Narasakka vs D. Rudraiah

A.V. Chandrashekara, J.—Present appeal is filed under Section 100 of CPC by the plaintiff of an original suit bearing O.S. No. 208/1984 which was pending on the file of the then Prl. Munsiff & JMFC, Madhugiri, Tumkur District. Appellant is the daughter of deceased plaintiff Narasakka and she came on record in the Trial Court after the death of her mother. Suit filed for the reliefs of declaration of title and permanent injunction by her mother came to be decreed as prayed for after contest vide judgment dated 16.07.1997. Against the said judgment and decree, the defendants filed a regular appeal before the Court of Civil Judge (Sr. Dn.) & JMFC, Madhugiri, under Section 96 of CPC in R.A. No. 51/1997. The said appeal has been allowed and the judgment and decree passed by the Trial Court in O.S. No. 208/1984 has been set aside. Consequently, suit has stood dismissed. It is this divergent judgment which is called in question as set out in the appeal memo. Parties will be referred to as plaintiff and defendants as per their ranking given in the Trial Court.

Facts leading to the filing of the present appeal are as follows:

One Range Gowda @ Gujjanna, was the first son of one Rangappa. Kanivappa, Kurirangappa and Hanumanthappa, were the other three brothers of Rangegowda @ Gujjanna. The said Rangegowda @ Gujjanna, is no more. After his death, his wife Narasakka, chose to file a suit seeking the main relief of declaration of title and consequential relief of permanent injunction in respect of two items of agricultural lands measuring 4 acre 32 guntas in Sy. No. 212 and Sy. No. 235/2 measuring 2 acres 19 guntas of Vengalammanahali Kodigenahalli Hobli, Madhugiri Taluk. According to the plaintiff, properties belonged to her deceased husband Rangegowda @ Gujjanna and he died ten years prior to the filing of the suit. Therefore, she is stated to have succeeded to the suit properties. She is stated to be in lawful possession and enjoyment of the suit schedule property inspite of khata being continued in the name of her deceased husband Rangegowda @ Gujjanna."

According to the plaintiff, defendants i.e., respondents herein had no manner of right, title, interest or possession over the suit schedule properties. Since they attempted to dispossess her from the suit schedule properties, she was forced to file a suit for the reliefs of declaration of title and permanent injunction.

Defendant Nos. 1 and 2 chose to file a detailed written statement denying all the material averments. They had called upon the plaintiff to prove the contents of the plaint strictly. First defendant is stated to have purchased item No. 1 of the suit property through a registered sale deed and he is in lawful possession of the same since 02.05.1984. First defendant is stated to have purchased the same through registered sale deed dated 02.05.1984 from Range Gowda @ Gujjanna deceased husband of plaintiff, Krishnappa, Hanumantharayappa and Krishnappa, Hanumantharayappa and Jayaramappa, S/o Kurirangappa, and the same is registered as document No. 179/1984-85. It is specifically averred that the properties never belonged to Range Gowda absolutely and therefore, question of inheritance of these properties by Narasakka did not arise.

According to them, the entire suit survey numbers came to the ownership of Kurirangappa''s sons and they have sold the same in favour of defendants by virtue of registered document dated 02.05.1984 and they are in possession of the same as absolute owners. Suit is stated to be not maintainable either on law or on facts. Apart from this, they have averred that suit is bad for non-joinder of necessary parties. It is further averred that Range Gowda @ Gujjanna had released his properties by virtue of settlement dated 02.03.1977. On the basis of the above pleadings, following issues came to be framed:

"1. Whether plaintiff prove that the suit land belonged to her husband and has now succeeded to it?

Whether plaintiff is in lawful possession of the suit lands?

Whether the suit lands were the joint family property of Rangegowda and his three brothers?

Whether the defendants prove the execution of sale deeds dated 2.5.1984 and 25.4.1984?

Whether the defendants acquired title and possession of suit lands under sale deeds dated 2.5.1984 and 25.4.1984?

Whether defendants prove that Rangegowda got divested of his share in suit lands under settlement deed dated 2.3.1977?

Is the alleged interference true?

To what reliefs is the plaintiff entitled to?

To what order?"

On behalf of the plaintiff, Hanumantharayappa, is examined as a Power of Attorney on the basis of Ex. P1. One Chikkanna is examined as PW2. Sixteen exhibits have been got marked on their behalf. Defendants 1 and 2 have been examined as D.W. s. 1 and 2. They have examined three more witnesses on their behalf apart from getting 22 exhibits marked. Ultimately, issue Nos. 1, 2 and 7 came to be answered in the affirmative and remaining issues in the negative. Consequently, the suit came to be decreed vide considered judgment dated 16.07.1997.

Being aggrieved by the said judgment and decree, defendants chose to file a regular appeal under Section 96 of CPC before the Court of Civil Judge (Sr. Dn.) & JMFC, at Madhugiri, in R.A. No. 51/1997. After hearing arguments and perusing the records, the learned Civil Judge (Sr. Dn.), Madhugiri, has allowed the appeal and thereby suit bearing O.S. No. 208/1984 has been dismissed vide judgment dated 11.07.2007. It is this judgment and decree which is called in question on various grounds as set out in the appeal memo.

This Court has framed the following substantial questions of law on 17.11.2008:

"Whether the lower appellate court was justified in observing that the appellant has failed to establish the title to the suit property following the death of her husband and thereby dismissing the suit of the plaintiff?"

Both the learned counsel have submitted their arguments on merits.

Learned counsel for the appellant has vehemently argued that the First Appellate Court has not properly reassessed the entire evidence and has adopted a wrong approach to the real state of affairs. It is argued that any amount of oral evidence of the defendants cannot take away the documentary evidence placed by the plaintiff. It is further argued that the judgment and decree passed in O.S. No. 172/1988 against Range Gowda does not bind the plaintiff in any manner. The judgment and decree of the First Appellate Court is stated to be opposed to law, facts and probabilities.

Per contra, the learned Advocate appearing for the defendants-respondents has supported the judgment of the First Appellate Court contending that useful admissions have been culled out from the mouths of PWs. 1 and 2 and that they had been virtually ignored by the Trial Court. It is argued that plaintiff has failed to trace the title of the schedule property relating to the relief of declaration of title. It is argued that when overwhelming evidence is placed on record to show that defendants are in possession of the schedule property, question of granting injunction does not arise. It is further argued that the evidence of P.W. 1 itself cuts the case of the plaintiff at the root. Hence, he has prayed to dismiss the appeal and confirm the judgment of the First Appellate Court.

In a suit for declaration of title relating to an immovable property, title will have to be traced. What is averred in the plaint is that the schedule properties i.e., two items of agricultural lands measuring 4.32 acres and 2.19 acres in Sy. Nos. 212 and 235/2 respectively belonged to her husband Range Gowda @ Gujjanna and that she has succeeded to these properties after his death. The fact that Range Gowda @ Gujjanna had three younger brothers is not in dispute. Kanivappa, Kurirangappa and Hanumanthappa are the three younger brothers of Range Gowda @ Gujjanna. Kurirangappa, is no more and he is survived by four sons viz., Rangappa, Krishnappa, Hanumantharayappa, Jayaramappa.

P.W. 1 is the son of one Chikkakondegowda, of the same Village. The said Chikkakondegowda, father of P.W. 1 had purchased 1 acre 3 guntas of land in Sy. No. 131 and another immovable property through a registered sale deed dated 04.09.1978 and the same is marked as Ex. P13. This sale deed was executed by Rangappa S/o Kurirangappa. The said Kurirangappa, is none other than the third son of Rangappa, the father-in-law of the deceased plaintiff. Similarly, the said Rangappa S/o Kurirangappa had sold lands in favour of Pennaiah S/o Doddapaiah on 04.11.1978 through a registered sale deed. It is also a part of Ex. P13.

Ex. P3 is the sale deed executed by Range Gowda @ Gujjanna, the deceased husband of the plaintiff on 19.12.1970 in favour of Kondappa and Hanumantharaya.

Ex. P14 is another original sale deed executed by Range Gowda @ Gujjanna, in favour of one Thimmareddy on 18.06.1958. These documents would go to show that the family of propositus Rangappa, had joint family properties and the same had been divided between his four sons Range Gowda @ Gujjanna and three others.

In his cross-examination, P.W. 1 has admitted that Rangegowda had three brothers viz., Kanivappa and Kurirangappa and Hanumanthappa. He has relied upon the lands granted in favour of Range Gowda @ Gujjanna, by the Special Deputy Commissioner for Inams Abolition in Case No. 15 and 6/1959-60 dated 13.09.1962. The lands granted to him are not schedule properties, but the application came to be filed by him representing the joint family since they had been inherited from his father. Therefore, Ex. P8 is not of much assistance and in fact that is more favourable to the defendants.

P.W. 1 does not know as to how many lands were granted to Rangegowda and the extent thereof. He has specifically admitted that at the time of grant Rangegowda and his brothers were residing together and therefore, the grants so made by the Special Deputy Commissioner vide Ex. P8 in case Nos. 15 and 6 of 1959-60 enures to the benefit of his brothers also.

In fact, he has specifically admitted that on 05.10.1981 the children of Kurirangappa, have sold land in Sy. No. 94 to one Dharamma. He has admitted that his vendor''s name is Chikkakondappa and he has purchased lands in Sy. No. 131/1 from the sons of Kurirangappa. He has feigned ignorance about the sale of lands in Sy. No. 192/1 by the sons of Kurirangappa, on 22.01.1979. P.W. 1 has admitted that his father is alive and he is residing with his father and the lands so purchased by his father are in their joint possession.

One important admission culled out from his mouth which goes to the root of the case of the plaintiff. He has admitted the suggestion put to him as true to the effect that the lands belonging to plaintiffs husband and their brothers were sold by children of Kurirangappa. He has further admitted that when Kurirangappa''s sons sold the property belonging to the plaintiffs husband and his brothers, plaintiff did not object in any manner and that plaintiffs husband had affixed his LTM mark to the same. He has further admitted that the suit schedule properties stand in the name of the defendants at present and that neither himself nor the plaintiff have objected at the time of change of khatha in the name of the defendants. These are very important admissions culled out from his mouth which go to the very root of the plaintiffs case.

This is further supported by a very important document i.e., the certified copy of the judgment and decree passed in O.S. No. 172/1988 which is marked as Ex. D16. This was a suit filed by D.B. Rudraiah, the first defendant herein against deceased Rangegowda S/o Kuri Rangappa i.e. his vendor relating to 4 acres 32 guntas in Sy. No.212 which is item No. 1 in the present suit. It was a suit for permanent injunction and that has been decreed after contest.

P.W. 1 has admitted about the first defendant being in possession of suit item No. 1 and injunction being granted in favour of first defendant against his vendor Rangegowda in O.S. No. 172/1988. Similarly, he has admitted that the second item of the property is in possession of the second defendant. Name of the first defendant finds a place in RTC Col. No. 9 and 12 and this is evident from Ex. D11. RTC issued for the years 1983-84 and 87-88 name of first defendant is found in Col. Nos. 12(2) earmarked for incorporating the name of the person in possession. This is based on a valid registered document executed in favour of the first defendant. If there was no partition of the properties granted vide Ex. P8 between Rangegowda and his three brothers, they could not have sold portion of those lands.

Ex. D1 is the certified copy of the sale deed executed in favour of the first defendant by Kurirangappa''s sons and Rangegowda, deceased husband of the plaintiff on 02.05.1984. On the basis of the same, his name stands incorporated in the revenue records vide Ex. D2 the copy of the mutation. He has been paying land revenue regularly.

Name of second defendant D. Krishnappa, is found in the revenue records relating to item No. 2 measuring 2 acres 19 guntas for the years 1989-90, 90-91 his name has been incorporated on the basis of MR No. 3 of 1984-85. Relying on the sale deed executed in his favour by the son of Kurirangappa, vide deed No. 198/84-85. Long prior to the filing of the suit sons of Kurirangappa had sold the suit item No. 2 in favour of the second defendant.

P.W. 1 has gone to the extent of stating that plaintiffs husband and his brothers are all dead and that they had not divided their properties till their death. Even if that is accepted, the suit schedule properties are the joint family properties of the four sons of Rangappa, and therefore, plaintiff cannot claim absolute right. He has feigned ignorance as to whether deceased plaintiff had made any attempt to get khata changed in her favour. Admittedly, P.W. 1 does not know many facts relating to these suit schedule properties and the best witness was the plaintiffs daughter and she has not been examined.

In paragraph-5 P.W. 1 has further admitted that defendant Nos. 1 and 2 have purchased suit items 1 and 2 respectively from Kurirangappa''s sons. He has admitted that Kurirrangappa''s son Rangappa was present and that Rangegowda had submitted a petition to the Special Deputy Commissioner.

The First Appellate Court has reassessed the entire evidence on the touchstone of intrinsic probabilities and admissions culled out from the mouth of P.W. 1 have been properly analysed. When P.W. 1 himself has utterly failed to trace the absolute title of these properties to Rangegowda @ Gujjanna, the deceased husband of the original plaintiff, the First Appellate Court is justified in allowing the appeal and dismissing the suit. The First Appellate Court has rightly held that plaintiff has failed to establish title to the suit property following the death of her husband. Apart from this, the First Appellate Court has adopted right approach to the real state of affairs. No illegality or perversity is found in the approach adopted by the First Appellate Court. The substantial questions of law framed on 17.11.2008 will have to be answered in the affirmative.

ORDER

Appeal is dismissed by upholding the judgment of the First Appellate Court passed in R.A. No. 51/1997 on the file of the Civil Judge (Sr. Dn.) & JMFC, Madhugiri.

Taking into consideration the relationship of the parties, there is no order as to costs.