Rangappa vs B.S. Sowmya and Others

N. Kumar, J.

This Regular First appeal is preferred by the first defendant challenging the Judgment and Decree of the trial Court which has decreed the suit of the plaintiffs as prayed for holding that the decree passed in OS No. 4/96 is not binding on the plaintiffs. Further, decreeing the suit of the plaintiff for partition and separate possession of 2/3rd share in the plaint schedule property.

For the purpose of convenience, the parties are referred to as they are referred to in the original suit.

The subject matter of the suit is, land bearing Sy. No. 56 measuring 5 acres and 36 guntas situated at Yerthiganahalli village, Kasaba Hobli, Devanahalli Taluk, Bangalore Rural District which is more fully described in the schedule (hereinafter referred as ''schedule property'').

The plaintiffs are the unmarried daughters of defendant No. 2. The case of the plaintiffs is, defendant No. 2 started behaving irresponsibly and trying to throw away the properties to various persons for meager hand loans without creating proper documents and without consulting them. Because of his attitude, the plaintiffs have started residing separately and looked after the leather business. The grand father of the plaintiffs purchased the suit schedule property from one K. Annayyappa on 1.6.1943 through a registered sale deed. He was put in actual possession and enjoyment of property. At a partition between the grand father of the plaintiffs and his sons and daughters, the suit schedule land has fallen to the share of the plaintiffs'' father i.e. defendant No. 2. He continued in the possession of the property and till today he is in actual possession and enjoyment of plaintiffs and defendant No. 2.

Defendant No. 1 recently came to the suit schedule property and made attempt to obstruct the peaceful possession of the property claiming that he has obtained a Judgment and Decree on 5.2.1996 against defendant No. 2 in OS 4/96 before the I Additional Civil Judge, Bangalore District, Bangalore. He has become the absolute owner of the suit schedule property, he has perfected his title over the suit schedule property by way of adverse possession and also claimed that he has obtained a decree of permanent injunction against defendant No. 2 or his survivors, assignees or anybody claiming through or under him. Thereafter, plaintiffs verified and noticed, the defendant No. 1 filed a suit colluding with defendant No. 2 making false allegations that he was in possession of the property by defendant No. 2 in the year 1975 and that, he continued in possession till the date of suit. The defendant No. 1 taking undue advantage of defendant No. 2''s behaviour without making plaintiffs and their mother as parties to the suit and without disclosing true facts obtained a compromise decree. At no point of time, defendant No. 1 was put in possession of the suit schedule property either by plaintiffs grand father or any of the legal heirs of late Channappa and even in OS No. 4/96 plaintiffs have not disclosed how he was put in possession of the property and he has not at all produced any document to show that he is in real possession and enjoyment of the property in 1975. This fact has been very well noticed in the record of rights pertaining to the suit schedule property standing for the year 1993-94. Defendant No. 1''s name is shown in col. 12 along with the name of defendant No. 2. This entry is also made without following any procedure as laid down in the KLR Act of 1964. Apart from this, absolutely there are no material to show that defendant No. 1 is in actual possession of the property since 1975. The averments made in the plaint of OS 4/96 are all false, frivolous and concocted and the same are made with an ill intention to obtain a decree from the Court.

The suit schedule property is purchased by the grand father of the plaintiffs. It is an ancestral property and the plaintiffs have got 2/3rd share in the suit schedule property. The alleged decree obtained by defendant No. 1 is a misconceived, fraudulent and illegal decree and hence it is not binding on plaintiffs. The defendant No. 1 had not obtained any valid rights under the compromise decree. Hence, he cannot interfere in the peaceful possession and enjoyment of the suit schedule property by the plaintiffs. Since defendant No. 2 made an attempt to dispossess the plaintiffs from the suit on the basis of alleged compromise decree, plaintiffs are constrained to file a suit for declaration and injunction and also for partition in respect of the suit schedule property. Therefore, the plaintiffs sought for a partition and separate possession of their 2/3rd share in the suit schedule property and for declaration that the compromise decree in OS 4/96 dated 5.2.1996 is not binding on them.

After service of summons, the first defendant entered appearance and filed his written statement through his counsel. He admitted that plaintiffs are unmarried daughters of defendant No. 2. Further he denied the allegation that defendant No. 2 has started behaving irresponsibly and attempted to throw away properties to various persons for meager hand loans without creating proper documents and without consulting the plaintiffs was denied as false. The plaintiffs have cooked up a false story to disturb this defendant and suit is filed. Before filing the suit, this defendant approached the first defendant with a demand to pay Rs. 5 lakhs as the property value has raised. As the defendant did not agree for the said proposal, since then the second defendant posed threat to the first defendant one way or the other and he would do anything to file the suit for the property as the suit property is very much near to the Bangalore International Airport and market value has raised due to that, first defendant is trying to interfere with the possession of property by second defendant. On his request, plaintiffs have filed the suit against the first defendant.

The plaintiffs and second defendant are residing in a single roof and the say of the plaintiffs that plaintiffs are residing separately from the second defendant is totally false. Defendant No. 1 has also submitted that he had started cultivating the suit schedule property personally in the year 1975 and his possession is unbroken, uninterrupted and his possession is open and hostile to the interest with the knowledge of second defendant. As such, he had perfected his right, title and interest over the suit schedule property by way of adverse possession and defendant No. 2 and the plaintiffs have lost their right, title and interest over the suit schedule property.

The first defendant had filed OS 4/96 on the file of I Additional Civil Judge (Sr. Dn.), Bangalore Rural District, Bangalore for declaration and relief of injunction against second defendant. After service of summons, second defendant appeared before the Court though a counsel however, he conceded that first defendant was in possession in respect of the suit schedule property that he had perfected his right, title and interest over the suit schedule property by way of adverse possession by filing compromise petition before the Hon''ble Court. The suit came to be decreed in terms of the compromise petition. The said fact is well within the knowledge of plaintiffs. The plaintiffs cannot seek a partition against the defendants in respect of the suit schedule property.

Admittedly, the defendant was in possession since 1975 and thereby, he had sought for declaration on the basis of adverse possession against the second defendant since he was Khatedar. Therefore, the question of making plaintiffs as parties in the said suit does not arise at all. However, Judgment and Decree passed in OS 4/96 is binding on the plaintiffs as well as the second defendant since the second defendant was the Kartha and Manager of the joint family. The plaintiffs have made irresponsible statement and the same are all false. The suit is filed intentionally and deliberately to extract money from him. Since 1975, neither the plaintiffs nor the second defendant have come near the suit property so far. In the year 1975, first defendant was in possession and enjoyment of the same in respect of the suit schedule property by raising crops thereon. He is paying kandayam pertaining to the suit schedule property. The allegation of collusion is denied.

The defendant has denied all the allegations made by plaintiffs in the plaint. The allegation that the decree in OS 4/96 is obtained by collusion is denied. The decree in OS 4/96 is binding on the plaintiffs and second defendant. The question of dispossession of plaintiffs from the suit schedule property does not arise at all since the suit filed by the plaintiffs is not maintainable. The first defendant is in actual possession and enjoyment of the same since 1975, as such the plaintiffs cannot claim for partition nor cancellation of the decree. Therefore, he sought for dismissal of the suit.

On the aforesaid pleadings, the trial Court framed the following issues:

"1. Whether the plaintiffs prove that the compromise decree passed in O.S. No. 4/1996 is behind their back, illegal and not binding upon them?

Whether the plaintiffs are entitled for the relief of partition and separate possession in suit schedule properties?

If so to what extent?

Whether the plaintiffs are entitled to the relief of permanent injunction as prayed for?

Whether defendant No. 1 proves that the suit is filed at the instance of defendant No. 2 to harass him?

Whether the defendant No. 1 proves that he has perfected his title to the suit property by adverse possession?

Whether the suit of the plaintiff is barred by limitation?

What order or decree?"

Plaintiffs, in order to substantiate their claim, examined the second plaintiff B.S. Malasa as P.W. 1 and they also examined one witness Shanthappa as P.W. 2. They produced in all ten documents which are marked as Ex. P1 to P10. On behalf of defendants, the first defendant Rangappa was examined as D.W. 1 and two witnesses Sri Krishnappa as D.W. 2 and Sri Rajanna as D.W. 3.

The trial Court, on appreciation of the aforesaid oral and documentary evidence on record held, the plaintiffs have proved that the compromise decree passed in OS 4/96 behind the back of the plaintiffs is illegal and not binding upon them. It also held plaintiffs are entitled for the relief of partition and separate possession of the suit schedule property. It held plaintiffs and second defendant each of them has 1/3rd share and therefore, 2/3rd share belonging to the plaintiffs is in no way affected by passing of the order in OS 4/96. It also held the plaintiffs are entitled to the relief of permanent injunction as prayed for. The defendant No. 1 has failed to establish his case that the suit is filed at the instance of defendant No. 2 to harass him. Defendant No. 1 has miserably failed to prove that he has perfected his title by adverse possession. The suit of the plaintiffs is not barred by law of limitation. Accordingly, it decreed the suit of the plaintiffs as prayed for in respect of their 2/3rd share of the suit schedule property.

Aggrieved by the said Judgment and Decree of the trial Court, the first defendant has preferred this appeal.

The learned counsel for the appellant assailing the impugned order contends, the property which the plaintiffs'' father acquired under a partition deed is his self acquired property. Plaintiffs cannot maintain a suit for partition during his lifetime. This aspect of the matter has not been considered by the trial Court. Secondly, he contended that first defendant is in possession and enjoyment of schedule property from the year 1975. He filed a suit against second defendant for declaration that he has perfected his title by adverse possession. First defendant entered into compromise with the plaintiffs admitting that the first defendant is in adverse possession of the schedule property. Therefore, the said decree is binding on the plaintiffs who are none other than the children of decree holder i.e. the second defendant. Therefore, he submits, the decree passed in OS 4/96 equally binds the plaintiffs who are the children of second defendant. Therefore, he prays for setting aside the Judgment and decree of the trial Court.

Sri Sreevatsa, learned Sr. Counsel appearing for the plaintiffs supporting the impugned Judgment and Decree submitted, the schedule property was an ancestral property. At a partition among the family members, the said property fell to the share of second defendant. Therefore, the said property is not the self acquired property of the second defendant. Plaintiffs being the daughters of the second defendant by virtue of the amendment to Hindu Succession Act by amendment Act of 2005, acquired status of co-parceners along with their father. Admittedly, they are not parties to the suit in OS 4/96 and therefore, the decree passed in the said suit does not bind the plaintiffs. Therefore, he submits, the decree of the trial Court declaring that the said decree is not binding on the plaintiffs is strictly in accordance with law. As is clear from the compromise decree and the evidence on record, the said decree is a collusive one. Though it is stated that first defendant is in possession of the property from the year 1975. the evidence on record if it is to be believed, only shows that he came into possession of the property only in the year 1993-94 and therefore, suit for partition in OS 4/96 being filed within a gap of three years could not have been decreed declaring that the first defendant has perfected his title by adverse possession. Therefore, he submits, there is no merit in this appeal.

In the light of the aforesaid facts and rival contentions, the points that arise for our consideration are as under:

"1. Whether the finding of the trial Court and the decree passed in OS 4/96 is not binding on the plaintiffs, calls for interference?

Whether the first defendant has perfected his title to the plaint schedule property by way of adverse possession so as to deprive the plaintiffs relief of partition and separate possession?"

Point No. 1:

The material on record establishes that the plaintiffs'' grand father Channappa purchased the schedule property under a registered sale deed dated 1.4.1943 which is marked as Ex. P2 in the suit. Channappa died on 29.6.1974 and his wife Gowramma died on 3.5.1977 intestate leaving behind nine children. However, six surviving sons who constitute a joint family who are successors of ancestral property effected a partition of the properties belonging to the family by way of registered partition deed dated 27.6.1988 which is marked as Ex. P3. These documents are not in dispute. It is in the said partition, the schedule property fell to the share of the second defendant. The recital in the said partition deed shows second defendant was put in exclusive possession of the property under the partition deed. In the said partition deed, there is no reference to the schedule property being in possession of the first defendant in the suit. It is thereafter, the first defendant filed suit in OS 4/96 on the file of I Additional Civil Judge(Senior Division), Bangalore Rural District, Bangalore against the second defendant for declaration that he has perfected his title over the plaint schedule property by way of adverse possession. In the said suit, parties entered into compromise where the second defendant conceded the claim of the first defendant and therefore, a decree came to be passed on 5.2.1996 as per Ex. P8 under which, the first defendant was declared to be the absolute owner of the plaint schedule property by way of adverse possession. On the day the said suit was filed, both the plaintiffs were born. They were not made parties. The reason being, the first defendant proceeded on the footing that as Khata of the said property stood in the name of second defendant. His father had purchased these properties under a registered sale deed as per Ex. P2. Though the second defendant got the property under the registered partition deed as per Ex. P3, it his self-acquired property. If the schedule property is self-acquired property of the second defendant, there was no obligation cast on the first defendant to implead the plaintiffs in the suit. If the plaintiffs were claiming to establish title to the property under their father, any decree passed against their father would duly bind them. If they wanted to get over the effect of the decree, they should have sought for cancellation of the decree. If the property is an ancestral property, the plaintiffs have got a right in property by birth. They are not claiming any right under the second defendant but, they are claiming right independent of the second defendant. Any decree passed against the second defendant, is not binding on the plaintiffs. In the instant case, a reading of Ex. P2 and P3 clearly establishes that schedule property is ancestral/joint family property. At a partition, it fell to the share of second defendant in which, the second defendant and plaintiffs all the three of them had equal share of 1/3rd each. It was not self-acquired property of second defendant. The suit filed in OS 4/96 against the second defendant only. The plaintiffs were not made parties. Thus, compromise petition or decree in the said suit do not bind the plaintiffs to any extent whatsoever. That is what the trial Court has precisely held. Therefore, we do not find any error committed by the trial Court in holding that the decree passed in OS 4/96 do not bind the plaintiffs share in the suit schedule property.

Point No. 2:

First defendant has set up a plea of adverse possession. His case is, in the compromise petition filed as well as in the plaint in OS 4/96, he has stated that he is in peaceful possession and enjoyment of the property from the year 1975 uninterruptedly. The said pleading is admitted by the second defendant in the compromise petition. Any admission by a party who has an interest in the property is certainly binding on him but that admission do not bind the persons who have interest independent of the second defendant. However, as rightly pointed out by the trial Court, the defendant has not produced any material in this case to show that he was in possession of the property from the year 1975-76. Ex. P11 to Ex. P14 RTC extracts produced in this case pertains to the year 1974-75, 75-76 wherein the suit schedule property stands in the name of A. Channappa as per Col. No. 10 having acquired the property by way of purchase and the possession of the property with the second defendant which he has acquired by inheritance. As per Ex. P2 the registered sale deed dated 1.6.1943 and Ex. P5 RTC extracts for the year 1983-84 and 92-93 stand in the name of second defendant as per Co. 9 and 12. As per Ex. P6, P13 and P14, RTC extracts from 1993-94 onwards upto 1996-97 first defendant''s name finds a place along with defendant No. 2 in Co. 12. However, the first defendant''s name finds place along with name of second defendant in col. 9 is rounded off and only defendant Nos. 1''s name is entered as per MR 1/1997-98 and MR No. 1/1997-98. In respect of mutation and khata and pahani, the suit schedule property having been personally cultivated by the first defendant, his name is entered pursuant to entries in decree in OS 4/96. From this unimpeachable evidence on record, it is clear that only from the year 1993-94, first defendant is shown along with defendant No. 2 and from 1997-98 first defendant''s name is shown pursuant to decree in Os 4/96. Thus, this documentary evidence clearly proves that first defendant was not in possession of the property from the year 1975 to 1993-94. If the first defendant got into possession of the property first time in 1993-94, the suit filed in OS 4/96 for declaration that he has perfected his title by adverse possession should have been decreed only with collusion of second defendant by giving consent. Therefore, it is a collusive decree on the face of it. As such, it is non-est in the eye of law. Therefore, the trial Court was justified in holding that the first defendant has failed to establish his case of adverse possession and the decree obtained by him earlier would not come to his rescue in establishing his plea of adverse possession. The decree is a collusive one and nullity in the eye of law. The said finding of the trial Court is in accordance with law and based on oral and documentary evidence on record. As such, no case for interference is made out.

In view of the aforesaid discussion, we do not find any justification in interfering with the well considered order passed by the trial Court.

No merit. Dismissed.