Paul D''Souza vs Kalyani and Others

P.D. Waingankar, J.—1. This appeal by the 6th defendant is directed against the judgment and decree dated 27.06.2013 in R.A. No. 70/2010 on the file of the I Addl. Sr. Civil Judge, Bengaluru, whereby the appeal filed by the 6th defendant came to be dismissed while confirming the judgment and decree dated 29.01.2010 in O.S. No. 7/2008 on the file of the III Addl. Civil Judge, Jr. Dn., Bengaluru.

The brief facts which gave rise to the appeal are as under:

The plaintiff Ramakka and the defendants No. 1 to 3 are the children of one Thukra Poojary and Muthu Poojary. The schedule property bearing Sy. No. 49/4B measuring 0.16 Acre with a building bearing Door No. 3-90 of Kannur Village, Mangalore Taluk was a lease hold property. The defendant No. 1 to 3 filed declaration in Form No. 7 before the Land Tribunal. The Land Tribunal upon enquiry, granted occupancy rights in respect of the aforesaid Survey Number, in favour of defendants 1 to 3.

On 13.12.2006, the defendants 1 to 3 sold the schedule property in favour of defendant No. 6 for a valuable consideration. On coming to know of the same, the plaintiff - sister of the defendants filed a suit for partition and separate possession of her 1/5th share in the suit schedule property in O.S. No. 7/2008 on the file of the III Addl. Civil Judge, Bengaluru. The suit was contested by the defendants. It is the case of the defendants No. 1 to 3 that they were the tenants of the schedule property, they have filed a declaration in Form No. 7 and the Tribunal after holding enquiry granted occupancy rights in their favour. Therefore, they became the absolute owners. They have sold the said property to defendant No. 6 by way of registered sale deed.

The contention of defendant No. 6 is that he is the bona fide purchaser for a valuable consideration and hence he has sought for dismissal of the suit. The Trial Court has framed the following issues:-

ISSUES

Whether the plaintiff proves that, the suit schedule property originally belonged to her father late Thukra Poojary by inheritance?

Whether the plaintiff further proves that the occupancy rights granted in favour of the defendants No. 1 to 3 is for and on behalf of all the legal heirs of late Thukra Poojary?

Whether the plaintiff further proves her joint and constructive possession over the suit schedule property along with all the legal heirs of Late Thukra Poojary?

Whether the plaintiff further proves that the sale deed dated 13.12.2006 executed in favour of the 6th defendant is null and void and not binding on her?

Whether the plaintiff further proves that she is entitled to 1/4th share in the suit schedule property by way of partition?

Whether the defendants No. 1 to 3 prove that the suit is barred by limitation?

Whether the 6th defendant proves that he is the bona fide purchaser of the suit property for valid consideration?

Whether the 6th defendant further proved that the suit is improperly valued for the purpose of court fee?

Whether the plaintiff is entitled to the reliefs claimed in the suit?

What Order or Decree?

After framing of the issues, the plaintiff adduced the evidence as P.W. - 1 and produced as many as six documents which are marked as Exs. P. 1 to P. 6.

On behalf of the defendants, one Sri Gopala Krishna was examined as DW-1, defendant No. 6 as D.W. 2 and have relied upon two documents marked as Exs. D. 1 and 2.

The Trial Court on appreciation of evidence and after hearing the counsel for the parties, recorded a finding that it was a tenancy property of the father of the plaintiff and defendant No. 1 to 3, the occupancy rights has been granted in favour of the Defendant No. 1 to 3, as members of the joint family and thereby the suit of the plaintiff came to be decreed by judgment and decree dated 29.01.2010 and the sale deed dated 13.12.2006 executed by defendant No. 1 to 3 in favour of the 6th defendant held to be null and void and not binding on the share of plaintiff. It has also been held that the plaintiff and defendant No. 1 to 3 are entitled to 1/5th share and defendants No. 4 and 5 together are entitled for 1/5th share in the suit schedule property by metes and bounds.

Aggrieved by the judgment and decree passed by the Trial Court, the defendant No. 6 filed an appeal in R.A. No. 70/2010 on the file of the I Addl. Sr. Civil Judge, Mangalore. Upon merits, the appeal came to be dismissed by a judgment and decree dated 27.06.2013, confirming the judgment and decree passed by the Trial Court in Original Suit. Challenging the judgment and decree passed by the both the Courts below, this appeal is filed by the 6th defendant.

I have heard the submissions made by both the learned counsel for the appellant, defendant No. 6 and respondent No. 6 plaintiff. Perused the judgment and decree passed by both the Courts below. The submission of the learned counsel for the Appellant, who is the defendant No. 6 in original suit, is that he is the bona fide purchaser for valuable consideration and therefore, he is entitled to be declared as the owner of the suit schedule property on the strength of the sale deed.

The learned counsel for the respondent/plaintiff submits that both the Courts below on proper appreciation of the evidence have recorded a finding that it was the ancestral tenancy property and as such the sale deed executed by Defendant No. 1 to 3 in favour of defendant No. 6 is not binding on the share of the plaintiff and the appeal is bereft of merits and liable to be dismissed.

It is not in dispute that the plaintiff and defendant No. 1 to 3 are the children of Late Thukra Poojary and Muthu Poojary, who are no more. The evidence of the plaintiff and also from the admission made by the witnesses examined on behalf of the defendants No. 1 to 3, it is abundantly clear that originally Thukra Poojary was the tenant of the schedule property and after the death of Thukra Poojary, the tenancy devolved upon his children. Merely because out of the five children, three children have filed a declaration in Form No. 7, it cannot be said that they filed the declaration in their individual capacity. Even otherwise, their admission go to show that it was joint family tenancy and as such the tenancy right was confirmed upon the defendant No. 1 to 3 in the capacity of the joint family members. The plaintiff being one of the daughters of Thukra Poojary, is entitled for 1/5th share.

The defendants 1 to 3 had no right to execute the sale deed in so far as the right of the plaintiff-Ramakka is concerned. As such, the Trial Court, on proper appreciation of the evidence, has rightly decreed the suit of the plaintiff. So also, the Appellate Court on re-appreciation of the evidence confirmed the judgment and decree passed by the Trial Court while rejecting the contention of the appellant that he is a bona fide purchaser. Since both the courts below have negatived the said contention, on appreciation of evidence, the same cannot be re-agitated again in this appeal. I do not find any good grounds to interfere with the judgment and decree passed by the Court below.

Hence, the appeal is dismissed as devoid of merits. Since the main matter is disposed of, I.A. No. 2/2014 for stay does not survive for consideration. Accordingly, it is disposed of.