John Pereira vs K. Sadananda Shetty and Others

Aravind Kumar, J—This is a plaintiffs second appeal calling in question the correctness and legality of judgment and decree passed by Principal Civil Judge (Sr. Dn.) & CJM, Mangalore, dated 01.07.2013 in R.A. No. 234/2001 whereunder judgment and decree passed by the trial Court in O.S. No. 318/1999 dated 09.04.2001 dismissing the suit of plaintiff, which was filed for declaring the judgment and decree passed in O.S. No. 325/1996 is not binding on plaintiff and first defendant had no right to dispossess plaintiff or his family members from suit schedule property and on the strength of said decree and for consequential relief of prohibitory injunction to restrain first defendant from dispossessing plaintiff and his family members from suit schedule property which came to be dismissed, was affirmed.

It is the contention of Sri. Cyril Prasad Pais, learned counsel appearing for appellant/plaintiff that trial Court as well as Lower Appellate Court erred in dismissing the suit of plaintiff, inasmuch as, there was non-consideration of fact that suit filed by second defendant against first defendant in O.S. No. 325/1996 for specific performance was a collusive suit, which had culminated in a judgment and decree being passed and there has been non-consideration of the fact that second defendant had claimed title to suit schedule property by virtue of a Will dated 03.06.1989 executed by the mother of plaintiff as well as second defendant, which she could not have executed since chalageni tenancy rights did not exclusively vest with testatrix and as such she could not have executed the Will nor second defendant would have claimed exclusive right over suit property by virtue of said Will. He would contend that non-consideration of this vital aspect by the Court below and particularly Section 61 of the Karnataka Land Reforms Act which prohibits the transfer of property, has resulted in miscarriage in the administration of justice and as such, he contends that Substantial Questions of Law formulated in the appeal is required to be formulated, adjudicated and answered in favour of appellant.

He would elaborate his submission by contending that an application under Order 41 Rule 27 CPC filed by plaintiff before the Lower Appellate Court namely, I.A. No. 6 has been erroneously dismissed and thereby plaintiffs right to establish his title to suit schedule property has been truncated. Hence, he prays for admitting the appeal.

Having heard the learned counsel appearing for appellant and on perusal of judgment and decree passed by trial Court, as affirmed by Lower Appellate Court, this Court is of the considered view that findings recorded by Court below are all questions of fact and does not involve any Substantial Questions of Law for appeal being admitted and same being framed, adjudicated and answered for reasons indicated hereinbelow. The parties are referred to as per rank in the trial Court.

Plaintiff and second defendant are brother and sister. Plaintiff instituted the suit in question namely O.S. No. 318/1999 for a declaration to declare decree passed in O.S. No. 325/1996 by the Principal Civil Judge (Jr. Dn.), Mangalore, is not binding on him and to declare that first defendant has no right to dispossess plaintiff or his family members from plaint schedule property or the houses situated therein on the strength of said decree and for consequential permanent prohibition injunction by restraining first defendant from dispossessing the plaintiff or his family members from the plaint schedule property. It was contended by the plaintiff that suit schedule property amongst other properties originally belong to Mrs. Christine Pereira Bai namely mother of plaintiff and first defendant and she was granted occupancy rights by the Land Tribunal, Mangalore, in LRT No. 143/1975 as per order dated 03.01.1976. It was contended that second defendant was residing in a portion of suit schedule property and on the death of Mrs. Christine Pereira Bai on 23.12.1989, second defendant propounded a Will dated 06.03.1987 claiming that mother Mrs. Christine Pereira Bai had bequeathed suit schedule property in her favour absolutely and as such second defendant filed a petition for issuance of probate of said Will in P&SC No. 9/1991. Present plaintiff and three (3) sisters appeared in the said probate proceedings, contested the matter by filing written statement and disputing the Will propounded by second defendant. In view of the same, said probate proceedings was converted into a suit namely O.S. No. 9/1991. Objections to Will raised by plaintiff and three (3) sisters came to be rejected and probate of the Will came to be granted in favour of second defendant. Undisputedly, there is no challenge to said order passed by the Probate Court and it has reached finality.

Second defendant is said to have entered into an agreement to sell 12 1/2 cents of land in Sy. No. 103/1B to first defendant under an agreement of sale dated 14.12.1990. On account of second defendant not having executed the sale deed first defendant filed a suit for specific performance in O.S. No. 325/1996, which came to be decreed and in order to enjoy the fruits of said decree first defendant filed an execution petition in Ex. Case No. 63/1998. It is at that juncture, present plaintiff filed the present suit in question i.e. O.S. No. 318/1999 for the reliefs already indicated hereinabove. First defendant who appeared on service of suit summons, denied plaintiffs claim and sought for dismissal of suit.

On the basis of pleadings of parties trial Court formulated following issues for its determination.

"1) Whether the plaintiff proves that, his wife and children are residing in a portion of the house bearing D. No. 1-107 in the suit schedule property?

2) Whether the plaintiff proves that, the decree passed in O.S. No. 325/96 is not binding on the plaintiff and the same is a collusive suit between 1st defendant and 2nd defendant?

3) Whether the plaintiff further proves that he is having an undivided 1/5th share in the plaint schedule property?

4) Whether the 1st defendant proves that, the 2nd defendant is the absolute owner of the suit schedule property?

5) Whether the alleged interference pleaded by the plaintiff is true?

6) Whether the plaintiff is entitled for the reliefs sought in the suit?

7) What Decree or Order?"

Both the parties namely plaintiff as well as first defendant got themselves examined and also produced documentary evidence, which came to be considered and adjudicated by trial Court in favour of first defendant namely suit filed by plaintiff came to be dismissed by judgment and decree dated 09.04.2001.

Aggrieved by the same, unsuccessful plaintiff pursued his grievance before the Appellate Court in R.A. No. 234/2001. During pendency of said proceedings he also filed an application I.A. No. 6 under Order 41 Rule 27 of CPC seeking production of additional evidence namely two documents:

"i. Moolgeni chit dated 04.12.1925 said to have been executed in favour of paternal grandmother of plaintiff; and

ii. Notarized copy of original probate No. 4/2012 in P & SC No. 2/2009."

It was contended in the affidavit supporting application that paternal grandmother of plaintiff had acquired title to suit schedule property under Moolgeni Chit dated 04.12.1925 and after her death same had devolved on plaintiffs father and there was an oral partition between plaintiffs father and his uncle and in said partition suit schedule property was allotted to the share of plaintiffs father and on his death it had devolved on his wife and children and as such their mother could not have executed a Will in favour of second defendant as though it is her absolute property. It was further contended that on 07.04.2009 second defendant had expired and she had executed a Will on 06.05.2008 bequeathing her entire right, title and interest (to the extent of her share) in favour of plaintiff and as such, it was contended that these two documents are required for adjudicating the dispute involved in the appeal and hence, appellant/plaintiff sought for production of these documents by way of additional evidence.

Lower Appellate Court after securing the records of trial Court and hearing the learned Advocates appearing for parties, formulated following points for its determination:

1) "Whether appellant/plaintiff proves that the finding recorded by the trial court on issue No. 2 to 4 are contrary to the pleadings and evidence on record?

2) Whether appellant/plaintiff made out sufficient ground to interfere in the impugned judgment and decree?

3) Whether appellant made out sufficient ground to allow I.A. No. 6?

4) What order?"

On re-appreciation of entire evidence both oral and documentary, Lower Appellate Court has arrived at a conclusion that Will executed by the mother of plaintiff as well as second defendant bequeathing suit schedule property in favour of second defendant had reached finality in O.S. No. 9/1991 (P & SC No. 13/1990) and as such, the genuineness or otherwise of said Will cannot be gone into in the present proceedings.

As regards the provisions of Land Reforms Act prohibiting the alienation of chalageni rights is concerned the Lower Appellate Court has perused Section 61 of the Karnataka Land Reforms Act and held that mother of plaintiff and second defendant had bequeathed the properties acquired by her by way of chalageni rights to her daughter i.e., second defendant and same does not amount to transfer and as such, judgment rendered by the Coordinate Bench of this Court under similar circumstances in the case of C.C. Devasia Vs. The Karnataka Appellate Tribunal, Bangalore and Others, (1998) ILR (Kar) 2473 : (1998) 3 KarLJ 427 relied upon by defendant was held applicable to facts of present case and as such held that bequeath in favour of daughter by the mother would not attract prohibition prescribed under Section 61 of the Karnataka Land Reforms Act. The said finding recorded by Court below as affirmed by the Lower Appellate Court does not suffer from any infirmity whatsoever. In fact, trial Court has rightly observed that bequeath made by mother of plaintiff and second defendant i.e., Mrs. Christine Pereira Bai bequeathing chalageni rights in favour of second defendant do not amount to transfer and the right which was acquired by second defendant in respect of suit schedule property was by virtue of probate granted by the District Court in O.S. No. 9/1991 (P & SC No. 13/1990) and as such, she acquired title to the property.

Though Sri. Cyril Prasad Pais, learned counsel would contend that rejection of application for additional evidence by first Appellate Court was erroneous, I am not inclined to accept the said contention for reasons more than one. It is the specific case of plaintiff before the Court below that his mother Mrs. Christine Pereira Bai had acquired occupancy rights by virtue of an order passed by the Land Tribunal in LRT No. 143/1975 on 03.01.1976 and now attempt is being made for production of additional evidence to displace said plea. In other words, plaintiff is intending to contend that suit property and other properties belonged to his paternal grandmother Mrs. Anne Menezes, which she acquired under Moolgeni Chit dated 04.12.1925. It is also sought to be contended in the affidavit supporting application for production of additional evidence that after the death of Mrs. Anne Menezes suit property devolved on plaintiffs father and his brother and there was a oral partition amongst them under which the suit schedule property was allotted to the share of plaintiffs father. Thus, plaintiff is attempting to displace the original plea raised in the plaint which was to the effect that his mother had acquired title to the suit schedule property under order passed by the Land Tribunal on 03.01.1976 in LRT No. 143/1975 and he is seeking to put forth an entirely new case or a new plea.

Had there been an application for amendment of plaint before the First Appellate Court, probably the contention of Mr. Cyril Prasad learned counsel appearing for the appellant probably merited consideration. In the absence of it, plaintiff cannot be permitted to raise all together a different plea giving a complete go by to the plea available on record.

That apart, plaintiff along with his three (3) sisters has filed a comprehensive suit for partition and separate possession of properties, which includes the suit schedule property in O.S. No. 9/1995 and same came to be dismissed and is now said to be pending in appeal before first Appellate Court. If it were to be so, it is open to plaintiff to pursue his grievance and establish his right over suit schedule property in the said appeal in accordance with law and no opinion is expressed and it would be open to both parties to raise all such grounds available to them.

In that view of the matter, this Court is of the considered view that there are no Substantial Questions of Law involved in this appeal, which requires to be formulated, adjudicated and answered. Hence, for the reasons aforestated, I proceed to pass the following:

ORDER

"(i) Regular second appeal is hereby dismissed.

(ii) Judgment and decree passed by the Principal Civil Judge (Sr. Dn.), Mangalore, dated 01.07.2013 in R.A. No. 234/2001 as well as judgment and decree passed by trial Court in O.S. No. 318/1999 dated 09.04.2001 stands affirmed.

(iii) No costs."

In view of appeal having been dismissed without being admitted. I.A. No. 1/13 for temporary injunction does not survive for consideration. Hence, it stands rejected.