Haleshappa vs K.N. Basavarajappa

B. Veerappa, J.—This regular second appeal is filed by the defendant''s against the judgment and decree dated 19th November, 2013 made in R.A.No. 125/2012 on the file of the II Additional Civil Judge, Shimoga dismissing the appeal and confirming the judgment and decree dated 1.8.2012 made in O.S.No.295/2007 on the file of the Principal Civil Judge and JMFC, Shimoga decreeing the suit for injunction in favour of the plaintiff restraining defendant Nos. 2 and 3 from obstructing the plaintiff''s peaceful possession and enjoyment of the suit schedule property.

The respondent, who is the plaintiff before the trial Court, filed a suit for permanent injunction contending that the 1st defendant is his own brother and defendant Nos. 2 and 3 are the sons of defendant No. 1. The plaintiff, defendant No. 1 and one Sri. K.N. Shivappa and K. N. Shekharappa are the sons of Nandyappa of Belalkatte village. All the said brothers had effected Zubani Hissa of all their ancestral and joint family properties during the year 1987 before the panchayathdars at Belalkatte village. According to the said Zubani Hissa, the khatha and pahani of all the lands have been mutated in their favour in accordance with their respective shares in M.R.No. 14/87-88. Since then, the plaintiff, 1st defendant and his other two brothers are living separately by taking their share and thereafter, the 1st defendant filed objection to M.R.No. 14/87-88 before the Tahsildar, Shivamogga in respect of the measurement of lands. The Tahsildar treated the same as dispute No. RRT (1) CR 625/97-98 and after giving an opportunity to the plaintiff and his brothers, on the basis of the joint memo filed by the plaintiff and his brothers, the Tahsildar, Shivamogga proceeded to pass orders on 17.2.1999 for mutation of the khata in accordance with their possession of the lands as detailed in the said order. Accordingly, the khata and pahani have been mutated in their favour in accordance with their respective share and since then, they are in possession, enjoyment and actual cultivation of the suit schedule property.

It is the further case of the plaintiff that he is in possession and enjoyment and actual cultivation of the lands which are coming to his share. On 16.6.2007 while his son was working in his land bearing Sy.No. 134/1, defendant Nos. 1 to 3 tried to enter into the suit schedule property and obstructed his cultivation without any valid reasons. These acts have been resisted by his son with the help of neighbouring land owners and some villagers. While returning from the spot, all the defendants openly declared that, they will come with more supporters to the spot and dispossess him from the suit schedule land. That the defendants have no manner of rights, title and interest over the suit schedule property and he being an absolute owner, is in possession and enjoyment and actual cultivation of the suit schedule land, etc. Therefore, he filed the suit.

Defendants 1 to 3 appeared and defendant No. 3 filed his written statement. By filing a memo dated 28.7.2007, defendant Nos. 1 and 2 have adopted the written statement of defendant No. 3. The defendants have denied the entire plaint averments contending that the suit is vexatious, frivolous and totally false and is filed with an intention to gain wrongfully causing loss to them. They have admitted the relationship as correct but have alleged that Jubani Hissa is not lawful as the plaintiff with others forcibly got the signature of defendant No. 1 and no partition has taken place in the Hindu Undivided Family and as such, there is no severance of Hindu Undivided Family. They have further contended that the revenue entries are tentative and are not supported by valid document. No female members are given their respective shares as it is an intestate succession. Dhrudikarana Patra filed is totally false and the plaintiff being a lecturer and powerful man in the village, unduly influenced the village accountant and got a false report filed in the Court for his convenience and for wrongful gains. There is no cause of action and the 2nd defendant also has filed a suit for partition in O.S.No. 184/2007, in which, the suit property was also included as one of the property. There is no document to show that the proceedings taken to prove that how survey No. 134 had become sub-Sy.No. 134/1 and as such, the schedule is defective and therefore, the suit is not maintainable, etc., and prayed for dismissal of the suit.

Based on the pleadings, the trial Court framed the following issues:

"i) Whether plaintiff proves that he is the owner in possession of suit schedule property as on the date of suit contended in the plaint?

ii) Whether plaintiff further proves the alleged interference by the defendants as contended in the plaint?

iii) What Order or Decree?"

In order to substantiate his claim, the plaintiff examined himself as P.W.l and produced the documents Exs.P.1 to 9. The defendants examined defendant No. 2 as D.W.1 and produced the documents Exs.D.1 to 11.

After considering the entire material on record, the trial Court recorded a finding that the plaintiff is in possession and enjoyment of the suit schedule property as on the date of the suit as contended in the plaint and he has also proved the interference by the defendants. Accordingly, the trial Court decreed the suit.

Aggrieved by the judgment and decree of the trial Court, defendant Nos. 2 and 3 filed an appeal in R.A.No. 125/2012 before the II Additional Senior Civil Judge, Shivamogga, who after hearing both the parties and after re-assessing the entire material on record, recorded a finding that the trial Court is justified in holding that the plaintiff-respondent is the owner and in possession of the suit schedule property as on the date of the suit and no interference is called for. Accordingly, the appeal came to be dismissed by the impugned judgment and decree dated 19th November, 2013. Against concurrent findings of facts recorded by the courts below, the appellants did not deter from preferring this regular second appeal as a last ditch attempt.

I have heard the learned Counsel for the parties to the lis.

Sri. S. V. Prakash, learned Counsel for the appellants-defendants contended that the trial Court decreed the suit only on the basis of the presumption and assumption without material on record The Jubani Hissa alleged by the plaintiff is specifically denied by the defendants contending that there was no partition. The Court below without considering the material documents on record proceeded to pass the impugned judgment and decree based on the revenue entries, when the title of the plaintiff is disputed. Therefore, he sought to set aside the impugned judgment and decree of the Courts below.

Per contra, Sri. Gururaj Solur, learned Counsel appearing for the respondent-caveator sought to justify the impugned judgment and decree of the Courts below.

I have given my anxious consideration to the arguments advanced by the learned Counsel for the parties and perused the entire material on record.

The respondent-plaintiff filed a suit for injunction mainly on the basis of the alleged partition (Jubani Hissa) effected between the parties in the year 1987 and on the basis of the order passed by the Tahsildar - Ex.P.1, mutation registers - Exs.P.2 and 3, RTC extract-Ex.P.4 , Certificate issued by the village accountant - Ex.P.5, Tax paid receipt - Ex.P6, Certified copy of depositions of D.Ws. 1 to 3 and another in O.S.No.34/2000in O.S.No.295/2007 - Exs.P.7 to 9, the trial Court recorded a specific finding that the plaintiff has proved that he is the owner of the suit schedule property as on the date of the suit and alleged interference by the defendants. Though the defendants have denied all the plaint averments contending that there was no partition, the trial Court considering all the material documents, recorded a finding that Exs.P.1 to 4 are legal and valid documents and based on the same, it can be safely held that by virtue of the partition which had taken place between the plaintiff and his brothers in respect of their ancestral and joint family properties, the suit schedule property was allotted to share of the plaintiff. As such, they got mutated the name of the plaintiff in the revenue records and hence, he has been in possession and enjoyment of the suit schedule properties as on the date of the present suit. The defendants have no manner of right, title and interest over the suit schedule property. The trial Court also recorded a finding that P.W. 1, who is the plaintiff, in his cross-examination has admitted about filing of the suit for partition in O.S.No. 184/2fX)7 by the defendants against him and others for partition questioning the said Zubani Hissa on the ground that no shares were allotted to the female members. P.W. 1 and D.W. 1 have also admitted the pendency of the said suit for disposal. The plaintiff is also the party to the said partition suit and admittedly, the matter is pending adjudication between the parties. In the present case, the defendants have not challenged Ex.P. 1, the order passed by the Tahsildar and the mutation register Exs.D.4 and 5 - RTC extracts before any competent authority in accordance with law. In view of the same, the contention of the defendants that there was no proper partition, there was no severance in the Hindu Undivided Family and no female members have been given their respective share though it is an intestate succession, cannot be accepted. Unless and until the alleged Zubani Hissa which has taken place in the year 1987, Ex.P. 1 - order of the Tahsildar, Ex.P.2 - Mutation Register and Exs.P.3 and 4 - RTC extracts are set aside and cancelled by the competent court of law, the plaintiff has every right to claim his absolute right of ownership, possession and enjoyment of the suit schedule property on the basis of the said documents. Accordingly, it decreed the suit holding that the plaintiff has proved his right, title, interest and possession over the suit schedule property as on the date of the suit and granted permanent injunction in his favour.

The Lower Appellate Court after reassessing the entire material on record confirmed the finding of fact recorded by the trial Court and held that the material documents produced by the plaintiff clearly establish that he is in possession of the suit schedule property as on the date of filing of the suit and no interference is called for. Accordingly, the appeal came to be dismissed.

However, the learned Counsel for the appellant strenuously contended that when the suit - O.S.No. 184/2007 is filed for partition and separate possession alleging that Zubani Hissa is not effected in accordance with law and no shares are allotted to the female members and the same is pending adjudication in the appeal - R.A.No.79/2013 arising out of O.S.No. 184/2007 on the file of the District and Sessions Judge, Shivamogga.

Considering the entire oral and documentary evidence on record, both the Courts below have concurrently held that the plaintiff has proved that he is in actual possession and enjoyment of the suit schedule property as on the date of the suit and hence, no substantial question of law that arises for consideration in this appeal under the provisions of section 100 of the Code of Civil Procedure 1908.

In view of the aforesaid reasons, it is made clear that the judgment and decree to be passed in R.A.No.79/2013 arising out O.S.No. 184/2007 for partition and separate possession between the parties wherein the present plaintiff is also a party to the said proceedings and the judgment and decree passed in the present appeal, are always subject to the result of the comprehensive suit filed for partition between the parties in respect of the joint family properties including the suit schedule property.

Accordingly, the appeal is dismissed.