Mahadevappa vs Parwatibai

N. Ananda, J.—The unsuccessful defendant No. 9 in O.S. No. 14/2003 has filed this regular second appeal against concurrent findings recorded by the trial court and the I-Appellate Court raising the following substantial questions of law:

(i) When the relief of recovery of possession and other consequential reliefs are refused, whether the Courts below have jurisdiction to grant a mere declaration of ownership alone?

(ii) In the absence of document of title being produced in evidence, whether the Courts below are justified in granting declaration of ownership in favour of the plaintiff/respondent No. 1 herein?

I have heard Sri Ameet Kumar Deshpande, learned counsel for the appellant and Sri Ashok S. Kinagi, learned counsel for the respondents.

For the sake of convenience and for better understanding relationship between the parties, the genealogical tree of the parties is extracted as follows:

Genealogy

The plaintiff filed suit for declaration of title and possession in respect of suit schedule properties. The first item of the suit property is land bearing Sy. No. 287/1 in an extent of 5 acres 5 guntas situate in Talikoti village and the second item of the suit property is a house property bearing CTS No. 2322/A measuring 37.63 sq. meters situate in Kamanahatti Oni, Talikoti village. The relationship between the parties as extracted supra is not in dispute. It is also not in dispute that these properties were held and left by Bhimappa, propositus. The plaintiff is the wife of Mallayya elder son of the deceased Bhimappa. Defendant Nos. 1 to 9 represent the branch of Shankreppa, the second son of deceased Bhimappa. Chandappa and his descendants are not made parties as they have not disputed the rights of the plaintiff in the suit schedule properties. The last son of Bhimappa namely Amarappa died issueless.

The plaintiff had filed the suit for declaration of title "and possession in respect of the aforestated suit schedule properties inter-alia contending that during the lifetime of her husband there was partition of suit schedule properties amongst the sons of Bhimappa namely the husband of plaintiff, the second son of Bhimappa namely deceased Shankreppa and the third son of Bhimappa namely Chandappa. Out of 15 acres 5 guntas of land suit in item No. 1, 5 acres 5 guntas had fallen to the share of deceased Mallayya and 5 acres 5 guntas had fallen to the share of deceased Shankreppa and 5 acres of land had fallen to the share of Chandappa and the house property was not divided.

The defendants contested the suit inter-alia contending; the husband of the plaintiff namely Mallayya had executed relinquishment deed in favour of deceased Shankreppa. In the alternative it was contended that there was no division of the joint family properties during the lifetime of Mallayya, Shankreppa and Chandappa as contended by the plaintiffs and the suit for declaration of title is not maintainable. The plaintiff was not the title holder of the suit schedule properties. The suit for partition in respect of the house property was not maintainable.

The learned trial Judge on consideration of the alleged relinquishment deed has held that the document being unregistered cannot be construed as a deed of relinquishment and the rights of the husband of plaintiff namely Mallayya were not extinguished. The learned trial Judge on appreciation of oral and documentary evidence has held that Shanta Bai wife of Chandappa (third son of Bhimappa) and her son and daughter had sold 5 acres 5 guntas of land in Sy. No. 287/2 under a registered sale deed dated 09.08.1996. The entries in revenue records in relation to 5 acres of land in Sy. No. 287/2 were made in the name of the plaintiff after the death of her husband. The defendant No. 9 had also sold 2 acres of land in Sy. No. 287/1 under registered sale deed dated 11.12.2006. The learned trial Judge has recorded a finding that the parties have independently dealt with the properties which had fallen to their share i.e. land in Sy. No. 287/2. In the circumstances, the learned trial Judge accepted the case of plaintiff that there was partition of the suit schedule properties amongst the sons of Bhimappa namely Mallayya (husband of plaintiff) Shankrappa (husband of defendants 1 and 2 and father of defendants 3 to 9) and Chandappa. Since then, the parties were separately enjoying 5 acres of land each in Sy. No. 287/2.

Incidentally it is necessary to state that the suit was dismissed for default on 06.07.2004 and later on it was restored to file. In the interregnum defendant No. 9 had dispossessed the plaintiff. The plaintiff had sought for declaration of title and possession of the suit item No. 1. The learned Judge of the trial court for the reasons not apparent on record has granted the relief of declaration of title in favour of the plaintiff. The learned trial Judge has not considered the relief of possession. In other words, the relief of possession was neither granted nor rejected. The learned trial Judge has not considered the rights of plaintiffs in house property bearing CTS No. 2322. The learned Judge of the I-Appellate Court has not noticed these discrepancies.

The learned counsel for plaintiff would submit that the trial court having not granted decree for recovery of possession and consequential reliefs ought not to have granted decree for mere declaration of title. As already stated, the plaintiff had sought for declaration of title and possession of suit item No. 1 measuring 5 acres in Sy. No. 287/2. The trial court and the I-Appellate Court have recorded concurrent findings that/plaintiff has proved her title to suit item No. 1 which had fallen to the share of her husband. After death of her husband suit item No. 1 had devolved up on plaintiff by succession. The trial Court for the reasons not apparent on record has neither granted the relief of possession nor rejected the relief of possession. The learned judge of the I-Appellate Court has also not considered these aspects. It is a classic example of the abdication of duties of Judges of the trial court and the I-Appellate Court. In the circumstances, no fault can be found with plaintiff. Therefore, the submission of learned counsel for defendants that the trial court should not have granted decree for mere declaration of title cannot be accepted.

The learned counsel for defendant No. 9 would submit, that the trial court has taken into consideration the Photostat copy of unregistered partition deed to hold that plaintiff has proved the partition of suit item No. 1 during the lifetime of her husband and the brothers of her husband. In the discussion made supra, I have not referred to this document. Therefore, it is not necessary for this Court to record a finding on admissibility or otherwise of this document. In other words, the findings recorded by the trial court and the I-Appellate court are sustained dehorse the xerox copy of the unregistered partition deed relied upon by plaintiff.

In view of the above discussion, the aforestated substantial questions of law are answered as follows:

Question No. (i)-Affirmative

Question No. (ii)-Affirmative

The plaintiff has been denied the relief of possession in relation to suit item No. 1 and the right of plaintiff in suit item No. 2 has not been decided by the trial court and also by the I-Appellate Court. The plaintiff had sought for these reliefs in unequivocal terms. The plaintiff has not filed cross appeal or cross objections in relation to the relief which are neither granted nor denied to her. In the circumstances, whether this court could mould the relief and grant the same to the plaintiff. In this context it would be relevant to refer to the decision of the Supreme Court reported in Chaya and Others Vs. Bapusaheb and Others, . The Supreme Court dealing with provisions of Order 41 Rule 33 CPC has held:

"14 This provision is based on a salutary principle that the appellate court should have the power to do complete justice between the parties. The object of the rule is also to avoid contradictory and inconsistent decisions on the same questions in the same suits. For this purpose, the rule confers a wide discretionary power on the appellate court to pass such decree or order as sought to have been passed or as the nature of the case may require, notwithstanding the fact that the appeal is only with regard to a part of the decree or that the party in whose favour the power is proposed to be exercised has not filed any appeal or cross-objection. While it is true that since the power is derogative of the general principle that a party cannot avoid the effect of a decree against him without filing an appeal or cross-objection and., therefore, the power has to be exercised with care and caution, it is also true that in an appropriate case the appellate court should not hesitate to exercise the discretion conferred by the said rule."

In the case on hand, plaintiff had sought for reliefs and plaintiff has adduced evidence to prove her case and also her entitlement to the, reliefs prayed for in the suit. For the reasons not apparent on record the trial court and the I-Appellate Court have not considered the relief of possession and also the relief prayed by the plaintiff for 1/2 share in the suit item No. 2. There was no need for plaintiff to file cross objections/cross appeal because the trial court and the I-Appellate Court have not recorded adverse findings against her. The law is fairly well settled that a party should not suffer for the mistake committed by the court and it is the duty of the court to do complete justice between the parties and also to grant the relief to put an end to the litigation and also to avoid multiplicity of proceedings. Therefore, I pass the following:

ORDER

The regular second appeal is dismissed. However, the decree passed by the trial court and confirmed by the I-Appellate Court is modified as follows:

The plaintiff is declared as the owner of suit item No. 1 measuring 5 acres 5 guntas in Sy. No. 287/1 of Talikoti village. The defendants are directed to deliver the possession of suit item No. 1 to plaintiff. The trial court shall pass preliminary decree for partition and separate possession of 1/3rd share of the property in suit item No. 2. The plaintiff is at liberty to seek amendment for complete description of suit schedule properties if necessary.