Karnataka High Court
Mallamma W/O Ayyalappa And Anr vs Shivamma W/O Lingappa on 26 February, 2013
Author: N.Kumar
Bench: N.Kumar
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IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH
AT GULBARGA
Dated this the 26th day of February, 2013
BEFORE
THE HON'BLE MR.JUSTICE N.KUMAR
REGULAR SECOND APPEAL No. 7277 of 2012
BETWEEN:
1. Mallamma
W/o Ayyalappa
Age 50 years
Occ: Agri
R/o Makkanal
Tq. Deodurga
Dist. Raichur - 584 101
2. Narasamma
W/o Bheemappa
Age 39 years
Occ: Agri
R/o Pandyan
Tq. Deodurga
Dist. Raichur 584 101 ... Appellants
(By Sri Chaitanyakumar C. M. Advocate)
2
AND:
Shivamma
W/o Lingappa
Age 75 years
Occ: Household
R/o B. Ganekal Village
Dist. Raichur - 584 101 ...Respondent
(By Sri B.V. Jalde, Advocate)
This RSA is filed under Section 100 of the Code of Civil
Procedure, 1908, against the judgment and decree dated 10-
08-2012 passed in RA No.56/2011 on the file of the Prl. Dist.
Judge at Raichur, hereby allowing and the judgment and
decree dated 18-7-2011 passed in OS No.150 of 2007 on the
file of the Prl. Civil Judge (Sr.Dn) at Raichur was set aside.
This RSA coming on for admission this day, Court
delivered the following:
JUDGMENT
This Second Appeal is filed challenging the judgment and decree of the Lower Appellate Court, which has granted a decree of declaration and also a decree for possession in favour of the plaintiff.
2. For the purpose of convenience, the parties are referred to as they are referred to in the original proceedings. 3
3. The subject matter of this proceedings is the landed properties bearing Sy.No.46/A measuring 3 acres 32 guntas and Sy.No.46/B measuring 3 acres 32 guntas, situated at Pandyan Village, Devadurga Taluk. The case of the plaintiff is that she is daughter of one Alkod Mallappa. Her father was the owner of the property. She purchased the said property from her father under a registered sale deed dated 26.02.1969. She was put in possession on the date of the sale and she continued to enjoy the property till the date of the suit. Defendants-1 and 2 are the daughters of the plaintiff. They are married and are residing with their husbands. They have no right, title or possession over the suit land. They have illegally entered the suit land and interfered with the agricultural work. When objected to and enquired, the defendants-1 and 2 told her that the revenue records stand in their name and therefore they are entering the property. Plaintiff is living with her sons. They are cultivating the suit lands. The plaintiff called upon the revenue officials to delete the name of the defendants and 4 enter her name. When they did not accede to the said request and interference persisted, she was constrained to file a suit for declaration of title and injunction and in the alternative for possession.
4. After service of summons, the defendants entered appearance. They contend that the plaintiff is not the owner and possessor of the suit land. She was never in possession. Boundaries of the property are not correct. It is the defendants who are in actual physical possession and enjoyment of the suit property. They admit that the plaintiff purchased this property from her father and thereafter she got mutated the suit land in name of the defendants jointly with her free consent. Now the plaintiff is under the influence and ill-advise of her sons. Defendants have got right over the suit property as their names are mutated. They have been paying the land revenue to the suit land. The question of interfering with the suit land would not arise. They also pleaded that they found one unregistered 5 Gift Deed executed by the plaintiff in favour of defendants, which they were able to trace after the filing of the written statement. Therefore they amended the written statement also. In the Gift Deed, the plaintiff has relinquished her right, title and interest over the suit land. Therefore they also sought for dismissal of the suit.
5. The trial Court framed the following issues and additional issues:
1) Whether the plaintiff proves that she is in possession and enjoyment of the suit lands in view of registered sale deed dated 28-02-1983 vide No.535/82-83?
Recasting on 5-6-2007 Whether the plaintiff proves that she is the owner in possession and enjoyment of the suit lands in view of registered sale deed dated 28-02-1983 vide No.535/82-83?
Against recasting on 6-6-2007 6 Whether the plaintiff proves that she is the owner in possession and enjoyment of the suit lands in view of registered sale deed dated 26-02-1969 vide No.929/68-69?
2) Whether the defendants prove that plaintiff voluntarily mutated names of defendants in respect of suit lands as alleged in written statement?
3) Whether defendants further prove that court fee paid by plaintiff is not proper?
4) Whether defendants further prove that this court has no pecuniary jurisdiction to try this suit?
5) Whether plaintiff is entitled for reliefs sought in the suit?
6) What order?
On the basis of the additional written statement, the predecessor has framed the additional issues on 06-02-2009.
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Addl. Issues:
1) Whether the defendants Nos.1 and 2 prove that the plaintiff has executed unregistered gift deed in their favour giving the suit lands to the defendants by relinquishing her right, title and interest over the suit lands?
2) Whether the defendants prove that they have become the owners of the suit property by virtue of the gift?
3) Whether the defendants are entitled for the counter claim made by them?
6. The plaintiff to substantiate her claim, examined herself as P.W-1 and also examined a witness and produced 8 documents, which are marked as Exs.P-1 to P-8. On behalf of defendants, two witnesses were examined and they also produced six documents, which are marked as Exs.D-1 to D-6.
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7. The trial Court, on appreciation of the aforesaid material on record held that the plaintiff has established her title. The defendants also prove that plaintiff voluntarily mutated their names in the revenue records. The defendants-1 and 2 have proved that the plaintiff has executed unregistered Gift Deed in their favour giving the suit lands to the defendants by relinquishing her right, title and interest over the suit lands. Defendants have proved that they have become the owners of the suit property by virtue of the Gift Deed. Therefore the plaintiff's suit was dismissed and defendants' counter claim was allowed.
8. Aggrieved by the said judgment and decree of the trial Court, the plaintiff preferred a Regular Appeal. The Lower Appellate Court, on re-appreciation of the entire evidence on record, formulated the following points for consideration:
1. Whether the judgment of the trial judge in dismissing the plaintiff's suit for declaration of title and injunction, is legal, proper and correct?9
2. Whether decreeing the counter claim is correct?
3. Whether the plaintiff is entitled for possession of suit property?
4. Whether the impugned judgment and order needs interference?
5. What order?
9. On re-appreciation of the entire evidence on record, the Lower Appellate Court held that plaintiff has established her title to the property. The defendants have no manner of right, title or interest over the suit property. Therefore the defendants are liable to deliver possession of the property to the plaintiff. It found fault with the trial Court dismissing the suit of the plaintiff for declaration of title and injunction. Accordingly, it allowed the appeal. Set aside the judgment and decree of the trial Court. Decreed the suit of the plaintiff and defendants were directed to hand over possession of the property to the plaintiff. Aggrieved by 10 the said judgment and decree, the defendants have preferred this appeal.
10. The learned Counsel for the appellant assailing the impugned order contended that when the defendants have preferred cross objections, when the trial Court allowed the same, the plaintiff ought to have preferred two appeals, i.e., one against the judgment and decree dismissing the suit of the plaintiff and another appeal against the counter claim, as in law, the counter claim is a separate suit. Secondly, he contended that though the Gift Deed is not registered, the plaintiff has put the defendants in possession of the property, got mutation entries in their name and therefore the defendants cannot be denied their legitimate right to the property on the ground that the Gift Deed not being registered. More over, the plaintiff has pleaded inconsistent pleas. In one breath she says that she is in possession and she wants injunction and in another breath, she says that she is not in possession and therefore she wants possession. 11 Therefore he submits that the Lower Appellate Court committed serious error in reversing the well considered judgment of the trial Court and decreeing the suit of the plaintiff.
11. Per contra, the learned Counsel appearing for the defendants supported the impugned order of Lower Appellate Court.
12. From the material on record, it is clear that the plaintiff has purchased the suit property from her father under a registered sale deed. It is not in dispute. The defendants claim that their mother executed an unregistered Gift Deed. Even if the execution of the Gift Deed is held to be true, in law, unless the document transferring interest in the immovable property is duly registered, no transfer of immovable property takes place. Therefore notwithstanding the unregistered Gift Deed, title continues with the mother and the daughters-defendants do not become the owners of 12 the property. Therefore the question of declaring their title on the basis of unregistered deed, as has been done by the trial Court is perverse, illegal and unsustainable. Once the plaintiff's title to the property is admitted, when possession is with the defendants and they have no right to be in possession, they are bound to deliver possession. The trial Court committed serious error in dismissing the suit of the plaintiff and allowing the counter claim.
13. The Lower Appellate Court, on appreciation of the material on record and taking note of the admissions in the case, rightly declared the plaintiff's title to the property and also granted the relief of possession.
14. Though Cross Objection is construed as a separate suit, as the trial Court delivered a common judgment and against the said common judgment, appeal is filed, at the most, two numbers is to be given and additional Court fee is to be collected. But the subject matter of the 13 appeal was the entire decree passed by the trial Court, which included the decree passed in the plaintiff's suit as well as on the defendants' counter claim. Therefore on that ground it cannot be said that the Lower Appellate Court committed any error in reversing the judgment of the trial Court.
15. The facts are clear. The finding recorded by the Lower Appellate Court is based on legal evidence. All that has been done is, the mother's title to the property is up held and she is put back in possession. In that view of the matter, I do not see any infirmity with the judgment and decree passed by the Lower Appellate Court. No substantial question of law do arise for consideration in this second appeal which merits admission. Appeal dismissed at the stage of admission.
Sd/-
JUDGE ksp/-