Krishna vs Ramakrishna and Others

B. Veerappa, J.—This is a defendant''s regular second appeal against the judgment and decree dated 30.08.2010 made in R.A. No. 418/2001 on the file of the Senior Civil Judge, Honavar, confirming the judgment and decree dated 28.02.2001 made in O.S. No. 22/1999 on the file of the Civil Judge (Jr. Dn.) Honavar, decreeing the suit filed by the plaintiffs directing the defendant to pay the plaintiffs a sum of Rs. 12,600/- as annuity for 12 years from 1987-88 to 1998-99 with 6% interest from the date of decree till the date of realization of the decreetal amount.

The respondents - plaintiffs filed the suit for recovery of money of Rs. 14,400/- being the annuity amount from the defendant from 1987-88 to 1998-99 payable on 30th Maghbahul every year as per Hindu Calendar month at the rate of 3 khandag (1 1/2 quintal) of rice every year totally 18 quintals for 12 years at the rate of Rs. 800/- per quintal and charge of the schedule properties. It was also contended that the suit schedule properties belongs to one Ramappa Timappa @ Atmaram Yogeshwar. He executed a gift deed dated 12.06.1919 in favour of Ganapathi Rama Hegde and Timmanna Rama Hegde. There was a condition that the gift deed to pay annuity every year 3 khandag (1 1/2 quintal) of rice by the 30th day of Maghbahul as per Hindu Calendar for the month to Smt. Parvathi, the daughter of said Ramappa Timmappa till her death and after her death to her male descendants. Thereafter, all those properties charged with annuity for being purchased by one Rayappa Krishna Shanbag now deceased. Thereafter, the right in the properties charged with annuity had been sold to the defendant. Therefore, along with the properties, permanent charge of annuity created over the suit schedule properties had also transferred to the defendant. Since then, defendant is having possession, use and enjoyment of the said properties. Hence, the defendant is liable to pay annuity to the plaintiffs. The right to receive annuity over the suit schedule property has been transferred from Parvathi, after her demise to her son Ganapathi Subray Bhat and the Ganapathi Subray Bhat sold those properties along with the right to recover annuity sold to the father of the plaintiffs by name Parameshwar Ramakrishna Hegde by way of registered sale deed dated 17.08.1966. On the death of Parameshwar Ramakrishna Hegde, the plaintiffs and her children being natural heirs of Parameshwar Ramakrishna Hegde have acquired that right to recover the annuity by way of inheritance. Therefore, the right in the properties charged with annuity had been sold to the defendant. Therefore, along with the properties, permanent charge of annuity was created over the suit schedule properties has also transferred to the defendant. Since then, the defendant is having possession, use of the said properties. Hence, defendant was liable to pay annuity to the plaintiffs etc. Therefore, plaintiffs filed the suit.

The defendant filed the written statement and contended that suit filed by the plaintiffs is false and frivolous and vexatious and in order to harass the defendant, the plaintiffs have filed this false suit and it is not tenable in the eye of law and denied the allegations made in para 2 of the plaint and contended that the right of annuity is personal right and it cannot be alienated, as contended by the plaintiffs in their plaint. Therefore, he contended that the plaintiffs have no right to recover this annuity and denied all the allegations made in para 3 of the plaint and contended that after the death of father Parameshwar Ramakrishna Hegde, plaintiffs have acquired the same right over the suit schedule properties. The defendant also contended that the alleged sale deed dated 17.08.1966 which did not gave right to recover the annuity to one Parameshwar Ramakrishna Hegde and after his death, the right to recover the annuity has been inherited to his sons, the present plaintiffs. The defendant has contended that alleged sale deed dated 17.08.1966 itself is null and void and also contended that some of the properties having charges of annuity are with the father of the plaintiffs himself. Hence, the suit of the plaintiffs claiming full annuity is not maintainable etc.

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

"1) Whether the plaintiff proves that right to recover annuity has been inherited to them from their ancestor and they have got right to recover the same as alleged in the plaint?

2) If so, whether the plaintiffs further prove that the defendant is liable to pay the annuity claimed in the plaint?

3) Whether the defendant proves that in view of vesting of land after the advent of Land Reforms (Amendment) Act 1974, he is not liable for payment of full annuity as contended in his so W.S.?

4) Whether the plaintiffs are entitled to the decree so prayed?

5) What order of decree?"

sic

In order to substantiate their claim, the 1st plaintiff examined himself as P.W.1 and other plaintiff as P.W.2 and marked Exs. P-1 to P-22. The defendant Venkatraman Ananth Bhat examined as D.W.1 and marked documents Exs. D-1 to D-13.

After considering the entire material on record, the Trial Court recorded a finding that the plaintiffs proved the right of recovery of annuity has been inherited to them from their ancestor and they have got right to recover the same as alleged in the plaint and the defendant is liable to pay annuity to the plaintiffs and defendant failed to prove that in view of the vesting of land after the advent of Land Reforms (Amendment) Act, 1974 came into force and the defendant is not liable to pay full annuity as contended in his written statement. Accordingly, the suit came to be decreed granting 12,600/- with 6% interest as annuity for 12 years.

Against the said judgment and decree, the appellant filed R.A. No. 418/2001 before the Senior Civil Judge, Honavar, who after hearing both the parties by impugned judgment and decree dated 30.08.2010 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 lis.

Shri Ganapathi M. Bhat, learned counsel for the appellant has mainly contended that the defendant is not liable to pay the entire annuity in respect of property in question. The said aspect of the matter has not been considered by both the Courts below. Therefore, he sought to aside the judgment and decree of the Trial Court and also contended that the decree of payment by way of cost raised with 6% interest from the date of decree till the realization is liable to be set aside and same is contrary to records.

Per contra, Shri V.G. Bhat, learned counsel for the respondent No. 1 sought to justify the impugned judgment and decree of the Courts below.

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

In order to prove the annuity, the plaintiffs examined as P.Ws.1 and 2 and produced Exs. P-1 to P-22 and the defendant to disprove the same examined D.W.1 and marked Exs. D-1 to D-13.

Considering the entire material on record, the Trial Court recorded a finding that the plaintiffs have filed the suit against the defendant alone for claiming annuity and the defendant took the very same contention contending that he is not entitled to pay entire annuity in O.S. No. 11/1988. Considering the entire material record, the Trial Court held that in view of the judgment in O.S. No. 83/1977 and O.S. No. 11/1988 the defendant is liable to pay annuity amount on the entire properties. According to the plaintiffs, it is not necessary that all persons in possession of the properties must be made as parties to the suit which has been contended by the very same first defendant in the O.S. No. 14/67 that he was in possession of the only certain properties and rest of the properties are in the hands of the other person and all the persons must be made liable to pay amount and 2nd defendant there alone cannot be held liable and the point No. 8 in R.A. No. 110/1978 it is seen from Ex. P-5 that the contentions of the 2nd defendant the plaintiffs have to recover arrears of annuity from the all defendants in proportion to the extent of the land held by each of the defendant has been negated by the Trial Court and it has been observed at para 12 in point No. 8 which reads as under:

"This contention cannot be accepted because a person who purchased a portion of the property which is subject to charge, with notice or constructive notice of the charge is liable to pay the whole amount. At best a person who pays the whole amount is entitled to a contribution from the other joint debtors. Therefore it is not open to the defendant 2 to seek for apportionment of his liability to pay the suit claim in proportion to the properties held by him"

The Trial Court further observed that it is very clear from the above decision that the very same 1st defendant who was the 2nd defendant in the earlier suit in Ex. P-5, the very same contentions raised have been raised in O.S. Nos. 83/1977 and 11/1988 and they have been negatived by the Court and the matter was not taken up to the High Court by the very same present 1st defendant and therefore, at this stage, the very same contentions cannot be raised by the defendant. Hence, the findings in R.A. No. 110/1968 and findings in O.S. Nos. 83/1977 and 110/1968 binds on the defendant. Further, the Trial Court also held that in the instant case, when the amount of annuity was payable by the charge of the properties as mentioned in the gift deed there is no personal liability by the parties to pay the amount and the amount had to be recovered only on the charged properties i.e., the debt is individual debt due from whole of the property and it is also seen that the payment has to be made by the privity of the estate and not on the individual or personal liability of the party and in the instant case, all the person in possession of the property charged under that annuity may be proper party, but that cannot be held as necessary party to the suit. The Trial Court further held that on scrupulous reading of the Section 100 of the Transfer of Property Act, it is clear that when any property charged has been transferred with the due notice of the charge then the charge can be enforced against that item of the property or along with the other items and it has also seen by the commentary pertaining to Section 100 of the Transfer of Property Act that ordinarily charge cannot split up by apportioning the liability among the various persons. So it is clear from the above that when there is a charge for payment of annuity that charge cannot be split up. According to the possession of the properties in the hands of the various persons and the liability cannot be split up. The very same thing has been observed in para 12 of the item No. 8 of R.A. No. 110/78 to that effect. At most a person who pays the whole amount is entitled to a contribution from the other joint debtors. Therefore, the right of the plaintiffs questioned by the defendant in the suit is in the matter directly and substantial issue in the earlier suit and it has been finally decided in the earlier proceedings. Therefore, the defendants again cannot plead that the plaintiffs have no right to file the suit and the defendant was not liable to pay annuity and the Government of Karnataka is also necessary party. Hence, annuity is to be apportioned on the basis of the area held by the defendant and ultimately decreed the suit holding that the defendant is liable to pay the annuity of Rs. 12,600/-for 12 years.

On re-appreciating the entire material on record, both the oral and documentary evidence on record, the lower Appellate Court confirmed the said finding of fact recorded by the Trial Court and further held that there is no dispute by the defendant and further in view of the judgment and decree of the Trial Court in the earlier suit in O.S. No. 11/1988 and recovery of the decree amount of the said suit from the defendant through the Court under execution petition clearly proves that the defendant complied with the judgment and decree of the Trial Court in the earlier suit. Therefore, the arguments put forth by the learned counsel for the defendants in the appeal do not hold and withdraw the same in accordance with law on the grounds urged by the defendants in this appeal. The appeal fails and same does not merit consideration and accordingly the appeal was dismissed.

In view of the material documents produced by both the parties and consideration of fact, the Courts concurrently held that the defendant is in possession and enjoyment of possession and he is liable to pay annuity and accordingly held that defendant has to pay Rs. 12,600/- as annuity for 12 years. The same is based on the cogent legal evidence and in accordance with law and the appellant has not made out any ground to interfere with the finding of fact recorded by the Courts below. No substantial questions of law involved in the present appeal. Accordingly, the appeal is dismissed at the stage of admission itself.