Manjappa and Others vs K.R. Sheshappa

Ravi V. Malimath, J.—The case of the plaintiff is that one Channppa had four sons, namely, Nanjappa, Siddanna, Kanchiganna and Manjanna. They died 30 years earlier to the filing of the suit. Their wives also died long back. Nanjappa had no issues. Siddanna had two daughters who died long back. Manjanna had one son who died without getting married. Kenchiganna is the grand-father of the plaintiff The suit schedule property was the ancestral property. All the branches of late Channappa were enjoying all the suit schedule property in joint. After the death of Channappa his sons and wife made a family arrangement on 10-4-1943. The suit property came to the share of the deceased Siddanna''s daughters, Thimmakka and Hanumakka. They became the owners of the suit schedule property. On the same day Thimmakka sold her share in respect of the one Ankanna house. From that day Gangamma and Hanumakka became the absolute owners. Thimmakka died long back issueless. After her death her share came to Hanumakka. Hanumakka had a child by name Manjanna who died before marriage. Subsequently, all the suit property was inherited by Kenchiganna and Gangamma They became the absolute owners of the suit schedule property. Kenchiganna had a daughter by name Kuppallamma, who is none other than the mother of the plaintiff Kadappa is the legally wedded husband of Kuppalamma. After their marriage he lived in a house of Kenchiganna. On their death, the daughter Kuppalamma and son-in-law Kadappa succeeded to the estate. The plaintiff is the grand-son of Kenchiganna and Gangamma and he became the absolute owner. The plaintiffs father and mother died 10 years prior to the filing of the suit leaving behind the plaintiff as the only legal heir and successor.

It is further stated that the defendant has no manner of right, title or interest over the property. He is a stranger to the suit schedule property. The defendant in collusion with Savithramma has concocted a registered sale deed in respect of the above site. The defendant is in no way connected to the joint family of Channappa or her sons. That illegal entries have been made and the documents have been concocted by the defendant to claim possession to the property. The plaintiff issued a legal notice to the concerned authorities to cancel the entries. The same was not done. Hence, he filed the suit for a declaration that he is the absolute owner in possession of the suit schedule property and to declare that the alleged sale deed executed by Savithramma in favour of the defendant and subsequent entries in the Grama Panchayat records is null and void and for an injunction to restrain the defendants. On service of summons the defendant entered appearance and denied the plaint averments. He contended that he is the husband of one Manjula, who died in the year 1982. Her parents are Sannappa and Savithramma. They took the defendant to the house as "Mane aliya". That the father-in-law of the defendant was adopted by Smt. Hanumakka long back. Since they did not have any issues, they adopted Sannappa. The father-in-law of the defendant by name Sannappa is the adopted son of Smt. Hanumakka. They adopted Sannappa long back since they did not have any issues. The mother-in-law of defendant executed a registered sale deed in respect of the vacant sites in favour of the defendant, on the basis of which katha was changed to the name of the defendant. The document was executed. The measurement was mentioned as 16 x 80 ft. However, by measuring the property the katha was changed. The defendant is in possession of the suit schedule property. Hence, he pleads that the suit be dismissed.

Based on the above pleadings the trial Court framed the following Issues:--

"1. Whether plaintiff proves relationship pleaded?

Whether plaintiff proves title to suit property?

Whether plaintiff proves dispossession as alleged?

Whether suit is barred by time?

Whether suit is bad for non-joinder of necessary parties?

Whether this court has no pecuniary jurisdiction to try the matter?

Whether court fee paid is insufficient?

What Order or decree?"

The plaintiff was examined as P.W. 1 and another 3 witness and marked 30 documents. The defendant was examined as D.W. 1 and along with other three witnesses and marked 27 documents. Issue No. 1 was held in the affirmative. Issues 2 & 3 in the negative. The suit of the plaintiff was dismissed. Aggrieved by the same, the plaintiff preferred an appeal. It was also rejected. Hence, the present second appeal.

By the order dated 7-1-2012 the appeal was admitted to consider the following substantial questions of law:--

"1. "Whether the judgment of the courts below are perverse on account of non framing of proper issue regarding adoption of Sannappa, father-in-law of the respondent-defendant as pleaded in the written statement?

Whether the courts below are justified in law in holding that the plaintiff has failed to prove his title to the suit schedule property in the absence of any finding regarding adoption of Sannappa, the predecessor in title of the respondent-defendant?

Whether the findings of the courts below regarding the title of the plaintiff to the suit schedule property is perverse, being contrary to the proved facts and evidence on record?"

The learned counsel for the appellant plaintiff contends that the impugned orders of both the Courts below are erroneous and liable to be set set aside. The Courts below failed to consider the evidence and material on record. During the pendency of these proceedings he has filed I.A. 1/2013 seeking production of documents. The documents sought to be relied upon is the certified copy of the sale deed dated 9-5-1956 executed by Hanumakka the wife Manjanna in favour of the plaintiff Manjappa. Therefore he contends that Hanumakka having alienated the property in favour of the plaintiff the subsequent division or the subsequent sale deed relied upon by the defendant would be of no avail. Hence, he pleads that by allowing the said application the suit requires to be decreed.

On the other hand, the learned counsel for the respondents defends the impugned order. That by looking into the fact that the documents sought to be produced the same does not match with the plaint schedule property. That the schedule as shown in the document is quite different from the plaint schedule property. Hence, it is pleaded that the sale deed as relied upon by the plaintiff would not come to the aid of the plaintiff for he having purchased the property by virtue of the registered sale deed in his favour. The trial Court has rightly dismissed the suit.

On hearing learned counsels, I''am of the considered view that the appropriate relief requires to be granted. The undisputed fact is that on the death of the sister the property remained between Gangamma and Hanumakka. What is sought to be pleaded by virtue of the document is that Hanumakka has executed the registered sale deed on 9-5-1956 in favour of the plaintiff Manjappa who is the grand-son of Gangamma. Having sold the property in favour of the plaintiff, Hanumakka would not have any property left. Therefore she could not have alienated any property in favour of her adopted son Sonnappa. However, if the contention of the defendant is to be accepted that the schedule of the document sought to be relied upon is not the same schedule and not the same property as claimed, then in that event, the validity of the sale deed would not affect the share of the plaintiff. The property would fall outside the purview of the joint family properties. It is then, that either of the parties would have to establish as to in what manner the Hanumakka received the property. It is for this reason alone that the trial Court would have to determine the validity of the sale deed vis-�-vis the suit claim and consequently to decide upon the rights of the respective parties.

More so, is the factum that the entire plea of the defendant is based on the claim that no issue has been framed with regard to the validity of the adoption. The trial Court committed an error in recording a finding on the same in the absence of proper issues. Hence, on this ground the matter requires to be reconsidered by the trial court. Hence substantial questions of law 1 & 2 are answered by holding that the Judgment & decree of the Courts below are perverse on account of non-framing of proper issues regarding adoption of Sannappa. The third substantial question of law is answered by holding that the finding of the Courts below are perverse with regard to the recording of the finding on the title to the suit schedule property. As a consequence to answering the substantial questions of law and in the light of the fact that the material evidence produced by the plaintiff before this Court, it is just and appropriate that the matter be examined by the trial Court on a fresh consideration Such a fresh consideration would include an adequate opportunity being granted to the defendant to file his objections to the application seeking production of additional documents and to permit the parties to lead evidence with regard to the same. The trial Court is also at liberty to frame additional Issues which shall also include regarding the validity of the adoption.

Consequently, the appeal is allowed. The Judgment & decree dated 7-9-2004 passed in OS No. 44/2000 by the Civil Judge & JMFC, Tarikere, and the Judgment & decree dated 22-2-2011 passed in RA No. 58/2004 by the Senior Civil Judge & Principal JMFC, Tankere are set aside.

The matter is remanded to the trial Court for fresh disposal in accordance with law based on the aforesaid observations.

In view of the long pendency of the matter both parties submit that they will not seek any adjournment.

The parties are directed to appear before the trial Court on 30th March, 2015.

The trial Court shall make an endeavour to dispose off the suit by the end of December, 2015.

The application seeking production of additional documents be also sent back to the trial Court for necessary consideration.

No Costs.