Karnataka High Court
Margaret Rosemarie D Souza vs Miss Odete D Souza on 5 April, 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR. JUSTICE R.NATARAJ
REGULAR SECOND APPEAL NO.1209 OF 2019 (DEC/INJ)
BETWEEN:
MARGARET ROSEMARIE D'SOUZA,
W/O WILFRED D'SOUZA,
AGED ABOUT 52 YEARS,
WORKING AT FINANCE-EK
REVENUE ACCOUNTS,
P.O.BOX-686, DUBAI, U.A.E.,
REPRESENTED BY G.P.A. HOLDER,
CLEMENT D'SOUZA,
S/O FELIX D'SOUZA,
AGED 45 YEARS,
R/AT CLAMY'S NEAR
B.M.TILE FACTORY, MAROLI,
KULSHEKAR,
MANGALURU - 570\5 005 (DK).
... APPELLANT
(BY SRI.M.SUDHAKAR PAI, ADVOCATE)
AND:
1. MISS ODETE D'SOUZA,
D/O. FREDRICK D'SOUZA,
AGED ABOUT 68 YEARS,
2. MRS. OPHELIA SEQUEIRA,
D/O. FREDRICK D'SOUZA,
AGED ABOUT 60 YEARS,
3. MRS. CISSIE ALIAS
CICILIA D'SOUZA,
W/O. CHARLES D'SOUZA,
AGED ABOUT 89 YEARS,
2
4. MRS. CAROL SALDANHA,
D/O. CHARLES D'SOUZA,
AGED ABOUT 60 YEARS,
5. MRS. CORAL COU-TINHO,
D/O. CHARLES D'SOUZA,
AGED ABOUT 60 YEARS,
6. MRS. CHERYL LEONARD,
D/O. CHARLES D'SOUZA,
AGED ABOUT 55 YEARS,
7. CYPRIAN D'SOUZA,
S/O. MARY MAGDALINE,
AGED ABOUT 91 YEARS,
8. MRS. MATTIE PIGMENTA,
D/O. MARY MAGDALINE,
AGED ABOUT 81 YEARS,
9. MRS. ELFRIDA RODRIGUES,
D/O. LATE LYDIA MATHIAS,
AGED ABOUT 73 YEARS,
10. MRS. ESMERALDA MATHIAS,
D/O. LATE LYDIA MATHIAS,
AGED ABOUT 71 YEARS,
11. MRS. EDSEL MATHIAS,
D/O. LATE LYDIA MATHIAS,
AGED ABOUT 69 YEARS,
12. MR. LAWRENCE D'SOUZA,
H/O. BENEDICTA D'SOUZA,
AGED ABOUT 97 YEARS,
13. MRS. LOVINA GRACIAS,
D/O. BENEDICTA D'SOUZA,
AGED ABOUT 80 YEARS,
14. MR. LESLIE D'SOUZA,
S/O. BENEDICTA D'SOUZA,
AGED ABOUT 68 YEARS,
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15. MISS. LEETA D'SOUZA,
H/O. BENEDICTA D'SOUZA,
AGED ABOUT 61 YEARS,
16. MR. LESTER D'SOUZA,
H/O. BENEDICTA D'SOUZA,
AGED ABOUT 56 YEARS,
17. MR. LANCY D'SOUZA,
S/O BENEDICTA D'SOUZA,
AGED ABOUT 54 YEARS,
RESPONDENTS 1 TO 17 ARE
R/AT NO.301, HELENA,
3RD FLOOR, 57 MOUNT CARMEL ROAD,
BANDRA WEST,
MUMBAI - 400 050.
18. DR. HAROLD MASCARENHAS,
S/O. LATE BENEDICT STANY
MASCARENHAS,
AGED ABOUT 66 YEARS,
R/AT DOOR NO.15-21-1976,
II CROSS, LOWER BENDOOR,
MANGALURU - 575 002.
19. MR. RICHARD MASCARENHAS,
S/O. LATE BENEDICT STANY MASCARENHAS,
AGED ABOUT 64 YEARS,
R/AT 'GLORIA',
II CROSS, LOWER BENDOOR,
MANGALURU - 575 002.
20. MRS. JOYCE FERNANDES,
W/O. LAWRENCE FERNANDES,
D/O. LATE BENEDICT STANY MASCARENHAS,
AGED ABOUT 61 YEARS,
R/AT "LOY" "JOY" ALAPE, PADIL,
MANGALURU - 575 007. (DK)
21. MRS. PRAMILA,
D/O. LATE BENEDICT STANY MASCARENHAS,
W/O. MR.IRWIN,
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AGED ABOUT 58 YEARS,
R/AT STATE BANK OF MYSORE,
IC COLONY, BRANCH, WEST PARK,
HOLY CROSS ROAD,
BORIVILI WEST,
MUMBAI - 400 103.
22. MR. VIOLET,
S/O. LATE BENEDICT STANY MASCARENHAS,
AGED ABOUT 53 YEARS,
R/AT DOOR NO.15-21-1974,
II CROSS, LOWER BENDOOR,
MANGALURU - 575 002 (DK).
23. MRS. APOLINE MASCARENHAS,
W/O. LATE BENEDICT STANY MASCARENHAS,
AGED ABOUT 83 YEARS,
R/AT DOOR NO.15-21-1974,
II CROSS, LOWER BENDOOR,
MANGALURU - 575 002.
24. STELLA D'SOUZA,
W/O. EDWIN JOSEPH D'SOUZA,
AGED ABOUT 71 YEARS,
R/AT. GUDDE THOTA,
HILL WAY HOUSE, NAGORI,
MANGALURU - 575 002. (DK).
... RESPONDENTS
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC, 1908 AGAINST THE JUDGMENT AND
DECREE DATED 18.03.2019 PASSED IN RA.NO.90/2016, ON
THE FILE OF THE II ADDL.SENIOR CIVIL JUDGE AND CJM.,
MANGALURU D.K., DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 16.03.2016 PASSED IN
OS.NO.126/1999 ON THE FILE OF THE PRL.CIVIL JUDGE AND
JMFC., MANGALURU D.K.
THIS REGULAR SECOND APPEAL COMING ON FOR
ADMISSION THIS DAY THROUGH VIDEO CONFERENCE, THE
COURT DELIVERED THE FOLLOWING:
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JUDGMENT
This appeal is filed by the defendant No.2 against the judgment and decree dated 18.03.2019 challenging the concurrent finding of facts recorded by both the Court passed in R.A.No.90/2016 on the file of the II Additional Senior Civil Judge and CJM, Mangaluru, D.K., (henceforth referred to as the 'First Appellate Court' for short) and confirming the judgment and decree dated 16.03.2016 passed in O.S.No.126/1999 on the file of Principal Civil Judge and JMFC, Mangaluru, D.K. (henceforth referred to as 'the Trial Court' for short).
2. The parties shall hereinafter be referred to as they are arrayed before the Trial Court.
3. The plaintiffs sought for declaration that:-
(i) The decree passed in O.S.No.331/1996 by the Court of the Munsiff, Mangaluru is null and void
(ii) The lease deed executed by the deceased defendant No.1 in favour of defendant No.2 dated 19.02.1997 is null and void and not binding on them 6
(iii) The sale deed dated 24.11.1997 executed by defendant No.1 in favour of defendant No.2 does not bind the plaintiffs and
(iv) The consequential injunction restraining the legal representatives of defendant No.1 and defendant No.2 from interfering with the possession and enjoyment of the plaint in the suit properties.
4. The plaintiffs claimed that they are the owners of the suit properties which earlier belonged to one Mary Magdeline D'Souza, which she purchased in terms of a sale deed dated 09.06.1924. She died on 07.06.1950 intestate leaving behind her seven children including plaintiff Nos.7, 8 and 9 and others. Some of the plaintiffs are the legal representatives of her four children who died intestate. The plaintiffs therefore, claimed that all of them had succeeded in an undivided share in the suit properties. It was claimed that one of the legal heirs i.e., Mr. Cyprian D'Souza for himself and as power of attorney of other co- owners had rented out a residential premises situated in 7 the suit properties to the deceased defendant No.1 on a monthly rent of Rs.50/-. The plaintiffs were residing at Bombay and whenever they came down to Mangaluru, they used to collect the monthly rent from the deceased defendant No.1. It was claimed that plaintiff No.9 came down to Mangaluru during the 3rd week of November 1998 and when she went to collect rents from the deceased defendant No.1, she was asked to leave the compound alleging that she had no right to demand any rent from him, as defendant No.1 had become the absolute owner of the suit property. Thereafter, defendant No.1 lodged a complaint against plaintiff No.9 with the Police Station at Kadri. The plaintiff No.9 thereafter, verified from the Office of the Village Accountant of Kadri Village and collected the copy of the RTC extract which disclosed that the name of the defendant No.2 was entered in the revenue records in M.R.No.536/1997-1998, on the basis of a lease deed dated 19.02.1997 and sale deed dated 24.11.1997 respectively. She also came to know that the deceased defendant No.1 had filed a suit against Mr.Edwin Joseph D'Souza and another in O.S.No.331/1996 before 8 the Court of Munsiff, Mangaluru. It was found that the deceased defendant No.1 had managed to obtain a compromise decree where it was declared that the deceased defendant No.1 had perfected his title to the suit properties by adverse possession. She also came to know that deceased defendant No.1 had leased out 5 cents of entire portion of the land in Item No.2 on 10.09.1997 in favour of defendant No.2. She also came to know that deceased defendant No.1 had executed a sale deed of muli right in respect of the suit properties in favour of defendant No.2 on 24.11.1997. The plaintiffs therefore, contended that the defendants had conspired to deprive their right, title and interest in the suit properties and therefore, filed a suit for declaration of their title to the suit properties and also that the decree obtained in O.S.No.331/1996, the lease deed dated 19.02.1997 and sale deed dated 24.11.1997 did not bind their right, title and interest in the suit properties.
5. Defendant Nos.1 and 2 contested the suit and denied the averments of the plaint. They claimed that the 9 land in Sy.No.125/11 belonged to Francis Mascarenhas and he granted the muli right as per a document dated 01.04.1916 in favour of Juliana D'Sa Bai. Later by a registered instrument dated 02.09.1963 Mr.Edwin Joseph D'Souza became the owner of the land in Sy.No.125/11. Thereafter, in terms of registered deed dated 06.03.1967, Stella D'Souza became the owner of the said property. Thereafter, in terms of a document dated 13.01.1972 one Josephine D'Cunha got muli right within a portion of Sy.No.125/11. By another registered instrument dated 13.01.1972 Josephine D'Cunha got the Soda chit of mulageni right. The defendant Nos.1 claimed that the decree obtained in O.S.No.331/1996 was in respect of the declaration of his title in the said properties. The defendant No.1 claimed that the properties in Sy.No.125/118 and 125/12 of Kadri Village formed one compact which was enclosed by compound wall on all sides, where the defendant No.1 was running a piggery and poultry. He claimed that the building was constructed in the year 1990 after obtaining a license from the municipality. Thereafter, he obtained a license from 10 Municipality to run a flour mill in the year 1979-80 which was renewed upto the year 1994. He also claimed that there was a grant of permission by the Karnataka Electricity Board for installation of a 5 HP motor for the flour mill and that he had dug up a well to draw water for irrigating coconut plantation raised in the suit properties. He claimed that the suit of the plaintiff was barred by law of limitation and also that he had perfected his title to the suit properties by adverse possession.
6. Based on the rival contentions, the Trial Court framed the following issues:
(1) Whether the plaintiffs prove that they have inherited the suit schedule property from the original owner Mrs. Mary Magdeline D'Souza?
(2) Whether the plaintiffs prove that Cyprian D'Souza for self and as GPA holder of other co-owners let out the residential premises situated in the suit schedule property to deceased defendant No.1 on a monthly rental of Rs.50/-?
(3) Whether the plaintiffs prove that plaintiff No.7 Cyprian D'Souza was collecting rentals 11 from deceased defendant No.1 on behalf of all plaintiffs and thereby they were and are in possession of the suit schedule property? (4) Whether the plaintiffs prove that decree in O.S.No.331/1996 is collusive, null and void and the same is not binding upon them? (5) Whether the plaintiffs prove that perpetual lease deed executed by deceased 1st defendant in favour of 2nd defendant dated 19.02.1997 is null and void and not binding upon them?
(6) Whether the plaintiffs prove that sale deed executed by deceased defendant No.1 in favour of 2nd defendant dated 24.11.1997 is null and void and not binding upon them?
(7) Whether the plaintiffs prove that defendant No.2 is trying to interfere in possession of the property by the plaintiffs by putting up structure, by creating illegal documents and by inducting sub-tenants?
(8) Whether the LRs of deceased defendant No.1 and defendant No.2 proves that they have become owners of the suit schedule property by adverse possession?
(9) Whether valuation made and Court fee paid is correct?
12(10) Whether this Court has got pecuniar jurisdiction to try this suit?
(11) Whether the plaintiffs are entitled for the reliefs sought?
(12) What order or decree?
7. The GPA holder of the plaintiffs was examined as P.W.1 and marked Ex.P1 to P23 documents. On the other hand, defendant No.1(b) was examined as D.W.2 and they marked Ex.D1 to D33 documents.
8. Based on the oral and documentary evidence, the Trial Court held that the plaintiffs had established their title to the suit properties. It also held that the decree obtained in O.S.No.331/1996 was behind the back of the plaintiffs and that the defendant No.1 did not derive any title on the basis of the decree passed in O.S.No.331/1996. Consequently, it declared that the decree passed in O.S.No.331/1996 as well as the consequent, lease deed dated 19.02.1997 and the sale deed dated 24.11.1997 did not bind the right, title and interest of the plaintiffs. It also granted the decree of perpetual injunction restraining the legal representatives of 13 defendant Nos.1 and 2 from interfering with the possession of the plaintiffs and also from putting up permanent structure or creating any document in favour of any 3rd parties in respect of the suit properties.
9. Being aggrieved by the aforesaid judgment and decree, the defendant No.2 alone filed R.A.No.90/2016. The First Appellate Court secured the records of the Trial Court, heard the learned counsel for the parties and framed the following points for consideration:-
(1) Whether the plaintiffs prove that, the suit schedule property originally belongs to one Late Mary Magdeline D'Souza and after her death they have inherited the same and Cyprian D'Souza as a GPA holder of the co-
owners had let the residential premises on rent to late defendant No.1 on a monthly rent of Rs.50/-?
(2) Whether the plaintiffs proves that the defendants have obtained a collusive decree in O.S.No.331/1996 which is null and void and not binding upon them?
(3) Whether the plaintiffs proves that sale deed executed by the deceased defendant No.1 in 14 favour of defendant No.2 dt.24.11.1997 is null and void and not binding upon them/ (4) Whether the plaintiffs proves that the alleged interference by the defendants? (5) Whether the defendants proves that they have perfected their title over the suit property by way of adverse possession?
(6) Whether the suit is properly valued for the purpose of Court fee and jurisdiction?
(7) Whether the appellant proves that the impugned judgment and decree passed by the trial Court in O.S.No.126/1999 dt.16.03.2016 is illegal, perverse and contrary to the provisions of law as well as on facts of the case?
(8) Whether interference of this Court is necessary? If so to what extent?
(9) What order or decree?
10. The First Appellate Court after considering the oral and documentary evidence held that the decree obtained in O.S.No.331/1996 was fraudulent inasmuch as the same was done behind the back of the plaintiffs and that the defendants in O.S.No.331/1996 had no right, title or interest to concede to the claim of the defendant No.1 15 and the decree passed in the said suit did not bind on the right, title or interest of the plaintiff in the suit property.
11. The First Appellate Court therefore, dismissed the appeal and confirmed the judgment and decree passed by the Trial Court. Being aggrieved by the aforesaid judgment and decree, the present appeal is filed by the defendant No.2.
12. Learned counsel for the defendant No.2 submitted that the suit properties were in possession and enjoyment of defendant No.1 for substantial number of years and therefore, defendant No.1 had perfected his right, title and interest in respect of suit properties and thereafter, for consideration, transferred the said properties in favour of the defendant No.2. The learned counsel submitted that the suit filed by the plaintiffs was highly belated and there was no explanation for the delay in filing the suit.
13. A perusal of the impugned judgment and decree passed by the Trial Court and the First Appellate 16 Court indicates that the defendant No.1 was in possession of the suit properties. The plaintiffs were absentee landlords and taking advantage of their absence, the defendant No.1 in collusion with strangers had brought about a colourable compromise in O.S.No.331/1996, whereby an non-existent right of the defendant No.1 was attempted to be resurrected by a decree of declaration that he had perfected his title to the suit properties by adverse possession.
14. The plaintiffs were not parties to the suit and therefore, the decree definitely did not bind the plaintiffs who were the owners of the suit schedule properties. In view of the categorical finding recorded by both the Court that the said decree did not bind the interest of the plaintiffs, the consequential sale deed and the lease deed executed by defendant No.1 in favour of defendant No.2 did certainly not bind the plaintiffs. The Trial Court and First Appellate Court have examined the oral and documentary evidence on record and have recorded a clear finding of fact that the decree obtained by the defendant 17 No.1 was fraudulent and therefore, this Court does not consider it appropriate to disturb the finding of fact recorded by both the Courts and hence, this appeal lacks merit and accordingly, it is dismissed.
Sd/-
JUDGE GJM