very clear that he has not made any efforts to do the same except relying upon Exs.P1 and P2 and no other documents are also relied upon before the Trial Court and no other documents are placed even to prove the possession also.
43. On the other hand, the defendants relied upon Ex.D1 i.e., the public auction notice and date was fixed for auctioning the property. The Trial Court also while considering both the oral and documentary evidence, in paragraphs 8 to 10 discussed with regard to the contentions of the respective parties and also relied upon certain judgments and concluded that in order to prove the factum of possession, the plaintiff failed to prove the same. I have already pointed out that while discussing the evidence of PW1, he admitted that Sharadamma is in portion of 'C' schedule property and the Yogananda is also is in possession of the said property. When such admission is given that Sharadamma is in portion of 'C'; schedule property, the question of granting permanent injunction in favour of the plaintiff does not arise. Hence, I do not find any error committed by the Trial 52 Court in giving the finding that the plaintiff has not proved the possession in respect of 'C' schedule property and not placed any substantial evidence to prove that he is in lawful possession of the said property. When such being the facts and circumstances, I do not find any error to reverse the finding of the Trial Court to comes to a conclusion that the Trial Court has committed an error in dismissing the suit in O.S.No.2857/1985. The decisions relied by the appellants' counsel would not comes to the aid of the appellants having considered the facts and circumstances of the case on hand. Hence, I answer Point No.3 as Negative. Point No.4:
44. The main contention of the appellant counsel in this appeal that the Trial Court has committed an error in dismissing the suit in O.S.No.2855/1985. On perusal of the pleadings and contents of the plaint it is clear that the plaintiff sought for the relief of bare injunction in respect of 'C' schedule property. In the plaint itself it is contended that the original property is in the name of Venkataswamy Naidu that is 'A' schedule property and when the property was bequeathed in favour of Yogananda in respect of 'B' schedule property and even that, a portion of 'B' 53 schedule property was sold in favour of the plaintiff. The plaintiff has examined as PW1. He relied upon the documents at Ex.P1 to P6. He was also subjected to the cross-examination. In the cross-examination, he admits that wherein Yogananda resides in the property does not belong to him. It is also elicited that he had purchased the property from Yogananda. It is suggested that an amount of Rs.50,000/- was remained with him as such the Yogananda has not handed over the possession of 'C' schedule property and the said suggestion was denied. In the cross-examination it is elicited that he does not know whether Yogananda resides as on this day in 'C' schedule property from the date of purchase. He further admits that Yogananda came to him regarding negotiation of the same when the Yogananda himself has shown the 'C' schedule property. It is also elicited that he does not know who is residing in the 'C' schedule property and got the possession as such no documents has produced in this case. He does not know when the Venkataswamy Naidu acquired the 'A' schedule property and about the constituting of joint family along with is son- Sriramulu Naidu. Further, he admits that the second defendant is the wife of Sriramulu Naidu and he does not know whether Sharadamma 54 filed a suit in O.S.No.829/1972 and suit was decreed on 12.04.1976 granting share pertains to 'A' schedule property. He also did not made any enquiry regarding whether Venkataswamy Naidu had right to execute the Will as per Ex.P1 and he also does not know whether Sharadamma had filed FDP and court commissioner was also appointed to defeat the property by metes and bounds and also he does not know whether the commissioner was to auction the property and it is also elicited that prior to purchase of the 'C' schedule property, he did not make any enquiry about the said property. He did not seek any opinion about the said property and also does not know whether Venkataswamy Naidu had any right to execute the Will.
45. On the other hand, the second defendant in her evidence she reiterated the written statement averments and she also subjected to the cross-examination. In the cross- examination except stating that the plaintiff was not a party to the proceedings in O.S.No.829/1972 nothing is elicited. The plaintiff mainly relied upon the Will which is marked as Ex.P1 and the same is not proved by examining attesting witness. No doubt, Ex.P3 to P5 are the tax paid receipt, katha certificate and 55 water and electricity bill respectively. In order to prove the factum of possession, nothing is produced on record. On the other hand, the defendants have produced public auction notice which is marked as Ex.D1 and Ex.D2 is the copy plaint copy and copy of the written statement is marked as Ex.D3. Ex.D5 is the certified copy of the judgment passed in O.S.No.829/1972 wherein the Trial Court comes to the conclusion that the suit schedule property is the joint family property and also comes to the conclusion that the defendants have not proved that the said property was the self-acquired property of Venkataswamy Naidu. Ex.D6 is the copy of decree and Ex.D7 is the application filed before the Trial Court for mense profit and so also Ex.D8 is the objection filed for the application filed under Order 20 Rule 18 of CPC. Ex.D9 is an order passed on I.A.Nos.21 and 23. Ex.D10 is an order passed overruling the objections filed by the defendants.
46. Having considered both the oral and documentary evidence, it is clear that there was a decree for partition in favour of the second defendant and decree was passed in the year 1976 itself and thereafter final decree proceedings also 56 initiated and the commissioner was appointed and the commission's report was also accepted that the property cannot be divided and the same has to be sold in terms of Ex.D1 and also auction notice was issued and in the meanwhile sale deeds are executed in favour of the plaintiff. First of all, the plaintiff has not made any enquiry with regard to the earlier suit and also whether the vendor has got clear title. When the said admission takes away the case of the plaintiff, though he did not made any enquiry whether the Will is in favour of the vendor and apart from that the Will is not marked and attesting witnesses also not examined. In order to prove the possession also, nothing is elicited from the mouth of DW1. More fully, the appellants' counsel vehemently contend that the suit is a collusive suit but in order to prove the same no materials are placed before the Court except taking the said contention. The other contention that the Venkataswamy Naidu had got right to dispossess his property under Section 30 of the Hindu Succession Act, and no doubt, he has got right to dispose his property to the extent of his share but here, the plaintiffs are claiming their right based on the Will. The Will was executed in favour of Yogananda and the same was not proved under Sections 63 of the Succession Act 57 and 68 of Evidence Act and attesting witness also not examined. The main contention that Will is not disputed but the second defendant in the cross-examination categorically denied the suggestion of execution of Will and when such being the case, it cannot be contended that Will has not been disputed. Apart from that the answer elicited from the mouth of PW1 with regard to the possession is concerned, he categorically admits that whether his vendor is residing is not known to him and apart from that 'C' schedule property is shown by him but in order to prove the factum of possession, no documents are placed before the Court and the Trial Court while dismissing the suit had came to the conclusion that lawful possession has not been proved. The admission of PW1 is clear that before purchase of the property, he has not made any enquiry and he cannot contend that he is a bonafide purchaser. The suit is filed for the relief of bare injunction and no doubt an attempt is made after 35 years to amend the plaint for the relief of declaration and possession. I have already pointed out the reason for rejecting the said application. In a suit for bare injunction, the plaintiff has to prove the possession and the said possession must be lawful and 58 when such being the facts and circumstances, the contention of the appellants' counsel cannot be accepted.
47. The appellants' counsel vehemently contend that the suit for partition cannot be filed by a women but in the case on hand, her husband predeceased to her father-in-law and she had initiated the suit for partition against her father-in-law claiming her share and also on behalf of her daughters as they are represents the deceased son of Venkataswamy Naidu. When such being the facts and circumstances, when the suit is filed for the relief of bare injunction and not for the declaration and this ground is also cannot be urged. When the Court also looked into whether as on the date of the suit, the plaintiff is in possession of the suit schedule property and whether such possession is lawful, the same also not proved before the Trial Court. Under such circumstances, I do not find any merit in the appeal to reverse the finding of the Trial Court. The Trial Court taken note of the admission elicited from the mouth of PW1 and also nothing is elicited from the mouth of DW1 regarding possession and unless substantive material is placed before the Court that the plaintiff is in possession, reversing the finding of the Trial 59 Court does not arise. The citations relied upon by the appellants would not help the appellants to reverse the findings. Hence, I do not find any merit in the appeals to reverse the finding of the Trial Court. Hence, I answer the Point No.4 as Negative. Point No.5:
48. In view of the discussions made above, I pass the following:
ORDER
(i) The appeals are dismissed. No costs.
(ii) I.A.No.2/2021 filed in RFA Nos.1067/2003 and 1068/2003 under Order VI Rule 27 of CPC are hereby dismissed.
(iii) I.A.No.2/2013 filed under Order 41 Rule 27 of CPC in RFA No.1068/2003 is also hereby dismissed.
Sd/-
JUDGE SN