Karnataka High Court
Badanalaiah vs Smt Varanandamma on 6 November, 2012
Author: B.Sreenivase Gowda
Bench: B. Sreenivase Gowda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 06TH DAY OF NOVEMBER 2012
BEFORE
THE HON'BLE MR. JUSTICE B. SREENIVASE GOWDA
R.S.A. NO.1230/2009
BETWEEN:
1. BADANALAIAH,
AGED ABOUT 61 YEARS.
2. SOMAIAH,
AGED ABOUT 56 YEARS.
3. SHIVANNA,
AGED ABOUT 51 YEARS.
4. NANJAIAH,
AGED ABOUT 44 YEARS.
ALL ARE SON'S OF
LATE. MARISIDDAIAH,
ALIAS MORISIDDIAH,
RESIDING AT SY.NO.41 OF
BEEJAGANAHALLI VILLAGE,
BILIKERE HOBLI,
HUNSUR TALUK,
MYSORE DISTRICT - 571 001.
... APPELLANTS
(BY M/S P.NATARAJU ASSOCIATES, ADVOCATE)
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AND:
SMT. VARANANDAMMA,
MAJOR,
W/O. OBAIAH,
D.NO.20, JALAPURI 'A' BLOCK,
MYSORE CITY - 570 001.
... RESPONDENT
(BY SRI P.K.PONNAPPA, ADVOCATE)
THIS RSA FILED UNDER SEC.100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED
21.03.2009 PASSED IN R.A.NO.05/1997 ON THE FILE
OF THE CIVIL JUDGE, (SR.DN.), HUNSUR, DISMISSING
THE APPEAL AND CONFIRMING THE JUDGEMENT AND
DECREE DATED 20.12.1996 PASSED IN
OS.NO.12/1993 ON THE FILE OF THE MUNSIFF AND
JMFC, HUNSUR.
THIS APPEAL COMING ON FOR HEARING-
INTERLOCUTORY APPLICATION THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
This second appeal is by the un-successful plaintiffs Challenging the concurrent judgments and decrees of the Courts below in dismissing the suit of the plaintiffs brought for relief of declaration and possession of the suit property.
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2. I have heard the learned counsel for the appellants and perused the judgments and decrees of the Courts below including their records.
3. For the sake of convenience, the parties are referred to as they are referred to in the original suit before the Trial Court.
4. The plaintiffs have brought the suit seeking to declare them as joint owners in possession of the suit properties with consequential relief of permanent injunction against the defendant with cost and other reliefs.
5. The case of the plaintiffs is that the suit properties are their ancestral properties. The plaintiffs and their father Marisiddaiah were cultivating the suit properties jointly as joint owners. Their father died in 1987 leaving the plaintiffs as his only legal representatives to his properties. Thereafter, the plaintiffs 4 continued to be in possession. The plaintiffs by investing huge amount constructed a house in Item No.1 of the suit properties. Their father without their knowledge and consent had sold the suit land under a registered sale deed in favour of the defendant for his own benefit. The said sale will not carry any valid right and title in favour of the defendant nor conveyed the exclusive right, title in the suit properties to the defendants. Hence, the sale deed dated 20.02.1969 standing in the name of the defendant does not bind the plaintiffs in any manner and it is a nominal document. Further they contended that the husband of defendant by name Obaiah is working as police constable with a collusion of the father of the plaintiffs tried to defeat the legitimate right of the plaintiffs and in such circumstances, the late father of the plaintiffs made an application to the Land Tribunal, Hunsur seeking to register him as occupant of the land and the Land Tribunal has granted the occupancy right in his favour and it was challenged by the defendant by 5 preferring a Writ Petition before the Hon'ble High Court and it was transferred to the Land Reforms Appellate Authority, Mysore wherein, the appeal was allowed and the said order was challenged by the plaintiffs by filing a Civil Revision Petition before the Hon'ble High court which was dismissed on the ground of delay. Hence, the sale deed in favour of the defendant is null and void and does not bind the plaintiffs. The defendant taking advantage of the decision of the Land Reforms Appellate Authority, unnecessarily interfering with the possession of the plaintiffs. Hence, they have brought the suit seeking to declare them as absolute owners of the suit schedule properties and consequential relief of permanent injunction restraining the defendant from interfering with their possession over the suit properties.
6. The defendant after entering appearance in the suit has filed written statement denying the case of the plaintiffs that the suit properties are not the 6 ancestral properties of the plaintiffs. The plaintiffs and their father are not cultivating the suit property jointly. She has not admitted the date of death of the plaintiffs father. The plaintiffs are not the only Legal representatives of their father Marisiddaiah. The plaintiffs are not in possession of the suit properties. The sale deed dated 20.02.1969 is binding on the plaintiffs. She has admitted the proceedings before the Land Tribunal and the Land Reforms Appellate Authority and the High Court. She has contended that after the death of Marisiddaiah, the plaintiffs being the legal representatives, has prosecuted the appeal before the Land Reforms Appellate Authority, Mysore as respondents No.2(b) (c) (f) and (g). They claimed tenancy right before the High Court with a false story. She denied that she has made an attempt to dispossess the plaintiffs. She has contended that the suit property was mortgaged in favour of one Linganna in the year 1938 and thereafter, it was mortgaged in favour of B.L. 7 Shekaraiah in the year 1954. Since the plaintiffs father could not discharge the mortgage debts in order to bring up the plaintiffs, he has sold the suit property in favour of defendant for valuable consideration. Subsequent to the purchase of the suit land, the defendant has invested huge amount and improved the land. The suit properties were sold by the father of the plaintiffs in favour the defendant for legal necessity and for the benefit of the family. Hence, she prays for dismissal of the suit.
7. The Trial Court on the basis of the pleadings of the parties has framed the following issues:-
1) Whether the plaintiffs prove that the suit property are their ancestral properties?
2) Do plaintiffs prove that the sale deed dated 20.02.1969 executed by their father is not binding on them?
3) Whether the plaintiffs prove that the tenancy proceedings are initiated at the instigation of defendant's husband? 8
4) Whether the plaintiffs prove that they are in lawful possession?
5) Whether the plaintiffs prove that the
defendant interfered with their
possession?
6) Whether the suit is barred by limitation?
7) To what decree or order?
8. The plaintiffs in support of their case have examined the second plaintiff-Somaiah as PW-1 and other three witnesses as PW-2 to PW-4 respectively and they have produced 17 documents, which were marked as Exs P-1 to P-17.
9. The defendant in support of her case has examined herself as DW-1 and has produced 41 documents, which were marked as Exs D-1 to D-41.
10. The Trial Court upon consideration of oral and documentary evidence on record has answered issue 9 Nos.1 to 5 in the negative holding that the plaintiffs have failed to prove that the suit properties are their ancestral properties, the sale deed dated 20.02.1969 executed by their father infavour of the defendant is not binding on them, the tenancy proceedings are initiated at the instigation of the husband of the defendant and they are in lawful possession of the suit properties and the defendant is trying to interfere with the possession of the plaintiffs and answered the additional issue in the affirmative holding that the suit is properly valued and the Court fee paid is sufficient and it has dismissed the suit of the plaintiffs.
11. The plaintiffs aggrieved by the said judgment and decree of the Trial Court, challenged the same in R.A. No.5/97 before the Lower Appellate Court. The Lower Appellate Court on reappreciation of entire oral and documentary evidence on record, dismissed the 10 appeal confirming the judgment and decree passed by the Trial Court.
12. The Lower Appellate Court has dismissed the appeal on the following grounds:
a) The plaintiffs father Marisiddaiah had a brother by name Mariboraiah and the suit properties are ancestral properties and therefore, the suit brought by the plaintiffs contending that they are the only legal representatives of their father Marisiddaiah by suppressing the existence of their uncle Mariboraiah is not maintainable.
b) The plaintiff's father Marisiddaiah and their grand father Sidda had mortgaged the suit properties infavour of Linganna S/o Sakkaregowda in the year 1938 and subsequently in the year 1958 they mortgaged the suit properties in favour of B.L. 11 Shekarappa S/o Naganna and therefore they sold the suit properties in favour of the defendant under registered sale deed to discharge their family debts as mentioned in the sale deed and therefore the suit brought by the plaintiffs seeking to declare them as owners of the suit properties and declare the sale deed dated 22.02.1969 executed by their father in favour of the defendant as null and void is not maintainable.
c) After purchase of the suit property by the defendant, her name is mutated in the Revenue records and she has been paying kandya and the revenue records have got presumptive value regarding her possession in the suit properties and therefore, the suit brought by the plaintiffs seeking to declare them as absolute owners in possession is not maintainable.12
d) The plaintiffs after the death of their father, have continued the tenancy proceedings which is pending on the file of the Land Reforms Appellate Authority, Mysore as respondents No.2(b) (c) (f) and (g) and they have brought the suit after 27 years to declare them as owners of the suit properties alleging that the sale deed executed by their father in the year 1969 is not binding on them.
13. From the evidence available on record, the Lower Appellate Court has ascertained the age of the first plaintiff and has held that he was aged about 21 years and he was major as on the date of execution of the sale deed dated 22.09.1969 by his father in favour of the defendant. It has also dismissed the appeal on the ground that the judgment and decree passed by the Trial Court is based on proper appreciation of oral and documentary evidence on record.
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14. I have carefully gone through the Judgments and decrees of both the Courts below and I do not find any infirmity or illegality in their approach. Further, the judgments and decrees passed by the Courts below are based on proper appreciation of oral and documentary evidence on record. That apart, I do not find any substantial questions of law which arises for my consideration in this second appeal.
15. Accordingly, this second appeal is dismissed as devoid of merits.
No orders as to cost.
Sd/-
JUDGE VM