Hanumappa vs Hanumappa and Others

S.N. Satyanarayana, J.

The plaintiff in O.S. No. 67/2005, on the file of Prl. Civil Judge (Jr.Dn.), Gangavati, has come up in this second appeal impugning the divergent finding rendered by the lower appellate Court in allowing the appeal in R.A. No. 13/2007 filed by defendants 9, 2 to 6 and 10 to 14 in the trial Court.

The brief facts leading to this second appeal are that the case of the plaintiff in the trial Court is that he is the owner of land bearing Sy. No. 25/D/P1 measuring to an extent of 6 acres, situated in K. Mallapur village, Gangavati taluk of Koppal district, which according to him has come to his share in a partition which has taken place on 4.11.1993 between himself and his sister Smt. Hanumavva the 9th defendant in the original suit. According to the plaintiff he has been in possession and enjoyment of the suit property pursuant to the partition, when the matter stood thus, the 1st defendant is stated to have created mortgage of the suit schedule property in favour of the State Bank of India, Gangavati for securing tractor loan and thereafter the said 1st defendant Hanumappa along with other defendants tried to forcibly enter into the suit property to dispossess the plaintiff from the suit property. Hence the suit for permanent injunction was filed by him.

In the said suit the 1st defendant whose name is also Hanumappa S/o. Hanumantappa Katigalli remained ex parte, whereas the 9th defendant from whom the plaintiff claimed title to the suit property entered appearance, filed the written statement contending that the plaintiff is not her real brother whereas the 1st defendant is her real brother and that the genealogy which is filed by the plaintiff to show title to suit property is incorrect and according to 9th defendant the suit property is the property belonging to her husband, which he has given to her in the year 1983-84 and therefore the suit property is not the joint family property of the plaintiff. According to her the genealogy which is shown in the plaint contending that the plaintiff is the grandson of one Tirakappa Katigalli who is the propositus of his joint family having three sons by name Yenkappa, Kanakappa and Hanumappa and the plaintiff Hanumappa being the son of Kanakappa''s first son Hanumantappa @ Hanumappa is incorrect.

According to 9th defendant the plaintiff has suppressed the genealogy and distorted the same. According to her, Tirakappa Katigalli''s first son Yenkappa had three sons, his middle son''s name is Hanumappa, the 1st son of said Hanumappa is 1st defendant Hanumappa and the said Hanumappa son of Yenakappa in all had six sons i.e., the defendants 1, 2, 5 to 7 and five daughters including the defendant No. 9 and according to her the 1st defendant is her real brother and the plaintiff is not her brother and there was no division of property between himself and the plaintiff and the division which is claimed is false and frivolous and concocted, based on which he has secured mutation entry of suit property in his name which according to her is subject matter of the proceedings pending before the Assistant Commissioner.

With these rival contentions the suit went in for trial. The trial Court accepted the contention of the plaintiff in the absence of any denial by the 1st defendant; however the trial Court while decreeing the suit of plaintiff did not consider the objections raised by the 9th defendant, while answering the issues in favour of the plaintiff. Consequently the plaintiff''s suit for permanent injunction was decreed by judgment and decree dated 9.3.2007. The same was subject matter of appeal in R.A. No. 13/2007 on the file of Civil Judge (Sr.Dn.), Gangavati.

It is seen that in the said appeal the lower appellate Court while re-appreciating the pleadings, oral and documentary evidence has given a finding that the trial Court was erroneous in not taking into consideration the denial of the plaintiff''s title to the suit property by 9th defendant and that falsity in the genealogy is not looked into and the falsity in explaining the status of the parties with reference to the suit property is also not looked into. Accepting the denial of title of plaintiff by 9th defendant who is admittedly the original owner of the property, the lower appellate Court has reversed the finding of the trial Court and consequently dismissed the suit of the plaintiff for the relief of injunction. As against the said divergent finding this second appeal is filed.

Heard the learned counsel Sri Hanumanthareddy Sahukar for the appellant in the presence of learned counsel Sri Vijayendra Bhimakkanavar appearing for F.V. Patil, for respondents. On going through the grounds of appeal with reference to the judgment of both the Courts below it is clearly seen that the plaintiff has miserably failed to establish his title to the suit schedule property to secure the relief of permanent injunction.

Admittedly, in the trial Court his plea is that he is the owner of suit property by virtue of a division which has taken place between himself and his sister 9th defendant which according to him is said to have taken place on 4.11.1993 and according to him pursuant to the said partition he has secured the mutation of suit schedule land in his favour and accordingly he is in possession and enjoyment of the suit property. In the suit for permanent injunction the cause of action according to him is mortgaging of suit land by 1st defendant in favour of State Bank of India for securing tractor loan. It is also his allegation that the 1st defendant taking advantage of similarities in the name of plaintiff and himself and also in the name of plaintiff''s father and his father has impersonated in securing the loan.

Assuming for a moment if such a thing has happened, it is not acceptable to presume that the plaintiff has not taken any steps to attend to the same. Admittedly there is no complaint for such an act of impersonation against 1st defendant and on the contrary he has filed a suit for permanent injunction not only against the 1st defendant but also others including the 9th defendant from whom the plaintiff is claiming title. The written statement of 9th defendant would go to show that there is no relationship of brother and sister between herself and plaintiff. According to her the 1st defendant is her real brother and she also demonstrate before the Court that the incorrect genealogy is produced by the plaintiff to claim title to suit property as if it belongs to propositus Tirakappa Katigalli. Again he has failed to establish that the suit property was originally belonged to Tirakappa Katigalli whereas the 9th defendant has categorically stated that the suit property was her husband''s property which has come to her in the year 1983-84 by way of mutation entry, pursuant to a wardi given by her husband and thereafter she has been in possession of the property.

In the written statement she has also taken a defence that the 1st defendant and plaintiff having colluded together have come up in this false suit. Incidentally in the original suit in the trial Court though the 1st defendant is duly served who is younger brother of defendant No. 9 has remained ex parte, he has neither supported the case of the plaintiff nor that of 9th defendant. On the contrary the original brothers and sisters of defendant No. 1 who are the cousins of plaintiff have rallied around the 9th defendant to support her defence that the suit property is the absolute property of 9th defendant which she has acquired through her husband and that she has been in possession and enjoyment of the same. In addition to that they have also demonstrated before the Court that as on that day there was a litigation pending before the Deputy Commissioner with reference to mutation entry being made in the name of plaintiff in respect of the suit property.

With all these it is clearly seen that the plaintiff has failed to establish that either he was in possession and enjoyment of the suit property or that he had any semblance of title or right over the suit schedule property as against the claim of 9th defendant that she is the absolute owner of suit property and though he has made allegation against the 1st defendant as the person who is behind the alleged act of encroaching into his property, the 1st defendant has remained outside the Court and did not either oppose or support the case of the plaintiff.

In that view of the matter the lower appellate Court while reassessing the pleading and evidence has rightly come to the conclusion that the plaintiff has failed to establish his alleged title to the suit property and also his right to maintain a suit for permanent injunction against defendants in the suit and consequently the erroneous judgment rendered by the trial Court in decreeing the suit of the plaintiff is rightly set aside by the lower appellate Court and consequently dismissed the suit for permanent injunction.

In that view of the matter this Court find no justifiable grounds are made out to interfere with the well reasoned judgment passed by the lower appellate Court in R.A. No. 13/2007 and in addition to that in this second appeal no grounds are made out which give room for raising any substantial question of law to be considered in this second appeal.

Accordingly this second appeal filed by the plaintiff in O.S. No. 67/2005 is hereby dismissed and consequently the judgment and decree dated 3.7.2008 passed in R.A. No. 13/2007 on the file of Civil Judge (Sr.Dn.), Gangavati, is confirmed.