Mahadevamma and Others vs Thayamma and Others

Ravi V. Malimath, J.—The case of the plaintiffs is that one Kalisiddaiah was the grand father of the plaintiff and great-grandfather of the defendants. The suit schedule properties were Chakra Inam lands reserved for enjoyment by the inferior village workers called Chakras and for the services that the Chakras was performing. Such Chakras were allowed to enjoy and cultivate the said lands. During the year 1932, in terms of the order of the Sub Divisional Officer, Nanjanagud, Kalisiddaiah, the grand father of the plaintiff and great-grand-father of the defendants was appointed as Chakra temporarily as per the order dated 23.04.1932. Since then, the said Kalisiddaiah was rendering service of Chakra. After his death, his sons Basavaiah, Marinanjaiah, Dodda Nanjaiah, Rachaiah and Siddaiah continued to render the service as Chakra and continued in possession, enjoyment and cultivation of the lands. Marinanjaiah had no male issues. His daughters were married and joined their husbands. Doddananjaiah and another son of Kalisiddaiah died issueless. After the death of Basavaiah, Rachaiah and Siddaiah continued as Chakra with their sons. Basavaiah, the father of the first plaintiff died about 20 years back. Rachaiah, the father of plaintiff Nos. 2 and 3 expired about 25 years back. Siddaiah, the father of the defendants was the eldest member in the family. After the demise of Basavaiah and Rachaiah, Siddaiah was the head of the family. In the mean time, the Karnataka Village Offices Abolition Act came into force. Siddaiah, the father of defendants appears to have filed applications for re-grant and the suit schedule properties was re-granted. The khatha of the lands was restored in the name of Kaali Siddaiah. It is claimed that the three surviving sons to Kaali Siddaiah are entitled to 1/3rd share each. Therefore, the first plaintiff is entitled to 1/3rd share and plaintiff Nos. 2 and 3 are entitled to 1/3rd share. Defendants are entitled to get 1/3rd share being the legal heirs of Kaali Siddaiah. Under these circumstances, Siddaiah, the father of the defendant falsely representing as Kaali Siddaiah in collusion with the Revenue Authorities, got the katha mutated in the name of his sons. Plaintiffs were unaware of the said facts. Plaintiffs came to know the said change during the year 2004. Thereafter, a legal notice was issued to the defendants claiming the share. The same was denied by the defendants. Hence, they filed the instant suit seeking for a decree of partition of 2/3rd share in respect of the suit schedule property.

On service of notice, the defendants entered appearance and denied the claim of the plaintiffs so also the genealogy claimed by the plaintiffs. It was contended that the suit property was the exclusive property of the defendants. That the plaintiffs are in no way related with the genealogy of the defendants. Further, the defendants challenged the alleged Chakra Inam dated 23.04.1932. It is further contended that the plaintiffs only to gain unlawful and illegal profits are agitating such facts. It is further contended that on the death of Kaali Siddaiah, his surviving sons continued to be as Chakra. The death of Marisiddaiah and Doddananjaiah was also denied. Further, the father of the defendants seeking for re-grant to the exclusion of the plaintiffs was denied. It was further contended that the father of defendants one Kaali Siddaiah @ Siddaiah was the son of Kaali Siddaiah and Kalamma who were the residents of Haradanahalli village. The said Kaali Siddaiah @ Siddaiah S/o. Kaali Siddaiah and Kalamma was the only son. He had married Madamma and had children by name Basavaiah, Siddaiah and Nanjundaiah. He later on married Nagamma viz., the second wife and had children by name Shivaiah, Nataraju, Mahadevaiah, Maakaiah and Nataraju. Plaintiffs are in no way related to the genealogy of the defendants. On the death of the father of the defendants, defendants together came to Somawarpet and they were living together. The father of the defendants Kaali Siddaiah was Kulavadi. On the acquisition of land, compensation was awarded by the Assistant Commissioner, Nanjanagud. However, the said land was re-granted to the defendants'' father in the year 1961 subject to certain conditions. Therefore, such granted land is the absolute property of the defendants. The plaintiffs have no right, title or interest over the properties. The plaintiffs have created a false genealogy. That the suit is barred by limitation. Hence, the defendants prayed for dismissal of the suit.

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

"1. Do the plaintiffs prove that they are legal heirs of one Kaali Siddaiah as per genealogy produced by them?

Do the plaintiffs prove that, the suit properties are joint ancestral properties of plaintiffs and defendants?

Do the plaintiffs prove that, there was a cause of action for the plaintiffs to file present suit against the defendant?

Do the plaintiff''s prove that they are entitled for their 2/3rd share in the suit schedule properties?

What Order or Decree?"

In order to prove their case, the Plaintiff No. 1 was examined as PW-1. Since he died during trial, his L.Rs. were brought on record. One Basavaraju examined himself as PW-2 and two more witnesses were examined as PWs.3 and 4 and got marked 6 documents. Defendant No. 4 examined himself as DW-1 and got marked 10 documents.

The trial Court held all the issues in the negative and dismissed the suit of the plaintiffs. Aggrieved by the same, the plaintiffs filed an appeal before the first Appellate Court, which was dismissed by confirming the order of the trial Court. Hence the present second appeal.

The learned Counsel for the appellants/plaintiffs contends that the impugned orders passed by the Courts below are erroneous and liable to be set aside. Various applications were made by the plaintiffs under Order 41 seeking production of additional documents and evidence. The same having been rejected has also resulted in miscarriage of justice. That by allowing the said applications, the Appellate Court should have remanded the matter for a fresh consideration. Hence, it is pleaded that the reasoning assigned by the first Appellate Court in rejecting the applications and by not considering the same and not remanding the same to the trial Court for the purpose of recording evidence is erroneous. Hence, he pleads that the appeal be allowed.

Heard learned Counsel for the appellants.

The trial Court was of the view that in the absence of a genealogy being produced by the plaintiffs, the relationship between the plaintiffs and the defendants cannot be established. The genealogy as produced by the defendants is not relatable to the plaintiffs. Therefore, when the plaintiffs have failed to establish the relationship and also failed to produce the genealogy tree, no decree for partition could be granted. The first Appellate Court also affirmed the said finding. However, before the first Appellate Court, the plaintiffs have filed various applications. I.A. No. V was filed under Order 41 Rule 27 of CPC for amendment of the plaint by adding para 2(a) regarding family genealogy of one Kalasiddaiah on the ground that by mistake the genealogical tree of deceased Kalasiddaiah was not mentioned. On considering the same, the first Appellate Court was of the view that I.As. I, III and IV are all pertaining to producing additional documents i.e., the genealogical tree of their family. That the advocate for the plaintiffs has filed a memo dated 07.08.2014 and requested only to consider the genealogy dated 28.03.2014 produced along with I.A. IV. Therefore, in terms of the said memo, IAs. I and III was rejected. In view of the plaintiffs'' memo dated 07.08.2014, I.A. No. IV was allowed in order to meet the ends of justice. So far as I.A. No. V is concerned, it is for the amendment of the plaint regarding the family genealogy. The first Appellate Court was of the view that since the plaintiffs were permitted to file a genealogical tree as prayed in I.A. No. IV, the plaintiffs'' application to amend the plaint was rejected. I.A. No. VI was filed seeking permission to produce the partition deed dated 16.11.1916. The first Appellate Court, on considering the same, held that there is no averment in the plaint with regard to the partition deed. In the absence of any averment in the plaint, the question of producing partition deed would not arise. I.A. No. VII was filed seeking permission to produce additional evidence along with list of documents mentioned therein. There was no objection to the same. Hence, the same was allowed. I.A. No. VIII was filed seeking permission to produce election ID cards, 3 Adhar Cards, 3 Ration Cards on the main ground that they are not residents of Somavarpet. On considering the same, the Appellate Court was of the view that the said documents pertains to the year 1994 onwards and not earlier and they do not pertain to Haradanahalli. Therefore, neither is it necessary nor does it affect the merits of the case. Hence, the said application was dismissed. I.A. No. IX was filed by the defendants along with the original registered mortgage deed dated 01.06.1970 executed by the deceased Siddaiah and his son Basavaiah in favour of Channappa with respect to suit schedule property. They intended to produce the said document in order to show that the properties belonged to their father. The first Appellate Court was of the view that the plaintiffs has to prove their case and there is no burden on the defendants and hence, it rejected the application.

The reasoning assigned by the first Appellate Court are just and appropriate. On considering the same, I ''am of the considered view that there is no error committed by the first Appellate Court in considering the said IAs. The application seeking permission to produce the genealogical tree was rightly considered in terms of the memo filed by the learned Counsel for the plaintiffs. When a number of genealogical trees are sought to be filed and the same was restricted by themselves, allowing the application in terms of their memo is just and proper. In the absence of any pleading with regard to the partition deed, seeking production of the same, also does not arise for consideration so also the production of the mortgage deed which has already been produced by the plaintiffs. Hence, the question of allowing the applications and thereafter, remanding the matter would not arise for consideration. Each one of the applications has been considered on merits. There is no injustice in any manner whatsoever. The impugned orders passed by the Courts below are just and proper and does not call for any interference.

Based on the plaint averments and the material on record produced by them, the plaintiffs have failed to establish the relationship with the defendants. The defendants on the other hand by placing reliance on Ex. D5 with reference to the genealogical tree as well as the grant certificate in terms of Ex. D2 have substantially shown that there was no relationship between the plaintiffs and defendants and that the suit schedule property has been rightly granted to the defendants. There is no worthwhile effort made by the plaintiffs in order to prove the relationship or the genealogical tree. Further there is no material to establish the grant of the property in favour of the plaintiffs.

Under these circumstances, the issues as framed by the trial Court were rightly held against the plaintiffs. On considering the same, I ''am of the considered view that the impugned orders passed by the Courts below are just and proper and does not call for any interference. Further more, the entire case of the appellants revolves around facts. No substantial question of law arises for consideration in this appeal. Consequently, the appeal being devoid of merit is dismissed.

Since the appeal is dismissed, I.A. 1/2014 for temporary injunction does not survive for consideration. Hence, it stands rejected.