Karnataka High Court
Smt Gowramma vs Smt Jayamma on 9 December, 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF DECEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A NO.270 OF 2022 (DEC/INJ)
BETWEEN:
1. SMT.GOWRAMMA
W/O LATE S.V.MALLAIAH
AGED ABOUT 82 YEARS
2. SRI.KRISHNAPPA
S/O LATE S.V.MALLAIAH
AGED ABOUT 56 YEARS
3. SRI.CHANNAPPA
S/O LATE S.V.MALLAIAH
AGED ABOUT 52 YEARS
4. SMT.CHANDRAMMA
D/O LATE S.V.MALLAIAH
AGED ABOUT 50 YEARS
R/O ARASINAKUNTE VILLAGE
DASANAPURA HOBLI
NELAMANGALA TALUK
BENGALURU RURAL DISTRICT
5. SMT.NALINA
D/O LATE S.V.MALLAIAH
AGED ABOUT 47 YEARS
6. SRI.S.M.VEERANNA GOWDA
S/O LATE S.V.MALLAIAH
AGED ABOUT 42 YEARS
2
APPELLANT NOS.1 TO 3 5 AND 6
ARE R/O SHIVAKOTE VILLAGE
HESARAGHATTA HOBLI
BENGALURU NORTH TALUK
BENGALURU - 560 089
...APPELLANTS
(BY SRI.VIJAYA SHEKARA GOWDA V, ADVOCATE)
AND:
1. SMT.JAYAMMA
W/O LATE S.V.PAPAIAH
AGED ABOUT 85 YEARS
2. SRI.S.P.VEERANNA GOWDA
S/O LATE S.V.PAPAIAH
AGED ABOUT 65 YEARS
BOTH ARE R/O SHIVAKOTE VILLAGE
HESARAGHATTA HOBLI
BENGALURU NORTH TALUK
BENGALURU - 560 089
3. SMT.S.LINGAMMA
W/O SRI.VEERANNA GOWDA
AGED ABOUT 56 YEARS
R/AT SHIVAKOTE VILLAGE
HESARAGHATTA HOBLI
BENGALURU NORTH TALUK
...RESPONDENTS
(BY SRI.B.L.LINGARAJU, ADVOCATE,
SRI.J.R.MOHAN, ADVOCATE,
FOR SRI.T.SHESHAGIRI RAO, ADVOCATE FOR R.1 AND R.2)
THIS RSA IS FILED U/SEC.100 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 13.01.2022 PASSED IN
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R.A.NO.230/2020 ON THE FILE OF THE PRINCIPAL DISTRICT AND
SESSIONS JUDGE, BENGALURU RURAL DISTRICT, BENGALURU,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND
DCREE DATED 29.05.2020 PASSED IN O.S.NO.1781/2008 ON THE
FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU
RURAL DISTRICT, BENGALURU.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 05.12.2022, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by the unsuccessful defendants, who have questioned the concurrent findings of the Courts below, wherein the plaintiffs suit for declaration of title and injunction is decreed declaring plaintiff Nos.1 and 2 as joint owners in respect of item No.1 of the suit property bearing Sy. No.57/8 measuring 2 acres 18 guntas and consequently, defendant Nos.1 to 6 are directed to demolish the structures put up in item Nos.2 and 3 of the suit schedule properties and hand over the vacant possession of the said properties.
2. For the sake of brevity, the ranks of the parties are referred as they are ranked before the Trial Court. 4
3. The plaintiffs have instituted the present suit seeking relief of declaration and mandatory injunction. The plaintiffs case is that one Erappa was a propositus, who purchased the agricultural lands bearing Sy. No.57/1 and Sy. No.57/2 totally measuring 5 acres 18 guntas situated at Shivakote Village, Bengaluru North Taluk under registered sale deed dated 24.04.1933. The plaintiffs have further claimed that there was an oral partition among sons of Erappa and plaintiffs ancestors namely Papaiah in an oral partition was allotted 2 acres 18 guntas in Sy. Nos.57/1 and 57/2 and one Mallaiah, who is the ancestor of defendants herein, was allotted 1 acre 39 guntas in Sy. No.57/1 and Sy. No.57/2.
4. The oral partition was reported to the Revenue Authorities and also Hissa proceedings were effected in terms of the oral partition and a portion measuring 2 acres 18 guntas allotted to the plaintiffs father Papaiah was re-assigned by new Sy. No.57/8. One Mallaiah, who is the ancestor of the defendants was allotted a portion measuring 1 acre 39 guntas 5 and the same was re-assigned by new Sy. No.57/10. The plaintiffs grievance is that defendants without having any semblance of right have illegally put up construction in the suit land bearing Sy. No.57/8. Hence, the present suit is filed seeking relief of declaration, which is based on oral partition dated 24.04.1933.
5. The defendants on receipt of summons have filed written statement and defendants have admitted that suit lands bearing Sy. No.57/1 and Sy. No.57/2 were purchased by Erappa. However, the plea of partition set up by the plaintiffs and consequent hissa proceedings are seriously disputed by the defendants. The defendants have also seriously disputed the allegations relating to encroachment. On the contrary, the defendants have made serious allegations that the plaintiffs in collusion with Revenue Authorities have illegally got the lands re-surveyed and therefore, the mutation entries effected pursuant to hissa proceedings are seriously disputed by the 6 defendants. Disputing the alleged encroachment, the defendants have stoutly denied the right of the plaintiffs over suit item Nos.2 and 3. The defendants claimed that the suit item Nos.2 and 3 are exclusively owned by them and plaintiffs have no manner of right and title in respect of suit item Nos.2 and 3.
6. The plaintiffs to substantiate the plea of oral partition and their exclusive right over the suit land bearing Sy. No.57/8 examined plaintiff No.2 as P.W.1 and relied on documentary evidence vide Exs.P.1 to P.42, while defendants examined defendant No.2 as D.W.1 and three witnesses as D.Ws.2 to 4 and relied on rebuttal documentary evidence vide Exs.D.1 to 19.
7. Pending suit, a Commissioner was appointed, who has produced the report, which is marked as Ex.C.1 and spot mahazar is marked as Ex.C.3 and Commissioner is examined as C.W.1.
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8. The Trial Court referring to the mutation entries vide Ex.P.2 and Ex.P.12, upheld the contention of the plaintiffs in regard to factum of prior partition. Referring to mutation entries vide Ex.P.2 and Ex.P.12, the Trial Court held that oral partition in the family was reported to the Revenue Authorities and the allotment of share is duly mutated to the revenue records in favour of the plaintiffs and defendants. Referring to Exs.P.13 to 20, the Trial Court was of the view that post partition, the plaintiffs names are found in the revenue records from the year 1966-67 to 2001-02. Papaiah's name was duly mutated to the revenue records based on the mutation bearing M.R.No.6/74-75. The Trial Court further found that similarly defendants ancestor Mallaiah's name was duly mutated, which is evident from Exs.P.27 to 31, which relates to Sy. No.57/10 measuring 1 acre 39 guntas and the said revenue records clearly indicate that Mallaiah's name was duly mutated since 1981-82 to 2001-02 and entries in the 8 revenue records are on the basis of the partition reported by the family members.
9. Referring to this clinching evidence, the Trial Court was of the view that plaintiffs have succeeded in establishing the prior partition in the family. The Trial Court has further recorded that Exs.P.37 and Ex.P.40 would clinch the entire controversy relating to severance in the family. The plaintiffs by producing a copy of the written statement filed by the defendants in the earlier round of litigation, the Trial Court was of the view that the plaintiffs have further substantiated their claim in regard to partition in the family. As per Ex.P.39, the Trial Court found that defendant No.2 has contested earlier suit, which was one for bare injunction in O.S.No.1126/2009, the defendant Nos.1 to 6, who were also parties to the earlier suit, have taken a specific contention that propositus - Erappa has already distributed his property in favour of his children and therefore, the subject matter of the suit, which is an agricultural land bearing Sy. No.46/3 has 9 been allotted to share of Smt.Jayamma, who is the wife of the deceased S.V.Papaiah. The present defendant No.1 is the wife of deceased Mallaiah. It is in this background, defendants contended that in the earlier suit, the plaintiffs had no locus to question the alienation as Smt.Jayamma acquired valid right and title pursuant to the partition in the family. The present defendant No.1, who was examined as D.W.1 in the said suit, has also deposed while contesting the said suit. The deposition is marked as Ex.P.40. The Trial Court referring to the deposition vide Ex.P.40 coupled with the cross- examination of D.W.1 in the present suit, wherein D.W.1 in the present suit has also admitted the partition effected in the year 1954 held that plaintiffs have succeeded in establishing 1954 partition.
10. By examining all these significant details and the pleadings in the earlier suit vide Ex.P.37 coupled with cogent and clinching evidence lead in by the plaintiffs, wherein the 10 plaintiffs have succeeded in discharging their initial burden proceeded to decree the suit by holding that plaintiffs title is established. The Trial Court has also proceeded to grant relief of mandatory injunction by placing reliance the evidence on record, which clearly establishes that defendants have highhandedly encroached over the suit item Nos.2 and 3.
11. Feeling aggrieved by the judgment and decree of the Trial Court, the defendants preferred an appeal before the Appellate Court. The Appellate Court being a final fact finding authority has independently assessed the oral and documentary evidence. The Appellate Court, while assessing the entire evidence on record has also meticulously looked into mutation entries vide Ex.P.20, which is of the year 1974-75 and the revenue records, which are marked vide Exs.P.13 to
20. Referring to these documents, the Appellate Court has also concurred with the findings of the Trial Court that the plaintiffs have succeeded in establishing 1954 partition in the 11 family. The Appellate Court has also taken cognizance of the stand taken by the defendants in the earlier suit bearing O.S.No.1126/2009. The Appellate Court has also taken cognizance of several categorical admissions elicited in the cross-examination of defendants i.e., D.W.1 and therefore, was not inclined to interfere with the judgment and decree of the Trial Court. Consequently, the appeal is dismissed. These concurrent findings are under challenge by the unsuccessful defendants.
12. Learned Senior Counsel Sri.Vivek Reddy reiterating the grounds urged in the appeal memo would vehemently argue and contend that plaintiffs have obtained a decree at the hands of the Courts by playing fraud. The defendants for the first time have taken a contention that plaintiffs have executed the release deed in favour of wife of plaintiff No.2 namely Smt.Lingamma, who is arrayed as respondent No.3 in the present second appeal. Therefore, the learned Senior Counsel would contend that since plaintiffs had already 12 relinquished their rights in favour of wife of plaintiff No.2, they had no locus to prosecute the suit and therefore, the learned Senior Counsel would contend that there is a deliberate non- disclosure of relevant material documents with a view to gain undue advantage and therefore, learned Senior Counsel would contend that if this constitutes a fraud, placing reliance on the judgment rendered by the Hon'ble Apex Court in the case of A.V.PAPAYYA SASTRY AND OTHERS VS. GOVERNMENT OF A.P AND OTHERS1, the learned Senior Counsel would contend that concealment of release deed would in itself vitiate as the decrees are obtained by the plaintiffs by playing fraud and therefore, he would contend the judgments and decrees rendered by the Courts below have to be treated as nonest and nullity. Referring to the principles laid down by the Hon'ble Apex Court in the above cited judgment, he would contend that the defendants are entitled to raise a plea of fraud in the present second appeal. Referring to the principles, he would further place reliance on the judgment 1 (2007)4 SCC 221 13 rendered by the Hon'ble Apex Court in the case of BADAMI (DECEASED) BY HER LR VS. BHALI2 would contend that the materials on record clearly demonstrates that plaintiffs have indulged in playing fraud and therefore, the effect of said fraud would render as a nullity.
13. The second limb of arguments canvassed by the learned Senior Counsel is that the present suit seeking possession is barred by limitation. Learned Senior Counsel would contend that once the plaintiffs admit that they were dispossessed, then to seek a possession they have to plead exact date on which they have dispossessed from the properties. Non-disclosure of exact date of loosing possession would be fatal to the plaintiff's case and therefore, he would contend that the suit itself is not maintainable. Placing reliance on the principles laid down by the Madras High Court in the case of O.S.VENKATARAMAN VS. R.V.M.K PRASAD (S.A.NO.242/1996), he would contend that there is no 2 (2012)11 SCC 574 14 specific plea in regard to exact date of encroachment and the said allegation is not supported by any documentary evidence and therefore, he would contend that concurrent findings recorded by the Courts below suffers from perversity and therefore, warrant interference. Hence, he would request this Court to formulate the substantial question of law, which would arise out of the judgments under challenge.
14. Per contra, learned counsel appearing for the plaintiffs countering the arguments canvassed by the learned Senior Counsel would contend that concurrent judgments recorded by the Courts below is based on legal evidence and therefore, would not warrant any interference at the hands of this Court. In so far as alleged fraud is concerned, the learned counsel appearing for the plaintiffs would take strong objections to the contentions canvassed before this Court for the first time relating to fraud. The question of fraud can be examined provided the defendants are able to counter the factum of partition set up by the plaintiffs. Referring to the 15 clinching evidence on record, the learned counsel appearing for the plaintiffs would contend that they have succeeded in establishing the partition by producing cogent and clinching evidence. The suit land bearing Sy. No.57/8 measuring 2 acres 18 guntas was allotted to the plaintiffs ancestor Papaiah under family partition deed dated 16.11.1954. The factum of partition is in fact admitted by the defendants in earlier round of litigation, which is evident from Exs.37 and 40. Therefore, he would contend that if plaintiffs are the absolute owners of the suit lands and if there is an interse arrangement between the family by way of release deed executed by the plaintiffs in favour of wife of the plaintiff No.2, that would not constitute a fraud. The ingredients of fraud are not found in the present case on hand. Even if release deed is executed, the arrangement being within the family, the plaintiffs have every right to prosecute the suit. The right would not be created in favour of the defendants on account of release deed. The defendants have denied the factum of partition in the present 16 suit and at the same time, they claimed that item Nos.2 and 3 are exclusively owned by defendants. Therefore, he would contend that by release deed, there is no question of plaintiffs taking unfair advantage. If the suit lands are exclusively owned by plaintiffs, the plaintiffs have unfettered right to deal with the property the manner in which they intend to. Therefore, he would contend that the allegations relating to fraud in the present case on hand is only to divert the attention of this Court in regard to actual controversy between the parties.
15. Refuting the arguments canvassed by the learned Senior Counsel in regard to limitation, he would vehemently argue and contend that the present suit for possession is based on title. The defendants admittedly have not asserted any adverse title in the properties in question and therefore, the provisions of limitation have no application to the present case on hand. Referring to the concurrent findings of the 17 Courts below, he would contend that both Courts have exhaustively dealt with each and every document tendered during trial. Both Courts have taken pain in meticulously assessing each and every document. Therefore, the concurrent findings recorded by the Courts below is legal and would not any warrant interference at the hands of this Court.
16. Heard learned Senior Counsel appearing for the defendants and learned counsel appearing for the plaintiffs.
17. The plaintiffs to establish the factum of partition have produced voluminous documents. It is not in dispute that the suit properties were self acquired properties of propositus Erappa, who purchased the same in the year 1933. To substantiate that there is a severance in the family, the plaintiffs have produced Ex.P.2, which is a mutation indicating that there was a partition. There are voluminous documents produced by the plaintiffs indicating that oral partition is acted 18 upon between the family members. One of the strong circumstances is the Hissa proceedings effected by the Survey Authorities pursuant to the severance in the family. The agricultural lands were originally bearing Sy. Nos.57/1 and Sy. No.57/2, when it was purchased by Erappa in the year 1933. Pursuant to partition, the plaintiffs father S.V.Papaiah was allotted 2 acres 18 guntas and therefore, the portion that was allotted to the plaintiffs ancestors - S.V.Papaiah was reassigned new Sy. No.57/8. Similarly, the extent measuring 1 acre 39 guntas, which was allotted to fourth son namely Mallaiah, who is the ancestor of the defendants, was re-assigned new survey number as Sy. No.57/10. Ex.P.16 is the survey sketch prepared by Taluka Surveyor. Ex.P.10 is a sale deed executed by Muddappa, who is one of the son of Erappa, conveying a house property and adjacent vacant land and this sale is conveyed in favour of Nagappa and Papaiah. The recitals of the sale deed clearly indicate that the alienation is based on the partition effected in the year 1954. Ex.P.11 is 19 the sale deed dated 25.09.1963 executed by Nagappa s/o Erappa and his sons, who have alienated the land measuring 10 guntas in Sy. No.39. In the said sale deed, there is a recital indicating that it is an ancestral property and it had fallen to their share under family partition deed dated 16.11.1954.
18. Exs.P.13 to 20 are the revenue records for the year 1966-67 to 2001-02 and the entries clearly indicate that the property, which was standing in the name of Erappa and subsequently, his name is deleted and name of Papaiah is mutated. Similarly, the defendants ancestors name is found in the revenue records pertaining to Sy. No.57/10 of Shivakote Village. Coupled with this clinching evidence, Ex.P.37, which is a certified copy of the written statement filed by the defendants herein in earlier suit bearing O.S.No.1126/2006 and Ex.P.40 is the certified copy of the deposition of D.W.1. On perusal of these documents, it is evident that the defendants have admitted in unequivocal terms the factum of 20 partition effected in the year 1954. The entire defence set up by the defendants in the earlier suit is based on the partition effected in the year 1954.
19. Coupled with these clinching evidences, both Courts have culled out relevant portions of cross-examination of D.W.1. Trial Court as well as Appellate Court have culled out relevant cross-examinations, wherein the plaintiffs have succeeded in eliciting in the cross-examination and D.W.1 has also admitted that there was a partition in the year 1954.
20. If both Courts referring to this clinching evidence on record, have come to the conclusion and recorded the concurrent findings accepting the plea of partition set up by the plaintiffs, this Court cannot revisit and reassess the evidence on record under Section 100 of CPC. Such recourse is not permissible.
21. The contention raised in the present second appeal that the present suit is hit by Article 64 of the Limitation Act is 21 found to be misconceived. The present suit is filed seeking relief of declaration based on family partition and consequential relief of mandatory injunction and possession is sought and therefore, the consequential relief of possession falls under Article 65 of the Limitation Act and not under Article 64 of the Limitation Act. It is a trite law that Article 65 of the Limitation Act would come into play only if defendants plead adverse possession and succeed in establishing that they have perfected their title. It is only after defendants succeeded in establishing their adverse title, the plaintiffs right would stand extinguished under Section 27 of the Limitation Act. Since the defendants have not defended the present suit by setting up a plea of adverse possession, the arguments canvassed by the learned Senior Counsel that the present suit is covered under Article 64 of the Limitation Act cannot be entertained.
22. Relating to fraud, this Court while hearing this case for admission noticed that entire emphasis and thrust was on 22 the allegation of fraud rather than on merits. The defendants possibly tried to divert the attention of this Court and have made feeble attempt by contending that the judgment and decree rendered by the Courts below has to be declared as nullity and nonest on the ground that the plaintiffs have suppressed the release deed executed by them in favour of wife of second plaintiff. The learned Senior Counsel discretely did not advert too much on the merits and more emphasis was laid down on the fraud committed by the plaintiffs.
23. This Court is unable to understand that how the defendants can plead fraud in the present case on hand. A fraud is an act of deliberate deception with a design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to secure an advantage. The material on record clearly establishes without any doubt that suit lands are owned by the plaintiffs family. Therefore, the release deed executed by the plaintiffs in favour of the wife of plaintiff No.2 23 is of no consequences. Merely because the release deed is not brought to the notice of the Courts that in itself will not give any advantage to the defendants. The actual controversy between the parties is as to whether there is partition between the plaintiffs branch and defendants branch. The actual controversy is as to whether the plaintiffs have succeeded in proving the partition set up in the plaint. This Court is of the view that plaintiffs have succeeded in proving 1954 partition by producing cogent and clinching evidence. Therefore, the theory of fraud set up for the first time before this Court cannot be acceded to as release deed has no relevancy to the actual controversy between the parties.
The second appeal is devoid of merits. No substantial question of law arises for consideration.
Accordingly, the appeal is dismissed.
Sd/-
JUDGE NBM