Mallawwa and Others vs Ramappa and Others

B.V. Nagarathna, J.—1. Plaintiffs in O.S. No. 304/2007 have preferred this appeal, assailing judgment and decree dated 16.03.2012 passed in R.A. No. 110/2011 by the Fast Track Court and Ad-hoc District Judge, Hukken, sitting at Gokak, by which, judgment and decree passed by the Court of Principal Senior Civil Judge, Gokak, at Gokak, in O.S. No. 304/2007 dated 01.03.2011 has been confirmed.

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

Appellant - plaintiffs filed the suit seeking a declaration that plaintiffs and defendants No. 4 to 7 are the owners of suit property and also for consequential relief of permanent injunction restraining defendants No. 1 to 3 from interfering with their peaceful possession of suit property. Suit property is agricultural land bearing Sy. No. 139, measuring 12 acres 31 guntas, situated in Khanagaon village. In the same survey number an extent of 1 acre 6 guntas on the western side has been sold. Plaintiffs No. 1 to 4 are wife and children of Pakkappa, who is the brother of Yallappa. Both Pakkappa and Yallappa are dead. They are the children of Shivappa and Santawa. Shivappa and Fakirappa were brothers. Suit property is ancestral joint family property of plaintiffs and defendants No. 4 to 7. In the year 1944 Shivappa had sold 1 acre 6 guntas in Sy. No. 139 to Shivalmgawa for Rs. 200/- under a registered sale deed. The remaining extent of 12 acres 31 guntas continued to be in possession of Pakkappa, plaintiffs and defendants No. 4 to 7. After the death of Pakkappa and Yallappa, plaintiffs and defendants No. 4 to 7 are the owners and only legal heirs and they are in joint possession and enjoyment of the same. Taking undue advantage of their innocence, defendants No. 1 to 3 created bogus and illegal documents in collusion with revenue officials and got their names entered in the record of rights. When this came to their knowledge, they found that names of defendants No. 1 to 3 were entered in the revenue records and they were trying to dispossess plaintiffs from their possession. Plaintiffs requested defendants not to do such illegal acts, but they did not heed to their requests. Defendants No. 1 to 3 have clouded the title of plaintiffs to suit land. Hence, they have sought the relief of declaration and injunction.

During the pendency of suit, plaintiff No. 4 Sattewa died. Defendants No. 4 to 7 remained ex parte.

Defendant No. 1 filed written statement, which was adopted by defendants No. 2 and 3. Defendant No. 1, while denying the averments in the plaint, stated that the description of suit property is incorrect. It was denied that suit property belonged to plaintiffs and defendants No. 4 to 7. All averments regarding ownership of suit property regarding the plaintiffs and their joint possession were denied and disputed. It was contended that there was no cause of action for the suit and that the suit had been filed 64 years after the transaction had taken place. It was hopelessly barred in law. It was averred that Shivappa had sold 1 acre 6 guntas in Sy. No. 139 to Siddalingawa, who is none other than the mother of defendant No. 1. It was averred that 6 acres 39 guntas was sold by Shivappa by sale deed dated 10.03.1941 to Siddalingawa for Rs. 500/- under registered sale deed and possession was handed over to vendee. It was also averred that Fakirappa, brother of Shivappa had sold 3 acres 19 guntas in Sy. No. 139 to Siddalingawa for Rs. 200/- under a registered sale deed dated 15.10.1941. On the basis of said sale deeds, Siddalingawa became the absolute owner of suit property and she was in possession of the same. Siddalingawwa and defendants No. 1 and 2 invested huge amounts to develop the property. They have sunk a well, irrigated the lands and also constructed a farm house and are growing crops by paying land revenue. Defendants No. 1 and 2 have even taken loans from Co-operative Societies and Financial Institutions for the betterment of suit land. Sy. No. 139 was purchased by Shivappa by registered sale deed.

It is further contended that Sy. No. 139 was purchased by Shivappa under a registered sale deed from Satteppa and his name was appearing as the absolute owner of said property as on the date of execution of sale deed. At that time plaintiffs No. 2 to 4 and defendants No. 4 to 7 were not born. Siddalingawa executed a gift deed in respect of suit property in favour of defendant No. 1 and father of defendant No. 2 on 24.09.1948. On the basis of gift deed, their names were entered in the record of rights and they became absolute owners in possession and enjoyment of property. There was a partition between defendants No. 1 and 2 and Rudrappa in respect of their family properties in the year 1986. Sy. No. 139 i.e., the suit property was allotted to the share of defendants No. 1 and 2. Defendant No. 2 sold his half share under a registered sale deed in favour of defendant No. 3 for a valuable consideration and defendant No. 3 was put in possession and enjoyment of property.

It was also averred that 20 guntas was acquired for the construction of Markandaya water project and notice was issued by the Tahsildar on 06.11.1989 and plaintiffs did not raise any objection to the said acquisition. That suit is filed 66 years after the sale deeds have been executed in favour of Siddalmgawa. The same is hopelessly barred by time and, therefore, they sought for dismissal of suit on the ground of delay and laches. Also plaintiffs have not sought for cancellation of sale deeds or gift deed. Hence, suit was not maintainable. It was averred that defendants No. 1 and 3 are the exclusive owners of suit lands and plaintiffs had full knowledge of these facts. Thus, they have no right, title or interest therein. Therefore, suit was frivolous, vexatious and they sought for dismissal of suit with compensatory cost of Rs. 5,000/-. On the basis of the aforesaid pleadings, the trial Court raised the following issues:

"1. Whether the plaintiffs prove that, themselves and defendants 4 to 7 are the joint owners of suit property and they are in joint possession and enjoyment?

Whether defendants 1 to 3 prove that, they are the absolute owners of the entire Sy No. 139 measuring 13 acres 37 guntas?

Whether suit of the plaintiffs is hopelessly barred by limitation?

Whether the suit is not properly valued and C.F. paid is insufficient?

Whether the plaintiffs are entitled for relief of declaration and injunction?

What order or decree?"

In support of their case, plaintiffs examined three witnesses as P.W.1 to P.W.3. They produced two documents, which were marked as Ex. P-1 to P-2. Defendants examined three witnesses. They produced 50 documents, which were marked as Exs.D-1 to D-50. On the basis of said evidence, trial Court answered issues No. 1 and 5 in negative, issues No. 2 and 3 in affirmative and it answered issue No. 4 as a preliminary issue in negative on 01.09.2009 and dismissed the suit with costs by judgment and decree dated 01.03.2011.

Being aggrieved by the judgment and decree of trial Court, plaintiffs preferred R.A. No. 110/2011 before First Appellate Court, which, on hearing learned counsel for respective parties framed the following points for its consideration:

"1. Whether the appellants have made out just and reasonable grounds to allow I.A. No. I and II filed under Order XLI Rule 27(aa) and (b) r/w. Section 151 of C.P.C. and to permit them to adduce additional evidence by permitting them to produce the additional documents?

Whether the appellants prove that the judgment and decree passed by learned Principal Senior Civil Judge, Gokak, in OS. No. 304/2007 dated 01.03.2011 is suffering from any irregularities and illegalities and calls for interference by this Court in this appeal?

Whether the appellants prove that they are the owners in possession of the suit property?

Whether the respondents No. 1 to 3 prove that they are the absolute owners of the entire Survey No. 139 measuring 13 acres 37 guntas?

What order?"

It answered points No. 1 to 3 in negative and point No. 4 in affirmative and dismissed the appeal by confirming the judgment and decree of trial Court. Being aggrieved by the judgment and decree of First Appellate Court dated 16.03.2012 plaintiffs have preferred this second appeal.

I have heard learned counsel for appellants, Sri Dinesh M. Kulkarni along with Pavan B. Doddatti and Smt. P.G. Naik, learned counsel for respondents No. 1(c), 1(f), 2 and 3. The other respondents are served and unrepresented. I have perused the material on record and also the original records.

It is contended on behalf of appellants that suit schedule property bearing Sy. No. 139 totally measures 13 acres 37 guntas. Admittedly, 1 acre 6 guntas was sold by Shivappa to Siddalingawa. The remaining extent of land was mortgaged at various points of time to Siddalingawa and defendants No. 1 to 3. There has been no redemption of mortgage. But defendants are dealing with the suit property as if they are the owners of said property. They have interfered with plaintiffs'' possession. Therefore, plaintiffs were constrained to file the suit seeking declaration that plaintiffs and defendants No. 4 to 7 are the owners of suit property and for consequential relief of permanent injunction restraining defendants No. 1 to 3 from interfering with peaceful possession of suit property. Both the Courts have appreciated the fact that Sy. No. 139 totally measures 13 acres 37 guntas. The Courts below have considered the documents produced by defendants, namely, Exs.D-1, D3 and D-4 to come to the conclusion that defendants No. 1 to 3 are absolute owners and that plaintiffs and defendants No. 4 to 7 have lost their right, title and interest in respect of suit land. He, therefore, contended that substantial questions of law would arise in this appeal as the question as to whether Exs.D-1, 3 and 4 are indeed sale deeds or mortgage deeds have to be considered, and hence, appeal may be admitted for a detailed hearing.

Per contra, learned counsel for respondent supporting the judgment and decree of trial Court contended that Ex. D-1 sale deed is dated 10.03.1941. Exs.D-3 and 4 are also sale deeds, which have been executed by Shivappa in favour of vendor of defendants No. 1 to 3 at different points of time. Ex. D-2 is a mortgage deed, which is succeeded by Ex. D-1 sale deed. Mortgage was initially for a period of five years, but during the said period of mortgage an extent of 1 acre 6 guntas, which was mortgaged was sold by Shivappa to Siddalingawwa. Similarly, brother of Shivappa, Fakirappa sold 3 acres 19 guntas on 15.10.1941 vide Ex. D-4. On 10.03.1941 Shivappa sold 6 acres 39 guntas to Siddalingawwa vide Ex. D-1.

It is further contended that after the resettlement was done, name of Rudrappa Halappa Jayi has been entered. He is not a party to the suit. As far as the lands purchased by defendants No. 1 to 3 are concerned, they are all supported by registered sale deeds. That the plaintiffs have remained silent for over six decades. They have acquiesced to sale of suit lands in favour of vendor of defendants No. 1 to 3. But, all of a sudden, in 2007 they have filed the suit. The suit was not maintainable. The suit ought to have been dismissed in limine. At any rate, trial Court and First Appellate Court permitted the parties to let-in evidence, considered the documentary and oral evidence and have rightly dismissed the suit. There is no substantial question of law which arises in the appeal, as there is no infirmity in the judgment of Courts below. She, therefore, contended that appeal may be dismissed in limine.

Having heard learned counsel for parties, it is noted from the genealogy that Shivappa and Fakirappa were brothers. Santawa was the wife of Shivappa. They had two sons by name Pakkappa and Yallappa. All the aforesaid persons are since deceased, Pakkappa''s widow is Mallawa - plaintiff No. 1, their children are plaintiffs No. 2, 3 and 4. Yallappa''s children are defendants No. 4 to 7, who have not participated in the proceedings.

The case of plaintiffs is that, plaintiffs and defendants No. 4 to 7 are joint owners of land in Sy. No. 139 i.e., to an extent of 12 acres 31 guntas in Sy. No. 139 of Khanagaon village. According to plaintiffs, total extent was 13 acres 37 guntas. Out of that, 1 acre 6 guntas was sold by Shivappa to Siddalingawwa. Initially, there was a mortgage of said property for a period of five years. Subsequently, said property was sold on 17.03.1944. Therefore, the remaining land is 12 acres 31 guntas.

Per contra, it is the case of respondent - defendants that not an inch of suit schedule land remains with plaintiffs, that apart, from what has been sold by Shivappa as per Ex. D-3, there was a sale which took place on 10.03.1941, as per Ex. D-1, by which Shivappa sold 6 acres 39 guntas in favour of Siddalingawa. This is an outright sale. She, in turn, gifted it to defendant No. 1 and father of defendant No. 2, and defendant No. 2, in turn, sold it to defendant No. 3. Therefore, as on 10.03.1941 as per Ex. D-1 plaintiffs and defendants No. 4 to 7 lost right, title and interest in respect of 6 acres 39 guntas in the said survey number. That apart, on 15.10.1941 Fakirappa, brother of Shivappa sold 3 acres 19 guntas in favour of Siddalingawa, as per Ex. D-4. This is also an outright sale. These documents are not mortgage instruments, but absolute sale deeds executed by Shivappa and Fakirappa to Siddalingawa. Thus, totally Siddalingawwa purchased 11 acres 24 guntas from Shivappa to Fakirappa.

It has also come in evidence that an extent of 20 guntas was acquired and plaintiffs did not raise any objection. Thus, from the above narration the total extent is 12 acres 4 guntas. The claim now made is in respect of 12 acres 31 guntas. In that regard trial Court has noted that in the revision settlement records in M.E. No. 7073 dated 06.06.1966, name of Rudrappa Halappa Jayi is entered in respect of Sy. No. 139. This is marked as Ex. D-49. Ex. D-50 is M.E. No. 2565 in respect of Sy. No. 139 to an extent of 2 acres 13 guntas. This is in the name of Shivappa. But, in the subsequent revision settlement as per Ex. D-49, name of Shivappa or his legal representatives is not entered in any portion of Sy. No. 139. Thus, even when the resettlement proceedings took place the entire extent of 13 acres 37 guntas in Sy. No. 139 was shown to be in possession and enjoyment of Jayi family, the predecessor in title of defendants No. 1 to 3 herein. Plaintiffs have never raised any objection to the said revision settlement proceedings. Defendant No. 3 is the subsequent purchaser from defendant No. 2. But, Rudrappa Halappa Jayi whose name was entered in the year 1966 and was also predecessor in title or interest in respect of suit property, has not been made a party to the proceedings. Plaintiffs are not clear as to what their predecessor in title i.e., Shivappa and Fakirappa had actually done. According to plaintiffs they have mortgaged the suit property, but on a perusal of Exs.D-1, 3 and 4, it is established that they are not mortgaged instruments. They are absolute sale deeds which have been executed by Shivappa and Fakirappa in favour of Siddalmgawa, predecessor in title of suit land.

That apart, if at all plaintiffs had any right, title and interest in any portion of suit land, no evidence is forthcoming as to what they did in respect of their rights vis-a-vis the suit land. For over six decades, they have remained silent, not exercised any right, title or interest in respect of suit land and all of a sudden in the year 2007 an attempt has been made to seek a declaratory relief in respect of 12 acres 31 guntas out of 13 acres 37 guntas in Sy. No. 139 without bringing it to the notice of the Court that their ancestors had already sold away the said extent of lands.

In that view of the matter, plaintiffs and defendants No. 4 to 7 have no right, title or interest in respect of suit properties. Trial Court as well as First Appellate Court were right in dismissing plaintiffs'' suit. I do not find any infirmity in the judgment and decree of Courts below. No substantial question of law would arise in the appeal. Appeal is dismissed.

Parties to bear their respective costs.