Devamma and Others vs Sumithra and Others

S. Abdul Nazeer, J.—These are defendants appeals directed against the judgment and decree in R.A. Nos. 27/2009, 28/2009 and 29/2009 dated 16.11.2013 on the file of the II Addl. District and Sessions Judge, Kanakapura, Ramanagara District. The appeals in R.A. Nos. 27/2009, 28/2009 and 29/2009 arose out of a common judgment and decree in O.S. Nos. 343/2006, 344/2006 and 345/2006 dated 21.2.2009 on the file of the Principal Civil Judge (Sr. Dn.) at Ramanagaram.

The aforesaid three suits were filed by different plaintiffs against the common defendants. O.S. No. 343/2006 was filed by Shama Rao, O.S. No. 344/2006 by Smt. Sumithra and O.S. No. 345/2006 by H.G. Nagaraj and three others. The common defendants are Devamma, Eshwarappa, P.Nagesha and Mahesh. The subject matter of the three suits are land bearing Sy. No. 687/1 measuring 27 guntas, 5 guntas and 7 guntas respectively situated at Harohalli Village & Hobli, Kanakapura Taluk. The properties were described by distinct boundaries in the schedule of each of the plaints.

In O.S. No. 343/2006, the case of the plaintiff is that the suit schedule property was his ancestral property. He was the only son to his parents. The suit schedule property was allotted to his father under a partition deed dated 20.5.1923 measuring 27 guntas. Due to bonafide mistake, it was wrongly entered as 5 guntas in RTC from 1974-1975 to 2004-2005. The first defendant taking advantage of her husband''s name, Venkata Jetty, managed to get the katha of the suit schedule property transferred to her name in the year 2006 calling herself as the wife of Venkata Jetty @ Venkatappa. Defendant Nos. 2 and 3 by asserting title to the property are interfering with the plaintiffs possession and enjoyment of the property. It is contended that defendant Nos. 2 and 3 are not in possession of the suit schedule property.

The defendants have filed their written statement contending that Sy. No. 687/1 totally measures 1 acre 10 guntas. This property belong to the husband of the first defendant, namely, Venkata Jetty @ Venkatappa, which name finds place in the RTC. After his demise, first defendant has succeeded to the said property. This property was purchased by defendant Nos. 2 and 3 from her. The 4th defendant is a relative of Venkata Jetty @ Venkatappa. He has consented for change of katha without authority of law. Defendant Nos. 2 and 3 are claiming to be the owners in possession of the entire extent of 1 acre 8 guntas. Sy. No. 687/1 totally measures 2 acres 7 guntas including 3 guntas of kharab land. Out of 2 acres 7 guntas of land, 1 acre 10 guntas including 2 guntas kharab in Sy. No. 687/1 was ancestral property of Venkatappa @ Venkata Jetty. The plaintiffs have no right, title whatsoever in respect of the suit schedule property. They have sought for dismissal of the suit.

In O.S. No. 344/2006, the plaintiff contended that she has purchased the suit schedule property from one Padmavathamma, wife of Rangaswamy under a registered sale deed dated 10.3.1980. Padmavathamma had purchased it from one Krishna Murthy and others on 16.11.1959. Though in the RTC, the name of the husband of the plaintiff (Rangaswamy) is entered, the plaintiff is in possession of the suit schedule property. Defendants are interfering with her possession and enjoyment of the suit schedule property.

The defendants have filed a written statement opposing the plaint averments. They have filed a similar defence as has been filed in O.S. No. 343/2006.

In O.S. No. 345/2006, the plaintiffs contend that suit schedule property is the ancestral property of their father H.Gopala Krishna Rao. After the death of H.Gopala Krishna Rao and their mother, they have inherited the said property. RTC entries were found till 1985-1986 and later, name of Venkatappa @ Venkata Jetty was shown with reference to 2 guntas of land. They also plead interference by the defendants in relation to the possession and enjoyment of the suit schedule property.

The defendants have filed their written statement pleading similar grounds as has been stated in the written statement filed in O.S. No. 343/2006.

On the basis of the pleadings of the parties, the trial Court has framed the relevant issues. The parties have let in evidence. Documents have been marked in their evidence in support of their contentions. The trial Court on appreciation of the materials on record, has declared that the plaintiffs are the absolute owners of the suit schedule property as detailed separately in the three suits. The trial Court granted consequential relief of permanent injunction restraining the defendants from interfering with their possession and enjoyment of the suit schedule property.

The defendants filed R.A. Nos. 27/2009, 28/2009 and 29/2009 challenging the said decrees. As noticed above, the first Appellate Court has dismissed the appeals on 16.11.2013.

I have heard Sri Padmanabha Mahale, learned Senior Counsel appearing for the appellant/defendants and the learned Counsel appearing for the respondent/plaintiffs.

The contention urged on behalf of the appellants is that the plaintiff/respondents are not in possession of the suit schedule property. Therefore, the courts below are not justified in granting declaratory decree in their favour. It is further argued that the plaintiffs have not established that they are the owners of the property. They have not produced any documents in support of their contentions.

On the other hand, learned Counsel appearing for the respondents has sought to justify the impugned judgment and decrees.

I have carefully considered the arguments of the learned Counsel made at the Bar and perused the materials placed on record.

The suit schedule properties in all the three cases are carved out of Sy. No. 687/1 measuring 27 gutnas in O.S. No. 343/2006, 5 guntas in O.S. No. 344/2006 and 7 gutnas in Sy. No. 345/2006. Sy. No. 687/1 of Harohalli Village totally measures 2 acre 4 guntas inlcuding 3 gunts of kharab land. The subject matter of all the three suits totally measures 39 guntas with distinct boundaries. The defendants have denied the title of the plaintiffs in respect of the suit schedule properties. The specific case of the plaintiffs is that Sy. No. 687/1 is distinct from Sy. No. 687. The plaintiff in O.S. No. 343/2006 derives his right under a partition deed dated 20.5.1923. According to him, he has acquired the property as the son of late Lakshmmarasaiah. In O.S. No. 344/2006, the plaintiff claims title under a registered sale deed said to have been executed by Padmavathamma, wife of Rangaswamy to an extent of 5 guntas of land. In O.S. No. 345/2006, the plaintiffs claim title to the property under inheritance. The partition deed 20.5.1923 has been marked in evidence at Ex. P14. Under this document, the father of the plaintiff in O.S. No. 343/2006 has been allotted 27 guntas in Sy. No. 687/1. This document is more than 30 years old. It is the case of the plaintiff in O.S. No. 343/2006 that due to a mistake, the extent of the land is shown as 5 guntas in the RTC from 1974-1975 to 2004-2005 (Ex. P2 to Ex. P8). The defendants assert that the said property is owned by the husband of the first defendant Venkata Jetty @ Venkatappa. However, the first defendant has failed to establish that her husband was also called as Venkata Jetty @ Venkatappa. She has not entered the witness box. The power of attorney holder was examined on behalf of the first defendant as D.W. 1. He has not stated anything in relation to genealogical tree of the family of the first defendant to draw an inference that the property belongs to ancestors of the husband of the first defendant. On appreciation of the materials on record, the trial Court has come to a conclusion that the plaintiffs are in possession of the suit schedule property.

In so far as maintainability of the suits is concerned, D.W. 1 in paragraph 17 of his cross-examination has categorically admitted that the plaintiffs are in possession of their properties. He has stated as under:

"It is true to suggest that plaintiffs in all the three cases are in possession and enjoyment of the respective schedule properties even till today."

It is thus clear that plaintiffs are in possession of the suit schedule property. Therefore, the suits were maintainable. The trial Court has taken note of this admission along with other documentary evidence such as Ex. P9 to Ex. P12 for holding that the plaintiffs are in possession of their respective properties. The first appellate Court has again re-appreciated the entire evidence on record while concluding that the plaintiffs are in possession and enjoyment of their respective properties, which are described in the plaint schedule. The findings of fact recorded by the courts below is on appreciation of materials on record and I do not find any error in the said findings. The appeals do not involve any substantial question of law. They are accordingly dismissed.

In view of the dismissal of the appeals as above, I.A. No. 1/2014 in RSA Nos. 52/2014, 74/2014 and 75/2014 and I.A. No. 2/2014 m RSA No. 75/2014 do not survive for consideration. They are accordingly dismissed. No costs.