Chandrakant vs Mounamma and Others

K.N. Phaneendra, J.—This regular second appeal is heard regarding framing of substantial question of law at the time of admission, as there arises no substantial question of law. The appeal is liable to be dismissed for the following reasons;

The appellant is the plaintiff before the Trial Court, filed a suit for perpetual injunction against the defendant Nos. 1 to 3. The defendant Nos. 1 and 2 are no other than the sisters of the plaintiff, because plaintiff claim to have given in adoption to one Pandurang Laudewale in the year 1965. The said Pandurang had two daughters by name Monamma and Neelamma who are defendant Nos. 1 and 2 in the suit. Therefore, in view of the plaintiff gone in adoption to Panduranga, he became the brother of defendant Nos. 1 and 2.

It is the case of he plaintiff as per the plaint averments that Sy. No. 252/1/2 measuring 5 acres 19 guntas, which is suit scheduled property originally belonged to the adoptive father of the plaintiff by name Pandurang. Admittedly, as per the plaint averments the said Pandurang died intestate leaving behind the plaintiff and defendant Nos. 1 and 2 as his legal heirs and successors in intestate. It is contended by the plaintiff that after the death of Pandurang the plaintiff succeeded to the properties and all the revenue entries pertaining to the said property were made out in the name of the plaintiff and after the death of his adoptive father, he has been in exclusive possession and enjoyment of the suit land. It is also stated that the defendant Nos. 1 and 2 are also having there shares in the suit land. It is further contention of the plaintiff that he has been managing the affairs of the joint family consisting of himself and defendant Nos. 1 and 2. The defendant No. 1 who is the natural mother of the plaintiff and defendant No. 2 have filed their written statement denied that the plaintiff is the exclusive owner and possessor of the suit property. The defendant No. 1 is not only the natural mother of the plaintiff after the adoption she became the sister of the plaintiff because the adoptive father is no other than the father of the defendant No. 1 and Grand-Father of the plaintiff. The plaintiff stated that he has been cultivating the entire suit land and they are not in the possession of the defendants but the defendants have denied the said allegations. They claim that they are also entitled for share in the property and they are in possession and enjoyment of the property. Though the defendants have also taken up the contention that after the death of Pandurang the defendant Nos. 1 and 2 being the legal heirs and successors have succeeded to the suit land and they became the joint owner and possessors of the same. The decree alleged to has obtained by the plaintiff declaring that he has been the adoptive son of the deceased Pandurang is a bogus decree and do not convey any title right intestate in favour of the plaintiff. Therefore, the entries in the record and rights standing in the name of the plaintiff are challenged by the defendants in O.S. No. 50/1990. It is also challenged that the plaintiff is nowhere connected with the possession of the properties. Considering the above said rival contentions of the parties the Trial Court has framed the following issues:

"(1) Whether plaintiff proves that he is in actual and lawful possession on and over the suit land as on the date of suit?

(2) Whether he further proves that the defendants have caused illegal interference in his peaceful possession and enjoyment of the suit land?

(3) Whether the plaintiff is entitled for the relief sought for?

(4) What decree or order?"

The plaintiff in order to prove his case examined himself as PW.1 and marked Ex. P1 to P.25 and one more witness as PW.2. The defendant No. 2 got examined herself as DW.1 and two witnesses as DW.2 and DW.3. After considering the oral and documentary evidence on record, answering the issues the Trial Court ultimately came to the conclusion that the plaintiff has not proved his case. Therefore, dismissed the suit.

On perusal of the documents placed before the Court apart from the pleading of the plaintiff, Ex. P1 to P7 are the RTC extracts pertaining to the suit land from the year 1979 to 1995-96. Of course in the above said background the plaintiffs name has been mutated and he has shown to be possessor of the land. The remaining documents are the mutation extracts and revenue receipts for having paid the taxes etc. Ex. P.25 is the decree in O.S. No. 50/1990. It is the case of the plaintiff that he has been adoptive son of Pandurang, who took him in adoption in the year 1965. The defendants contention that there was a compromise in Miscellaneous Petition No. 32/1994, wherein the southern side half portion of the suit land was given to the defendant No. 2, and accordingly she is the owner and possessor of the said land. PW.1-plaintiff admits that the decree in O.S. No. 50/1990 is challenged in appeal.

Be that as it may, it is the case of the plaintiff, that he is the manager and karta of the family after the death of his adoptive father. Therefore, it goes without saying that defendant Nos. 1 and 2 being the daughters of the adoptive father of the plaintiff. Therefore, the plaintiff and defendant Nos. 1 and 2 have jointly succeeded to the suit land of the deceased, as he died intestate. In the course of examination in chief adhering to his pleadings the plaintiff has categorically admitted that plaintiff and defendant Nos. 1 and 2 are the legal heirs of the adoptive father of the plaintiff. Though the defendants have denied the adoption, there is no need for this Court or the Trial Court or the First Appellate Court to deal with the adoption issue because the suit of the plaintiff was only for perpetual injunction. The plaintiff has to prove is exclusive possession over the suit scheduled property in order to exclude the defendant Nos. 1 and 2 from interference. The defendant Nos. 1 and 2 when admittedly are the co-sharers and the partition of half of the portion of the suit land on the Southern side has not been established by defendant No. 2. It goes without saying that the suit schedule property remained the joint family property of plaintiff and defendant Nos. 1 and 2. When such being the case the plaintiff cannot claim the exclusive possession over the suit scheduled property, because unless and until the partition takes place with regard to the joint family property or ancestral property, for each and every inch of the property, all the shares are the owners in deemed possession of such properties. When the plaintiff has denied that the defendant No. 2 has obtained half share on the southern portion of the said land in Miscellaneous Petition No. 32/1994 the plaintiff has to establish before the Court that virtually defendant Nos. 1 and 2 were ousted from the possession of the suit scheduled property legally. The ouster cannot be presumed by the Court. Even the Court comes to the conclusion that the plaintiff is in exclusive possession of the property cultivating the land and that defendant Nos. 1 and 2 are not actually cultivating the land, unless ousted of the defendants is proved and they were thrown out from the joint family properties and plaintiff can''t be said has vested with any right to exclusive possession, to exclude the co-sharers on the ground of ouster. When the ouster not pleaded by the plaintiff and it is shown to the Court that the plaintiff and defendant Nos. 1 and 2 are the co-sharers of the suit scheduled property he cannot claim a perpetual injunction against them. Under the above said circumstances, the suit has been rightly dismissed by the Trial Court.

Being aggrieved by the said judgment and decree, the plaintiff has preferred an appeal in R.A. No. 9/2010, New No. 186/2011 on the file of the Senior Civil Judge at Humnabad vide order dated 31.05.2014, the appeal came to be dismissed. The appellate Court also reevaluated the oral and documentary evidence produced by the plaintiff considering the issues framed by the Trial Court and in fact the appellate Court has also culled out the admissions made by the plaintiff and also the defendant No. 2, holding that they have not proved that she has been in possession of southern portion of the suit schedule property, ultimately the Appellate Court also came to the conclusion that the property is still a joint family property of plaintiff and defendant Nos. 1 and 2. When joint possession and enjoyment is not legally disturbed, there is no question of plaintiff exclusively having any right to restrain the defendant Nos. 1 and 2 from possessing the said property either holding actual possession or deemed possession. Therefore, I do not find any strong reasons to frame any substantial questions of law in this particular case because the first appellate Court and the Trial Court after analyzing the factual matrix admission on the part of PW1 and the documentary evidence has given a finding of facts and no legal error has been committed by both the courts. Therefore, the Regular Second Appeal deserves to be dismissed at the time of admission itself.

Accordingly, the appeal is dismissed.