Basappa vs Basappa

S.N. Satyanarayana, J.—Defendant in O.S. No. 195/2001 has come up in this second appeal impugning the concurrent finding of both the Courts below in decreeing the suit of the plaintiff and confirming the same in lower appellate Court. In these proceedings, for the sake of convenience, parties are referred to by their rank in the trial Court.

The brief facts leading to this appeal are as under:

The case of the plaintiff in the original suit is that he purchased the suit schedule property namely, lands bearing Sy. No. 43/2 measuring 25 guntas and 44/1 measuring 2 acres 15 guntas situate in Manikyapura village of Yelawala Hobli, Mysore taluk under a registered sale deed dated 30.11.2000 executed by one Smt. Devamma, widow of late Nanjaiah. The Original Suit No. 195/2001 is filed seeking declaration and injunction against the defendant in the said suit, who is the appellant herein for the reason that he tried to set up a claim over the suit schedule property and also tried to disturb the possession of plaintiff who had secured the same under registered sale deed from Devamma.

In these proceedings, genealogy of family of Devamma is produced. According to that, Devamma predecessor-in-title, the vendor of the plaintiff is wife of one Nanjaiah and the said Nanjaiah is the son of Manchaiah. The father-in-law of Devamma had in all three sons namely, Chennabasavaiah, Nanjaiah (Devamma''s husband) and another Basappa. The defendant Basappa is none other than son of Manchaiah''s third son Basappa. According to him, suit schedule property is joint family property of propositus Manchaiah and the same was in joint possession and enjoyment of himself and his paternal aunt Devamma. That during the life time of Devamma she had entered into an agreement with defendant on 29.5.1995 agreeing to settle the suit schedule property in his favour for consideration of a sum of Rs. 20,000/-. It is also stated by him that he has filed suit in O.S. No. 26/2001 on the file of the very same Court for the relief of specific performance against Devemma. With these pleadings, suit went for trial.

However, even prior to the matter reached trial, Devamma is said to have died and suit filed by defendant Basappa in O.S. 26/.2001 was abated in as much as, there was no legal heir to Devamma other than Basappa and the suit filed against him by the plaintiff in O.S. 195/2001 continued. In the said suit, on appreciation of oral and documentary evidence available on record, trial Court proceeded to answer the issues, which were regarding ownership of suit schedule property by the plaintiff, his lawful possession were answered in favour of plaintiff. The issue which was framed regarding non-joinder of necessary party, valuation were also answered in favour of plaintiff. Coming to issues which were based on the defense raised by defendant''s that the plaintiffs vendor had executed release deed in favour of defendant and his father on 29.5.1995 by receiving Rs. 20,000/-, that he is entitled to receive the same from plaintiff based on the counter claim made in the written statement, was answered in negative against defendants. Similarly, the issues regarding defendant''s right to seek execution of deed of conveyance of suit property in favour of defendant, limitation regarding counter claim, were also answered against the defendant. In the result, suit of the plaintiff was decreed declaring that he is the absolute owner of the suit schedule property being in possession and enjoyment of the same, pursuant to sale deed executed by Smt. Devamma in his favour on 30.11.2000.

Being aggrieved by the same, defendant in the original suit, preferred an appeal in R.A. No. 1124/2010 on the file of IV Addl. District Court, Mysore, wherein the lower appellate Court on re-appreciation of pleadings, oral and documentary evidence available on record, with reference to grounds of appeals as well as finding of the trial Court on issues 1 to 5 and additional issues 1 to 7 proceeded to dismiss the regular appeal filed by the defendant, confirming the finding of trial Court on all the issues. Being aggrieved by the concurrent finding of both the Courts below, present second appeal is filed by defendant in O.S. 195/2001.

Heard the learned counsel for the appellant. Perused the judgment of both the Courts below.

On going through the same, it is seen that though the defendant has set up a defense that the suit schedule property was joint family of his grand father Manchaiah, he has failed to demonstrate the same. Per contra, plaintiff has established that under Ex. P16, the husband of plaintiffs predecessor in title conveyed the suit schedule property in favour of his wife Devamma way back on 13.6.1945 and it is also demonstrated by him that right from 13.6.1945 till 30.11.2000, the said property was unencumbered and was in absolute possession and enjoyment of plaintiffs predecessor in title and she had absolute ownership over the same to convey the said property under registered sale deed dated 30.11.2000 which is at Ex. P15.

It is further seen that though the defendant has stated that there was an agreement in existence between himself and his paternal aunt Devamma which is said to have entered on 29.5.1995, the same is not established by adducing evidence of witnesses in the said documents. Further, he has also failed to establish how the said property could be the joint family property in the presence of Ex. P16, the sale deed showing absolute ownership of Devamma over the said property. The trial Court as well as the lower appellate Court have rightly appreciated the inconsistency in the pleading and evidence in as much as, in one breath it is pleaded that the suit schedule property is joint family property and in another breath, contending that there was an agreement between himself and Devamma, wherein she had agreed to settle the property in his favour.

Accordingly, this Court find that the finding of both the Courts below are unassailable in the facts and circumstances of the case and the concurrent finding of both the Courts below on facts clearly demonstrate that the defendant has no manner of right, title and interest to claim any right over suit schedule property. The finding of both the Courts below in decreeing the suit of the plaintiff is just and proper. In that view of the matter, no substantial grounds are made out to frame substantial question of law in this second appeal. Hence, same is dismissed.