Karnataka High Court
Smt.Chowdamma vs Sri.Nagaiah S/O Kempaiah on 6 December, 2018
Author: S.N.Satyanarayana
Bench: S.N.Satyanarayana
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF DECEMBER 2018
BEFORE
THE HON'BLE MR.JUSTICE S.N.SATYANARAYANA
R.S.A.NO.1102/2004(DEC)
BETWEEN
SMT.CHOWDAMMA
W/O CHOWDEGOUDA
SINCE DECEASED
BY LEGAL REPRESENTATIVES
1(a) SMT.CHANNAMMA,
D/O LATE CHOWDEGOWDA
W/O LATE ANNAIAH)
AGED ABOUT 65 YEARS,
1(b) SMT.GOURAMMA,
D/O LATE CHOWDEGOWDA,
(W/O LATE TAMMAIAH)
AGED ABOUT 51 YEARS,
BOTH ARE RESIDENTS OF'
SREENIVASAPURA TOWN,
MANDYA TQ,
BY HER GPA SRI CHOWDAIAH,
AGE :MAJOR,
R/O ACETATE TOWN,
MANDYA. ...APPELLANTS
(BY SRI ASHOK R KALYANASHETTY, ADVOCATE FOR
APPELLANT NO.1(a) & (b))
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AND
1. SRI.NAGAIAH
S/O KEMPAIAH
AGED ABOUT 27 YEARS,
2. SRI KRISHNA
S/O KEMPAIAH
AGED ABOUT 23 YEARS,
3. LATE KEMPAIAH
S/O CHANNAIAH
SINCE DECEASED BY HIS LEGAL REPRESENTATIVE
SMT.THIMMAMMA
W/O KEMPAIAH
ALL ARE RESIDENTS OF
CHIKKAGOWDANADODDI,
MANDYA. ...RESPONDENTS
(BY SRI S.B.TOTAD, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGEMENT & DECREE DATED 31.7.2004
PASSED IN R.A.NO 90/2003 ON THE FILE OF THE DISTRICT
JUDGE, MANDYA, PARTLY ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGEMENT AND DECREE DATED
21.12.1993 PASSED IN O.S. NO. 228/1989 ON THE FILE OF
THE PRL. MUNSIFF, MANDYA.
THIS RSA COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
The second defendant in OS.No.228/1989 on the file of Principal Munsiff, Mandya has come up in this second appeal impugning the divergent finding rendered in RA.No.90/2003 on the file of District Court, Mandya.
2. Brief facts leading to this second appeal are as under:
The suit in OS.No.228/1989 is for the relief of declaration and permanent injunction by plaintiffs against 1st defendant (father of plaintiffs) as well as 2nd defendant, who is purchaser of suit schedule land from 1st defendant.
The material on record would indicate that 1st defendant sold the suit schedule land i.e., land bearing Sy.No.561 measuring 29 guntas situated in Guttala village of Mandya Taluk, Mandya District, in favour of 2nd defendant under a registered sale deed dated 28.7.1974. It is seen that the consideration for which suit schedule land was sold was Rs.5,000/- in the year 1974. Thereafter, suit in -4- OS.No.228/1989 is filed by plaintiffs on 24.1.1985 i.e., nearly after 11 years 6 months from the date of aforesaid sale, wherein it is stated that they are the sons of 1st defendant; that they have 2/3rd share in suit land; that the same is in their possession, cultivation and enjoyment, which is said to have disturbed by 2nd defendant in the guise of having secured title to said land under registered sale deed dated 28.7.1974; that it is when she tried to interfere with their possession, cultivation and enjoyment the suit in OS.No.228/1989 is filed for the relief of declaration that they are owners to the extent of 2/3rd share in said land; that it is in their possession, enjoyment and cultivation which shall not be disturbed by 2nd defendant, who is claiming title under the sale deed at Ex.P2 also marked as Ex.D17.
3. In the said suit, as expected 1st defendant who is father of plaintiffs did not enter appearance and file written statement. So far as 2nd defendant is concerned, who is purchaser of suit schedule land entered appearance, filed written statement and denied the suit averments, wherein -5- she contended that 1st plaintiff, who is major as on the date of filing of suit had filed the same not only on behalf of himself but also on behalf of his minor brother, 2nd plaintiff had no locus standi to file the suit on behalf of 2nd plaintiff as the father of 2nd plaintiff is alive; that the suit for declaration is filed nearly after 11 to 12 years from the date of sale of suit schedule land in her favour; that the person who had sold the land being Kartha of the joint family of himself and plaintiffs was entitled to sell the same for family necessities i.e., to discharge the mortgage loan, for purchase of cart and bullocks to augment the income of the family. Therefore, the suit is misconceived and the same is required to be dismissed.
4. In the said suit based on the pleadings the court below framed in all 7 issues at first instance and thereafter framed one more additional issue based on the defence raised in the written statement of 2nd defendant, which are as under:
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1. Does the plaintiff proves the age of plaintiff are correct as given in the plaint?
2. Does plaintiff proves that the possession of the suit schedule property has taken from Chamundigowda by them?
3. Does the plaintiffs proves that suit schedule property is the ancestral property?
4. Does defendants prove that the plaintiff has no right by birth in the suit schedule property?
5. Does the defendants prove that the sale is for legal necessity and benefit of the minor plaintiffs and it binds the plaintiffs?
6. Whether the plaintiffs are entitled to 2/3rd share and permanent injunction?
7. To what relief?
Additional issue:
Whether the suit in the present form without seeking relief cancellation of the sale deed is maintainable as contended in para 10 of written statement?
5. In the said proceedings after framing of issues, 1st plaintiff adduced evidence as PW.1. He has also examined 3 other witnesses as PWs.2 to 4. PW.2 is the mortgagee of suit schedule land earlier to sale of the same in favour of 2nd -7- defendant, PW.3 is the adjacent land owner and PW.4 is none other than the mother of plaintiffs and wife of 1st defendant. In support of their case, plaintiffs have produced and marked in all 7 documents, out of them Ex.P1 is the original mortgage deed, Ex.P2 is the sale deed executed by 1st defendant in favour of 2nd defendant, Exs.P3 and P4 are copies of RTC extracts, Exs.5 and 6 are tax paid receipts and Ex.P7 is tax extract.
6. On behalf of defendants, 2nd defendant adduced evidence as DW.1 and she also examined DW.2 to speak regarding the purchase of suit land which is situated adjacent to the land of DW.2 and to demonstrate that 2nd defendant is in possession, cultivation and enjoyment of suit land for nearly 10 years from the date of his deposition before court below i.e., 21.9.1993.
7. The trial court on appreciation of the pleadings and evidence available on record proceeded to answer issues 1, 2 and 6, whether plaintiffs proved their correct age; whether they had taken possession of suit schedule land from -8- morgagee - Chamundigowda and whether plaintiffs are entitled to 2/3rd share and permanent injunction in the negative. While doing so, 3rd issue, whether plaintiffs proved the suit schedule property as the ancestral property is answered in affirmative. With reference to 4th issue, whether defendants prove that the plaintiffs have no right by birth in the suit schedule property is answered in the negative and with reference to 5th issue, whether defendants prove that the sale is for legal necessity and benefit of the minor plaintiffs and it binds the plaintiffs is answered in the affirmative. So far as additional issue with reference to filing of the suit without seeking cancellation of the sale deed would be maintainable is concerned, the same answered against the plaintiffs. Consequently, the suit of the plaintiffs is dismissed by judgment and decree dated 21.12.1993.
8. As against the said judgment and decree, the plaintiffs have preferred an appeal in RA.No.90/2003 on the file of Principal District Judge, Mandya (old No.19/1994 on the file of Additional Civil Judge, Mandya). In the said -9- regular appeal, the lower appellate court on re-appreciation of the pleadings, evidence with reference to issues and the finding of trial court thereon, proceeded to frame the following 9 points for consideration:
1. Whether the reasoning of the court below in regard to the age of the plaintiffs is in accordance with law?
2. Whether the plaintiffs could have maintained the suit when they brought the suit in the year 1985 ( 24.1.1985)?
3. Whether the defendant No.2 proves that she has made qnurieis in regard to the legal necessity of defendant No.1?
4. Whether the defendant No.2 proves that sale by defendant No.1 is for legal necessity?
5. Whether the plaintiffs are in possession of the property?
6. Whether the defendant No.2 is in possession of the property?
7. Whether the plaintiffs are entitled for the declaration prayed for?
8. Whether the suit is barred by time?
9. What order? "
9. On re-appreciation of the material available on record, the lower appellate court proceeded to answer point
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No.1 with reference to age of plaintiffs in negative; with reference to point No.2 regarding the right of plaintiffs to maintain the suit filed in the year 1985, the same is answered in affirmative in favour of the plaintiffs; regarding point Nos.3 and 4, whether 2nd defendant made enquires regarding legal necessity of 1st defendant and that the sale by 1st defendant is for legal necessity, they are answered in negative against 2nd defendant; regarding point No.5, whether plaintiffs are in possession of suit schedule property, the same is answered in affirmative in favour of plaintiffs, consequently, point No.6, whether 2nd defendant is in possession is answered in negative against 2nd defendant. So far as 7th point whether plaintiffs are entitled for the declaration as prayed for is concerned, it is answered partly in affirmative in favour of the plaintiffs and 2nd plaintiff is declared as owner to an extent of 1/3rd share in suit schedule land. While considering point No.7, the lower appellate held that 2nd defendant is to be declared as owner to an extent of 2/3rd share in suit schedule land. Regarding point No.8 with reference to limitation, the same is answered
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partly in affirmative so far as 2nd plaintiff is concerned and so far as 1st plaintiff is concerned, it is rejected. In the result, the lower appellate court partly allowed the appeal filed by the plaintiffs by its judgment and decree dated 31.7.2004 in declaring the 2nd plaintiff as owner to an extent of 1/3rd share in suit schedule land by setting aside the judgment and decree passed by the trial court in dismissing the suit of the plaintiffs. As against the divergent finding rendered by the lower appellate court 2nd defendant in the original suit has come up in this second appeal.
10. This Court at the time of admitting this appeal has framed the following substantial questions of law:
1. Whether the Appellate Court committed error in law in recording its findings that the second defendant failed to prove the legal necessity for selling the suit schedule property in favour of the 2nd defendant ?
2. Whether the plaintiff No.2 who was minor as on the date of filing of the suit could not maintain the said suit during his minority represented by his elder brother i.e. the plaintiff No.(1) challenging the alienation made by his father, the first defendant ?
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3. Whether the finding recorded by the Appellate Court that the second defendant purchaser was not put into possession of the suit property pursuant to the sale deed executed in his faovur by the first defendant is contrary to the evidence on record?
11. Heard the learned counsel for the appellant (since deceased represented by her legal representatives) as well as contesting respondents, perused the judgments of both the courts below as well as the pleadings, oral and documentary evidence available on record. On re-appreciation of the same this court would answer the first substantial question of law in the affirmative in holding that there is error on the part of lower appellate Court to hold that 2nd defendant failed to prove legal necessity for sale of suit land. So far as 2nd substantial question whether 2nd plaintiff as minor could maintain the suit does not survive in the light of observation that filing of the suit itself is bad. So far as third substantial question regarding 2nd defendant was not put in possession is held in favour of 2nd defendant in the affirmative on the ground that the recital in Ex.P2 put her in the position of
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mortgagor under Ex.P1 thereby symbolic possession of right to receive physical possession of suit land was assigned to her under Ex.P2. The aforesaid findings are supported by the following reasons;
The admitted facts in this litigation are that land bearing Sy.No.561 measuring 29 guntas of Guttalu village is the ancestral property of 1st defendant in the court below. In the year 1970 he mortgaged the said property in favour of his relative one Chamundigowda (PW2 in this proceedings) under Ex.P1 for an amount of Rs.2,000/- as a non-repayable loan i.e., the mortgagee under Ex.P1, would receive possession of suit land with right to enjoy its usufructs for 12 years with condition to return possession to mortgagor at the end of mortgage period.
12. It is seen that 1st defendant, who was still in need of money after mortgaging the suit schedule land for Rs.2,000/-, felt that it is more advantageous for him to sell the suit schedule land to raise necessary funds to meet his family necessities. It is in this background the 1st defendant
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offered to sell the suit land to 2nd defendant, subject to mortgage right. The 2nd defendant accepted the said offer and accordingly the 1st defendant as kartha of his joint family has sold suit schedule land to 2nd defendant for valuable consideration of Rs.5000/- to meet his family necessities. The same is reflected in the sale deed vide Ex.P2 executed by 1st defendant in favour of 2nd defendant.
13. Admittedly, as on the date of Ex.P2 - sale deed, plaintiffs in the original suit were born as children to the 1st defendant, who had sold the suit land in favour of 2nd defendant. The records would indicate that suit land was ancestral property of 1st defendant with himself as kartha and plaintiffs as members of his joint family. As discussed supra, the financial condition of 1st defendant's family was not in good condition and it was near to penury, which had necessitated the 1st defendant to mortgage the suit land in favour of Chamundigowda, vide Ex.P1(who is examined as PW.2). The amount which was received by 1st defendant under Ex.P1 - mortgage deed is in a sum of Rs.2,000/-.
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When the document at Ex.P2 - sale deed is looked into the recitals of which are clear that the 1st defendant was not able to tied down all his commitments with the loan of Rs.2,000/- raised by mortgaging suit land to PW.2. Therefore, in the interest of family i.e., to maintain the family consisting of himself and his two minor sons, namely plaintiffs 1 and 2 he decided to sell the suit schedule property to 2nd defendant for valuable consideration of Rs.5,000/- thereby he could get additional sum of Rs.3,000/- over and above the loan amount of Rs.2,000/- already taken on the said property.
14. When Ex.P2 - sale deed is looked into, the recital in said document would clearly indicate that the 1st defendant while executing the sale deed in favour of 2nd defendant had received a sum of Rs.3,000/- leaving another Rs.2,000/- on transfer of mortgage loan of Chamundigowda in her favour. Since the mortgagee Chamundigowda was entitled to be in possession of the suit land for 12 years and to receive the usufructs there from for the consideration of Rs.2,000/- given to 1st defendant as on the date of Ex.P1 the
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same is set off in the sale consideration receivable from the 2nd defendant thereby putting her in the position of mortgagor under Ex.P1 which would entitle her to receive physical possession at the end of mortgage period under Ex.P1. In fact, the evidence of PW.2 clearly indicate that he continued to be in possession of the suit property until expiry of the time stipulated under Ex.P1, which is supported by DW.2 - owner of adjacent property to suit schedule property, who while giving evidence in support of the defence of 2nd defendant would submit that the 2nd defendant has been in possession and cultivation of the suit land for nearly 10 years prior to the date when he adduced evidence. The said evidence of PW2 and DW2 would indicate that the 2nd defendant who had received symbolic possession under Ex.P2 received physical possession of suit land from PW2 in or around 1982.
15. The records would indicate that DW.2 was examined in the year 1993 i.e., from 1983 the 2nd defendant is in possession of the suit property. When this evidence is
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read in consonance with Ex.P1 - mortgage deed of the year 1970, it is clearly seen that PW.2 - mortgagee had received right to cultivate the property for 12 years. If this recital is seen with the evidence of PW.2 - Chemundegowda, who is the mortgagee under Ex.P1, in his evidence he would state that he was in possession of the suit property until the time stipulated under Ex.P1 expired. That means, in or around 1982 or 1983 he has delivered physical possession of the suit property to 2nd defendant who was authorized to receive possession of the suit land from PW.2 under Ex.P2. When all this is seen, the contention of plaintiffs that they are in possession of the suit property is without any basis, which is rightly appreciated by the trial court.
16. Besides the evidence of DW.2 there are documents to demonstrate that 2nd defendant having grown sugar cane in suit land has sold the same to Mandya Sugar Factory as per Exs.D12 to 14 and the bills for having received money from said Sugar Factory as per Exs.D15 and 16. This would demonstrate cultivation of suit land by 2nd defendant and
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also receiving income there from. In fact, this was the defence of 2nd defendant in trial court.
17. As against the defence of 2nd defendant, the plea of plaintiffs that they are in possession of suit land; they are cultivating the same; that said land though clandestinely purchased by 2nd defendant from 1st defendant no consideration is passed on to them and their family was in need of finances, are all rightly discussed by the trial court in demonstrating that even prior to sale of suit land, the family of 1st defendant which is inclusive of plaintiffs and PW.4 was not financially sound which has necessitated 1st defendant to mortgage the suit land at first instance in 1970's in favour of PW.2; thereafter there is an attempt on the part of 1st defendant to clear said mortgage loan of Rs.2,000/- and therefore, he has sold the only land (suit schedule land) available to the family in favour of 2nd defendant to secure sufficient capital to look up for some other source of income to the family and that some other
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source of income is nothing but purchase of bullock cart and a pair of bulls to draw the cart.
18. In this background, if the evidence of PW.4 - mother of plaintiffs and wife of 1st defendant is assessed, it is seen that plaintiffs, 1st defendant and PW.4 are all residing in same house right from the date the suit schedule land was sold in the year 1974. In her evidence, PW.4 would clearly state that they are all living together and 1st defendant is taking care of the family as against the allegation and accusations by plaintiffs against 1st defendant that he has disowned the family, taken to vices, hence sold the suit land for his vices and not for the betterment of family. It is seen, PW.4 in her evidence while trying to support the case of plaintiffs has given evidence in support of the defence of 2nd defendant that the suit filed by plaintiffs is with an ulterior motive to take away the suit schedule land that is sold by 1st defendant for family necessities.
19. As against the evidence of PW.4 when the conduct of 1st defendant is looked in to, it is seen that when
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admittedly he has sold the suit schedule land in favour of 2nd defendant in the year 1974, the suit in OS.No.228/1989 is filed in the year 1985, wherein after service of notice it is seen that though he was residing along with the plaintiffs in the same house and was aware of said proceedings does not enter appearance in the trial court, does not take a specific stand whether the sale is for family necessities or said sale is under coercion or whether he was misled to execute the sale deed in favour of 2nd defendant or as contended by plaintiffs he did not receive the sale consideration.
20. When the entire material on record is seen, the same would clearly establish that initiation of suit in OS.No.228/1989 itself is not with a bona fide intention by the plaintiffs and that there is no discard between the plaintiffs and 1st defendant as stated in the plaint. In fact, in the light of material on record the probability of suit being filed by plaintiffs at the instance of 1st defendant in trying to reclaim the suit schedule land, which is sold by him in favour of 2nd defendant cannot be ruled out. In this regard,
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the trial court which framed the issues has rightly appreciated the pleadings of plaintiffs, defence raised by 2nd defendant in the light of oral and documentary evidence on record and rightly dismissed the suit of plaintiffs. However, the lower appellate court while re-appreciating the material on record has committed a serious error in misinterpreting the evidence and misquoting the evidence has given a finding that 2nd plaintiff is to be declared as owner to an extent of 1/3rd share in suit schedule, which is not supported by evidence on record.
21. Therefore, in the light of aforesaid discussion this Court hold that the lower appellate court has committed serious error in appreciating the material on record while giving a finding that 2nd defendant failed to prove legal necessity of 1st defendant for selling the suit schedule land in favour of 2nd defendant and simultaneously it has committed a serious error in observing that 2nd defendant was not put in possession of suit land pursuant to sale deed executed in his favour by 1st defendant. These findings are
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without proper appreciation of material on record and in erroneous reading of the pleadings and evidence available on record.
22. In that view of the matter, by answering substantial questions of law against the respondents herein who are plaintiffs and colluding 1st defendant in the court below, this second appeal is allowed and the divergent finding rendered by the lower appellate court in RA.No.90/2003 in its judgment and decree dated 31.7.2004 is set aside, consequently, the judgment and decree dated 21.12.1993 passed in OS.No.228/1989, is hereby confirmed.
Sd/-
JUDGE nd/-