Karnataka High Court
Channamma W/O : Huchchappa Shettar vs Virupaxappa @ Yuvaraj on 11 March, 2014
Author: A.V.Chandrashekara
Bench: A.V.Chandrashekara
1
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 11TH DAY OF MARCH 2014
BEFORE
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
RSA No.5053/2010 (PAR-SP)
BETWEEN
1. CHANNAMMA W/O : HUCHCHAPPA SHETTAR
R/O : GADAG
SINCE DECD BY LRS
A) SURYAKALA @ VIJAYA
W/O : SUBHASCHANDRA UDACHANAND
AGED 48 YEARS,
OCC : HOUSEHOLD WORK, R/O : SAGAR
DIST : SHIMOGA
B) SHASHIKALA W/O VEERANNA NOOLI
AGED 50 YEARS,
OCC : HOUSEHOLD WORK
R/O : GADAG
2. MURIGEPPA HUCHCHAPPA SHETTAR
AGED 45 YEARS,
R/O : GADAG
3. JAYADEVAPPA HUCHCHAPPA SHETTAR
AGED 38 YEARS,
R/O : GADAG
... APPELLANTS
(BY SRI MALLIKARJUN C BASAREDDY, ADV.)
2
AND
VIRUPAXAPPA @ YUVARAJ
S/O : GANGADHARAPPA MANVI
AGED 38 YEARS,
OCC : BUSINESS
R/O : P.B.ROAD
GADAG
... RESPONDENT
(BY SRI T M NADAF, ADV.)
RSA FILED U/SEC.100 OF CPC., AGAINST THE JUDGMENT
& DECREE DTD:02-06-2009 PASSED IN R.A.NO.36/2008 ON THE
FILE OF THE DISTRICT AND SESSIONS JUDGE, GADAG,
DISMISSING THE APPEAL BY CONFIRMING THE JUDGMENT
DTD:29-02-2008 AND THE DECREE PASSED IN OS.NO.22/1996
ON THE FILE OF THE CIVIL JUDGE (SR.DN) AND CJM, GADAG,
DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE
POSSESSION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present appeal is filed by the defendants of an original suit bearing O.S.No.22/1996, which was pending on the file of Civil Judge (Sr.Dn.) & CJM, Gadag.
2. The respondent herein was the sole plaintiff in the said suit. The appellants herein had filed a suit in O.S.87/1995 against the respondent herein and others. Both the suits had 3 been clubbed to record common evidence and to dispose of the same by a common judgment.
3. The respondent herein namely Virupaxappa will be referred to as plaintiff and appellants herein will be referred to as defendants. The plaintiff had filed the suit in O.S.22/1996 for relief of declaration and possession in respect of 5 rooms out of a building consisting of 35 tenements situated in Gadag City.
4. The case of the plaintiff, as put forth before the trial Court, is that he was the absolute owner of building consisting of 35 rooms bearing CTS 3787/44A to 44E and it originally belonged to one lady by name Ningamma w/o Shidlingappa Manvi, paternal grand mother of the plaintiff. According to the plaintiff, Smt.Nigamma, mother of his father gifted him the entire building consisting of 35 rooms through a registered Gift deed dated 14.10.1975 and that he was in possession of the same. The suit came to be filed for the relief of declaration and possession as the defendants had illegally taken over these 5 rooms behind his back and had even gone to the extent of denying his title.
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5. Defendants appeared and filed detailed written statement denying the plaint averments inclusive of declaration of title by the plaintiff on the basis of Ex.D-5 Gift deed dated 14.10.1975. O.S.87/1995 filed by these appellants against Virupaxappa was filed for the relief of partition and separate possession of the entire building consisting of 35 rooms on the ground that they, being successors of Ningammam, are entitled for partition. The said suit had also been resisted by Virupaxappa as defendant taking up a plea which is identical to the one taken up by him in the plaint filed in O.S.22/1996.
6. On the basis of the above pleadings following issues had been framed in both the suits separately: In OS 87/95
1. Whether the plaintiff proves that in the partition in the year 1972-73 the suit properties were given to Ningamma for her maintenance to be enjoyed by her during her lifetime and that after her death they should be taken by the plaintiffs?
2. Whether defendant No.1 and defendant-2 prove that the suit properties were allotted to Ningamma in the partition in the year 1972 and she became the absolute owner of suit property?5
3. Whether the plaintiff proves that due to unnatural death of her husband Ningamma was mentally shocked and had lost the balance of thinking?
4. Whether the plaintiff proves that Ningamma was not in a free and disposing state of mind and the alleged gift deed dtd.14.10.75 is the result of fraud and undue influence?
5. Whether the plaintiff proves that after the death of Ningamma suit properties were devolved upon them and the defendants and they have become the joint owner and she has ¼th share in the suit properties?
6. Whether defendant No.2 proves that he has become the absolute owner of suit properties by the virtue of the gift deed dtd.14.10.75 and his father has repaired the suit properties by spending rupees more than 2 lakhs?
7. Whether defendant-1 proves that they have been in exclusive possession of the suit properties excluding the plaintiff and defendant-4 and 5 to their knowledge and have become the owner by adverse possession?
8. Whether the plaintiff suit is barred by time as contended in Para-9 of written statement?
9. Whether the suit is tenable without filing the suit for cancellation of gift deed?
10. Whether the court fee paid is proper and correct?
11. Whether the plaintiff is entitled for a decree for partition and separate possession as prayed for?6
12. What order or decree In OS 22/96
1. Whether the plaintiff proves that suit 5 rooms denoted by letters BCDE & F in the hand-sketch produced along with the plaint out of CTS.No.3787/44A; 3787/44B; 3787/44C; 3787/44D and 3787/44E situated at Pala Badami road at Gadag were of the absolute ownership of the deceased Smt. Ningavva?
2. Whether the plaintiff proves that the said Ningavva had gifted away suit properties in his favour by a registered gift deed dtd. 04.10.75?
3. Whether the defendants prove that the alleged gift deed is vitiated by fraud committed & undue influence by the father of the plaintiff?
4. Whether the plaintiff proves that he came into possession of the suit property on the strength of the gift deed dtd.14.10.75 itself and from that day he was in actual possession & enjoyment of the suit properties?
5. Whether the plaintiff property proves that as requested by the deceased Ningavva the plaintiff and her father allowed the defendant-1 to occupy of the room denoted by letter 'A' on lieu & license basis, and also allowed her to make use of bathroom adjacent to the said room?
6. Whether the plaintiff further proves that when the temporary injunction granted in OS.No.84/96 filed by her against the defendants was in force the defendants took possession of the suit BCDEF rooms 7 forcibly on 16.03.86 when the plaintiff was out of station?
7. Whether the plaintiff proves that the defendants are the trespassers & they are in illegal possession of the suit property i.e. BCDEF rooms?
8. Whether the defendants prove that the suit is hopelessly barred by time?
9. Whether the suit is bad for non-joinder of necessary parties as contended in para-3 of the written statement?
10. Whether the defendants prove that the present suit is hit by the principles of resjudicata for the reasons stated in para-4 of the written statement?
11. Whether the defendants prove that Sidalingappa the husband of Ningavva committed suicide in about a year 1947 & due to his unnatural death Ningavva was mentally shocked & had lost her thinking capacity & her balance of mind. As such, Ningavva was not in a sound disposing state of mind?
12. Whether there is cause of action to file this suit?
13. Whether the plaintiff is entitled to the relief of declaration prayed for?
14. Whether the plaintiffs are entitled to relief of possession of the suit properties?
15. Whether the plaintiff is entitled to mesne profits, if so, at what rate?
16. What order or relief?8
7. As parties and properties are identical in both the suits, the learned Civil Judge clubbed the suits to record common evidence and to dispose of the same by a common judgment.
8. Muriegappa Huchchappa Shettar is examined as PW-1 and 19 exhibits have been marked. Virupaxappa is examined as DW-1 and 47 exhibits have been marked.
9. After hearing the learned Counsel for the parties, the learned Judge of the trial Court has dismissed the suit O.S.87/1995 and decreed the suit O.S.22/1996 directing the defendants therein who are appellants herein to handover the suit schedule property since Virupaxappa is declared as the owner of the suit schedule property. As against the said judgment and decree dated 29.2.2008, only one appeal came to be filed under Section 96 of CPC in R.A.36/2008 in respect of judgment passed in O.S.22/1996 only. No separate appeal came to be filed as against O.S.87/1995. Several grounds had been urged in the appeal memo filed under Section 96 of CPC. On hearing the arguments, the regular appeal is also dismissed by 9 a considered judgment dated 2.6.2009. These concurrent findings are called in question on various grounds as set out in the appeal memo.
10. The learned Counsel for the parties has submitted arguments in regard to the admission.
11. Suit filed by appellants herein as plaintiffs in O.S.87/1995 was based on the title that they had been in possession in respect of suit schedule property. It is better to know the genealogy for proper and effective determination of the matter. One Sidhlingappa Manvi was the prepositus and Smt.Ningamma was the legally wedded wife of Sidhlingappa and they are no more. They had 3 sons and one daughter namely Andanappa, Gangadharappa and Vishwanathappa and Chennamma. The said Chennamma's husband was Huchchappa. Chennamma died during the pendency of the suit filed by her for relief of partition and separate possession. Hence, her legal representatives have been brought on record before the trial Court and they are appellants in this appeal. Gangadharappa, second son of Ningamma is no more. He is 10 survived by his son Virupaxappa, the plaintiff and daughter Akkamahadevi. Chennamma had two sons and two daughters namely Murigappa - defendant No.2, Jayadevappa defendant No.3, Suryakala-defendant No.1(c) and Shashikala-defendant No.1(d). Smt.Ningamma had chosen to gift the entire building in favour of her grand son, Virupaxappa by way of gift deed dated 14.10.1975 which is marked at Ex.D-5. The said suit had been filed in O.S.22/1996 by plaintiff-Virupaxappa seeking possession of one room based on Ex.D-5 Gift deed dated 14.10.1975. Based on the title, the suit had been filed by Virupaxappa against Chenamma stating that Chenamma was only a licencee and she was liable to hand over the vacant possession of the room. He had sought permanent injunction in respect of other rooms. The said suit was resisted by Chenamma on various grounds in regard to execution of the Gift Deed and its authenticity. During the pendency of O.S.84/1995, Chenamma chose to trespass into 5 rooms which is the subject matter in O.S.22/1996.
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12. The suit O.S.84/1995 was contested and it was dismissed. As against which, a regular appeal was filed and it was allowed setting aside the judgment and decree of the trial Court passed in O.S.84/1995. The divergent finding passed in regular appeal was called in question before this Court in RSA 114/2004 by these appellants herein. The said RSA was dismissed upholding the divergent findings passed in regular appeal. Against the dismissal of RSA 114/204, legal representatives of Chenamma had approached the Hon'ble Supreme Court by filing SLP (Civil)14167/2007 and the said SLP was dismissed at the threshold and thus the Gift Deed marked at Ex.D-5 in O.S.22/1996 has become final. Even otherwise, the suit filed by legal representatives of Chennamma in O.S.87/1995 seeking partition and separate possession has been dismissed after contest.
13. What should be the approach of the parties in respect of common judgment involving same property has been dealt with by the Hon'ble Apex Court in the case of Premier Tyres Limited vs. Kerala State Road Transport Corporation 12 reported in AIR 1993 SC 1202. The relevant paragraph is extracted hereunder:
"6. Thus, the finality of finding recorded in the connected suit, due to nonfiling appeal precluded the Court from proceeding with appeal in other suit. In any view of the matter, the order of the High Court is not liable to interference"
14. The trial Court has considered the entire oral and documentary evidence in right perspective more particularly keeping in mind the title of Virupaxappa based on Ex.D-5 dated 14.10.1975. The First Appellate Court, being final court of facts has reassessed the entire evidence. Both the Courts have adopted right approach to the real state of affairs. There is no perversity or illegality in the judgments of the Courts below. Viewed from any angle there is no merit in the appeal and same is liable to dismissed. There is no reason to interfere with the well-considered judgments passed by the trial Court as well as the First Appellate Court.
ORDER The appeal filed under Section 100 of CPC is dismissed as unfit for admission by confirming the judgments of the trial 13 Court as well as First Appellate Court. There is no order as to costs.
Sd/-
JUDGE.
DM