Manohar and Others vs Raju and Others

B. Veerappa, J.—This is an unsuccessful plaintiffs'', regular second appeal against the judgment and decree dated 10th July, 2014 made in R.A. No. 437/2009 on the file of the Fast Track Court-II and Additional District Judge, Belagavi confirming the judgment and decree dated 29.7.2006 made on O.S. No. 662/2002 on the file of the I Additional Civil Judge (Jr. Dn.), Belgavi in O.S. No. 662/2002 dismissing the suit for declaration and consequential relief of injunction in respect of the suit schedule property.

The appellants, who were the plaintiffs before the trial Court, filed a suit for the declaration contending that the sale deed dated 5.6.1970 is not binding on their shares in the suit schedule property and consequently declare that the agreement of sale dated 17.9.2002 alleged to have been entered into between defendant Nos. 1 and 2 as null and void and the same is not binding upon their shares. They further prayed for consequential relief of permanent injunction contending that the suit schedule property bearing Gram Panchayat No. 53/A measuring 27 feet, East to West and 180 feet North to South situated at Marihal, Taluk and District Belagavi was the ancestral property of the plaintiffs. It is their further case that they have got their undivided share in the suit schedule property along with their father, that there was no partition by metes and bounds in the suit property; that their father had died; that they are in actual possession and wahiwat of the suit property and they are using it since their forefathers by way of succession for storing the cow dung, waste materials and stones which belonged to them and hence, they are in possession of the suit property till today; that the defendants, who are in no way concerned with the suit property, came to the suit property on 21.9.2002 and started removing the stones and other waste materials collected by the plaintiffs and also disturbed their peaceful possession and enjoyment of the suit property. The defendants denied the right, title and interest of the plaintiffs over the suit property. Therefore, the plaintiffs filed the suit.

Defendant No. 2 filed his written statement which was adopted by defendant No. 1 denying the entire plaint averments contending that the plaintiffs are in no way concerned with the suit schedule property and it is not in their possession. Father of the defendants purchased the suit schedule property from the father of the plaintiffs under a registered sale deed dated 5.6.1970 which was well within the knowledge of the plaintiffs since, the date of sale deed. That the father of the defendants was in possession of the suit property by virtue of the sale deed and after his demise, his mother was in possession and after her demise, the defendants are in possession of the suit property by virtue of the sale deed till they executed the agreement of sale in favour of one Sri Sanjay Shamrao Chate on 17.9.2002. It was further contended that the possession of the suit property had also been handed over to Sanjay S. Chate on receiving the entire agreed sale consideration amount. That the father of the plaintiffs, who was in possession was paying VPC tax in respect of the suit property. Further on his demise, the defendants are paying the VPC taxes in respect of the suit property and hence, the plaintiffs are not at all in possession of the same. It was also contended that the use of the suit property by the father of the defendants as well as by the defendants was well within the knowledge of the plaintiffs and therefore, there was no cause of action for plaintiffs to file a suit. Hence, the defendants prayed for dismissal of the suit. On the basis of the pleadings, the trial Court framed the following issues:

Whether the plaintiffs prove that, the suit property is ancestral property and they are in possession of the suit property?

Whether the plaintiffs further prove that, the defendant has fabricated a false, bogus and sham document i.e., sale deed dated 5-6-1970?

Whether the plaintiffs prove that the alleged interference by the defendants?

Whether the defendant No. 2 proves that, as per agreement of sale deed dated 17-9-2002 he is in possession of the suit property?

Whether the defendant No. 1 proves that the suit is barred by time?

Whether the Plaintiffs are entitled for the declaratory relief as prayed?

Whether the Plaintiffs are entitled for the relief of permanent injunction as claimed?

What order or decree?

In order to establish the plaintiffs'' case, plaintiff No. 1 was examined as P.W. 1 and a witness as P.W. 2 and marked the documents Exs. P. 1 to 10. On behalf of the defendants, defendant No. 1 was examined as D.W. 1, defendant No. 2 as D.W. 3 and a witness D.W. 2 and marked the documents Exs. D. 1 to 34.

After considering the entire material on record, the trial Court held that the plaintiffs have proved that the suit property is their ancestral property and the plaintiffs have failed to prove that the defendants have fabricated the documents and the same are false, bogus and sham documents. Further the plaintiffs have also failed to prove the interference by the defendants in the suit schedule property and also held that defendant No. 2 proved that as per the agreement of sale dated 17.9.2002, he is in possession of the suit property and defendant No. 1 proved that the suit filed by the plaintiffs is barred by limitation and therefore, the plaintiffs are not entitled for any relief sought for. Accordingly, the suit was dismissed.

Aggrieved by the said judgment and decree, the plaintiffs preferred an appeal in RA No. 437/2009 before the Fast Track Court-II and Additional District Judge, Belgaum, who after hearing both the parties by the impugned judgment and decree, dated 10th July, 2014 dismissed the appeal. As against the concurrent finding of fact, the present appeal is preferred by the plaintiffs.

I have heard the learned Counsel for the appellants.

Sri Sachin S. Magadum, who contended that admittedly, the suit property is a joint family property and the alleged alienation made by the father of the plaintiffs in favour of the 1st defendant is not binding on the plaintiffs since the suit property is a joint family property and hence, sought for setting aside the impugned judgment and decree of the Courts below.

I have given my anxious consideration to the arguments advanced by the learned Counsel for the appellants and perused the entire material on record.

The Trial Court considering both oral and documentary evidence on record has recorded a finding that the sale deed Exs. P. 1 is of the year 1970 and therefore, in view of the provisions of Section 90 of the Indian Evidence Act which has got presumptory value, the contents of the sale deed itself show that the possession of the property has been handed over to the father of defendant No. 1. It has also noted that though the plaintiffs in their pleadings have taken the contention that due to bad vices, their father executed the sale deed for the benefit of the joint family and further the burden is on the plaintiffs to prove as to whether it was for the benefit of the joint family or not, but in the cross-examination, the plaintiff PW 1 has admitted as under:

The said admission made by the plaintiff clearly indicate that the plaintiffs have also mortgaged their residential house in favour of Balappa Dharmoji only for a sum of Rs. 1,000/- and accordingly, his name was entered in the panchayat extract. Even the evidence of the plaintiffs shows that defendant Nos. 2 to 4 might have the knowledge about the execution of sale deed and his father having no bad vices, the admissions given by P.W. 1 itself shows that since the beginning, he had knowledge about the execution of the sale deed, but in the pleadings, the plaintiffs have contended that since childhood P.W. 1 was residing at Doddawad village at Bailholgal Taluk and therefore, he had no knowledge about the execution of the sale deed. In this regard, the trial Court has held that since from the date of purchase of the suit property by the father of the defendants, the name of the father of defendant No. 1, thereafter name of his mother and thereafter his name were appearing in the panchayat extract. The suit property is adjacent to the property of the plaintiffs. If the plaintiffs are having the possession of the suit property, then mortgaging their house in favour of one Sri Balappa Dharmoji does not arise. Further the admission made by the plaintiffs clearly indicate that the suit property was/is not in possession of the plaintiffs, however the 1st defendant has proved that the sale deed was executed by the father of the plaintiffs by adducing the evidence of D.W. 2, who is an attesting witness to the sale deed. On contrary, except the oral say that the plaintiffs have not produced any documents to show that, at the time of execution of the sale deed, their family was well settled and was not having any financial problems. Even the reasons assigned by the plaintiffs in their pleadings also is not proved by them in the cross-examination, they have admitted that their father was not having any bad vices and therefore, the trial Court opined that the plaintiffs have failed to prove that the sale deed executed by his father was fabricated one. The trial Court has further recorded a finding that at the time of execution of the sale deed by the father of the plaintiffs in favour of the father of defendant No. 1, plaintiff No. 1 was minor but he has to challenge the sale deed executed by his father within 3 years from the date of attaining the majority. The family of defendant No. 1''s name appeared in the panchayat extract since 1970 itself. The father of the plaintiffs died in the year 1998 and even during the life time of the father of the plaintiffs, he has not challenged the said documents. The present suit is filed in the year 2002 i.e., after the death of the father of the plaintiffs. Even considering the death of the father of the plaintiffs, suit is filed by the plaintiffs after 3 years from the date of their father''s death and hence, the trial Court opined that the suit is barred by limitation. Therefore, held that the plaintiffs have failed to prove their possession over the suit property and also the execution of sale deed by their father in favour of the father of defendant No. 1 is a fabricated and false document. It has also held that since from the date of execution of the sale deed, the family of defendant No. 1 were/are in possession of the suit property and therefore, concluded that question of interference by the defendants did not arise. Defendant No. 2, who is examined as D.W. 3, in his evidence has clearly stated about the possession of the suit property as on the date of suit and also execution of the sale deed by the 1st defendant in his favour vide Ex. D. 1, which discloses the name of defendant No. 1 in the panchayat extract, Exs. D. 21 to 28 and 30 to 32 disclosing the tax paid by the family of defendant No. 1, Ex. D. 34 disclosing the agreement of sale with delivery of possession in favour of defendant No. 2. On going through the above evidence, the trial Court held that though the said document is not a registered document, it can be used for collateral purpose which clearly discloses that the suit property is in possession of defendant No. 2 and defendant No. 2 through his workers is doing work in the suit property which is never questioned by the plaintiffs and ultimately, dismissed the suit.

On re-appreciation of the entire material on record, the Lower Appellate Court recorded a finding that in the year 1970, the possession of the suit property was delivered to the father of the 1st defendant and after his death, the mother of the 1st defendant and after her death, the 1st defendant has been in possession which has been established by producing Ex. D. 29/Ex. P. 1 the sale deed with regard to transfer of possession, Exs. D. 6 to 12 and 20 to 38 tax paid receipts clearly establish that from the date of sale till the filing of the suit, the first defendant or his predecessors in title were/was in possession of the suit property. Further that P.W. 1 in his cross-examination has clearly admitted that in respect of the suit property, they have not paid any panchayat tax and he has clearly admitted that after the death of father of first defendant, the documents in respect of the suit property was changed in the name of the mother of the 1st defendant and now after her death, the name of 1st defendant is shown as owner and possessor of the suit property. The Lower Appellate Court further held that Ex. D. 2/3 - the order of the Executive Officer of the Taluka Panchayat is subsequent to the date of filing of the suit; Exs. 4 and 5 are not relating to the suit property and secondly, it is subsequent to 1970. Further it is has held that though the plaintiffs were knowing that the suit property was sold by their father for legal necessity, just for avoiding limitation, the cause of action is shown as on 21.9.2002. Ultimately concurring with the findings recorded by the trial Court dismissed the appeal. The substance of the plaintiffs'' case is that the suit schedule property is a joint family property and the alleged sale deed which was made by his father in the year 1970 in favour of the father of the defendants is not binding; that the plaintiffs have not questioned the registered sale deed dated 5.6.1970 executed in favour of the father of the 1st defendant and in pursuance of the same, the name of the 1st defendant, or his father, or mother had been entered in all the revenue records as per Ex. D. 2/3 which are reflected in the revenue records and admittedly, the plaintiffs, have not challenged the said entry in the revenue records before any authorities and the plaintiff - PW 1 in his cross-examination has admitted that their father has alienated the property in the year 1970, their father under bad habits alienated the suit property on 5.6.1970, the suit has been filed by the them on 9.10.2002 and it is not their case that immediately after attaining majority, they have filed the suit within the time prescribed under Article 60 of the Limitation Act, 1963 which reads as under:

A plain reading of the above provision, makes it clear that the limitation starts from the date when the plaintiffs attain majority. The prescribed period has elapsed by the date of presentation of the plaint and both the Courts below have concurrently held that the alienation made by the father of the plaintiffs is for the family necessity and binding on the plaintiffs and the plaintiffs were aware of the fact that the alienation made by their father and it is also an admitted fact that during the life time of their father, they did not question the sale deed and when the alienation was made in the year 1970 under a registered document, purchaser was put in possession and after a lapse of 32 years, the plaintiffs are questioning the sale deed which is not permissible in view of the provisions of Section 90 of the Indian Evidence Act. In view of the above facts and circumstances of the case, both the Courts below based on the oral and documentary evidence on record have concurrently held that the plaintiffs have failed to prove that the defendants fabricated a false, bogus and sham document under Exs. P. 1 dated 5.6.1970 and also failed to prove the allege interference by the defendants in respect of the suit property and that defendant No. 2 has proved that as per the agreement of sale deed dated 17.9.2002, they are in possession of the suit property and the suit filed by the plaintiffs is barred by limitation. As such, the findings of fact recorded by both the Courts below cannot be interfered with by this Court under the provisions of Section 100 of the Code of Civil Procedure.

Consequently, no substantial question of law arises for consideration in this appeal. Accordingly, this regular second appeal is dismissed.