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Judgment
H.N. Nagamohan Das, J.—This second appeal is directed against the judgment and decree dated 10.11.2004 in R.A. No. 38/2002 passed by the Addl. District Judge at Chikkamagalur reversing the judgment and decree dated 28.10.2002 in O.S. 125/2001 passed by the Civil Judge (Sr. Dn), Kadur.
Appellants are the Plaintiffs and Respondents are the Defendants before the Trial Court. In this judgment, for convenience, the parties are referred to their status before the trial Court.
Plaintiffs contend that common propositor Ranganna had two sons by name Hanumanna and Govindappa and a daughter by name Kariyamma. The elder son Hanumanna had two wives i.e. the first Plaintiff and one Sakamma. The said Sakamma died issueless. The first Plaintiff is the first wife of Hanumanna and second Plaintiff is their son. When the second Plaintiff was young child, his father Hanumanna died. After the demise of Hanumanna the first Defendant had driven out the Plaintiffs from their joint family. Consequently, the Plaintiffs left Melanahalli and had taken shelter in the first Plaintiffs sister''s house situated at Medihalli.
The plaint schedule property measuring 24 Acres 19 guntas in sy. No. 10 was granted in favour of Hanumanna the husband of first Plaintiff and father of second Plaintiff. Taking advantage of absence of Plaintiffs from Melenahalli the first Defendant illegally got transferred the revenue records in his name and subsequently entered into a partition, with his children, the other Defendants in this suit. Plaintiffs repeatedly requested the Defendants to hand over the plaint schedule property to them. Finally a Panchayath was held and they decided to given 8 Acres of land out 24 Acres 19 guntas in sy. No. 10 to the Plaintiffs. Though Plaintiffs agreed for the decision of Panchayathdars, the Defendants went back.
Further the second Defendant who is the son of first Defendant filed a false suit in O.S. No. 515/1992 against the Plaintiffs for decree of permanent injunction. Though Plaintiffs entered appearance in O.S. No. 515/1992 they were prevented from participating in the proceedings by the Defendants. Consequently, the Plaintiffs were placed exparte in O.S. No. 515/1992 and a decree came to be passed. The second Defendant on false representation obtained decree in O.S. No. 515/1992. Therefore, the Plaintiffs filed O.S. No. 18/1996 to set aside judgment and decree in O.S. No. 515/1992, declare Plaintiffs as owners of the plaint schedule property and for recovery of possession of plaint schedule property.
The Defendants entered appearance before the Trial Court and filed written statement interalia contending that first Plaintiff is not the wife of Hanumanna and second Plaintiff is not his son. The genealogical tree produced Plaintiffs is concocted. Plaintiffs have no manner of right, title and interest in the schedule property. It is admitted that Hanumanna is the brother of first Defendant. The plaint schedule property was granted in the name of Hanumanna as he was the mangaer of the family and the same was for the benefit of joint family. On the demise of Hanumanna, Defendant No. 1 and his children succeeded to the plaint schedule property and they are in possession and enjoyment of the same. On these grounds, the Defendants opposed the claim of Plaintiffs. On the basis of pleadings, the Trial Court framed the following issues for its consideration:
i) Whether the Plaintiffs prove the correctness of relationship as pleaded in the plaint?
ii) Whether the Plaintiffs prove that the suit property has been granted to Hanumanna s/o Rangappa @ Ranganna and he and the Plaintiffs were in possession and enjoyment of the suit property?
iii) Whether the Plaintiffs prove that the first Defendant in collusion with the revenue officials got altered the revenue records and entered their name?
iv) Whether the Plaintiffs prove that by mis-using the illiteracy and innocence and under the circumstances as stated in para Nos. 11 and 12 obtained the decree in O.S. No. 515/1992 behind her back and it is not binding on them?
v) Whether the Defendants prove that the suit property has been granted to Hanumanna as manager of the joint family and it is a family property?
vi) Whether the Defendants prove the alleged obstruction?
vii) Whether, the 3rd Defendant proves that he purchased the property measuring 2-29 acres with valid title and he is a bonafide purchaser?
viii) Whether, the Defendant Nos. 1 and 2 prove that Lakshmamma and Chandramma are the necessary panics and suit is bad for non -joinder of necessary parties?
ix) Whether, the suit is barred by limitation?
x) What decree or order?
Before the Trial Court, Plaintiffs examined three witnesses as PW.1 to PW.3 and got marked Exs.P1 to P16. The Defendants examined three witnesses as DW.1 to DW.3 and got marked Exs.D1 to D34. The Trial Court on appreciation of pleadings, oral and documentary evidence held that Plaintiffs are the wife and son of late Hanumanna. The plaint schedule property was grained to late Hanumanna and on his death Plaintiffs have succeeded to the plaint schedule property; Defendants are in illegal possession and enjoyment of the plaint schedule property and consequently, the Trial Court by judgment dated 28.10.2002 decreed the suit of Plaintiffs. Aggrieved by this judgment and decree of the Trial Court, the Defendants 1 and 2 filed an appeal in R.A. No. 38/2002. The first Appellate Court on reappreciation of the entire material on record held that first Plaintiff is not the wife and second Plaintiff is not the son of Hanumanna. Consequently, the first Appellate Court passed the impugned judgment reversing the judgment of the Trial Court and dismissed the suit of Plaintiffs. Hence this second appeal.
This Court by order dated 25.1.2005 admitted the appeal to consider the following question of law:
Whether the finding of the first Appellate Court reversing the judgment and decree passed by the Trial Court is perverse and arbitrary being discarding the evidence of P Ws. 1 and 2 and being based upon the ground that no application had been filed for change of entry in the name of the Appellant?
I heard arguments on the side of the Appellants/Plaintiffs. Despite treating the matter as part heard and adjourning the case on several dates, there is no representation on the side of Respondents/Defendants. I perused the entire record.
It is not in dispute that Propositor Ranganna had two sons by name Hanumanna and first Defendant and daughter by name Kariyamma. Further it is not in dispute that Hanumanna had a wife by name Sakamma and she died issueless. First Plaintiff contends that she is the second wife of Hanumanna and second Plaintiff is her son. On the other hand, Defendants contend that first Plaintiff is not the wife and second Plaintiff is not the son of Hanumanna. As against this rival contention Defendants have produced Ex. D1, the voters'' list, Ex.D2 a certificate issued by the Headmaster, Lower primary school, Medihalli showing that first Plaintiff is the wife of one Siddappa and second Plaintiff is his son. Plaintiffs in their evidence have disputed the correctness of Ex.D1 and D2. Defendants have not examined the authors of Ex.D1 and D2, On the other hand, DW. 1 and DW.2 admit in their evidence that said Siddappa is none other than the husband of Plaintiffs sister Thimmamma. Further, it is the case of Plaintiffs that after the demise of Hanumanna, the first Defendant had driven out the Plaintiffs from Melanahalli and thereafter they have taken shelter at Medihalli in the house of Siddappa. In the circumstances, in the voter''s list Ex.D1 by mistake the name of Siddappa is shown as husband of first Plaintiff and father of second Plaintiff. It is also seen from Ex.D1 that Siddappa''s wife''s name is Thirnmamma. By considering this explanation of the Plaintiffs and admission of Defendants, the Trial Court rightly held that Ex.D1 and D2 will not help the Defendants in proof of their defence that first Plaintiff is not the wife of Hanumanna and the second Plaintiff is not his son. On careful appreciation of the oral and documentary evidence on record, the Trial Court rightly held that Plaintiffs are wife and son of late Hanumanna. The first Appellate Court without appreciating this material on record, committed an illegality in solely relying on Ex.D1 and D2 without considering the explanation given by the Plaintiffs and the surrounding circumstances.
The Defendants admit in their written statement that the plaint schedule property was granted by the Government in the name of Hanumanna as the Manager of joint family. There is no evidence on record to show that the schedule property was granted to Hanumanna in his capacity as Manager of Joint family. In the absence of any such evidence it cannot be held that plaint schedule property belongs to the joint family of Hanumanna and first Defendant. By suppressing this fact, the second Plaintiff filed OS No. 515/1992 against the Plaintiffs herein for decree of permanent injunction on the ground that the schedule property was granted in the name of first Defendant. On the basis of this false representation and by placing Plaintiffs exparte, the judgment and decree in O.S. No. 515/1992 came to be passed and as such the same is not binding on the Plaintiffs. The Trial Court by properly appreciating the material evidence on record, rightly concluded that the judgment and decree in O.S. No. 515/1992 is not binding on the Plaintiffs.
Ex.P3 is the RTC extract showing the name of Hanumanna as the owner in possession of the plaint schedule property from the years 1972 to 1976. Ex.P4 is the khata endorsement specifying that on the date of death of Hanumanna, the name of first Defendant came to be entered as khatedar being the only legal representative. Therefore, Ex.P4 in the name of first Defendant is by suppressing the fact that Hanumanna left behind his wife and a son. Therefore, the khata in the name of first Defendant is obtained by a false representation. Consequently, the further transaction between the first Defendant, second Defendant and third Defendant are not binding on the Plaintiffs. The first Appellate Court without considering thus material on record committed an illegality in reversing the judgment of the Trial Court.
Plaintiffs have pleaded and deposed, in their evidence that a Panchayath was held before filing the suit and panchayathdars resolved to allot 8 acres of land out of 24 acres 19 guntas of the plaint schedule property in favour of Plaintiffs. Now, learned Counsel for the Appellant has filed a memo restricting the Plaintiffs claim only to the extent of 8 acres on the northern side of sy. No. 10 of Melenahalh village. This memo is filed by the Plaintiffs only with an intention to put an end to the litigation. The memo is taken on record. To this extent, the judgment and decree of the Trial Court requires modification.
For the reasons stated above, the question of law framed above is answered in affirmative. Consequently, the following:
ORDER
i) Appeal is hereby allowed.
ii) The judgment and decree dated 10.11.2004 in R.A. No. 38/2002 passed by the Addl. District Judge at Chikkamagalur is hereby set-aside.
iii) The judgment and decree dated 28.10.2002 in O.S. No. 125/2001 passed by the Civil Judge (Sr. Dn), Kadur is hereby modified declaring that Plaintiffs are the owners of 8 acres of land out of 24 acres 19 guntas in sy. No. 10 of plaint schedule property on its northern side.
iv) The Defendants are liable to vacate and deliver the vacant possession of 8 acres of land as stated above to the Plaintiffs.
v) Draw the decree accordingly.
vi) Parties to bear their own costs.