Karnataka High Court
Raghavendra Rao vs N Veeravenkata Rao on 25 October, 2018
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF OCTOBER, 2018
BEFORE
THE HON'BLE MRS. JUSTICE N.K.SUDHINDRARAO
REGULAR SECOND APPEAL No. 1632 OF 2005
BETWEEN:
1. Raghavendra Rao
S/o Bhimsen Rao
Age: 65 years
2. Vajendra Rao
S/o Bhimsen Rao
Age: 62 years
3. Sudhakar Rao
S/o Bhimsen Rao
Age: 55 years
4. Kishan Rao
S/o Bhimsen Rao
Age: 47 years
All are majors, R/o Raichur
Through their GPA holder
T.S.Devaru S/o S.T.Devaru
Age: 66 years
R/o Raichur-584101
...Appellants
(By Smt. Hema L.Kulakarni, Advocate)
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AND:
1. N. Veeravenkata Rao
S/o Veeraraju
2. K.Nagalaxmi D/o Satyanarayan,
3. Amaramma W/o Bhimsen,
4. K.Kumari D/o Nageshwar Rao,
5. Ramanagouda S/o Not known,
6. Basangouda S/o Not known,
All are R/o Sriramnagar village,
Taluka Raichur-584101.
...Respondents
(Sri Ashok S.Kinagi, Advocate for R1 to R4)
(Notice to R5 & R6 served)
This Regular Second Appeal is filed under
Section 100 R/W Order 42 Rule 1 of CPC praying to
set aside the judgment and decree passed by the
learned Principal District Judge, Raichur in R.A.
No.22/1997 dated 16.04.2005 confirming the
judgment and decree dated 25.07.1997 passed in OS
No.74/1990 on the file of the Civil Judge (Sr.Dn.),
Raichur and allow the appeal with costs throughout.
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This appeal coming on for Further Hearing this
day, Court delivered the following:
JUDGMENT
The appeal is directed against the judgment and decree passed by the learned Principal District Judge, Raichur in R.A. No.22/1997 dated 16.04.2005 confirming the judgment and decree dated 25.07.1997 passed by the Civil Judge (Sr.Dn), Raichur in OS No.74/1990 wherein the suit filed by the plaintiffs was dismissed.
2. In order to avoid overlapping and confusion, the parties hereinafter are referred in accordance with their ranks and status as held by them respectively before the trial Court.
3. The plaintiffs filed the suit for possession of the suit land bearing Sy.No.216 measuring 19 acres 04 guntas situated at Rampur village of Raichur taluka and also for mesne profits from the defendants from the date of the 4 suit till handing over of possession by the defendants and also for rectification of ROR.
4. The claim of the plaintiffs in substance is that one Ramangouda inherited the schedule property from one Rangamma W/o Bheemangouda who was his mother. Rangamma W/o Bheemangouda was the Inamdar of the land in question, as she was rendering service to the temple and enjoying the schedule property. After the death of said Rangamma, his son Ramangouda claimed to be her legal heir and the person entitled for the grant. The occupancy rights were granted to him on 30.12.1981 by the Land Tribunal. However, he sold the property to one Bhimsen Rao through registered sale deed on 28.01.1982 for consideration of Rs.22,000/- for legal necessity of the family and put him in possession of the land. After the death of Bhimsen Rao, the plaintiffs discontinued the possession of the suit land. By taking unfair advantage of the same, defendant Nos.1 to 4 in collusion with defendant Nos.5 and 6/Ranganagouda and Basanagouda 5 respectively, wrongfully took possession of the suit land. The defendants colluded with Village Accountant and got their name entered in the relevant revenue records pertaining to the suit land. Thus, the plaintiffs claim that they are not bound by any transaction. Defendant Nos.5 and 6/Ranganagouda and Basanagouda respectively never had any rights over the suit land.
5. The defendants appeared through their counsel and denied the claim made by the plaintiffs. The defendants also contended that the suit is bad in law for non-joinder of necessary parties. They also questioned maintainability of the suit and also denied the sale deed purported to have been executed in favour of Bhimsen Rao by Ramangouda.
6. As the suit of the plaintiffs came to be dismissed with costs, they preferred appeal before the learned Principal District Judge, Raichur, in R.A.No.22/1997. That also came to be dismissed confirming the judgment passed by the learned Principal 6 Civil Judge, Raichur, in O.S.No.74/1990. It is against the said judgment passed by the learned Principal District Judge, Raichur in R.A.No.22/1997 the present appeal is preferred. Thus, dismissal of the original suit by both the Courts below through concurrent finding is challenged before this Court.
7. The learned Trial Judge has framed the following issues:
1. Whether the plaintiffs prove that the original inamdar Ramangouda sold the suit property to Bhimsenrao being the ancestor, i.e., father and brother of plaintiffs 1 to 4 and that after death of the said inamdar Ramangouda, the plaintiffs 1-4 succeeded to his estate and thus the plaintiffs 1-4 are the owners of the suit property?
2. Whether the defendants 5 & 6 prove that they are joint family members of Ramangouda and are also the co-7
owners with the said Ramangouda (Inamdar) and that as such the said Ramangouda alone had no authority to sell the suit property to Bhimsen Rao?
3. Whether the plaintiffs prove that after the death of Bhimsen Rao they discontinued the possessing the suit land and that thus the defts.1-4 in collusion with defts. 5 & 6 are in wrongful possession of the suit land and enjoying the fruits thereof unlawfully?
4. Whether the plaintiffs prove that the defet.Nos.1-6 got their names entered in the ROR in respect of the suit land behind the back of the plaintiff and without notice to plaintiff and without following the due procedure as laid down in Karnataka Land Revenue Act, 1964?
5. Whether the suit of the plaintiff is barred by limitation ?
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6. Whether the suit of the plaintiffs for mere possession and mesne profits and rectification of records of rights is not maintainable without seeking the relief if declaration that the sale transaction effected by deft.5 & 6 & in favour of any other persons is null and void and not binding upon them or without seeking the relief of cancellation of the said sale transaction by defendants 5 & 6 and without seeking relief of declaration of plaintiffs title?
7. Whether the defts. Prove that the suit is hit by non-joinder of necessary parties i.e., original inamdar Ramangouda and Bassangouda (Smt. Rangamma) Sri. K. Janakiramayya and Smt. K. Radha?
8. Whether the defts. 1 to 4 prove that there the partition took place among Ramangouda and his brothers defts.
5 & 6 in 1980 and that the suit property had fallen to the share of deft. Nos.5 & 6 only?
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9. Whether the plaintiffs are entitled for vacant possession?
10. Whether the plaintiffs are entitled for past and future mesne profits?
11. Whether the defts. 1 to 4 are bonafide purchasers for valuable consideration and without notice of the plaintiffs right if any?
12. What decree or order?
8. The learned Trial Judge framed as many as twelve issues regarding sale deed in favour of Bhimsen Rao, lack of authority on the part of Ramanagouda over the property, discontinuance of possession by the plaintiffs, entering of name of the defendants in the revenue records, non-joinder of necessary parties, partition between Ramanagouda and his brothers and the entitlement or disentitlement.
9. The learned trial Judge was accommodated with the oral evidence of PW.1 and documentary evidence 10 as Exs.P1 to P4 on the side of the plaintiffs and oral evidence of DWs.1 to 4 and documentary evidence as Exs.D1 to D20 from the side of the defendants.
10. This Court while admitting the appeal has framed the following substantial questions of law:
1. Whether the Courts below would justified in concluding that Ex.P3 which is stated to be sale deed executed by defendant No.7 in favour of the father of plaintiffs was not proved in accordance with law, although defendant No.7 had categorically admitted in his written statement that he had conveyed the suit schedule properties to father of the plaintiffs by Ex.P3 on 28.01.1982?
2. Whether the Courts below erred in declining to grant the relief of decree of possession to the appellant/plaintiffs?
11. The legal aspects that are included in the scope of adjudication would be salable rights of Ramangouda, possession of Bhimsen Rao, its 11 discontinuance by the plaintiffs, rival possession of the defendants, salable rights of defendant Nos.5 and 6 of the suit land, the impact of revenue entries pertaining to the schedule property and alienable rights and binding effect of said alienation made by Bhimsen Rao as against the sale deed purported to have been made by defendant Nos.5 and 6 in favour of defendant Nos.1 to 4. As change of persons are claimed regarding possession of the property, it is also necessary to find out who was in possession of the property and whether such possession was handed over or taken by the other.
12. Smt. Hema L. Kulkarni, learned counsel appearing for the appellants would submit that the plaintiffs represent due diligence of the schedule property in the capacity of legal heirs of one Bhimsen Rao and that the defendants in this connection are nothing to do with the schedule property. She vociferously submits that the defendants with number of documents among themselves or with the third party cannot get the title over the 12 schedule property. She would also submit that the plaintiffs' discontinuation of possession as stated in the plaint was really not continued one paving way for losing the rights. She would further submit that defendant Nos.5 and 6/ Ranganagouda and Basanagouda respectively are intruders who made false claim of relationship and the right to property as well.
13. Sri Ashok S. Kinagi, learned counsel appearing for respondent Nos.1 to 4 would submit that there is threshold bar for the plaintiffs before the trial Court and also in the capacity of the appellants before the first appellate Court to maintain or to continue the suit in its present form of seeking recovery of possession without there being a prayer for declaration of ownership. He would further submit that Bhimsen Rao was never in possession of the suit property at any point of time and that the plaintiffs claiming possession under him does not arise. He would also submit that there is no allegation against the defendants of fraud or cheating in connection 13 with the transaction entered into. The plaintiffs have examined one T. S. Devaru as PW.1 and he reiterates the plaint averments in his chief examination. He would submit that the evidence adduced by PW.1 is as good as no evidence as he is not competent to be in acquaintance with the schedule property or internal transaction in the family of Ramangouda or Bhimsen Rao. He would further submit that defendant Nos.5 and 6/Ranganagouda and Basanagouda are natural sons of Bheemangouda and they inherited the estate under intestate succession and sold the said land in bits to various purchasers under different registered sale deeds and the said sale deeds are not questioned by the plaintiffs for the reasons best known to them.
14. It is also submitted that there cannot be inconsistent approach by a person who claims to property by adopting the selective approach.
15. The material documents available are following among the others.
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1. Sale Deed by Ramangouda in favour of Bhimsenrao dated 28.01.1982 for a consideration of Rs.22,000/-
2. Sale Deed dated 15.10.1984 in favour of defendant No.1 to 4 for a consideration of Rs.82,000/-
16. Learned counsel Sri Ashok S. Kinagi would submit that there is no lis of the plaintiff regarding entering of possession over the schedule property in the suit land or after admitted discontinuance.
17. The learned counsel further argues that later on discontinuance there was no entry of the plaintiff into the possession of the land at any point of time. He would further submit that insofar as the revenue records are concerned, the defendants have really supported the revenue entries and their present value within the meaning of Section 138 of Land Revenue Act.
18. Learned counsel for the plaintiffs would further submit that the defendants 5 and 6 are strangers to the family of Ramangouda. Thus plaintiff claims the property of Ramangouda S/o Bhimangouda to the extent of 19 15 acres 4 guntas was the owner of the suit property. Having got the same granted in recognition of the services rendered by Rangamma, his mother, he sold the said property to Bhimsenrao under the sale Deed as per Ex.P-3
19. After the death of the said Bhimsenrao his children that is plaintiff Nos.1 to 4 have succeeded to the suit property in possession. Per contra, the claims and contentions of the defendants apart from denial, it is stated that defendant Nos.1 to 4 purchased the suit property under the registered sale deed dated 15.10.1984 for valuable consideration and holding the documents in possession. With the above being the bone of contention at the background , it is necessary to mention the common factors of suit property in survey No. 216 to the extent of 19 acres 4 guntas being held by Rangamma, wife of Bhimanagouda (mother of Ramangouda Deft.No.7)was rendering the services to the temple at Rampur village of Raichur and that she was recognized as Inam holder. 16
20. The material difference is that the plaintiffs claim that whatever Ramanagouda had in the form of suit property was sold under the sale deed of 28.01.1982 to Bhimsenrao. Per contra defendants claim they being the joint family members having records in their names they sold the property to defendant Nos.1 to 4 and other persons.
21. Meanwhile, it is necessary to mention that learned counsel would submit that the matter highlighted in the revenue orders in revenue petition was not answered by the lower appellate Court while adjudicating the matter.
22. In the context and circumstances of the case, the identity, extent and location of the suit land is not disputed. The land bearing Sy.No.216 to the extent of 19 acres 4 guntas having revenue assessment of Rs.20.75/- situated at Rampur village in Raichur Taluk. The sale deed purported to have been executed by Ramanagouda in favour of Bhimsen Rao is marked as Ex.P.3. Incidentally, 17 the other sale deeds purported to have been executed by defendant Nos.5 and 6 in favour of defendant Nos.1 to 4. Ramanagouda said to have been executed sale deed of the property in favour of Bhimsen Rao, who is nothing but the father of plaintiff Nos.1 to 4. Further, it is contended that defendant Nos.5 and 6 have sold the suit property to defendant Nos.1 to 4 and others, who in turn executed sale deed in favour of Janaki Ramayya, who in turn is said to have sold the said property in different parts to defendant Nos.1 to 4. The ownership, possession and alienable rights are to be reckoned with reference to sale deed dated 28.01.1982 said to have been executed by Ramanagouda in favour of Bhimsen Rao Ex.P.3 and sale deed dated 02.11.1983 is said to have been executed by defendant Nos.5 and 6 in favour of Janaki Ramayya. Insofar, as defendant Nos.1 to 4 are concerned, the principle of nemo dat quod non habet applies, which means no one can convey better then what he has. 18
23. Thus, in the circumstances, if it is held that ownership and possession was conveyed by defendant Nos.5 and 6 in favour of Janaki Ramayya, the same applies to defendant Nos.1 to 4. The grant order marked as Ex.P.2 contains the grant of the suit land among other lands namely, Sy.No.240, 241 and 242 of Rampur village. Another aspect to be considered is that Janaki Ramayya the purchaser of the suit property from defendant Nos.5 and 6 is not party to the suit. At the same time, the persons who are parties to the suit and also parties to the sale deeds are defendant Nos.5 and 6 as sellers. The pivotal question would be between defendant Nos.5 and 6 and Ramanagouda who had alienable rights. Regard being had to the fact that the claims of the defendant Nos.1 to 4 is that the defendant Nos.5 and 6 namely, Ranganagouda and Basanagouda are nothing but the sons of Bheemanagouda.
24. Said Ramangouda son of Rangamma, the grantee of the land has filed the written statement and did 19 not contest the suit. Second page of the written statement filed by the defendant No.7 is not seen. However, the learned counsel for the parties were fair enough to pass on the second page of the written statement. No significant portion except prayer and verification columns are typed therein. Ramangouda, the defendant No.7 admits the execution of the sale deed dated 28.01.1982 by him in favour of the Bhimsenrao. RTC pertaining to the year 1978-79, 1979-80 and 1980-81 are seen. That one Narasamma is stated to be in possession of the suit property. However, in column No.9 meant for ownership, the name of Rangamma W/o Bhimanna is rounded off and beneath names of Ranganagouda @ Basanagouda S/o Bhimanagouda are mentioned and mutation No.177 is mentioned stating it was mutated on 22.10.1983. The RTC for the years 1983-1984 and 1985-1986 name of Janaki Ramayya is reflected in column No.12 and 1985-86, 1986-87, 1987-88 name of K. Radha W/o Veer Venkatrao is seen and in column No.9, it is mutated in favour of K. Radha W/o Ramchandra and Nakkali Veervenkatrao. 20
25. Similarly, RTC from 1983 to 1988 are in favour of Rangangouda and Mangalakshmi in respect of land Sy.No.216/A and it is also mutated in their names. Ex.D5 is the mutation extract wherein land in Sy.No.216 to the extent of 19 acres 06 guntas is mutated by virtue of the sale deed bearing registration No.915/1983-84 dated 2.11.1983. Ex.D6 is also extract of mutation in respect of portion of property being mutated in favour of Kottapalli Suryanarayana. Ex.P.4 Encumbrance extract wherein it is stated that suit land in survey No.216 in favour of Ramanagouda S/o Bhimanna.
26. As stated above, at the cost of repetition it is stated that whether the Ramanagouda sold the entire suit property in favour of Bhimsen Rao or more than what he was entitled or never had right to sell the same. Further it is also equally significant to analyse and conclude that whether the defendant Nos.5 and 6 have sold suit property as exclusive owners or joint owners or without ownership. 21
27. Defendants No.5 and 6 claimed that they are the sons of Bhimanagouda apart from Ramanagouda which is vociferously denied by the plaintiffs. Incidentally, the Court was unable to have the accommodation or submission by the counsel appearing for Ramanagouda defendant No.7 or defendant Nos.5 and 6. So far as present suit is concerned, it is filed arraying all the three brothers defendant Nos.5, 6 and 7. Regard being had to the fact that defendant No.7 is said to have been impleaded in the later circumstance. In the circumstances, the specific and assertive claim by the defendant is that the defendant Nos.5 and 6 are the members of joint family have conveyed the right in favour of the Janakiramayya who conveyed to defendant Nos.1 to 4. Ramanagouda defendant No.7 is the vendor of the plaintiffs' father. In the background of denial of relationship the possession which appears on the face of record is that defendant Nos.5, 6 and 7 brothers have sold the suit property, however, not jointly by all the three of them, but defendant No.7 under the first sale deed Ex.P.3 and the 22 defendant Nos.5 and 6 under the subsequent sale deeds dated 2.11.1983. On perusal of sale deed dated 28.01.1982 executed by Ramanagouda S/o Bhimanna in favour of Bhimsenrao S/o Raghavendra Rao in respect of the property bearing land Sy.No.216 measuring 19 acres 04 guntas. In the para meant for source of title, the vendor Ramanagouda states as under;
"Whereas the vendor is the absolute owner of land bearing Sy.No.216, measuring 19 acres 04 guntas assessed at Rs.20.00, dry land, black soil, situated in village limits of Rampur, taluk Raichur."
28. Under Ex.P.3 it is not stated that whether he derive the title from others or succeeded through interviewers or otherwise and he states that he is owner by himself. Insofar as the sale deed in favour of Janakiramayya regarding the entire suit property being sold is not forthcoming for the very fact that sale deed is not filed either by plaintiffs or by the defendants. 23
29. Smt. Hema Kulkarni would submit that defendant Nos.5 and 6 are strangers, they never have any right to sell the property, as it belonged to Ramanagouda S/o Rangamma and Bhimanna wholly and that the claim of defendant Nos.5 and 6 are concerned, they are not the members of joint Hindu Family to convey the property of the joint family of Ramanagouda. She would further submits that the name of mother of defendant Nos.5 and 6 is one Basamma and not Rangamma, as is in case of Ramanagouda.
30. Learned counsel Sri Ashok Kinagi would submit that the defendant Nos.5 and 6 are the children of Bhimanna through Basamma. Thus, defendant Nos.5 and 6 are half brothers of defendant No.7. However, between defendant Nos.5 and 6 are concerned, they are natural brothers. Insofar as evidence of plaintiffs is concerned one T.S. Devaru is examined as PW.1 as Power of Attorney holder of plaintiff Nos.1 to 3. He tells about grant of land to defendant No.7. Thereafter, Bhimasen Rao purchased 24 the same from Ramanagouda for Rs.22,000/- under the registered sale deed dated 28.01.1982. He further states that the plaintiffs are the sons of said Bhimsen Rao and the schedule property was kept hollow, because the plaintiffs were Government servants. He was cross- examined and it is elicited from him that he was not present at the time of execution of the sale deed in favour of the father of the plaintiffs. According to him, defendant No.7 Ramanagouda is the only son of Rangamma W/o Bhimanagouda. He does not know Bhimanagouda has any daughters. He has seen defendant Nos.5 and 6 and he has not seen Inam Patrika i.e., grant letter. He admits that the land was not purchased by father of the plaintiffs. It is elicited from him that he does not know whether defendant Nos.5 and 6 have filed joint application on 16.05.1983 about the partition making a request to effect mutation. To a question by the Court as to other three properties were allotted to Ramangouda, Smt. Hema L. Kulkarni, learned counsel for the appellants/plaintiffs would submit that those properties are not concerned with the present 25 suit. However, I find a reference of those properties are also necessary to have a cursory glance of the joint family and the relationship.
31. Coming back to cross-examination of PW.1, it is also elicited from PW.1 that he does not know whether in the partition Sy.No.216 fell to the share of defendant Nos.5 and 6. It is, in this connection, the plaintiffs have come to the Court claiming that Ramangouda was the exclusive owner of the landed property and had right over the other properties of the joint family.
32. Sri Ashok S. Kinagi, learned counsel appearing for respondent Nos.1 to 4 would rely on Ex.D1-RTC extracts wherein column No.9 states Rangangouda and Basangouda are the sons of Bheemangouda. He further submits that mutation No.178 is allotted to Janakiramayya in respect of 8 guntas upon sale of the properties.
33. In this connection, Smt. Hema L. Kulkarni, learned counsel for the appellants would submit that the 26 exhibit documents is questionable for the very reason that the name of Ramangouda is not mentioned. Thus, she stresses in the light of non-mentioning the name of Ramangouda, the said documents cannot be relied upon.
34. The documents filed by the plaintiffs are, Ex.P1 is the General Power of Attorney said to have been executed by the plaintiffs in favour of PW.1; Ex.P2 is the copy of grant letter (not disputed), Ex.P3 is the sale deed dated 28.01.1982; Ex.P4 is the Encumbrance Certificate. The suit was filed in the year 1990. It is unfortunate that the matter is still pending even after lapse of twenty eight years. Between the plaintiffs and defendants, no doubt, it is the plaintiffs have to sink and sail on their evidence and they cannot rest on the defendants' lapse. The other three properties that are granted to Ramangouda are Sy.No.240 Sy.No.241 and Sy.No.242. Thus, regard being had to the fact that extent of suit property in Sy.No.216 is 19 acres 4 guntas. Thus, 24 acres 4 guntas of land also said to have been granted. The evidence of PW.1 is that Ramangouda 27 was the only son of Bheemangouda. When such being the case, when defendant Nos.5 and 6 claim that they are also sons of Bheemangouda and thus, siblings of Ramangouda, it was very much indispensable on the part of the plaintiffs to tell and explain and clarify to the Court regarding other properties. As stated above, they may not be within the domain of this case but for the material controversies between the parties and further, defendant Nos.5 and 6 claim that they are sons of Bheemangouda. In this connection, it is necessary to mention that assertion is not a bare one, on the other hand, it is supported by Ex.D1. The objection by the learned counsel for the plaintiffs to Ex.D1 is that it cannot be relied because of name of Ramangouda is not shown therein. It is to be remembered that defendant Nos.5 and 6 do not dispute the relationship of Ramangouda and Bhimangouda and on the other hand converse the case as defendant No.7 is claiming to be only son of Bhimangouda through Rangamma. The plaintiffs have not furnished the documents in respect of other properties as to whether solely Ramangouda succeeded or 28 whether there was division or partition, this also comes in the way of plaintiffs in their plaint in specifically denying about the status of blood relationship between defendant Nos.5 and 6 and Bheemangouda. It is also necessary to mention that except encumbrance certificate, no other revenue documents are being filed from the side of the plaintiffs. Further, insofar as evidence of the plaintiffs, PW.1 is concerned, it is not explained to the satisfaction of the Court as to why the plaintiffs have withheld themselves from coming to the Court to conduct the case on their behalf. No doubt, though the rules of agency would propagate, Whenever a person can do by himself, he can do through another.
He who does an act through another, does it by himself.
35. In the circumstances, if the plaintiffs are bound by the acts of PW.1 as their power of attorney holder, it is necessary to observe the conduct of the plaintiffs in not 29 mentioning about genealogical tree in respect of the paternity with reference to ascendancy. Further, it was the duty of the plaintiffs to tell how many children were born to Bheemangouda. It is the case of the defendants that defendant No.7 on the one hand and defendant Nos.5 and 6 on the other hand are the half brothers. Thus, children of Bheemangouda born through Rangamma and Basamma. Thus, except bare denial of the relationship, no concrete evidence is adduced by the plaintiffs to substantiate their contention. It is also necessary to make a mention that joint family is headed by kartha no doubt he has wide powers in the matters of managing the joint family and even to dispose of the properties for family necessities and benefits to the estate.
36. PW.1- Power of Attorney holder of plaintiffs who has to adduce evidence states that he does not know whether there are daughters of Bheemangouda. This kind of incomplete evidence is furnished on behalf of the plaintiffs, nothing more could be expected regarding 30 burden of proof. As stated above, the moot question that would stay in the domain of reliability and relevancy would be whether Bhimangouda is the father of defendant Nos.5, 6 and 7 or defendant No.7 is the only son of Bhimangouda. This in the light of assertion of paternity relationship by defendant Nos.5 and 6, their extent is literally that they are coparceners. However, between the plaintiffs and defendants, burden of plaintiffs would be more, as in this case no evidence is adduced in support of the plaintiffs, if the matter has to be disposed off, lapse on the part of the plaintiffs is considered. Insofar as incompetence of power of attorney holder-PW.1 is concerned, theory of defendants cannot be accepted for the very reason that under indispensable circumstances, power of attorney holder invariably is required to represent the matter. However, when the evidence of the plaintiffs is adduced through power of attorney holder and in case there are no explanation in the gaps and no proper clarification in the claim, the advantage flows in favour of the defendants as such power of attorney holder cannot be placed in air tight 31 chamber. Regard being had to the fact that in the present case, power of attorney holder has deposed superficially without mentioning about the constitution of the family or regarding other properties. It is also necessary to mention that Ex.P2-Grant order which mentions four properties being allotted to defendant No.7. At the same time, it was expected from the plaintiffs to tell the Court in detail regarding their purchase and the extent of properties more particularly, in the presence of defendant Nos.5 and 6 contesting the case claiming that they are also sons of Bheemangouda along with Ramangouda defendant No.7. In the circumstances, it is also necessary to say that when there are four properties of land granted to Ramangouda.
37. More particularly in the presence of defendants 5 and 6 contesting the case claiming that they are also sons of Bhimangouda along with defendant No.7 Ramangounda. Under the circumstances, it is also necessary to say that when there are four properties of land granted to Ramangouda and the suit property to the 32 extent of 19 acres 4 guntas and the remaining property is 24 acres 4 guntas. Either the documentary evidence or the plaintiffs proving through oral evidence of PW-1 though his oral evidence or documentary evidence is not whispered as to the said properties. It cannot be taken that the other properties are non existent. It carries same amount of credibility as the schedule property carries in the matter of existence.
38. Under such circumstances, it is not a case wherein the only property available to the family of Ramangouda was the suit schedule property and it has been exhausted by the defendants. In the light of earlier sale by Ramanagouda, in fact, the land of 24 acres 4 guntas should have been provided by the plaintiff. In this connection, no doubt they are the purchasers they may not know the indoor affairs, so far as the schedule property is concerned, there are no impediments on them to examine over Ramangouda or any of those relatives to rule out the possibility of non-existence of other properties 33 or falsity of the claim of the defendants. It is also necessary to mention that the question of presumptive value of revenue entries which contemplates under Section 133 is necessary to mention the said provision of law.
39. In the context and circumstance of the case, Smt. Hema L. Kulkarni, counsel for the appellant would rely on the Apex Court decision reported in (2008) 4 SCC 594 between Anthula Sudhakar vs. P. Buchi Reddy and others wherein it is held as under:.
Para No.11. The said judgment is challenged by the defendant, in this appeal by special leave, on the following grounds:
a. The suit for permanent injunction without seeking declaration of title was not maintainable on the facts of the case. At all events, the High Court ought not to have recorded a finding of fact on a seriously disputed and complicated issue of title, in a suit for a mere injunction.
b. The first appellate Court held that the plaintiffs had neither established their title nor their possession and their remedy was to file a 34 suit for declaration and consequential relief. The High Court, in a second appeal, ought not to have reversed the said decision of the first appellate Court, by the process of examining and recording a finding on title, even though there was no issue regarding title.
c. An oral gift by a brother to a sister was not permissible. At all events, such an oral gift even if permissible, can be made only at the time of a partition or at the time of marriage of the sister, with a view to making a provision for her. The High Court erred in holding that there was a valid oral gift by Damodar Rao in favour of Rukminibai.
d. There was no plea in the plaint about the ostensible ownership of Rukminibai or about any acts of Damodar Rao which demonstrated the consent of Damodar Rao to such ostensible ownership. Nor was there any plea about due and diligent enquiries by the plaintiffs regarding title before purchase. Therefore the High Court erred in holding that the sales in favour of the plaintiffs were protected by Section 41 of the Transfer of Property Act, 1882.
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e. In the absence of pleadings, and an issue
regarding title, the defendant had no
opportunity to effectively lead evidence on the question of title.
f. The High Court erred in equating the plaintiffs failure to produce title deeds of their vendor to the defendant's failure to produce the title deeds of his vendor. The High Court overlooked the fact that there was no dispute that the defendant's vendor Damodar Rao was the earlier owner of the suit property and it was for the plaintiffs who had set up a case that their vendor Rukminibai derived title from Damodar Rao under an oral gift, to prove the said claim.
40. In this connection as the matter is aged 28 years, the revenue entries particularly Ex.D-1 is not a presumption under the said documents and not remitted by the plaintiffs and also plaintiffs have not produced the revenue documents in order to establish the state of affairs as claimed by them.36
41. Learned counsel for the appellant would submit that facts need not be proved. In this connection, it is necessary to mention the admitted facts that the properties are granted properties and it is not a self acquired property. There were four properties granted to Ramangouda-defendant No.7. No doubt, there is no allegation against Ramangouda as he is a vagabond but the fact remains that defendant Nos.5 and 6 have sold 19 acres 4 guntas under the sale deed to Janaki Ramayya in order to establish the case, the plaintiff would have examined other defendants Janaki Ramayya to establish Bonafide.
42. In the context and circumstance of the case, Smt. Hema L. Kulkarni, counsel for the appellant would rely on the Apex Court decision in Civil Appeals Nos.964 and 965 of 1964 decided on 19.10.1965, between Bhagawati Prasad vs.Chandramaul (Equivalent citation:
AIR1 966 SC 735, 1967 (15) BLJR 158, (1966) 2 SCR 286) Para No.13 " When Mr. Setalvad was pressing his point about the prejudice to the 37 defendant and the impropriety of the course adopted by the High Court in confirming the decree for ejectment on the ground of license, we asked him whether he could suggest to us any other possible plea which the defendant could have taken if a license was expressly pleaded by the plaintiff in the alternative. The only answer which Mr.Setalvad made was that in the absence of definite instructions, it would not be possible for him to suggest any such plea. In our opinion, having regard to the pleas taken by the defendant in his written statement in clear and unambiguous language, only two issues could arise between the parties: is the defendant the tenant of the plaintiff, or is he holding the property as the licence subject to the terms specified by the written statement?
In effect, the written statement pleaded licence, subject to the condition that the licence was to remain in possession until the amount spent by him was returned by the plaintiff. This latter plea has been rejected, while the admission about the permissive character of the defendant's possession 38 remains. That is how the High Court has looked at the matter and we are unable to see any error of law in the approach by the High Court in dealing with it.
Para 15: it is hardly necessary to emphasize that in a matter of this kind, it is undesirable and inexpedient to lay down any general rule. The importance of the pleadings cannot, of course, be ignored, because it is the pleading that lead to the framing of issues and a trial in every civil case has inevitably to be confirmed to the issues framed in the suit. The whole object of framing the issues would be defeated if parties allowed to travel beyond them and claim or oppose reliefs on grounds not made in the pleadings and not covered by the issues. But cases may occur in which though a particular plea is not specifically included in the issues, parties might know that in substance, the said plea is being tried and might lead evidence about it. It is only in such a case where the Court is satisfied that the ground on which reliance is placed by one or the other of the parties, was in substance, at issue between them and that both of them 39 have had opportunity to lead evidence about it at the trial and the formal requirement of pleadings can be relaxed. In the present case, having regard to all the facts, we are unable to hold that the High Court erred in confirming the decree for ejectment passes by the trial Court on the ground that the defendant was in possession of the suit premises as a licensee. In this case, the High Court was obviously impressed by the thought that once the defendant was shown to be in possession of the suit premises as a licensee, it would be built to require the plaintiff to file another suit against the defendant for ejectment on that basis. We are not prepared to hold that in adopting this approach in the circumstances of this case, the High Court can be said to have gone wrong in law."
43. I find the plaintiffs have not explained the relationship between the defendants 5, 6 and 7 or regarding the fate of other three properties that were granted. Revenue documents are not furnished despite the lapse of 28 years from the date of suit and non 40 examination of defendant No.7 who has filed the written statement. In the lines of averments of the plaintiffs insofar as the possession is concerned, the crucial aspect is that possession of the schedule property being delivered under the sale deed, whether the sale deed was acted upon is not considered by the plaintiff. The very plaint tells that there was discontinuance of possession after Bhimanagouda purchased the property and also the plaintiffs were government servants. If such were to be the case, it is not stated when either Bhimanagouda or the plaintiffs were re-entered the possession. Insofar as the suit is concerned, it is for recovery of possession for the reasons best known to the plaintiff. They have not chosen to seek declaration insofar as the framework of the suit for declaration of title is concerned. The plaintiff comes up with a banner that the defendant have denied the title and hence the declaration is necessary.
44. The other crucial aspect is whether the plaintiff avers the denial of title or not if the circumstances of the 41 pleadings and the documents suggest that there is serious dispute regarding the title, the owners on the plaintiff to establish the title. More particularly, in the circumstances, the suit for mere possession without declaration does not hold good or serve the purpose.
45. Further the plaintiffs have not explained the wide and substantial gap regarding they being out of possession and claiming that they entered the possession subsequently. Under these circumstances, the acts of possession of the plaintiffs over the schedule property and their entries are continuing does not support the plaintiff.
46. On the whole of very facts that the plaintiffs have sought for recovery of possession as on the date of filing of the suit. Further ousted out by the plaintiffs because any incident is not explained to the satisfaction of the Court nor acts of possession if the plaintiff have done over the same.42
47. PW-1 also does not know as to suit schedule property fell to the share of defendants Nos.5 and 6. This further widens the gap between the plaintiff and the reliability regarding the non mentioning of the details of the other three properties.
48. Thus, in the light of failure of non furnishing of material documents, non providing of material, not representing presumption followed under section 133, non examination of competent person to explain the averments claimed by the plaintiff, non stating of the entries of the possession or induction of other plaintiffs/father in to the possession. It is necessary to mention that there is no impediment to hold that the plaintiffs have miserably failed to recover the possession proving their better title over the property against defendants.
49. The substantial question of law framed in this appeal in view of the discussion and the reasons morefully as assigned above, I find the plaintiffs were the appellants here have failed to establish that they have a case not in 43 their favour or on point of law or on facts. In the circumstances, the learned trial Judge and the First Appellate Judge have given a right finding to dismiss the suit in O. S. No.74/1990 and R.A.No.22/1997.
50. The Courts below were justified in not accepting and there is no infirmity, error or lapse in the judgment passed by the Courts below. The circumstance of sale of property by the defendants Nos.5 and 6 with reference to their alienable rights support their defense and the rights derived by the Janaki Ramaiah support the case of defendant Nos.1 to 3 and has purchased from joint family non production of documents non examination.
51. In the result, I proceed to pass the following:
ORDER Regular second appeal is devoid of merits and hence dismissed.
Sd/-
JUDGE NSP/NB*/VNR/RSP