Bajara Shivappa Dhamannavar and Others vs Masabi and Others

S.N. Satyanarayana, J.

This appeal and cross objection arise out of the judgment and decree passed in R.A. No. 52/2002, on the file of Fast Track Court-I, Chikkodi.

The brief facts leading to this second appeal and cross objection are that the plaintiff in O.S. No. 14/1995 claiming herself to be the sister of deceased Mammulal S/o. Ameen Awate filed a suit in O.S. No. 14/1995 on the file of Civil Judge (Jr.Dn.), Chikkodi, for the relief of declaration that she is the absolute owner of suit properties and that the defendants in the said suit should be restrained by an order of permanent injunction not to obstruct her alleged peaceful possession and enjoyment of the suit property. Alternatively she also sought for possession in the event the Court comes to the conclusion that she is not in possession of the suit property. In the said proceedings she also sought for future mesne profits with liberty to seek amendment to the plaint at a future date and for other consequential reliefs.

In the said suit it was contended that the defendants 1 to 4 who are totally strangers to the suit property are trying to obstruct the possession and enjoyment of the suit schedule property by the plaintiff. In support of the aforesaid prayer the pleadings of plaintiff are as under:

"The plaintiff claim herself to be daughter of one Ameen Awate and sister of deceased Mammulal Awate. According to plaintiff, her father had three children i.e., herself, deceased Mammulal and another brother by name Kashi who is eldest of the three. It is her specific case that the suit schedule lands are sanadi inam lands of her father Ameen. After his death his first son Kashi succeeded to the office. Consequently sanadi inam land was mutated to his name. After his death deceased Mammulal Awate succeeded to hereditary office and suit land was mutated in his name and accordingly he was in possession, cultivation and enjoyment of the suit property in his individual capacity as grantee of the said land. According to the plaintiff her brother Mammulal was not married, he had no children and he died intestate leaving her as his sole surviving legal heir."

In the said proceedings defendants entered appearance, filed the written statement contending that, deceased Mammulal Awate was in living-in relation with their mother Smt. Neelavva after the death of her husband. That deceased Mammulal, their mother and themselves lived together in the same house during his lifetime and he was taken care of by them as his children. That, prior to his death he executed a registered Will in their favour bequeathing suit schedule properties to them, for the love and affection they had shown to him in taking care of him along with their mother, and also with a hope that they will take care of him till the date of his death.

It is also contended that, in addition to execution of Will he had also executed a gift deed pursuant to which they are in possession, cultivation and enjoyment of suit land. It is contended that though the Will and gift deed were executed in their favour, suppressing the same the plaintiff had got the revenue entries of suit property registered in her name, with reference to R.S. No. 163/3 measuring 2 acres 32 guntas and R.S. No. 163/1+2 measuring 8 acres 22 guntas of Examba village, Chikkodi taluk, Belagavi district. After coming to know about the revenue entries of aforesaid lands registered in the name of plaintiff, they approached the Assistant Commissioner in an appeal, wherein the appellate authority/Assistant Commissioner reversed the entries registered in the name of plaintiff pursuant to the order of Tahasildar, Chikkodi, by allowing the appeal and remanded the matter to the Tahasildar, Chikkodi, to hold fresh enquiry with a direction to pass necessary order after ascertaining the facts.

It is stated that in the enquiry conducted by the Tahasildar, he having come to know that the defendants are in possession and enjoyment of the suit schedule property as cultivators and occupiers, removed the name of the plaintiff from the revenue records and based on the Will and gift deed and also the report of spot inspection based on actual possession and cultivation of suit land by the defendants, entered their name in the revenue records. Thereafter the present suit is filed.

In the said suit after the written statement was filed, the following issues were framed and answered as mentioned against each issue.

ISSUES

"(i) Whether plaintiff proves that she is sole surviving heir of Mammulal and succeeded the suit properties as absolute owner? - In the negative.

(ii) Whether plaintiff further proves the alleged obstruction caused by defendants? - In the negative.

(iii) Whether the defendants prove that out of love and affection, Mammulal executed a registered will dated 27.2.1991 in favour of defendants and bequeathed the suit lands to the defendants by his free will? In the affirmative.

(iv) Whether defendants further prove that Mammulal by way of abundant caution has also executed a gift deed in his favour? - In the affirmative.

(v) Whether suit is barred by time? - In the negative.

(vi) Whether plaintiff is entitled to the relief as sought? - In the negative.

(vii) What order or decree?

ADDITIONAL ISSUES

(i) Whether the plaintiff is in lawful possession of the suit lands? - In the negative.

(ii) Whether the plaintiff is entitled to the relief of possession as prayed for? - In the negative."

Thereafter the matter went into trial wherein the plaintiff did not step into the witness box instead adduced evidence through her son Allabaksha as her power of attorney holder. The said Allabaksha got himself examined as PW.1. He produced and got marked in all six documents as Exs. P.1 to P.6 in support of suit claim. On behalf of defendants the 4th defendant namely Sukhadev Shivappa Dhamannavar got examined himself as DW.1 and examined three other witnesses namely Sadashiv Laxman Banatti as DW.2, Huvappa Appanna Ghaste as DW.3 and Maruti Sidram Gawade as DW.4. In all 17 documents were produced and marked as Exs. D.1 to D.17A.

On appreciating the pleadings, oral and documentary evidence available on record the trial Court answered the issues as mentioned above and consequently dismissed the suit of the plaintiff for the relief of declaration of suit property in favour of the plaintiff on the ground that she has failed to establish that she is the sister of deceased Mammulal, the erstwhile owner of suit property. The plaintiff being aggrieved by the judgment and decree dated 12.4.2002 passed by the trial Court in the original suit, preferred an appeal before the Fast Track Court, Chikkodi, in R.A. No. 52/2002 on the ground that there is total failure on the part of the trial Court in not properly appreciating the pleading and evidence available on record. The evidence adduced by plaintiff is to demonstrate that the deceased Mammulal was impotent, was not capable of having relationship with any woman and as such he was not married at any point of time and he had no issues. It was urged that the said pleading and evidence was ignored. That the gift deed and Will having no sanctity in the eye of law was accepted and that there is violation of law in the order of Assistant Commissioner, Chikkodi, vide Ex. P.3. It is also contended that the trial Court taking exception to the fact of plaintiff not stepping into the witness box and adducing evidence through her son has misconstrued the evidence available on record.

In the said appeal it was also contended that the possession as accepted by the trial Court based on the report of the Tahasildar is nothing but possession on record which is contrary to the factual position. In as much as the possession of suit land continued to be with the plaintiff and her family members which is not looked into by the trial Court. There was also an attempt to demonstrate that when there is already a Will, execution of the gift deed does not arise. Therefore the circumstances under which these two documents are executed on the same day is not looked at suspiciously and the same should not be viewed as a document executed by Mammulal.

In the said proceedings the lower appellate Court framed the following points for its consideration.

POINTS

"(i) Whether the lower Court had considered all the legal aspects of the Village Offices Abolition Act?

(ii) Whether the lower Court has erred in dismissal of the suit?

(iii) What order?"

The lower appellate on re-appreciation of the pleadings, oral and documentary evidence available on record answered the points framed for its consideration in the negative. However the lower appellate Court went in a different tangent to consider whether the gift deed and Will that was executed by the deceased Mammulal was in accordance with the provisions of Karnataka Village Offices Abolition Act (KVOA Act). In fact the lower appellate Court did not disbelieve the execution of the Will by Mammulal and also the gift deed in favour of the defendants. The only exception that was taken by the lower appellate Court is that by virtue of Sections 3, 4 and 5 the deceased Mammulal who was grantee of sanadi land in the year 1977 could not have conveyed the same in favour of defendants within the moratorium period of 15 years.

Based on the aforesaid finding the lower appellate Court proceeded to allow the appeal so far as it pertains to execution of the Will and gift deed by Mammulal in favour of defendants and while doing so it observed that the Government should confiscate the suit land and hold proper enquiry and thereafter decide who should be entitled to possession of the property. In any event the lower appellate Court while allowing the appeal declined to hold that the plaintiff in the original suit is sister of deceased Mammulal and consequently confirmed the finding of the trial Court in holding that there is no relationship of brother and sister between them.

Being aggrieved by the same, this present appeal and cross objection are filed. The appeal is filed by the defendants in challenging the finding of the lower appellate Court in holding that the documents at Exs. D.1 and D.3 are illegal documents and contrary to the provisions of KVOA Act. The plaintiff in the original suit has filed cross objection challenging the finding of the lower appellate Court in accepting the finding of the trial Court that she has failed to establish her relationship as sister with Mammulal.

This appeal was admitted to consider the following substantial questions of law.

SUBSTANTIAL QUESTIONS OF LAW

"(i) Whether the judgment and decree passed by the lower appellate Court is incorrect, illegal, perverse and capricious?

(ii) Whether the order passed by the lower appellate Court directing the Tahsildar, Chikodi for taking suitable action as per the provisions of Karnataka Village Offices Abolition Act, is proper and correct?

(iii) Whether the judgment and decree passed by the lower appellate Court without framing points for consideration, toughing all material facts involved in the case is incorrect and illegal?"

After service of notice the respondents/plaintiffs in the original suit entered appearance and filed cross objections challenging the concurrent finding of both the Courts below in declining to accept the plaintiff in the original suit as sister of deceased Mammulal and as such holding that she is not entitled to claim declaration in respect of the suit schedule property. After the paper book is filed and lower court records are received, heard the learned counsel Sri R.M. Kulkarni appearing for appellants and Smt. Bharati Bhat for respondents, who are cross objectors. Perused the judgments of both the Courts below with reference to pleadings, oral and documentary evidence available on record. While doing so the application which was filed by the cross objectors seeking permission to produce additional documents was also looked into.

It is necessary to mention at this juncture the nature of documents which are produced by the cross objectors in support of their case is with reference to the orders which are passed on 10.9.2008 by the Assistant Commissioner, Chikkodi, pursuant to the judgment passed in R.A. No. 52/2002 and also the order of Tahashildar dated 16.12.2009 and the order of Assistant Commissioner dated 19.9.2008. The certificate issued by the Village Accountant issued in June 2007 during pendency of the appeal and Gram panchayat extracts of the lands and other documents which are pertaining to the period during the pendency of proceedings before this Court and also copy of extract of rights of gram panchayat said to have been issued on 12.3.1991 in holding that the plaintiff in the original suit is the nearest relative of deceased Mammulal.

These documents are looked into at the time of considering the arguments of both the parties. It is necessary to consider the documents which are filed before reverting to the merits of the appeal for answering the questions of law framed in the appeal which would cover the grounds urged in the cross objection also. Admittedly the suit of the plaintiff is of the year 1995. The documents which are now sought to be produced in the form of extract of gram panchayat resolution of the year 1991 holding the plaintiff as nearest relative of the deceased Mammulal, the said document was available to the plaintiff at the time of filing the suit and also adducing evidence. There is absolutely no reason why the same was not produced before the trial Court. In fact reading of the entire document would disclose that the plaintiff Masabi in the original suit is held to be nearest relative, but it does not disclose how she is related to Mammulal. Nowhere in the document it is stated that she is the sister of Mammulal and there is no reference as to what was the proceedings initiated and what was the document that was relied upon to give such an endorsement. It is very clear that since the relationship of brother and sister is not mentioned in the said document, the same was conveniently kept away during the pendency of the suit. It is only at the appeal stage an attempt is made to bring the said document to the notice of this Court so as to make an attempt to utilize the same.

So far as other documents are concerned, all documents are emanating during the pendency of the appeal in R.A. and also after disposal of the R.A. based on the judgment passed in R.A., holding that the suit schedule property being sanadi grant in favour of Mammulal should revert back to the Government. It is based on such opinion of the lower appellate Court aforesaid documents have come into existence. In fact the correctness or otherwise of the said documents are subject to out come of this second appeal which is filed by the defendants who have suffered adverse order in the regular appeal. Therefore the said documents would have no bearing on this proceedings until this appeal is decided. In the event this Court comes to the conclusion that the finding of the lower appellate Court in R.A. No. 52/2002 is just and proper, then the said documents would enure to the benefit of cross objectors. If this court holds otherwise, then the said documents issued subsequent to the judgment passed in regular appeal will have no relevance and they would not support the claim of the plaintiff in the original suit and would not enure to her benefit in whatever manner.

Now coming to the substantial questions of law, the same are required to be answered by re-appreciating the finding of both the Courts below with reference to pleading and evidence available on record. If this Court go by the pleadings of plaintiff in the original suit and also the finding of the trial Court it is clearly seen that the alleged violation of KVOA Act was never the subject matter of the original suit that was neither pleaded nor proved by the plaintiff in the original suit nor it was taken as a defence by the defendants 1 to 4 in the said suit. What was decided was the right of the plaintiff to seek declaration of title to suit property as sister of Mammulal and denying the right of defendants in claiming right to said property under the Will and gift deed. Therefore framing of 1st point for consideration by the lower appellate Court in holding whether the lower Court had considered all the legal aspects of the Village Offices Abolition Act and whether the judgment and decree passed by the lower Court is incorrect would answer the 1st substantial question of law in the affirmative in holding that the lower appellate Court had no business to go into that aspect to consider correctness or otherwise of the judgment and decree passed in the trial Court. What was decided in the said suit was the right of the plaintiff to seek declaration as sister of deceased Mammulal, which was rejected by the trial Court. The correctness or otherwise of the same has to be looked into by the lower appellate Court and not the application of provision of KVOA Act, which was not the subject matter of the said appeal.

In view of the 1st substantial question of law being answered in the affirmative, the 2nd substantial question of law will have to be answered in the negative for the reason that when the lower appellate Court had no business to go into the aspect of violation of provisions of KVOA Act, it was further not required to direct the Tahasildar, Chikkodi, for taking any action against the defendants for taking possession of the suit property under the provisions of KVOA Act. Accordingly this 2nd substantial question of law is also answered in the negative and consequently observed that the said observation by the lower appellate Court calls for interference.

Now coming to the 3rd substantial question of law is concerned, the same is required to be answered in the negative for the reason that, the lower appellate Court framed a point for consideration to reassess the reason for dismissal of suit in point No. 2 which includes disputed relationship between the plaintiff and deceased Mammulal, which is held in answering there was no relationship of brother and sister between them. However the 1st point for consideration is with reference to alleged violation of provisions of the Act, which was not the ground urged by anybody, as such the same was totally extraneous to the said appeal.

In that view of the matter this Court find that the finding of the lower appellate Court on all the points for consideration was erroneous. Accepting the finding which it has given without framing points for consideration namely that there is no relationship of sister and brother between the plaintiff and deceased Mammulal. In that view of the matter this Court find the judgment of the lower appellate Court is not sustainable.

Even otherwise this Court for academic interest observed that there is no conveyance of suit property in favour of defendant in the original suit under the Will executed by Mammulal in bequeathing suit properties in favour of the defendants 1 to 5. As could be seen from the contents of the Will that Mammulal had no other legal heirs, as recited in the Will Ex. D.1, that he was in living-in-relation with mother of defendants who were taking care of him even after the death of their mother until he reached the age of 85 years when he executed the Will. In that view of the matter execution of the Will cannot be construed as conveyance, for the reason that the right in the property which is subject matter of the Will has not flown to the beneficiaries immediately. It is only after the death of executant the defendants in the trial Court would succeed to the property through Will, executed by Mammulal.

In that view of the matter the same cannot be considered as the act of conveyance contrary to the provisions of KVOA Act. Therefore the finding of the lower appellate Court on that aspect is erroneous. With this it is seen that the judgment of the lower appellate Court is required to be set aside by allowing the appeal filed by defendants 1 to 4. While doing so the cross objection which is filed by the plaintiff in the O.S. No. 14/1995 is required to be dismissed. In the result, the judgment and decree passed by the trial Court in O.S. No. 14/1995 is restored and confirmed.

It is also made clear that all proceedings which have taken place pursuant to the judgment and decree passed in R.A. No. 52/2002 would not enure to the benefit of the plaintiff in the original suit and that would create any right, title or interest in the original plaintiff or her legal heirs to stake any claim in respect of the suit schedule property which is bequeathed in favour of defendants 1 to 4 by deceased Mammulal. Accordingly these appeal and cross objection are dismissed.

In view of the cross objection being dismissed, the application which is filed for production of additional document is also dismissed.