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Judgment
B. Veerappa, J.—This is a defendant''s regular second appeal against the judgment and decree dated 24.04.2014 made in R.A. No. 85/2012 on the file of the II Additional District Judge, Haven (sitting at Ranebennur), confirming the judgment and decree dated 18.07.2003 made in O.S. No. 46/1994 on the file of the Civil Judge (Sr. Dn.) and Principal JMFC, Ranebennur, decreeing the suit declaring that the plaintiff is a joint owner of suit property to an extent of half share and granted injunction to restrain the defendants by an order not to dispossess the plaintiff from the joint possession.
It is the case of the plaintiff before the Trial Court that the plaintiff and defendants are the members of the hindu undivided family. Fakkirappa is a propositus of the family. He had two sons by name Tirakappa and Marthandappa. After death of Fakkirappa his two sons continued as members of hindu undivided family and they were enjoying the suit property as joint owners. Tirakappa, the father of defendant Nos. 1 to 3 had died about 2 months prior to the filing of this suit and plaintiff is a son of Marthandappa. Defendant No. 1 being a senior member and manager of the joint family. While Tirakappa and Marthandappa were members of undivided family and enjoying the suit property as joint family property and Tirakappa being a senior brother he was managing the family. The suit property originally belongs to Government. Both Tirakappa and Marthandappa were cultivating the same since 1955. The Assistant Commissioner, Haven by his order dated 25.05.1955 granted the suit property in the name of Tirakappa who was a manager of the family and accordingly M.E. No. 1557 was mutated. Though the grant was made in the name of Tirakappa, both brothers were jointly cultivating the suit property and out of joint earnings they deposited occupancy price.
It is further case of the plaintiff that the father of the defendant Nos. 1 to 3 Tirakappa having admitted the right of plaintiff in the suit property as half share, he gave waradi to the Village Officer to enter the name of plaintiff and accordingly M.E. No. 1665 was mutated and certified on 06.05.1985. Thus, plaintiff and defendants have got equal half share in the suit schedule property and they were cultivating jointly. Plaintiff is simpleton and illiterate. He was hearing the words of defendant Nos. 1 to 3 and he reposed confidence on them. Taking undue advantage of this situation, defendant Nos. 1 to 3 in order to grab the suit property with ill motive got filed RTS appeal by their father against M.E. No. 1665 in RTS AP No. 64/92-93. The plaintiff after receiving notice of appeal, he enquired defendant Nos. 1 to 3. They assured that they would set right the matter and his appearance in the RTS proceedings is not at all necessary. Reposing confidence on the defendant Nos. 1 to 3, plaintiff did not appear in the RTS proceedings. Later he came to know that by using undue influence defendant Nos. 1 to 3 prevented the plaintiff in attending the RTS proceedings got cancelled M.E. No. 1665. The said order is illegal and not binding on the plaintiff The name of plaintiff was appearing in the revenue records from 1985 to 1993. Thus, the defendants or their father Tirakappa were estopped by the conduct and by document to contend contrary. Still family is joint. There was no partition. The plaintiff and defendants are jointly enjoying the suit property. Now it is learnt that the defendants after declaring the name of plaintiff from records tried to dispose of the suit property to defendant No. 4. Therefore, the plaintiff got issued legal notice on 30.04.1994. Defendant No. 4 received the said notice, but has not given any reply. Defendant Nos. 1 to 3 have purposely refused to take notice. The defendant Nos. 1 to 4 were trying to dispossess the plaintiff from joint possession. Therefore, plaintiff filed the suit for declaration and injunction in respect of half share.
Though the defendant Nos. 1 to 4 represented by their advocate despite sufficient opportunity failed to file written statement. The plaintiff examined as P.W.1 and marked documents Exs. P-1 to P-4.
Based on the oral and documentary evidence on record, the Trial Court recorded a finding that the plaintiff established his title in respect of half share of the suit schedule properties and granted permanent injunction. Against the said order, only defendant No. 1 filed appeal in R.A. No. 85/2012 before the II Additional District Judge, Haven (sitting at Ranebennur), who after hearing both the parties dismissed the appeal mainly on the ground of delay and latches, since the appeal was filed after lapse of ten years. Against the said judgment and decree of the Courts below, the present regular second appeal is filed.
I have heard the learned counsel for the appellants.
Shri Shivasai M. Patil, learned counsel for the appellants contended that the judgment and decree of the Courts below granting declaration and injunction in respect of half share in favour of the plaintiff is without any basis. The Trial Court relied upon the mutation entries Exs. P-1 to P-4 and come to wrong conclusion in decreeing the suit and there was no opportunity for appellants to file any written statement. Therefore, the impugned judgment and decree of the lower Appellate Court cannot be sustained and the lower Appellate Court also not given an opportunity and dismissed the appeal only on the ground of delay and latches without reference to the merits. Therefore, learned counsel for the appellants sought to set aside the judgment and decree of the Courts below.
I have given my anxious considerations to the arguments advanced by the learned counsel for the appellants and perused the entire material on record.
It is not in dispute that the plaintiff and defendant Nos. 1 to 3 are members of joint family and there father Tirakappa and Marthandappa were cultivating the land in question and subsequently it was granted by the Assistant Commissioner on 25.05.1955 and the father of the defendants Tirakappa had admitted the right of the plaintiff in suit property for half share and accordingly given waradi to the Village Officer to enter the name of the plaintiff in respect of half share in the suit schedule property and accordingly mutation was effected in M.E. No. 1665 on 06.05.1985. Thus, the plaintiff and defendants have got equal share in the suit schedule property and they were cultivating jointly.
It is further case of the plaintiff that defendant Nos. 1 to 3 in collusion with defendant No. 4 they want to deprive the property rights in respect of the suit schedule property and they were intending to alienate the same in favour of the 4th defendant. Therefore, the plaintiff issued legal notice to the defendant Nos. 1 to 4 on 30.04.1994. The defendant No. 4 had not given any reply and defendant Nos. 1 to 3 refused to accept the notice. Therefore, plaintiff filed the suit.
P.W.1 categorically stated on oath that he got the half share in terms of the waradi given by Tirakappa in M.E. No. 1665 and same was mutated and certified on 06.05.1985. Exs. P-1 to P-5 clearly indicates that the plaintiff got half share in the suit schedule property. The materials both the oral and documentary evidence produced by the plaintiff clearly indicates that the plaintiff has established that he is having half share in the suit schedule property. Accordingly, the Trial Court declared that plaintiff is the joint owner of the suit property to an extent of half share and granted injunction in respect of half share. The records also disclose that though the Trial Court has given sufficient opportunity to the defendant Nos. 1 to 4, they have appeared through advocate and filed written statement. After lapse of 10 years they have filed the appeal before the lower Appellate Court. The lower Appellate Court considering the delay has held that the evidence of P.W.1 and R.W.1 clearly indicates that the appellant has not made out any ground to condone the inordinate delay of ten years in filing the appeal and also held that no reason is assigned by the appellant as to why these persons did not attend the Court to conduct the case. He states that his parents are old so, he did not enquire them about the suit. He admits that suit was disposed of in the year 2003 and thereafter he filed miscellaneous case and miscellaneous appeal. After ten years, he had filed this appeal. Absolutely no case was made out to condone the delay. Therefore, the lower Appellate Court dismissed the appeal on the ground of delay and latches. Consequently, dismissed the appeal as barred by limitation.
The material documents produced clearly discloses that the appellant has not explained ten years delay and no sufficient reasons were assigned and the Trial Court has passed the judgment and decree granting declaration and injunction in respect of half share in terms of M.E. No. 1665 mutated on 06.05.1985 on the basis of waradi given by the father of defendants Tirakappa. The same is in accordance with law. The appellants have not made out any ground to interfere with the impugned judgment and decree of the Courts below. No substantial question of law involved in the present appeal. Accordingly, the appeal is dismissed.