Prakash Basappa Nari vs Hanamant and Others

B. Veerappa, J.—This regular second appeal is filed by the 9th defendant against the judgment and decree dated 19.3.2011 made in R.A. No. 2/2009 on the file of the Addl. Senior Civil Judge, Saundatti, confirming the judgment and decree dated 31.3.2009 made in O.S. No. 18/2008 on the file of the learned Civil Judge, (Jr. Dn), Saundatti, decreeing the suit of the plaintiffs declaring that, the sale deed dated 31.12.2007 executed by defendant No. 2 Fakkirappa in favour of defendant No. 9-present appellant, in respect of land bearing No. 280 measuring 11 acres 23 guntas situated at Jalikatti village is null and void and not binding on the plaintiffs'' and defendants 1, 4 to 8''s share. Accordingly, plaintiffs 1, and 2 and defendants 1, 4, 5 and 2 are entitled to 1/24th share each in all the suit schedule A'' and ''B'' properties and defendants 6, 7 and 8 have got 1/4th share each in all the suit schedule A'' and ''B'' properties. Further, the 9th defendant/present appellant, is restrained from interfering with the peaceful possession and enjoyment of the plaintiffs and defendants 1, and 4 to 8''s shares in the suit properties and also directed the Sub-Registrar, Murgod, for cancellation of the sale deed standing in the name of 9th defendant in respect of the land bearing R.S. No. 280 measuring 11 acres 23 guntas situated at Jalikatti village as per Section 31(2) of the Specific Relief Act, 1963.

The respondents 1 and 2 who are the plaintiffs in O.S. No. 18/2008 filed suit for partition and separate possession and declaration and consequential relief of injunction contending that the suit properties are land bearing Sy. No. 194 measuring 2 acres 15 guntas, Sy. No. 280 measuring 11 acres 23 guntas, R.S. No. 559 measuring 10 acres 11 guntas situated at Jalikatti village and VPC Nos. 5 and 19 both situated at Jeevapur village in Soundatti taluk and they are ancestral joint family properties of plaintiffs and defendants 1 to 8 and there was no partition between them as on the date of the suit. The defendant No. 1 is the kartha of the joint family of plaintiffs and defendants 2 to 8. Defendant No. 2 is the son of defendant No. 1. On account of love and affection, in the year 1983 the 1st defendant has transferred the land bearing R.S. No. 194 and 280 of Jalikatti village in the name of 2nd defendant. Accordingly, said survey number was standing in the name of defendant No. 2. Defendant No. 2 was addicted to bad vices and for that reason there was no cordial relationship between plaintiffs and defendants-1, 4 to 8. Thus the plaintiffs and defendants 3 to 8 requested the defendants 1 and 2 to effect partition and separate possession of the suit schedule property by metes and bounds. But defendants 1 and 2 did not heed the request of the plaintiffs and defendants 3 to 8. Defendant No. 2 has no exclusive right, title or interest in the land bearing R.S. No. 194 and 280 of Jalikatti village. Behind the back of plaintiffs and defendants 3 to 8, the 2nd defendant alienated the property bearing R.S. No. 280 measuring 11 acres 20 guntas in favour of 9th defendant/present appellant on 28.11.2007. There was no family necessity for the sale of the land bearing R.S. No. 280 of Jalikatti village. Pursuant to the alleged sale deed, the 9th defendant started interfering with the peaceful possession and enjoyment of the suit property by the plaintiffs and defendants 3 to 8 and therefore, they filed suit for partition and separate possession and also for declaration to declare that the sale deed dated 28.12.2007 executed by defendant - 2 in favour of 9th defendant as null and void and also for permanent injunction restraining 9th defendant from interfering with the peaceful possession and enjoyment of plaintiffs and defendants 3 to 8 over the suit schedule property.

The summons was served on the defendants. Defendants 1, 4, 5, 6, 7, 8 and 9 appeared through the Counsel. Defendants 2 and 3 were placed ex-parte since they remained absent inspite of service of summons. Defendant No. 1 filed the written statement which was adopted by defendants 4 and 5. Defendants 6 to 8 are legal heirs and defendant No. 9 is the subsequent purchaser of the land bearing R.S. No. 280 appeared through their Counsel but did not file written statement. Defendant No. 1 has filed the written statement and has stated that plaint paras 1 to 5 are true and correct and the suit schedule properties are ancestral joint family properties of plaintiffs and defendants and they are in possession of the suit properties as on the date of the suit. In the year 1988, the 1st defendant transferred the land bearing Sy. Nos. 194 and 280 of Jalikatti village in favour of defendant No. 2. Accordingly, mutation entry was effected in the name of 2nd defendant. Now the 2nd defendant taking undue advantage of his name appearing in the revenue records has the alienated land bearing Sy. No. 280 measuring 11 acres 23 guntas in favour of 9th defendant behind the back of the plaintiffs and defendants 1, and 3 to 8. The 9th defendant has no right, title or interest over the land bearing Sy. No. 280. As on the date of the suit, the plaintiffs and defendants 1 to 8 were in possession and enjoyment of the suit schedule properties. The defendant No. 9 was never in possession and enjoyment of land bearing Sy. No. 280 measuring 11 acres 23 guntas. Therefore, it is averred that defendant-1 is also entitled to legitimate share in all the properties and accordingly other defendants supported the case of plaintiffs.

Based on the pleadings, the trial court framed the following issues:

Whether the plaintiffs prove that the suit properties are the joint family properties of plaintiffs and defendants 1 to 8?

Whether the plaintiffs prove that the sale deed executed by defendant-2 in favour of 9th defendant on 31.12.2007 in respect of Sy. No. 280 is void and not binding on the plaintiffs?

Whether the plaintiffs are having 2/24th share in the suit properties?

Whether the plaintiffs are entitled for partition and separate possession in the suit property?

Whether the plaintiffs are entitled for declaration and injunction against the defendant No. 9?

What decree or order?

In order to establish plaintiffs'' case, plaintiff No. 1 was examined as PW. 1 and marked documents as Ex. P. 1 to P. 12. Defendants have not led any oral or documentary evidence on their behalf.

The trial court after considering the materials on record recorded a finding that the plaintiffs have proved that the suit schedule properties are joint family properties of plaintiffs and defendants 1 to 8 and the sale deed executed by defendant-2 in favour of defendant No. 9 on 31.12.2007 in respect of R.S. No. 280 is not binding on the plaintiffs and plaintiffs are entitled to 1/24th share in all the suit A'' and ''B'' properties and the plaintiffs are entitled for partition and separate possession of the suit properties and plaintiffs are also entitled for declaration and injunction against the 9th defendant. Accordingly, the trial court has decreed the suit as prayed for.

Aggrieved by the said judgment and decree, the 9th defendant alone filed appeal before the Additional Senior Civil Judge, Saundatti, who after hearing both parties by his impugned judgment and decree dated 19.3.2011 dismissed the appeal and confirmed the judgment and decree of the trial court.

Against the said concurrent finding of fact, the present second appeal is filed.

I have heard the learned Counsel for the parties to the lis.

Snjagadish Patil, learned Counsel for appellant/purchaser has contended that both the courts below have not given proper opportunity to the appellant to file written statement and thereby he was not able to file written statement and oppose the claim of plaintiffs. In the absence of an opportunity being provided to the appellant, the judgment and decree of the courts below cannot be sustained. He also contended that the courts below atleast should have allotted the share of the 2nd defendant in favour of 9th defendant, who alienated the joint family properties. Therefore, he sought to set aside the judgment and decree of the courts below.

Per contra, Sri. Gurudev Gachchmamath, learned Counsel for respondents 1 and 2 sought to justify the impugned judgment and decree of the courts below and contended that inspite of sufficient opportunity was provided, the 9th defendant in order to file written statement he has not filed any written statement. Therefore, he sought to justify the impugned judgment and decree of the courts below.

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

It is the specific case of the plaintiffs that, all the suit schedule properties are joint family properties and the plaintiffs and defendants are entitled to equal share in the suit schedule properties and 2nd defendant has no exclusive right to alienate the joint family properties in favour of 9th defendant. The alleged sale deed executed by 2nd defendant in favour of 9th defendant on 31.12.2007 in respect of Sy. No. 280 is null and void, not binding on the plaintiffs.

In order to substantiate their case, plaintiff No. 1 was examined as PW. 1 and marked the documents Ex. P. 1 to P. 12. The PW. 1 has stated in his examination-in-chief that the suit properties are the properties of Hanamantappa. He died leaving behind Hanamawa, Tulasawa, Bagawwa, Basappa, Kashawwa and Basappa had a wife by name Sundrawwa and out of their wedlock Fakirappa, Savita, Vijaya, Mahadevi and Hanmant were born. Defendant No. 3 Manjula is the wife of defendant No. 2 Fakirappa. The suit schedule properties are ancestral properties of plaintiffs and defendants 1, 2 to 8 and there was no partition between them as on the date of the suit. In the year 1983, the 1st defendant who was the Kartha of the joint family of plaintiffs and defendants 1 to 8 has transferred land bearing Sy. No. 194 and 280 in favour of 2nd defendant for the purpose of availing Government facilities. The 2nd defendant who was addicted to bad vices, behind the back of plaintiffs and defendants 1 and 3 to 8 has sold property bearing Sy. No. 280 measuring 11 acres 23 guntas in favour of 9th defendant on 28.12.2007. The alleged sale dated 28.12.07 is not binding on the plaintiffs and the 9th defendant was never in possession and enjoyment of the said suit property. The 9th defendant in pursuance of alleged sale deed tried to interfere with the peaceful possession and enjoyment of plaintiffs. Therefore, the plaintiffs were constrained to file the suit.

Ex. P. 1 to P. 3 are the record of rights of suit schedule properties. Ex. P. 4 to P. 7 are the mutation entries, Ex. P. 8 and Ex. P. 9 are VPC extracts and Ex. P. 10 is the certified copy of the sale deed and Ex. P. 11 is Patta Book and Ex. P. 12 is the copy of ration card. The learned Counsel for defendants 1, 4 and 5 have admitted that the suit schedule properties are ancestral joint family properties of plaintiffs and defendants 1 to 8 and also admitted fact that there was no partition took place between the members of the joint family as on the date of the suit. They also admitted that the 2nd defendant was addicted to bad vices and thereby the 2nd defendant behind the back of plaintiffs and defendants 1 and 3 to 8 has sold one of the joint family property viz., Sy. No. 280 measuring 11 acres 23 guntas of Jalikatti village on 28.12.2007 in favour of 9th defendant and the plaintiffs and defendants-1 to 8 have got share in the suit properties and they prayed for decreeing the suit of the plaintiffs as prayed for.

The trial court also recorded a finding that though the 9th defendant appeared through Counsel, he did not file written statement and denied the allegations made by plaintiffs and therefore it was taken that there was no defense on behalf of 9th defendant in the suit. On a perusal of documentary evidence, the plaintiffs and defendants - 1, 4 and 5 appeared through their counsel and admitted in their written statement that the suit schedule properties are ancestral properties of the plaintiffs and defendants-1 to 8 and there was no partition between them as on the date of the suit and the alienation made by defendant-2 in favour of defendant No. 9 is not binding on the plaintiffs and defendants. Thus, the plaintiffs 1, 2 and defendants 1, 4 and 5 are entitled for the relief of declaration and for partition and separate possession and consequential relief of injunction. Accordingly, the trial court decreed the suit as prayed for.

On re-appreciation of entire material on record, the lower appellate court recorded a finding that defendants-1, 4 and 5 have admitted the fact that the plaintiffs are in joint possession and enjoyment of the suit schedule properties along with defendant Nos. 1 to 8 and the remaining defendants and appellant have not chosen to file written statement and even not chosen to cross-examine PW. 1 before the Court. The material documents Ex. P. 1 to 11 clearly disclose that the suit schedule properties are joint family properties of plaintiffs and defendants 1 to 8 and the said documents are standing in the name of Aralikatti Basappa Hanamantappa, who is the 1st defendant in the instant case. The 1st defendant filed written statement admitting the contentions raised by plaintiffs as to the origin of the property and the joint possession of the properties by the plaintiffs and defendants 1 to 8 and the defendants 1, 4 and 5 virtually supported the case of the plaintiffs. The appellate court held that the 9th defendant/appellant herein neither filed written statement nor chosen to cross-examine PW. 1 before the trial court cannot now be allowed to produce any documentary evidence in support of his version. Therefore, there was no option for the trial court except to decree the suit as prayed.

Though a solitary argument was advanced before the lower appellate court by the 9th defendant/appellant that the suit is decreed against a dead person i.e. 6th defendant-Tulasawwa, such an argument was contested by the plaintiffs stating that the appellant has not brought to the notice of the court as to existence of any legal heirs of deceased Tulasawwa. Even otherwise the appellant failed to contest the matter on merits before the court below by taking a specific defence in spite of granting sufficient opportunity. Therefore, the appellant is precluded from raising the said issue. Even otherwise, appellant is in no way affected by the judgment and decree of the courts below since no prejudice is caused to the appellant as he is a stranger to the joint family plaintiffs and defendants.

The lower appellate court recorded a finding that it is well settled principle of law that, on inclusion of a member to the joint family, the share of coparcener reduces to some extent and on the death of a coparcener, naturally shares of the other surviving coparceners would be enlarged. In the instant case, it is not the case of the appellant that the deceased defendant No. 6 has left any legal heirs behind her. In fact all the legal heirs of the original propositus Hanamantappa are on record. In the absence of any legal heirs of deceased Tulasawwa, the other parties to the proceedings in no way prejudiced by the judgment and decree of the Court below though the judgment is passed against the dead person. The appellant has not brought to the notice of the court as to the existence of legal heirs of deceased Tulasawwa. Even otherwise, the appellant failed to contest the matter on merits before the court below by taking the specific defence. He cannot be permitted to raise the said issue before the appellate court. Therefore the appellate court rejected the contention of the appellant and dismissed the suit.

Admittedly, the plaintiffs filed the suit for partition and separate possession contending that all the properties are the joint family properties of plaintiffs and defendants 1 to 8 and there was no partition in the joint family members. The defendants 1, 4 and 5 filed the written statement and admitted the case of the plaintiffs and prayed to decree the suit as prayed for in the appeal. The 9th defendant has not filed any written statement and has not availed opportunity provided by the court below to lead any oral or documentary evidence in support of his case neither he cross examined the PW. 1 and therefore the appellant is precluded from raising any issue in support of his case. The appellant has not filed any application requesting the court to provide him opportunity to put forward his defence and throughout the proceedings, the appellant has not appeared before the trial court and the trial court considering both oral and documentary evidence has rightly decreed the suit which is confirmed by the lower appellate court on re-appreciation of evidence on record.

Both the courts below have concurrently held that plaintiffs are entitled to a share as prayed for and the suit schedule properties are joint family properties and plaintiffs and defendants 1 to 8 are members of joint family and also held that the sale deed executed by 2nd defendant in favour of 9th defendant in respect of the land bearing R.S. No. 280 measuring 11 acres 23 guntas situated at Jalikatti village is declared as null and void and not binding on the plaintiffs share and plaintiffs 1, 2 and defendants 1, 4, 5 and 2 are entitled to 1/24th share each in all the suit schedule A and B properties and defendants 6, 7 and 8 have got 1/4th share each in all the suit schedule A & B properties. Further, the 9th defendant was restrained from interfering with the peaceful possession and enjoyment of the plaintiffs and defendants 1 and 4 to 8 shares in the property. The said finding is based on cogent, legal evidence on record. The appellant/plaintiff has not made out prima facie case. No substantial question of law involved in the present appeal.

Accordingly, RSA is dismissed at the stage of admission.