Nagu and Others vs Gurupad and Others

S.N. Satyanarayana, J.—Plaintiff in O.S. No. 199/1994 on the file of the Principal Civil Judge (Jr.Dn.) Raibag has come up in this second appeal impugning the judgment rendered by both the Courts below in dismissing his suit for declaration and consequential relief of permanent injunction.

The undisputed facts leading to this second appeal areas under:

The original plaintiff Nagu initiated suit in O.S. No. 199/1994 for the aforesaid relief. The said suit filed by him is against his brother Gurupad who is defendant No. 1 in the original suit and his sister who is also his mother-in-law, as defendant No. 2. Though defendant No. 2 is arraigned as respondent No. 2, no relief is sought against her in the suit and the relief is sought only against defendant No. 1. In the aforesaid suit, plaintiff is trying to claim title to a portion of suit property from defendant No. 1. According to the plaintiff, land bearing R.S. No. 231 totally measures 12 acres 36 guntas in Nandikurali village, Raibag Taluk, Belgaum District was tenanted land in cultivation and possession of his father Tippanna Koshti along with his daughter Smt. Shivubai who is defendant No. 2 in the original suit. It is stated that tenancy right was granted jointly in favour of Tippanna Koshti and defendant No. 2 Smt. Shivubai holding that they are tenants each in possession and cultivation to an extent of 50% of the land in R.S. No. 231, i.e., Tippanna Koshti has a share to an extent of 6 acres 18 guntas and that Smt. Shivubai has 6 acres 18 guntas in R.S. No. 231 of Nandikurali village.

The case built by the plaintiff in the original suit is to the effect that, besides he being the son of Tippanna Koshti and brother of Shivubai, he is also son-in-law of Shivuvai having married her daughter. According to him, Shivubai has given her share in R.S. No. 231 to him exclusively. Therefore, he is entitled to 6 acres 18 guntas as having succeeded to the same from defendant No. 2. According to him, as the son of Tippanna Koshti, he is entitled to 50% share in the property, which was allotted to his father and now in joint cultivation of himself and his brother defendant No. 1 in the original suit. Therefore, according to him, he is in possession and cultivation to an extent of 9 acres 9 guntas. In the original suit, he claimed that he has got 3/4th share in R.S. No. 231 of Nandikurali village and that his brother has got only 1/4th share in the said land. It is his grievance that his brother is trying to interfere with his 3/4th share, i.e., to an extent of 1/4th share in the entire R.S. No. 231, as the share belonging to defendant No. 1 and contending that the entire property which has fallen to the share of their father is taken by defendant No. 1, which is incorrect.

In the original suit pleadings are not properly set. The schedule is not properly shown. However, the trial Court with great difficulty is able to understand what was the case of the plaintiff. In the said proceedings, defendant No. 1 has taken up a defence that, in the year 1969, the plaintiff Nagu was given in adoption by their father to the family of their maternal grand father, which was in Bhirdi village. It is the specific case of defendant No. 1 that plaintiff having gone in adoption to their maternal grand father''s house, he no longer continued as member of the joint family of Tippanna Koshti. As such, he had no share in the property which was allotted to the share of Tippanna Koshti in the tenancy proceedings before Land Tribunal, Raibag. With reference to the adoption, a certified copy of registered adoption deed was produced and relied upon. In addition to that, certified copy of the sale deed which was with reference to a property belonging to maternal grand father of plaintiff being sold by plaintiff as adopted son of his maternal grand father was produced and marked as Ex. D. 2.

In the Court below several issues were framed with reference to the actual extent of land in R.S. No. 231 and the suit schedule land and also with reference to the adoption. The Court below refused to accept the adoption, set up as defence by defendant No. 1. Further the partition between defendant No. 1 and plaintiff was also not accepted for the reason that the order of Land Tribunal granting half share in R.S. No. 231 of Nandikurli village was not produced and established. It is also not established that the father of plaintiff and defendant No. 1 is no more and that there was a partition between them. In that view of the matter, the acceptance of plaintiff''s title to 3/4th share in R.S. No. 231 was rejected. However, with reference to the pleadings in the original suit that plaintiff is in possession of 50% share in R.S. No. 231 which has fallen to the share of his mother-in-law Smt. Shivubai in the order of Land Tribunal, Raibag was accepted because defendant No. 2 Smt. Shivubai in her written statement conceded that plaintiff is her son-in-law and that she has given 50% of her share in R.S. No. 231 in favour of her son-in-law.

However, in the total gamut of the litigation, the Court below rejected all the prayers that were sought by the plaintiff holding that he has not established the actual extent of land which is in his possession, has failed to establish the death of his father and has failed to establish the division of the property between himself and defendant No. 1. So far as the defence with reference to adoption is concerned, that was also rejected on the ground that defendant No. 1 has not produced any evidence to demonstrate that adoption of plaintiff by the maternal grand father of plaintiff and defendant No. 1. Consequently, the suit of the plaintiff is dismissed. While doing so, the issue which was framed with reference to his adoption by his maternal grand father was also rejected.

As against that, an appeal was filed by the plaintiff in R.A. No. 6/2008 on the file of the Senior Civil Judge, Raibag. The lower appellate Court on re-appreciation of the pleadings, oral and documentary evidence available on record accepted Ex. D. 2 and adoption deed which was produced as Ex. D. 1 as sufficient proof of adoption of plaintiff by his maternal grand father and accepted the defence that the original plaintiff Nagu did not continue to be the member of his father Tippanna Koshti, which was subsequently continued with Tippanna Koshti and defendant No. 1 in the original suit as joint family. The lower appellate Court also did not accept that there was partition between plaintiff and defendant No. 1 with the plaintiff getting 50% share in the property, which has fallen to the share of his father Tippanna Koshti.

It is further seen that the lower appellate Court also accepted the anomaly with reference to the pleadings and schedule. However, by taking overall pleadings, it accepted that R.S. No. 231 of Nandikurali village is to an extent of 12 acres 36 guntas, out of that, share of Smt. Shivubai being 50% and remaining 50% was that of Tippanna Koshti, which continued in the family of Tippanna Koshti along with his another son who is defendant No. 1 in the original suit and by accepting the adoption held that the plaintiff had no share in the said property and consequently, suit of the plaintiff which was rejected by the trial Court was confirmed. While confirming the said judgment, the only change that was made was with reference to acceptance of plaintiff''s adoption by his maternal grand father, who is resident of Bhirdi village. As against the concurrent finding of both the Courts below, this present appeal is filed by the legal representatives of deceased original plaintiff Nagu. Incidentally, the original plaintiff Nagu died during the pendency of R.A. No. 6/2008 itself. Therefore, his children who had come on record as appellant Nos. 1A to 1F have preferred this second appeal challenging the concurrent finding of both the Courts below.

Heard the learned counsel for the appellants and as well as contesting respondents, perused the judgments of both the Courts below. On going through the same, it is seen that, in fact the lower appellate Court which has gone through the pleadings and evidence threadbare has ironed out the anomalies which was there in the judgment of the trial Court and consequently has come to the rightful decision in dismissing the suit of the plaintiff. To analyze the same, if both the judgments are looked into, the lower appellate Court accepted the claim of the parties that R.S. No. 231 was tenanted land and that it was granted by the Land Tribunal, Raibag in favour of father of plaintiff and defendant No. 1 in the original suit by name Tippanna Koshti and also in favour of the daughter of Tippanna Koshti, namely, Smt. Shivubai who is defendant No. 2 in the original suit. It was accepted that they were entitled to 50% share in the suit property. The lower appellate Court also accepted the adoption of plaintiff to the family of his maternal grand father in Bhirdi village and thereby accepted that the plaintiff''s biological father Tippanna Koshti continued in the joint family with his other son who is defendant No. 1 in the original suit. In that view of the matter, the lower appellate Court accepted that there was no scope for partition of the property belonging to Tippanna Koshti between plaintiff and defendant No. 1. While doing so, the lower appellate Court also accepted the finding of the trial Court that the plaintiff has become the absolute owner of 50% of the share which was granted in favour of Smt. Shivubai by the Land Tribunal, which was given to him by defendant No. 2, since he is her son-in-law, i.e., her daughter''s husband.

With this, what was accepted by the lower appellate Court is that the plaintiff is not entitled to seek decree regarding 9 acres 9 guntas of land as 50% share in R.S. No. 231 having come to him from his sister and out of the remaining 50% coming to him as the son of Tippanna Koshti was not accepted. In any event, in the final analysis, the view taken by the lower appellate Court to the effect that the plaintiff is not the owner of 9 acres 9 guntas as contended by him in the original suit appears to be just and proper. In that view of the matter, dismissal of the plaintiff''s suit for the relief of declaration and injunction appears to be just and proper in the facts and circumstances of the case. Therefore, this second appeal filed by the legal representatives of original plaintiff does not merit admission. Accordingly, the appeal is dismissed.