Abdulmajidsab vs Parameshwarappagouda and Others

B.V. Nagarathna, J.—1. The plaintiff in O.S. No. 177/2004 has preferred this appeal, assailing judgment and award passed in R.A. No. 33/2012, passed by the Senior Civil Judge & JMFC, Hirekerur, dated 16/12/2015, by which, judgment and decree passed in O.S. No. 177/2004, dated 11/10/2012, by the Civil Judge & JMFC, Hirekerur, has been affirmed.

For the sake of convenience, parties shall be referred to, in terms of their status before the trial Court.

The appellant - plaintiff, filed the suit seeking declaration and injunction in respect of the suit schedule property, comprising of agricultural land bearing R.S. No. 90/1, measuring 4 Acres out of 5 Acres, situated at Hallur village, Hirekerur Taluk, Haveri District. It is the case of the plaintiff that suit property was originally owned and possessed by father of the plaintiff Gafarsab Jamalsab Mulla. He died on 12/12/1986 at Hallur village, leaving behind him four sons and four daughters. All the four daughters of Gafarsab gave up their rights over the suit schedule property and only the names of the sons were mutated in the cultivator''s column of RTC in respect of the schedule property through M.E. No. 1606 of Hallur village. The said entry was certified in the year 1980 itself by the concerned authorities.

During the life time of Gafarsab, the suit property was possessed and cultivated by him personally, as he had his agricultural establishment. After his death, plaintiff continued agricultural operations as owner of the property. Plaintiff was employed in Hubli-Dharwad twin city corporation. Gafarsab had not alienated his 2/3rd share in the suit property to anybody. There was a family arrangement after the death of Gafarsab in respect of the properties left behind by him. The suit land was earlier measuring 5 Acres and subsequently, divided among Abdul Samadsab allotting him 1 Acre of the suit land and remaining 4 Acres was allotted to plaintiff. Family arrangement took place and M.E. No. 1621 of Hallur village was certified on 09/08/1990. Accordingly, the names of Abdul Rabbhani Sab and Abdul Vahabsab were deleted from the RTC in respect of the suit property, as they were allotted other lands. The elder brother of the plaintiff, Abdulsamadsab Mulla, sold his share of 1 Acre towards northern side of the suit schedule property to Abdul Rahimsab Mulla, under a registered sale deed dated 04/02/2002 and accordingly, the name of Abdul Rahimsab, was mutated in the records, as per M.E. No. 1953, which came to be certified on 08/04/2002. The said Abdul Rahimsab, is defendant No. 17 in the suit. Defendant Nos. 4 to 8 are the legal representatives of deceased Rudrappa Totad of Hallur village and defendant Nos. 9 to 16 are the legal representatives of deceased Giriyappa Rangappa Jeenalli. It is the further case of plaintiff that defendant Nos. 1 to 3, the said deceased Rudrappa Rangappa Totad and Giriyappa Rangappa Jeenalli created bogus, sham documents, as if, the father of the plaintiff had executed the same on 20/12/1980. Defendant Nos. 1 to 16 are strangers to the family of the plaintiff. They have nothing to do with the suit schedule property. The plaintiff was surprised to receive notice from the village accountant of Hallur village, in respect of vardi dated 14/01/2003, filed by the defendants. Plaintiff filed objections and the matter was referred to the Tahsildar Hirekerur and subsequently, it was transferred to Deputy Tahsildar Rattihalli. The sale deed relied upon by the defendants is baseless and without consideration. The Deputy Tahsildar Rattihalli, rejected the objections filed by the plaintiff and ordered certification of M.E. No. 1971 of Hallur village, vide order dated 30/07/2003. Aggrieved by that order, plaintiff challenged the same before the Assistant Commissioner, Haveri. The appeal was dismissed on 28/04/2004. Plaintiff alleged that the revenue authorities have exceeded their jurisdiction in certifying M.E. No. 1971. Hence, plaintiff filed the suit seeking aforesaid reliefs of declaration and permanent injunction against defendants.

In response to the suit summons and Court notices, defendant Nos. 1 to 8, 10 to 12, 17, 19 and 20 appeared through their counsel. Defendant No. 9 died. Defendant Nos. 13 to 16 did not appear before the Court. Hence, they were placed ex-parte. Defendant No. 2 filed his written statement and defendant Nos. 1, 3 to 8, 10 to 12, 17, 19 and 20 filed a memo adopting the written statement filed by defendant No. 2. Defendant No. 2 in his written statement has denied plaint averments. He has contended that the suit schedule property was sold by father of plaintiff deceased Gafarsab Jamalsab Mulla, during his life time in favour of the defendants. The suit property was self acquired property of the deceased Gafarsab Jamalsab Mulla and it was sold to defendants on account of family necessity and to repay the loans taken by the deceased Gafarsab Jamalsab Mulla. That the deceased Gafarsab Jamalsab Mulla, sold his 2/3rd of the suit schedule property in R.S. No. 90/1, which originally measured 5 Acres to the defendants. Accordingly, defendant Nos. 1 to 3, husband of defendant No. 4, father of defendant Nos. 5 to 8, Rudrappa Totad, husband of defendant No. 9 and father of defendant Nos. 10 to 16 i.e., Giriyappa Jeenalli, purchased the suit items from Gafarsab Mulla on 20/12/1980, under a registered sale deed in presence of witnesses. Plaintiff had full and complete knowledge about the said transaction. Since then, defendants have been in possession of the suit property. For all these years, plaintiff had not challenged the said sale deed and plaintiff has now lost his right to seek cancellation of the said sale deed. It was further contended by defendants that since it was not possible for defendant Nos. 1 to 3 and 6 to 10, to hold the property jointly, they have sold the same to one Shoukatali Rabbani Mulla and Aminabirabbani Mulla, in the year 2004 under a registered sale deed dated 23/10/2004 and they have been in possession of the suit property since then. Therefore, second defendant as well as other defendants, who adopted the written statement of the second defendant, sought dismissal of the suit. In light of the above pleadings, trial Court framed the following issues for its consideration:--

"1. Whether plaintiff proves that, he is owner in lawful possession and enjoyment of suit property?

Whether plaintiff proves alleged obstruction and interference by the defendant over suit property?

Whether plaintiff proves that alleged sale deed executed by his father in favour of defendant Nos. 1 to 3 and others dated 20/12/1980 in respect of 2/3 share in Sy. 90/1 is null and void bogus, sham sale deed?

Whether plaintiff is entitled for declaration and injunction as sought for?

Whether plaintiff is entitled for direction as sought for?

Whether the plaintiff is entitled to recover compensatory costs as prayed for in the plaint?

What order or decree?"

In support of his case, plaintiff examined himself as P.W. 1 and two other witnesses as P.Ws. 2 and 3. They relied upon 19 documents, which were marked as Exs. P. 1 to P. 19. Defendants examined two witnesses and produced 4 documents, which were marked as Exs. D. 1 to D. 4. On the basis of the said evidence, the trial Court answered Issue Nos. 1 to 6 in the negative and dismissed the suit of the plaintiff with costs, by judgment and decree dated 11/10/2012.

Being aggrieved by the judgment and decree of the trial Court, plaintiff filed R.A. No. 33/2012 before the first appellate Court, which, on hearing learned counsel for respective parties, raised the following points for its consideration:--

"1. Whether the trial Court is justified in holding issue No. 1 to 6 in the negative. Issue No. 7 as per the final order and dismissing the suit of the plaintiff?

Whether the judgment and decree of the trial Court is arbitrary, erroneous, perverse and wants for interference of this Court?

What order or decree?"

It answered Point No. 1 in the affirmative, Point No. 2 in the negative and dismissed the appeal by confirming the judgment and decree of the trial Court.

Being aggrieved by the judgment and decree of the first appellate Court, plaintiff has preferred this second appeal.

I have heard learned counsel for appellant and perused the material on record.

It is argued by Sri M.R. Naragund, learned counsel for appellant, that defendants are claiming to be owners in possession of the suit schedule property on the basis of sale deeds, which are bogus, concocted and sham. He contended that the suit schedule property belonged to father of the plaintiff. On the death of the father of the plaintiff, there was a family arrangement amongst his children. That various portions of the schedule property were divided by plaintiff and his brothers. The suit schedule property was being cultivated by the plaintiff but the defendants started interfering with the cultivation of the plaintiff. He contended that the trial Court as well as the first appellate Court have failed to appreciate the fact that the name of plaintiff was entered in the revenue records subsequent to the death of plaintiff''s father. On the basis of the revenue entries, plaintiff became owner in possession of the suit property and he was entitled to cultivate the same. But the defendants claim to be the owners in possession of the suit property on the basis of the sale deeds at Exs. D. 3 and D. 4. Ex. D. 3 is not a sale deed, which has been executed by plaintiff''s father. Assuming for a moment that they were the sale deeds executed by plaintiff''s father and thereafter, names of the vendees were not entered in the revenue records and on the demise of the plaintiff''s father, plaintiff continued to remain as owner in possession of the suit property. Appellant''s counsel contended that substantial question of law would arise in this appeal, pertaining to Exs. D. 3 and D. 4 and the appeal may be admitted for a detailed hearing.

On considering the aforesaid submissions of the learned counsel for appellant and on perusal of the material on record, it is noted that the respondent - defendants have claimed title to the suit schedule property on the basis of two sale deeds. One, executed by father of the plaintiff - Gafarsab Mulla on 20/12/1980. The said sale deed was registered and subsequently, defendants who purchased the suit property from plaintiff''s father in turn, sold it to one Shoukatali Rabbani Mulla and Aminabi Rabbani Mulla, in the year 2004 under Ex. D-4 dated 23/07/2004. Therefore, during the life time of plaintiff''s father in the year 1980 itself, he had lost his right, title and interest in respect of the suit property and on account of the same being alienated by him through defendant Nos. 1 to 3 and 6 to 10. Secondly, these defendants in turn sold the same to other defendants namely, Shoukatali Rabbani Mulla and Aminabi Rabbani Mulla, in the year 2004. It is again, under a registered sale deed. Thereafter, the latter persons have been in possession of the suit property. In the circumstances, when father of the plaintiff had lost right, title and interest during his life time in respect of the suit property, the plaintiff on the death of his father could not have succeeded to it at all. It is noted that thereafter, vendees of the father of the plaintiff have in turn alienated it to others. Therefore, in the year 2004, plaintiff could not have sought relief of declaration of title and consequential injunction. The trial Court and the first appellate Court rightly appreciated the case of the respective parties as well as the evidence on record particularly, Exs. D-3 and D-4 and have come to a conclusion that the plaintiff was not entitled to any relief in the suit. Hence, I do not find any infirmity in the judgment of the Courts below. No substantial question of law arises in this appeal. The appeal is dismissed.