A.G. Yadiyoorashetty vs A.G. Tammaiah

Rathnakala, J.—This second appeal is filed by the legal representatives of the deceased first defendant, challenging the concurrent finding recorded by both the courts below.

The facts briefly stated are:

The plaintiff filed a suit for declaration and permanent injunction in respect of plaint schedule property, an agricultural land situated at Athigodu village, Bettadapura Hobli, Periyapatna taluk, in Sy. Nos. 166 and 169 totally measuring 8 acres. First defendant is none other than plaintiff''s own brother. Second defendant is the son of the first defendant and the third defendant is the son of his deceased brother Siddalingashetty. There was a partition among the family members on 5.1.1974 under a Paluparikatthu and the suit properties were allotted to the plaintiff and his deceased brother late Siddalingashetty. Siddalingashetty was allotted 28 guntas of land in suit scheduled Sy. No. 166 and 6 acres 22 guntas in suit schedule Sy. No. 169. Plaintiff was allotted 3 acres in suit schedule Sy. No. 166 and 9 acres in suit schedule Sy. No. 169 along with other properties. The property allotted under the Paluparikatthu in favour of Siddalingashetty is shared by his two sons viz., A.S. Vijendra and A.S. Mahendra. The plaintiff got divided the property allotted in his name by effecting partial partition among his family members and now living in joint family with his third son. He is in possession and enjoyment of the suit property; khatha stands in his name in respect of 5 acres in suit schedule Sy. No. 169, 2 acres in suit schedule Sy. No. 166. Another land in Sy. No. 169 allotted in favour of his son A.T. Rajendra is also in his possession. On 15.7.1999, the second defendant brought the Revenue Inspector near the suit property and tried to measure and demarcate two acres in the suit land, which was resisted by the plaintiff. Second and third defendants attempted to dispossess him. The first defendant had preferred an appeal in R.A. No. 6/81-82 before the Assistant Commissioner, Hunsur, with regard to change of khata in respect of suit schedule Sy. Nos. 166 and 169, which came to be dismissed. The further appeal preferred before the Deputy Commissioner was also dismissed. Hence, the suit.

The defendants contested the suit on common ground. Their case was that, one half of 3 acres 29 guntas of land in Sy. Nos. 166 and 169 of Athigodu village and other properties were inherited by first defendant under an Adoption Deed dated 15.11.1925. Since then, he is in possession of the said property and he was assisted by defendant Nos. 2 and 3. On 18.11.1909, one Siriyalashetty has executed a registered settlement deed, thereby settling all his properties in the name of Siddalingashetty and further to his son. In the said Settlement Deed, it was stated that the adopted son should get one half of the properties mentioned in the said document including Sy. Nos. 166 and 169. Subsequently on 15.11.1925, Gururamma, wife of Siriyalashetty executed an Adoption Deed confirming the fact that she took the first defendant in adoption, who was the second son of Siddalingamma (daughter of herself and Siriyalashetty). Hence, the first defendant became the owner of one half of the properties mentioned in Sy. Nos. 166 and 169. The plaintiff by obtaining the signature on blank paper in all probabilities created a partition deed making it appear that he has got lion share in the land in Sy. Nos. 166 and 169. But these lands are in possession of the first defendant.

On the above pleadings, the trial court framed the following issues:

Whether the plaintiff proves that he is the absolute owner in possession of the suit schedule properties?

Whether the alleged interference is true?

Whether the court fee paid is correct?

What order?

After a full-fledged trial, suit is decreed as prayed for.

Aggrieved first defendant forwarded the matter to the lower appellate court. During the pendency of the appeal, the first defendant expired and his legal heirs came on record. The plaintiff also expired and his legal heirs are on record. The appeal preferred by the LRs of the first defendant has been dismissed by considered judgment. The trial court in the body of its judgment has gone in detail on each filament of the evidence placed before it. By sieving the relevant from that of irrelevant material has found that the alleged partition deed of 5.1.1974 was not objected while marking during the evidence of the plaintiff. The proceedings before the Revenue Court have become final. By taking note of the entries in the RTCs and the mutation effected has noticed that third defendant''s father Siddalingashetty and the third defendant, have acted as per the partition deed. Despite having the knowledge of plaintiff''s contention that partition was effected in the year 1974, which was reflected in the orders passed by the Deputy Commissioner on 29.5.1985, the defendants had not taken any action voluntarily. Further, the trial court relied on the admission emerging in the cross-examination evidence of DW-1 to uphold credibility of the alleged panchayat partition. The defendants though pleaded about the registered adoption deed of 15.11.1925 and registered settlement deed of 18.11.1909, had not produced those documents. On an analysis of the evidence, the trial court has found merit in the case of the plaintiff that he is the owner in possession of the suit property and decreed the suit.

In the appeal, the lower appellate court has reappraised the evidence and noticed inconsistency in the defence of the appellants. It appears, there was a request by the appellants to remand the case with a direction to the trial court to frame proper issues in respect of settlement deed and adoption deed. But the lower appellate court declined said request. It appears, the defendants had filed two applications before the trial court one for amendment of the written statement and another for permission to produce additional documents, which were rejected by the trial court and this was one of the grounds of appeal before the lower appellate court. But the lower appellate court did not find merit in the said contention also, having regard to the fact that defendants had lost the case before Revenue Court and there was clinching admission by DW-1 in his cross-examination. With regard to the contention that Ex. P1 being an unregistered document is inadmissible in evidence, the lower appellate court was of the view that only for collateral purpose, Ex. P1 is considered to find out about the severance of status among the family members.

In the appeal, the lower appellate court framed the following fresh issues for its consideration:

Whether the plaintiff proves that he is the absolute owner in possession of suit schedule properties?

Whether the alleged interference is true?

Whether the court fee paid is correct?

What order?

After giving audience to both parties, the issues are answered in favour of the plaintiff. The impugned judgment is on re-appraisal and marshalling of entire evidence. The lower courts being the primary and final facts finding Authorities respectively, both have found that plaintiff is the owner in possession of suit property.

Before this Court, the appellants propose to raise the following points, as questions of law:

a) Whether courts can pass order to frustrate the rights of the parties viz., right to relief and right to proper, sufficient defence, which has resulted in aberration and miscarriage of justice?

b) Whether appellate court can ignore the purpose and spirit of Section 105 of the Code of Civil Procedure and ignore to rectify the mistake of the trial court in rendering proper and effective justice?

But in this Regular Second Appeal, no such hypothetical question much the less no substantial question of law would arise for consideration. Hence, the appeal is rejected.