A.R. Jayaprakash and Others vs H.M. Srinivasa Rao and Others

Aravind Kumar, J.—Heard Sri. B.M. Siddappa, learned counsel appearing for appellants. Perused the judgment and decree passed by Civil Judge (Jr. Dn.), JMFC, Holalkere, dated 30.06.2000 in O.S. No. 560/1990, whereunder suit filed by plaintiffs for declaration and perpetual injunction came to be dismissed and said judgment and decree came to be affirmed by Civil Judge (Sr. Dn.), Holalkere, in R.A. No. 238/2001 by judgment and decree dated 30.09.2008.

Facts in brief which has lead to the filing of this second appeal are as under and parties are referred to as per rank in the trial Court:

"Plaintiffs filed a suit for declaration and perpetual injunction against defendants contending inter alia that they constitute a Hindu Joint Family and have been residing in the suit schedule property as absolute owners, after having inherited the same from their father. It was also contended that in the family partition, suit property allotted to the share of 4th plaintiff and he is in actual possession of said property and they have perfected their title to suit schedule property by adverse possession. It has been further contended that defendants are strangers and they have no right, title and interest over the suit schedule property. As such, it was contended that alleged decree obtained by father of defendants in O.S. No. 225/1981, is not biding on them and unenforceable. Hence, they have sought for declaration that judgment and decree passed in O.S. No. 225/1981 is not binding on them and also for perpetual injunction to restrain defendants from interfering with their peaceful possession and enjoyment of suit schedule property." 3. On service of suit summons, defendants appeared, filed their written statement, denied all the averments made in the plaint and it was specifically contended that father of plaintiffs had sold the suit schedule property and had executed a sale deed in favour of one Sri. Shivalingappa and he in-turn had sold the suit schedule property to their father and as such, father of defendant No. 1 as owner of suit schedule property entered into lease agreement with the father of plaintiffs and had continued as a tenant. It was also contended that defendant No. 1 had filed a suit O.S. No. 225/1981 for recovery of arrears of rent and said suit has been decreed and as such, plaintiffs cannot have any right over the suit property.

On the basis of pleadings of parties, trial Court formulated following issues for its consideration:

"(i) Whether the plaintiffs prove that they are the absolute owners of the suit property?

(ii) Whether the plaintiffs prove that they have perfected their title to the suit schedule property by law of adverse possession?

(iii) Whether the plaintiffs prove that the decree in O.S. No. 225/1981 of Hosadurga Munsiff court is null and void and not binding on the plaintiffs?

(iv) Whether the plaintiffs prove the alleged obstruction said to have been caused by the defendants?

(v) Whether the defendants prove that the father of the plaintiff Ramaswamy Setty had entered into an agreement of lease with the father of defendant No. 1 and since then they are continuing as tenants under the first defendant?

(vi) Whether the defendants prove that they purchased the property from the father of the plaintiffs?

(vii) Whether the defendants prove that by virtue of inheritance they became the absolute owners in respect of the suit schedule property?

(viii) Whether the suit is in time?

(ix) For what reliefs the parties are entitled to?

(x) What order and decree?"

Both parties got themselves examined in support of their respective claims. Plaintiffs produced in all 12 documents and got them marked as Exs. P-1 to P-12. Defendants produced 5 documents and got them marked as Exs. D-1 to D-5(a). On appreciation of evidence and on considering the pleadings of parties, trial Court dismissed the suit on the ground that father of plaintiffs had not challenged the correctness and legality of judgment and decree passed in O.S. No. 225/1981 and even otherwise, rental agreement and lease agreement executed by the father of plaintiffs in favour of father of defendants as per Ex. D-1, would clearly indicate that there was jural relationship of landlord and tenant between them. It came to be held by trial Court that suit schedule property having been purchased by father of defendants from one Sri. Shivalingappa and who in turn had purchased the said property from the father of plaintiffs, would clearly suggest that tenancy had stood statutorily transferred in favour of defendants and when there is registered sale deed in favour of father of defendants executed by Sri. Shivalingappa, plaintiffs cannot be heard to contend that their father did not have any right over the property in question to sell it to Sri. Shivalingappa. On these grounds amongst others, trial Court declined to grant the relief of declaration as sought for by plaintiffs. Hence, by judgment and decree dated 30.06.2000 trial Court dismissed the suit.

Being aggrieved by said judgment and decree passed in O.S. No. 560/1990 dated 30.06.2000, plaintiffs filed an appeal under Section 96 of CPC before Lower Appellate Court, which came to be registered as R.A. No. 238/2001. After securing records of trial Court and considering the arguments advanced by the respective learned Advocates appearing for parties, Lower Appellate Court formulated following points for its consideration:

"(i) Whether the lower court is justified in dismissing the suit of plaintiffs?

(ii) Whether the Judgment and Decree of the lower court is required to be interfered with in this appeal?"

On re-appreciation of evidence and after consideration of rival contentions, Lower Appellate Court has held that there is no infirmity committed by trial Court by arriving at a conclusion that registered sale deed dated 17.07.1941- Ex. D.3 would clearly indicate that father of plaintiffs had sold the property in favour of Sri. Shivalingappa, who in turn sold the said property in favour of defendants'' father under registered sale deed dated 15.04.1948- Ex. D.4 and as such, there is no error committed by trial Court calling for interference at the hands of Appellate Court.

Lower Appellate Court also found that contention of appellant that suit schedule property is an ancestral property, has not been proved. P.W. 1, who is plaintiff No. 3 in his cross-examination, has admitted that there is no document available with him to establish that suit schedule property is the joint family property or ancestral property. Having denied the suggestion that suit property belongs to the father of defendants, it has also been found that P.W. 1 was ignorant of transaction that took place between his father and Sri. Shivalingappa or sale transaction that took place between Sri. Shivalingappa and father of defendants since he was a minor at that point of time. This aspect has been succinctly discussed by Lower Appellate Court at paragraph 18 of its judgment. In fact, P.W. 3 has also feigned his ignorance about the sale transaction that has taken place between his father and vendor of defendants'' father i.e., Sri. Shivalingappa. In fact P.W. 3 also pleads his ignorance about description of suit schedule property.

As against said evidence of plaintiffs, defendant No. 1 who was examined as D.W. 1 has contended that schedule property originally was owned by father of plaintiffs and he had sold the same in favour of Sri. Shivalingappa on 17.07.1941- Ex. D.3, who in turn had sold the same in favour of defendants'' father on 15.05.1948-Ex. D.4. To establish the same, sale deeds came to be produced and they have been marked as Ex. D.3 and D.4. That apart, Lower Appellate Court has taken note of the fact that defendants had filed a suit against father of plaintiffs in O.S. No. 225/1981, wherein plaintiffs'' father has been directed to pay arrears of rent to defendants. In fact, trial Court has rightly noticed that there is no relief claimed by plaintiffs to declare them to be the absolute owners of suit property for having perfected title to suit schedule property by adverse possession. Though a feeble plea has been raised in this regard in the present appeal, same cannot be countenanced or accepted for simple reason that when plaintiffs are claiming to have perfected their title by way of adverse possession, they have not sought for said relief and that apart, when they have denied the ownership right of defendants'' father to suit schedule property they are estopped from claiming of having perfected their title to suit schedule property by adverse possession. Necessary ingredients to claim adverse possession is conspicuously absent in the plaint namely, plaintiffs have not whispered a word about having admitted title of suit schedule property vesting with defendants or their father and having enjoyed the suit schedule property to the knowledge of owners of property continuously and uninterruptedly for a period of 12 years and same being within the knowledge of defendants or their father. Neither there is plea raised in this regard nor evidence tendered and as such, said plea raised by plaintiffs has been rightly negatived by trial Court and affirmed by Lower Appellate Court.

That apart, Ex. P-5, which is a rent receipt issued to the father of defendants by father of plaintiffs, would clearly indicate that there was jural relationship of landlord and tenant between them. When property was sold by plaintiffs'' father in favour of Sri. Shivalingappa and said Sri. Shivalingappa in turn having sold the said property in favour of father of defendants and lease deed having been executed by father of plaintiffs- Ex. D-5 indicating payment of rent by the father of plaintiffs in favour of father of defendants, same would clearly establish title to suit schedule property having passed on from plaintiffs'' father to Sri. Shivalingappa and from Sri. Shivalinappa to father of defendants and it is also established that plaintiffs have continued as tenant of suit schedule property. When there is a registered sale deed, tenancy would stand altered in favour of purchaser. This view is fortified by the law laid down by this Court in the case of Popular Automobiles Vs. N. Veeraswamy, . In that view of the matter, I do not find any error having been committed by the Lower Appellate Court in affirming the judgment and decree passed by trial Court.

Hence, for reasons above stated and also for myriad reasons assigned by Lower Appellate Court, I find that there is no Substantial Question of Law involved in this appeal required to be framed, adjudicated or answered. Hence, I proceed to pass the following:

JUDGMENT

(i) Second appeal is hereby dismissed.

(ii) Judgment and decree dated 30.06.2000 passed in O.S. No. 560/1990, as affirmed by Lower Appellate Court in R.A. No. 238/2001 vide its judgment and decree dated 30.09.2008, stands affirmed.