Karnataka High Court
Sri S Prabhakar vs Smt T L Rajeshwari on 6 March, 2023
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RFA No. 706 of 2007
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
REGULAR FIRST APPEAL NO. 706 OF 2007 (DEC)
BETWEEN:
SRI. S. PRABHAKAR
S/O LATE SIDDAIAH
AGED 46 YEARS
RESIDENT OF NEW THIRUMAKUDALU
T. NARASIPURA TALUK
MYSORE DISTRICT - 575 101.
...APPELLANT
(BY MISS: VARSHA SHETTY, ADVOCATE FOR
SRI: MANMOHAN P.N., ADVOCATE)
AND:
1. SMT. T.L. RAJESHWARI
Digitally W/O LATE SIDDAIAH
signed by
NANDINI B G AGED 58 YEARS
Location: High RESIDENT OF NEW THIRUMAKUDALU
Court Of T. NARASIPURA TALUK
Karnataka MYSORE DISTRICT - 575 101.
2. SMT. BANUMATHI
W/O. SRI. T.H. ANJANEYA
D/O LATE SIDDAIAH
AGED ABOUT 50 YEARS
RESIDING AT NO. 108(E)
16TH MAIN, VIJAYANAGAR
BANGALORE - 560 040.
3. SMT. DAMAYANTHI
W/O D. THIMMEGOWDA
AGED ABOUT 50 YEARS
RESIDING AT KYATHAGHATTA HOBLI
MADDUR TALUK - 571 428.
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RFA No. 706 of 2007
4. SMT. INDUMATHI
W/O SRI. VIJAYAKUMAR
D/O LATE S. SIDDAIAH
AGED ABOUT 48 YEARS
RESIDING AT NO.2778
6TH MAIN, V.V. PURAM
MYSORE DISTRICT - 560 040.
5. SRI. MOHAN KUMAR
S/O LATE S. SIDDAIAH
AGED ABOUT 64 YEARS
RESIDING AT NEW THIRUMAKUDALU
T. NARASIPURA TALUK
MYSORE DISTRICT
...RESPONDENTS
(BY SRI: NAGAIAH, ADVOCATE FOR R2 & R3,
V/O DATED 12.06.2018, APPEAL AGAINST R1 IS ABATED.
V/O DATED 24.03.2017, APPEAL AGAINST R4 IS ABATED.
R5 SERVED, BUT UNREPRESENTED.)
THIS R.F.A. IS FILED UNDER SECTION 96 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 12.12.2006
PASSED IN OS NO.308/2001 ON THE FILE OF THE CIVIL JUDGE
(SR.DN.) T.NARASIPURA, PARTLY DECREEING THE SUIT FOR
DECLARATION AND PERMANENT INJUNCTION.
THIS R.F.A., COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Defendant No.1 in OS No.308 of 2001 is before this Court impugning the judgment and decree dated 12.12.2006 passed in OS No.308 of 2001 on the file of the learned Civil Judge (Sr.Dn), T Narasipura (hereinafter referred to as 'the Trial -3- RFA No. 706 of 2007 Court' for brevity), decreeing the suit of the plaintiffs in part and declaring that plaintiff Nos.2 to 4 are the owners and in possession of item No.1 of plaint 'A' schedule and restraining defendant No.1 from interfering with the peaceful possession and enjoyment of the said property, while rejecting the claim for declaration in respect of 'B' schedule property.
2. For the sake of convenience, the parties are referred to as per their rank and status before the Trial Court.
3. Brief facts of the case are that, the plaintiffs filed the suit OS No.88 of 1993 before the Trial Court against defendant Nos.1 to 5, which was re-numbered as OS No.308 of 2001, seeking declaration that plaintiff Nos.2 to 4 are the owners of plaint 'A' schedule property and plaintiff No.1 is the owner of plaint 'B' schedule property and for permanent injunction against defendant No.1 from interfering with peaceful possession and enjoyment of the schedule properties.
4. It is contended by the plaintiffs that late Siddaiah is the husband of plaintiff No.1 and late Sarojamma is his first wife. Plaintiff Nos.2 to 4 and defendant Nos.1 and 2 are the -4- RFA No. 706 of 2007 children of Siddaiah through his first wife Sarojamma who died during 1962-63. Their son Chandrashekar died during 1987 leaving behind his wife - defendant No.3 and children - defendant Nos.4 and 5.
5. It is contended that during the life time of Siddaiah, he effected partition of all the joint family properties situated at Settyhalli village under the registered partition deed dated 03.07.1980. At the time of partition, Siddaiah and defendant No.1 retained some of the properties and other land and house properties were allotted to the share of other sharers. Siddaiah after his marriage with plaintiff No.1 started residing at New Tirumakudlu and used to visit Settyhalli occasionally. He has also acquired property in Tirumakudlu, which is his separate properties. Plaintiff No.1 also acquired two items of the properties i.e., Sy.No.22 measuring 19 guntas which was gifted to her by paternal aunt under the gift deed dated 06.12.1976 and Sy.No.60/2 measuring 1 acre 12½ guntas purchased under sale deed dated 24.04.1980. All other properties in 'B' schedule were acquired by late Siddaiah between 1967 and 1980.
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6. It is stated that plaintiff No.1 had a son by name Ramalingu. He died intestate and issueless on 28.04.1991. After the death of Siddaiah, plaintiff No.1 became the absolute owner of the properties mentioned in 'B' schedule and was in exclusive possession and enjoyment of the same. It is stated that defendant Nos.1 and 2 and deceased husband of defendant No.3 are the divided members and they have no right in any of the properties belonging to Siddaiah. Plaintiff No.1 executed the registered settlement deed in favour of plaintiff Nos.2 to 4 on 23.03.1992 settling the plaint 'A' schedule property in their favour. Defendant No.1 taking undue advantage of the helpless condition of plaintiff No.1 managed to get the khata of all the suit lands except the land in respect of Sy.No.22, in his name during 1992 which was passed by the Tahsildar, T Narasipura ignoring the objection raised by plaintiff No.1. Therefore, she preferred an appeal before the Assistant Commissioner, who stayed the order dated 24.08.1992. In the meantime, defendant No.1 is trying to interfere with the possession and enjoyment of the schedule properties by the plaintiffs. Therefore, the plaintiffs have filed the suit for necessary relief's as the cause of action arose on -6- RFA No. 706 of 2007 21.02.1993. Therefore, the plaintiffs prayed for declaration that plaintiff Nos.2 to 4 are the owners of plaint 'A' schedule property and plaintiff No.1 is the owner of 'B' schedule property and also for permanent injunction restraining defendant No.1 from interfering with their peaceful possession and enjoyment of the same.
7. It is stated that defendant Nos.2 to 5 were impleaded since the declaration is sought in respect of the schedule properties. In schedule 'A' appended to the plaint, 4 agricultural lands were described whereas under Schedule 'B' other 4 items of the agricultural properties were described.
8. Defendant Nos.1 and 2 have filed their written statement denying the contention taken by the plaintiffs. The relationship between the parties is admitted. It is denied that Siddaiah held vast properties at Settyhalli and at different places in T Narasipura Taluk. It is contended that Siddaiah as a co-parcener possess ancestral properties situated at Settyhalli village. The contention of the plaintiffs that the properties at T Narasipura are self acquired properties are denied. -7- RFA No. 706 of 2007
9. It is contended that during the life time of Siddaiah, he effected partition in respect of joint family properties situated at Settyhalli village by effecting registered partition deed. All the properties were divided into three groups referred to as schedule 'A', 'B' and 'C'. Schedule 'A' properties were retained by Siddaiah for himself and for defendant No.1. Schedule 'B' properties were allotted to the share of defendant No.2 and schedule 'C' to the exclusive share of defendant No.3 and her children. At the time of entering into partition, some of the items of properties situated at Settyhalli were sold by Siddaiah and it was agreed that those items were deemed to have been fallen to the share of Siddaiah and his son Prabhakar.
10. It is contended that from out of the money received by selling some of the items of the family properties earlier to the partition, the landed properties situated at T Narasipura Taluk were purchased. The other properties situated at Settyhalli village were continued to be enjoyed by the sharers. Therefore, it is contended that the properties situated at various places of T Narasipura Taluk are deemed to be the -8- RFA No. 706 of 2007 properties belonging to Siddaiah and his son Prabhakar. They enjoyed it as joint tenants and after the death of Siddaiah, defendant No.1 became the absolute owner to the exclusion of others.
11. It is contended that the defendants admitted that Siddaiah started living at New Tirumakudlu after he marrying plaintiff No.1 and used to visit Settyhalli occasionally. But the contention that he acquired properties at Tirumakudlu and those were his separate properties were denied. The contention of plaintiff No.1 that she also acquired two items of the properties are denied. The contention taken by plaintiff No.1 that her paternal aunt - defendant No.1 gifted any item in favour of plaintiff No.1 under the gift deed dated 06.12.1976 is denied. It was Siddaiah from out of the sale proceeds had acquired the said property in the name of his wife. But the document was styled as gift deed. Acquisition of the land in Sy.No.60/2 under the sale deed is also denied and it is contended that the said site was also purchased by Siddaiah in the name of plaintiff No.1. Therefore, it is contended that there were no separate properties acquired by plaintiff No.1 to enable -9- RFA No. 706 of 2007 her to bequeath the same in favour of other plaintiffs. After the demise of Siddaiah, it was defendant No.1 alone who is entitled for the properties.
12. The contention of the plaintiffs with regard to schedule 'B' properties that the same were acquired by Siddaiah under different sale deed is also denied. Even though the contention of plaintiff No.1 regarding the death of her son Ramalingu intestate and issueless is admitted, it is denied that plaintiff No.1 became the absolute owner of 'B' schedule properties at any point of time. It is denied that the plaintiffs are in exclusive possession and enjoyment of 'B' schedule property. However, it is stated that defendant Nos.1, 2, 3 to 5 along with the plaintiffs are the legal heirs of late Siddaiah, but without conceding about derivation of their title to the properties.
13. It is contended that the contention of plaintiff No.1 that she executed registered settlement deed settling the properties in favour of plaintiff Nos.2 to 4 is denied. It is contended that plaintiff No.1 has no right to settle those properties in favour of plaintiff Nos.2 to 4 and they have not
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RFA No. 706 of 2007acquired any title over any of the properties. Accordingly, the defendants prayed for dismissal of the suit as not maintainable.
14. Defendant No.5 filed the written statement contending that she is the grand daughter of Siddaiah and daughter of his son Chandrashekar. It is contended that the plaint schedule properties are not the self acquired properties of Siddaiah or that of the plaintiffs, but they are the joint family properties belonging to the joint family and therefore, the plaintiffs are not entitled for any relief.
15. The plaintiffs have filed the rejoinder correcting the mistake crept in the plaint while mentioning the relationship between the parties and denying the contention taken by defendant Nos.1 and 2.
16. On the basis of these pleadings, the Trial Court framed the following issues for consideration:
"1. Do the plaintiffs prove that the plaintiffs 2 and 4 are the owners of 'A' Schedule property?
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2. Does the 1st plaintiff prove that he is the owner of 'B' Schedule properties?
3. Do they further prove that their possession has been interfered with by the defendants?
4. Are they entitled for suit reliefs prayed for?"
17. On behalf of the plaintiffs, plaintiff No.1 is examined as PW1 and examined PWs.2 to 6 and got marked Exs.P1 to P40 in support of their contention. Defendant No.1 examined himself as DW1, examined DWs.2 to 4 and got marked Exs.D1 to 70 in support of their defence. The Trial Court considering all the materials on record, answered issue Nos.1 and 3 partly in the Affirmative, issue No.2 in the Negative and decreed the suit of the plaintiffs in part, declaring that plaintiff Nos.2 to 4 are the owners in possession of item No.1 of plaint 'A' schedule and restraining defendant No.1 from interfering with the peaceful possession and enjoyment of the said property, while rejecting the claim for declaration in respect of 'B' schedule property.
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RFA No. 706 of 2007
18. Being aggrieved by the same, defendant No.1 has preferred this appeal.
19. Heard Miss Varsha Shetty, learned counsel for the appellant and Sri Nagaiah, learned counsel for respondent Nos.2 and 3. Perused the materials on record including the Trial Court records.
20. Learned counsel for the appellant contended that the appellant is defendant No.1 in OS No.308 of 2001. He had filed OS No.313 of 2001 seeking declaration that settlement deed said to have been executed by plaintiff No.1 is null and void and for permanent injunction. The said suit was decreed in part declaring that the settlement deed is null and void to the extent of item Nos.2 to 4. A common judgment was passed both in OS Nos.308 and 313 of 2001. Under such circumstances, the suit of the plaintiffs could not have been decreed in part. A specific contention was taken by the appellant that Ex.P1 is the sale deed and not the gift deed and consideration was paid to Lalithamma - the vendor. The Trial Court has not appreciated the contention of the appellant, but proceeded to decree the suit of the plaintiffs in part. Therefore,
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RFA No. 706 of 2007she prayed for allowing the appeal and to set aside the impugned judgment and decree of the Trial Court.
21. Per contra, learned counsel for the respondents opposing the appeal submitted that common judgment was passed in OS Nos.308 and 313 of 2001. The Trial Court after taking into consideration all the materials on record, held that the plaintiffs are entitled for declaration only in respect of item No.1. Similarly, the suit filed by defendant No.1 in OS No.313 of 2001 was also decreed in part holding that the settlement deed to the extent of item Nos.2 to 4 is null and void. The appellant has not challenged the judgment and decree rejecting his claim in OS No.313 of 2001. The Trial Court has assigned valid reasons to accept the gift deed - Ex.P1 and also the registered settlement deed - Ex.P2 executed in favour of plaintiff Nos.2 to 4 in respect of item No.1. There is no reason to interfere with the impugned judgment and decree. Therefore, he prays for dismissal of the suit.
22. In light of the submissions made by learned counsel for both the parties, the point that would arise for my consideration is:
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"Whether the impugned judgment and decree passed in O.S.No.308 of 2001 by the Trial Court suffers from perversity or illegality and whether the appellant has made out any grounds for interference by this Court?"
My answer to the above point is in the 'Negative' for the following:
REASONS
23. The relationship between the parties are not in dispute. As submitted by the learned counsel for the appellant and respondents, the only grievance raised by the appellant is with regard to the finding of the Trial Court in respect of Ex.P2
- registered settlement deed, rejecting his claim that the same was not a settlement deed, but it is a sale deed. Even though there were two suits filed, one by the respondents i.e., OS No.308 of 2001 and the other one by the appellant i.e., OS No.313 of 2001, a common judgment and decree were passed by the Trial Court. The appellant has preferred only one appeal against the judgment and decree passed in OS No.308 of 2001.
24. The Trial Court considered the contention of the parties and the documents that are placed before it and arrived
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RFA No. 706 of 2007at a conclusion that Ex.P2 is the settlement deed, whereunder, the right in respect of item Nos.1 to 4 was released by plaintiff No.1 in favour of plaintiff Nos.2 to 4. The recitals found in Ex.P1 discloses that no consideration was paid under the document and thus there was no transfer of ownership for consideration. Plaintiff No.1 settled the property described therein in favour of other plaintiffs. Under such circumstances, the finding of the Trial Court that Ex.P1 was not the sale deed cannot be held to be either perverse or illegal.
25. The Trial Court also considered the fact that Ex.P2 is in respect of item Nos.1 to 4, but whereas plaintiff No.1 was having the absolute right only in respect of item No.1 as the same was bequeathed in her favour by her paternal aunt under the gift deed - Ex.P1. The Trial Court has given valid reasons for rejecting the claim of defendant No.1 that Ex.P1 is a sale deed and not a gift deed, as there was no transfer of ownership for any consideration. The recital found in Ex.P1 discloses that it was a gift deed executed in favour of plaintiff No.1 and on the basis of same, the settlement deed as per Ex.P2 was executed. Both these documents are registered documents. Under such
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RFA No. 706 of 2007circumstances, there are no reason to form a different opinion and to interfere with the impugned judgment and decree passed by the Trial Court.
26. It is also pertinent to note that the judgment and decree passed in OS No.313 of 2001 under a common judgment, whereunder, the suit of the appellant was only decreed in part in respect of item Nos.2 to 4 while rejecting the claim for declaration in respect of item No.1 in the settlement deed - Ex.P2. The appellant has not challenged the said judgment and decree by preferring an appeal.
27. In the view of discussions held above, I am of the opinion that the appellant has not made out any grounds to interfere with the impugned judgment and decree. Hence, I answer the above point in the Negative and proceed to pass the following:
ORDER
(i) The appeal is dismissed with costs.
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RFA No. 706 of 2007
(ii) The judgment and decree dated 12.12.2006 passed in OS No.308 of 2001 on the file of the learned Civil Judge (Sr.Dn), T Narasipura, is hereby confirmed.
Registry is directed to send back the Trial Court records along with copy of the judgment.
Sd/-
JUDGE *bgn/-