Maddeppa and Others vs Madiwalappa Basappa Subedhar and Others

B.V. Nagarathna, J.—1. The defendants in O.S. No. 31/2003 have preferred this second appeal, assailing judgment and decree passed in R.A. No. 48/2005 dated 18.04.2015 passed by the Second Additional District & Sessions Judge, Belagavi, confirming the judgment and decree dated 15.06.2005 passed in O.S. No. 31/2003 by Principal Civil Judge (Jr.Dn.), Bailhongal while dismissing the appeal.

For the sake of convenience, parties shall be referred to, in terms of their status before the trial Court.

Respondent plaintiffs filed a suit against defendants No. 1 to 3 seeking relief of declaration to the effect that they are the absolute and full owners in possession of suit properties and further prayed for permanent injunction against the defendants. According to plaintiffs, suit property bearing G.P. No. 118/A is situated in the Subedhar land of Turkarshigihalli village. It is house property with front yard facing east, having Mangalore tiled roof, measuring east to west 56 cubits and north to south 20 cubits and front yard measures east to west 14 cubits and north to south 20 cubits. That another suit property bearing G.P. No. 119 is situated adjoining to this property, which is an open space having measurement east to west 70 cubits, north to south 15 cubits, having specific boundaries. G.P. No. 118/A is described by letters ABCD and G.P. No. 119 is described by the letters BCEF in the hand sketch produced along with the plaint. That formally these two properties were together having a single G.P. No. 110/B. It was owned and possessed by one Basappa Shivalingappa Subedhar, father of plaintiffs. Thus, G.P. No. 110/B consists of a house towards southern side and open yard towards northern side measuring in all east to west 17 cubic and north to south 35 cubits with specific boundaries. That, Basappa Shivalingappa Subedhar, father of plaintiffs died prior to coming into force of Hindu Succession Act, 1956 (hereinafter referred to as ''the Act'', for brevity) and after his death, name of his widow Smt. Bhimawa, mother of plaintiffs, was entered in the property register. That the plaintiffs have also succeeded to suit properties along with their mother as legal heirs and G.P. No. 110/B was in joint possession of plaintiffs and their mother, till the death of their mother Bhimavva. Thereafter, they have been in ownership and possession of G.P. No. 110/B. That their mother Bhimawa had at no point of time relinquished her right, title and interest in the said property in favour of defendant No. 1. But, without the knowledge of plaintiffs, defendant No. 1 had entered his name in respect of said property in collusion with panchayat authorities. This fact was unknown to plaintiffs.

In fact, on the death of their mother, plaintiffs have been the absolute owners in possession of the property as the legal heirs of Basappa Shivalingappa Subedhar and Bhimawa. Plaintiffs have renovated their house by spending huge sums of money and open yard is used for storing fodder, firewood and other agricultural implements and plaintiffs are enjoying the suit property and defendant No. 1 has never exercised his ownership rights over G.P. No. 110/B, even though his name is entered in the property cards of Gram Panchyat. According to plaintiffs, in the year 1969-70, under the influence of defendant No. 1 Panchayat authorities interpolated with suit property G.P. No. 110/B which was changed into two numbers, namely, G.P. No. 118 pertaining to the house and G.P. No. 121 pertaining to open yard. Also G.P. No. 118 was transferred in the name of defendants No. 2 and 3 and further G.P. No. 121 was again renumbered as G.P. No. 119 and the northern portion of site was numbered as G.P. No. 110/B i.e., house and southern portion of open space was given G.P. No. 118/A. All this was without the knowledge of plaintiffs. But the plaintiffs are in possession of suit properties having a valid and legal title to the same and that any relinquishment of the rights of plaintiffs'' mother in respect of G.P. No. 110/B is not binding on the plaintiffs, as neither their deceased mother nor the plaintiffs are signatories to any such document.

According to plaintiffs, in the second week of February 2003, taking advantage of the fact that their names were entered in the suit properties, defendants tried to deny plaintiffs'' title and try to dispossess them. Plaintiffs rushed to panchayat office and found out that the names of defendants were appearing in respect of suit properties and that the numbers of suit properties had also been changed. Therefore, they filed a suit seeking the relief of declaration and permanent injunction.

In response to suit summons and Court notices, defendants appeared and filed their written statement denying the measurement and boundaries of suit properties as shown in the sketch produced along with the plaint. It was admitted that G.P. No. 110/B was standing in the name of deceased Shivalingappa, but the other allegation that Basappa Subedhar died prior to the enforcement of the Act and that after his death, Bhimawa and plaintiffs were in possession of property and they were paying taxes, were not admitted. It was contended that there was a proper transfer of right from Bhimawa to defendant No. 1. It was further denied that plaintiffs were in possession of suit property or that they were using it and had constructed a house therein and were using the open site or yard for storing fodder, firewood and agricultural implements. While denying all other allegations it was contended that the sale deed between defendant No. 1 and Mallappa Subedhar was binding on plaintiffs and it was false to contend that purchasers had not acquired any title or interest in G.P. No. 110/B.

It was further averred in the written statement that the original propositus had three sons by name Shivalingappa, Ningappa and Veerabhadrappa and Parvatewa was wife of Shivalingappa, who had two daughters, by name Saterawwa and Basamma. It was further averred that the eldest son of Gurusiddappa, who is Shivalingappa had a mistress by name Siddawwa Hugar, who was the wife of Shivamurteppa Hugar and through her the deceased Shivalingappa, had three daughters by name Irawwa, Rudrawwa and Gangawwa, who are married and a son, Basappa. That Basappa and his wife, Bhimawa had four children, namely, Shivalingappa, Madiwalappa, Somappa and Babu. The latter three are plaintiffs in the suit. That the other son of Shivalingappa was given in adoption.

It is further averred in the written statement that the brother of Gurusiddappa, who had no issues had adopted Veerabhadrappa S/o. Gurusiddappa, under a registered deed and suit properties belong to the adopted family. That Basappa got his name entered in the records pertaining to suit properties without the knowledge of the father of defendants No. 2 and 3 and that these facts came to the knowledge of Bhimawa, mother of plaintiffs and thereafter she entered the name of defendant No. 1 and resolution was passed on 25.05.1961. That G.P. No. 110/B was standing in the name of defendant No. 1 till 1973 and thereafter defendant No. 1 got entered the names of defendants No. 2 and 3 to G.P. No. 118, which was earlier G.P. No. 110 in the year 1963.

It is their further contention that father of defendants No. 2 and 3 constructed a house in the open area bearing G.P. No. 119 under Ashraya Yojana and suit house is numbered as G.P. No. 118/B and the property tax is being paid since the year 1961 till date. That G.P. No. 110/B is in actual possession and enjoyment of defendants. Plaintiffs are residing in front of the house. They have all knowledge of this mutual arrangement. Plaintiffs with their brother by name Shivalingappa Subedhar got G.P. No. 222 divided amongst themselves. That the allegations that plaintiffs are owners of suit properties and that there was no transfer of rights by way of arrangement is false. Hence, that the suit is not maintainable, as it is time barred. Accordingly, defendants sought dismissal of the suit.

On the basis of aforesaid rival pleadings, trial Court framed the following issues for its consideration:

"1. Whether the plaintiffs prove that they are the absolute owners of the suit property?

Whether the plaintiffs further prove that they are in exclusive legal possession of the suit property?

Whether the plaintiffs further prove the alleged obstruction made by defendants?

Whether the defendants prove that the court fee paid is not proper?

Whether the plaintiffs are entitled for the relief as prayed for?

Additional Issue:

Whether the suit is barred by time?

What order?"

In support of their case, plaintiff examined two witnesses and produced 19 documents, which were marked as Exs.P-1 to P-19. Defendants examined four witnesses and produced 38 documents, which were marked as Ex. P-1 to 38. On the basis of said evidence, trial Court answered Issue No. 1 in the affirmative, issue No. 5 partly in affirmative and issues No. 2 to 4 and additional issue in the negative and partly decreed the suit declaring that plaintiffs are absolute and full owners of suit schedule properties, while declining the consequential relief of permanent injunction the suit was dismissed with regard to that relief.

Being aggrieved by the judgment and decree of trial Court dated 15.06.2005, defendants preferred R.A. No. 48/2005 before First Appellate Court, which on hearing the parties framed following points for its consideration:

"1. Whether the appellant proves that the suit is barred by time and the findings of the learned trial Judge on additional issue are not proper and correct?

Whether the appellant proves that the findings of the learned trial Judge on issue No. 1 are not proper and correct?

Whether the interference of this court in the impugned judgment and decree dated 15.06.2005 is necessary?

What order?"

It answered points No. 1 to 3 in negative and dismissed the appeal by confirming judgment and decree of trial Court. Being aggrieved by the judgment of First Appellate Court, defendants have preferred this second appeal.

I have heard learned counsel for appellants and learned counsel for respondents No. 1 to 3 and perused the material on record.

It is contended on behalf of appellants that the courts below were not right in granting the relief of declaration of title in favour of plaintiffs, without the plaintiffs letting in any evidence to that effect. He contended that it is the case of plaintiffs that suit schedule properties was in the name of Basappa S/o. Shivalingappa and Siddawwa. But, on what basis, Basappa''s name was entered in panchayat records, was not stated. He contended that, in fact, Bhimawa widow of Basappa, in the year 1961, on coming to know that the said property belonged to defendants, in fact, had relinquished all right, title and interest in the said property in favour of defendant No. 1 by giving a wardi before panchayat authorities in the year 1961 and since then defendant No. 1 and subsequently defendants No. 2 and 3 have title and are in possession of suit properties. He further contended that any party seeking the relief of declaration must establish right, title and interest in respect of immovable property. In the instant case, there being no iota of evidence, by way of documentary evidence, the Courts below were not right in granting the relief of declaration of title to the plaintiffs. He, therefore, contended that substantial questions of law would arise in this appeal, which would call for admission of the matter on merits for a detailed hearing.

Per contra, learned counsel for respondents No. 1 to 3 supporting the judgment and decree of the Courts below contended that while the appellants defendants submit that plaintiffs have not produced any documentary evidence with regard to their right, title and interest in the suit properties, neither have they produced any iota of evidence in the form of documentary evidence to show their right, title and interest in the suit properties. He contended that both the Courts below were satisfied that Basappa S/o. Shivalingappa and Siddawa had succeeded to suit properties. On the demise of Basappa prior to 1956, his widow Bhimawa''s name was entered vis-�-vis the suit items. Their children are Shivalingappa, Madiwalappa, Somappa and Babu. Shivalingappa was given in adoption to Gangawa. But Madiwalappa, Somappa and Babu along with Bhimawa continued to be the owners in possession of suit items. The contention that Bhimawa had given a wardi in favour of defendant No. 1-Madiwalappa by relinquishing her right, title and interest in the suit property is not correct, as there is no document to that effect and further both courts have held that the said contention is not true. In the circumstances, he contended that no substantial question of law would arise in this appeal and the appeal may be dismissed in limine.

Having heard learned counsel for the parties and on perusal of the material on record, what becomes apparent is the fact that Shivalingappa was in a relationship with Siddawa. Their children are Basappa, Irawwa, Rudrawa and Gangawa. On the death of Shivalingappa and Siddawa, Basappa succeeded to the suit properties, which admittedly belonged to Shivalingappa. On the death of Basappa, Bhimawa and plaintiffs succeeded to said properties. The fact that Basappa''s name was entered in the panchayat records on the death of Shivalingappa coupled with the fact that there was no objection to the entry of Basappa''s name in the said records would clearly indicate that on the demise of Shivalingappa and Siddawa, Basappa became owner in possession of suit properties. The name of Basappa was entered in panchayat records even prior to his death, which occurred in the year 1956. But, it was only thereafter i.e., in the year 1961 that the name of Madiwalappa - defendant No. 1 occurs in panchayat records vis-�-vis the suit properties. Defendants have not been able to establish as to how the name of defendant No. 1 was entered in the revenue records as he does not belong to the family of Basappa.

In this regard the contention of respondent plaintiffs that defendant No. 1 got his name entered in the revenue records with the collusion of panchayat authorities has been believed by the Courts below. Subsequently the names of defendants No. 2 and 3 have been entered in respect of suit properties. Plaintiffs, who had succeeded along with their mother Bhimawa to suit items on the death of Basawa believed that Bhimawa''s name was entered in the panchayat records and it is only later on when they came to know that it was not Bhimawa''s name, which was not continued in the revenue records, but the name of defendants No. 2 and 3 that they filed the suit seeking the relief of declaration that they are the absolute owners and in possession of suit properties. The courts below have appreciated these facts and held that Basappa was the owner in possession of suit items after the demise of Shivalingappa and Siddawwa, his parents. How the suit items could be registered in the name of defendant No. 1 has not been proved by defendants by any documentary evidence with regard to the transfer of title. In the circumstances, both the courts below granted the relief of declaration of title and the fact that they are in possession of suit properties in favour of plaintiffs. I do not find any infirmity in the judgments and decree of the Courts below. No substantial question of law would arise in the appeal. Appeal is, therefore, dismissed.

Parties to bear their respective costs.

In view of dismissal of appeal, I.A. No. 1/2016 for interim order also stands dismissed.