Kallappa vs Basappa and Others

B. Veerappa, J.—This is an unsuccessful plaintiffs Regular Second Appeal against the judgment and decree dated 23.06.2010 made in R.A. No. 41/2005 on the file of the I Additional District and Sessions Judge, Dharwad, sitting at Hubli, confirming the judgment and decree dated 30.08.2005 made in O.S. No. 111/1999 on the file of the Prl. Civil Judge (Sr. Dn.) Hubli, dismissing the suit for declaration and possession.

The appellant - plaintiff filed the suit against the defendants contending that his father Manappa died leaving behind his two minor sons and two daughters, since Basawwa, the first wife was illiterate and he was being guided by the defendant No. 1. The defendant No. 1 who was pretending as well-wisher of Basawwa was operating the monetary dealings on behalf of Basawwa and he was enjoying the suit land as usufructuary mortgagee also. One Kashappa and Nagappa Ganiger had claimed their alleged tenancy right before the Land Tribunal, Hubli for entire block No. 380 lands. As Basawwa died on 29.03.1987, plaintiff himself along with the elder brother Ningappa, mother Parvatevva and two elder sisters Seetawwa and Ningawwa being the heirs got mutated the revenue records in their favour vide M.E. No. 3796 dated 29.06.1987. Accordingly, himself and his brother Nmgappa started enjoying the property.

It is further case of the plaintiff that 1st defendant took the signatures and LTM of all of them when the dispute was pending before the Land Tribunal, Hubli on the stamp papers, misrepresenting them that they are necessary for protecting their interest against the rival claimant Nagappa Ganier and further representing that Tribunal is not expecting his alleged usufructuary mortgage right. The plaintiff and his family members came to know about the said misrepresentation in September 1987 only when the defendant Nos. 2 to 4 obstructed them on the basis of the sale deed executed in their favour about the suit land. The defendant No. 1, who had executed the said sale deed dated 30.07.1987 as power of attorney holder refused to show the power of attorney executed by anyone of them. No consideration was also received by anyone of them about the suit property. The contents of the sale deed about the family needs and alleged family needs are false and imaginary. The defendant Nos. 2 to 4 never acquired any right over the suit property and the sale deed executed in their favour is void ab initio not binding on him. The defendant No. 1 who claims to have had the authorisation of his brother Ningappa, mother Parvatewwa sisters Seetawwa and Ningawwa had played fraud. On 16.04.1970 his elder brother Nmgappa received Rs. 400/- and executed the relinquishment deed of his share in the suit block No. 380 and then he was minor and represented by his mother Parvatewwa. The defendant No. 1 who was participated in the said relinquishment deed as attestor knowingly very well that except the plaintiff, others have no right on suit block No. 380 has played fraud and he came to know about the relinquishment deed only in the year 2000. The said land was being converted into flats by the defendant Nos. 2 to 4 for sale under Ashraya Yojana scheme as published in Sanje Vani Kannada daily dated 01.04.1999 and O.S. No. 31/1989 which came to be dismissed on 21.07.1997 also came to his knowledge recently. Therefore, he filed the present suit.

Defendant Nos. 1 to 3 have filed written statement separately and denied all the plaint averments and contended that O.S. No. 31/1989 filed by the plaintiff along with his elder brother and mother impleading his elder sisters Seetawwa and Ningawwa as defendant Nos. 4 and 5 came to b dismissed on 13.03.1992. The Misc. No. 34/1992 filed by the plaintiffs brother Ningappa showing the plaintiff as respondent No. 8 also came to be dismissed and hence the suit filed by the plaintiff seeking the same relief is not maintainable under principle of res judicata and also contended that after death of Basawwa, the family members of the plaintiff became the co-sharers of the suit property and other four sharers except the plaintiff sold their respective shares in favour of defendant Nos. 2, 3 and 4 for consideration amount of Rs. 80,000/- through the sale deed dated 30.07.1987 executed by him by virtue of power of attorney holders executed by the said four co-sharers. The plaintiff is remained as owner of the remaining 2.28 acres of land, after the land was phoded as 380/1 and 380/2 and he has been in possession of the same also. The suit for setting aside the sale deed dated 30.07.1987 is hopelessly barred by time etc. The 2nd defendant contended that during the family partition, the land purchasers in his name went to the share of defendant No. 1 - his father. The defendant Nos. 3 and 4 further contended that both of them became absolute owners of the respective purchased pieces of land in the suit property in which the plaintiff has no right etc. Therefore, the defendants sought for dismissal of the suit.

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

"i. Whether plaintiff proves that the sale deed dated 30.07.1987 executed by first defendant in favour of defendants 2 to 4 in respect of the suit land is fraudulent unauthorised document and it is null and void?

ii. Whether the suit is barred by principles of res judicata?

iii. Whether the suit is bad for non-joinder of necessary parties?

iv. Whether the suit is barred by limitation?

v. Whether the court fees paid by the plaintiff is correct?

vi. Whether the plaintiff is entitled for possession of suit land?

vii. What order or decree?"

In order to establish his case, the plaintiff examined his sister-in-law as P.W. 1 and himself as P.W. 2, marked the documents as Exs. P-1 to P-7. Defendants to defend their case, examined themselves as D.Ws. 1 to 3 and marked documents Exs. D-1 to D-7.

The Trial Court after considering the oral and documentary evidence on record, recorded a finding that the plaintiff failed to prove that the sale deed dated 30.07.1987 executed by the 1st defendant in favour of defendant Nos. 2 and 4 in respect of the suit land is a fraudulent, unauthorised document and it is null and void. The suit filed by the plaintiff is barred by res judicata and the suit is also bad for non-joinder of necessary parties and the suit filed by the plaintiff is barred by limitation and plaintiff is not entitled any relief. Accordingly, the suit came to be dismissed.

Aggrieved by the said judgment and decree, the appellant filed R.A. No. 41/2005 before the I Additional District and Sessions Judge, Dharwad, sitting at Hubli, who after hearing both the parties by his impugned judgment and decree dated 23.06.2010 has dismissed the appeal confirming the judgment and decree of the Trial Court. Hence, the present regular second appeal is filed.

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

Shri Mallikarjunswamy B. Hiremath, learned counsel for the appellant strenuously contended that both the Courts below have not considered the oral and documentary evidence properly and applied principles of res judicata which is also wrong and the Courts below have not considered evidence of P.Ws. and D.Ws. and proceeded to dismiss the suit which has resulted great injustice to the appellant. Therefore, he sought to set aside the judgment and decree of the Courts below.

Shri V.P. Kulkarm, learned counsel for the respondent No. 1 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 to the lis and perused the entire material on record.

Considering the entire material on records, the Trial Court recorded a finding that the plaintiff along with his mother Parvatewwa and brother Ningappa had filed O.S. No. 31/1989 against the defendant Nos. 1 to 4 impleading the sisters Seetawwa and Ningawwa as the defendant Nos. 5 and 6 seeking the cancellation of the sale deed Ex. P-1 dated 30.07.1987 and for possession of the suit property from the possession of the defendant Nos. 1 to 4, as prayed for in the plaint, as per Exs. D-2 and D-4 and the said suit came to be dismissed for non-prosecution in this Court only on 13.03.1992, as supported by the copies of the order sheet Exs. P-11, D-3 and P-5 and then the elder brother of the plaintiff one Ningappa filed Misc. No. 34/1992 under Order 9 Rule 9 of the Code of Civil Procedure, 1908. The said petition came to be dismissed on 13.01.1993, as per Exs. D-6 and D-7. Thereafter, the plaintiff got issued public notice dated 01.04.1999 as per Ex. P-10 in Sanje Vani Kannada daily newspaper of Hubli Edition warning the people not to enter into the sale transaction about the suit property on the ground that the dispute is pending in O.S. No. 31/1989 and thereafter filed suit on 08.06.1999.

In order to establish his case, the plaintiff produced documents Exs. P-13, P-14, P-15, P-3, P-4 and P-5, totally measuring 8 Acres 4 guntas in southern portion of the suit block No. 380 of Bhandiwad Village which is re-numbered as Block No. 380/2. The suit property was sold by the mother, elder brother and two sisters of the plaintiff in favour of the defendant Nos. 2 to 4, as per Ex. P-1 dated 30.07.1987. The portion of suit property was sold through the sale deed Ex. P-12 dated 31.12.2002. The plaintiff has contended that the signature of brother, mother and sister was taken by defendant No. 1 by playing fraud and none of them were shown interest at least in the earlier suit filed by them jointly in O.S. No. 31/1989 or Misc. No. 34/1992 and the dismissal orders of the said proceedings in O.S. No. 31/1989 and Misc. No. 34/1992 dated 13.03.1992 and 13.01.1993 respectively was final and conclusive. The plaintiff has not explained that his brother, sister did not take any interest in the previous proceedings and why they are not examined in this case. If at all any fraudulent act was committed against them, they could have definitely appeared before this Court to depose against the defendant No. 1. All of them were parties in the earlier proceedings also and were aware about the allegations made against the defendant No. 1. Such being the case, their silence and non-appearance before this Court is sufficient to presume that they have utilised the amount mentioned as the consideration amount in the sale deed Ex. P-1 may be earlier to the date of the sale deed itself.

P.W. 1 is not the person who executed the alleged Power of Attorney and he had no right to demand the Power of Attorney from the defendant No. 1. There is no cogent evidence to show that his brother and sisters demanded the Power of Attorney from the defendant No. 1 by making the allegation of fraudulent act and there is no dispute among the defendant Nos. 1 to 4 about the validity of sale deed Ex. P-1. Plaintiff also admits that Basawwa became the absolute owner of entire 10 acres 32 guntas of land in Block No. 380. Such absolute right cannot be treated as the right on the joint family properties. It is not the case of the plaintiff that it is the ancestral or joint family property inherited from his ancestors. Being the nearest legal heir of Basawwa, he also became the sharer along with his mother, brother and sisters. Utmost he entitled for 1/5th share measuring 2 acres 6 guntas, but had possessed 2 acres 28 guntas as per Ex. P-2 RTC extract of the year 1998-99. So the remaining property measures more than his legal share and the said land is not involved in Ex. P-1 sale deed. Hence, the grounds urged by him to declare the sale deed Ex. P-1 as the result of fraudulent act cannot be accepted. The Trial Court also recorded a finding that Ex. P-1 was subject matter of the suit being questioned by the plaintiff The suit was filed on 08.06.1999. In earlier suit O.S. No. 31/1989 which came to be dismissed on 13.03.1992 also the plaintiff being the 3rd plaintiff therein had sought the same relief to get the declaration that the sale transaction dated 30.07.1987 purporting to act on behalf of the plaintiff Nos. 1 and 2 and the defendant Nos. 5 and 6 as void ab initio due to fraud and misrepresentation played by the defendant No. 1 on them. The same relief is reiterated in the present plaint in his individual capacity by the plaintiff.

The earlier suit filed was on 09.12.1988. The right of the plaintiff and his other family members to proceed with that suit came to be ended with the dismissal order in Misc. No. 34/1992 on 13.01.1993. At least, thereafter within the period of limitation the plaintiff could have filed this suit. In O.S. No. 31/1989 the plaintiff being the 3rd plaintiff therein had admitted that he came to know about the alleged sale deed on or about 15.09.1987. Such being the case, the relief of declaration against the legality of the sale deed has to be exercised by the plaintiff within the period of three years, at least from the date of alleged knowledge. When such right was vanished in 1993, he has no right to file this suit in 1999, after lapse of more than 7 years from the dismissal of the suit O.S. No. 31/1989. The plaintiff has not explained how the suit is not barred by limitation.

The Trial Court also recorded a finding that earlier suit came to be dismissed on 13.03.1992 and he was the respondent No. 8 in Misc. Case No. 34/1992 filed by his brother Ningappa. In the said miscellaneous case the plaintiff was placed ex parte, as contended by the defendants. No other materials are placed by the plaintiff to rebut the said defence. The proceedings of the earlier case are not challenged by him. Hence, the right of the plaintiff to insist the said relief is curtailed. The plaintiff who ought to have continued with the proceedings of earlier suits now cannot be allowed to proceed through separate proceedings. The right to challenge the sale deed Ex. P-1 is based on the alleged cause of action of the period of September 1989 which was permissible in earlier suit, but not in this suit. Therefore, the present suit filed by the plaintiff is barred by principles of res judicata Accordingly, the Trial Court dismissed the suit.

On re-appreciation of the entire material on record, the lower Appellate Court concurred with the findings of facts recorded by the Trial Court and held that it is an admitted fact in the year 1989 itself i.e., within three years of the execution of the sale deed as per Ex. P-1. The plaintiff, his mother and brother all instituted the suit in O.S. No. 31/1989 for the same relief of declaration arraying his sisters as co-defendants, alleging that transaction was the result of fraud and misrepresentation. Therefore, the limitation which had already begun to run in the year 1989 itself did not stop thereafter and the said suit came to be dismissed on 13.03.1992, as per Ex. D-3. The plaintiff did not file any petition to set aside the order of the dismissal to proceed further in the matter. On the other hand, his brother filed Misc. Case No. 34/1992 arraying the plaintiff, mother and sisters as correspondents. Said petition also came to be dismissed, as per Ex. D-7 on 13.01.1993. The plaintiff did not take any further action to prosecute further and the said two proceedings though came to be dismissed for default and after lapse of seven years, dismissal of the earlier suit in O.S. No. 31/1989 and its institution was without leave of the Court is hit by Order 3 Rule 2 of the Code of Civil Procedure, 1908. The lower Appellate Court also recorded a finding that admittedly said suit came to be dismissed for default in the month of March 1992. If at all he wanted to file a fresh suit on the same cause of action, he should have approached the Court seeking its leave within the time permitted, but did not do so. He having slept for more than ten years had filed fresh suit. Therefore, as rightly observed by the Trial Court, the suit was hopelessly barred by limitation. Therefore, the lower Appellate Court also recorded a finding that the appeal filed by the plaintiff is false and further despite suffering an order of dismissal of his action in O.S. No. 31/1989 for default, instituted the suit under the appeal after 7 long years. Thereafter again assailing the just decision of the Trial Court continued the prosecution in appeal also for another six years. Therefore, he being neither the owner nor the person in possession of the property kept the litigation alive for about twenty valuable years of not only in his life, but also in the life of the defendants. Therefore, the Appellate Court dismissed the appeal with costs of Rs. 5,000/-.

The admitted facts are that the plaintiff and others filed the suit in O.S. No. 31/1989 to cancel the sale deed dated 30.07.1987, as per Ex. P-1. Admittedly, the said suit came to be dismissed on 13.03.1992 and said order was final and conclusive so far as plaintiff is concerned. His brother Ningappa filed Misc. No. 34/1992 impleading the plaintiff as one of the respondents. The said miscellaneous petition also came to be dismissed on 13.01.1993. In view of the said admitted facts and admittedly the other plaintiffs have not challenged the said proceedings and reached finality and after lapse of 10 years, the present suit is filed. In the view of the previous proceedings, the present suit is not maintainable and admittedly the share of the plaintiff to an extent of 1/5th share measuring 2 acres 6 guntas is undisturbed by both the Courts below and his interest has been protected and that is not the subject matter of the sale deed dated 30.07.1987. Both the Courts based on the oral and documentary evidence has concurrently held that the plaintiff failed to prove that the sale deed dated 30.07.1987 executed by the 1st defendant in favour of defendant Nos. 2 to 4 in respect of the suit land is fraudulent or unauthorized document and it is null and void and the suit filed by the plaintiff is barred by principles of res judicata and also barred by non-joinder of necessary parties and the suit filed by the plaintiff is barred by limitation. Therefore, the Courts below dismissed the suit. Such a finding of fact is based on cogent legal evidence on record cannot be interfered by this Court exercising the powers under the provisions of Section 100 of the Code of Civil Procedure, 1908. No substantial question of law involved in the present appeal. Accordingly, the Regular Second Appeal is dismissed.