Sampa and Others vs Rajeevi and Others

P.D. Waingankar, J.—1. Both these appeals are preferred against a common judgment and decree dated 6.4.2011 in R.A. No. 20/2007 and R.A. No. 142/2006 on the file of Fast Track Court, Karakala.

The parties are referred to their ranks before the trial court:-

The appellants in both the appeals were defendants Nos. 1 to 7 in O.S. No. 198/2002 on the file of Prl. Civil Judge (Jr. Dn.), Karkala and the respondents were the plaintiffs. The plaintiffs filed a suit for a decree of mandatory injunction against the defendants to direct them to hand over the vacant possession of the schedule house property in their occupation on the ground that the plaintiffs are the owners of the schedule house property and the defendants were permitted to occupy the same and now the plaintiffs are in need of the schedule property, they terminated the licence and withdrew the permission given to the defendants to occupy the house. The defendants failed to vacate and hand over the vacant possession of the schedule house property in favour of the plaintiffs. Therefore, they filed a suit in O.S. No. 198/2002 for mandatory injunction to direct the defendants to hand over the vacant possession in favour of the plaintiffs. The original suit was filed only against defendant No. 1 and subsequently, defendant Nos. 2 to 7 were added as parties to the suit.

Defendant Nos. 1 and 6 filed written statement of objections. The case of the defendants is that they are not in occupation of the schedule property as a licencee under the plaintiffs nor they are in permissive possession of the same as contended by the plaintiffs. On the other hand, the case of the defendants is that they are in occupation of the schedule property as its owner and they succeeded to the schedule property after the death of Sadananda-husband of the first defendant and father of other defendants. The first defendant has set up a counter claim contending that the schedule property alongwith other properties were bequeathed to her husband Sadananda Shettigara by his grandmother Venkamma Shettigarthi by a will dated 31.1.1985. After the death of Venkamma Shettigarthi, her husband succeeded to the schedule property on the strength of the will executed by Venkamma Shettigarthi and after the death of Sadananda Shettigara, defendants succeeded to the schedule property and hence defendant No. 1 has sought for a declaration to declare that the defendants are the owners of the schedule property by virtue of a will executed by Venkamma Shettigarthi and that the plaintiffs are in no way concerned to the schedule property. Based on the pleadings, the trial court framed as many as nine issues and two additional issues which are as under:-

Whether the plaintiffs prove that they are the full owners of property described in plaint ''A'' schedule?

Whether the plaintiffs prove that the defendant is in permissive possession over the plaint ''A'' schedule property?

Whether the plaintiffs prove that they have revoked the permission granted to the defendant through quit notice dated 16.4.2002?

Whether the defendant proves that she has been in actual possession and enjoyment of the properties described in her written statement paragraph No. 4?

Whether the defendant proves that one Venkamma Shettigarthi had executed a valid Will dated 21.01.1985 bequeathing the properties of her right and title in favour of Sadananda Shettigara? If so, whether the defendant has acquired absolute right, interest and title over those properties as a legal heir of said Sadananda Shettigara?

Whether the plaintiff is entitled for the relief of Mandatory Injunction as sought?

Whether the defendant is entitled for the relief of declaration and permanent injunction as sought?

To what relief the parties are entitled?

What Order or Decree?

Additional issues:-

Whether the suit is bad for non-joinder of necessary parties as contended by the defendant No. 6 in his written statement?

Whether the suit is barred under provisions contained in the Hindu Adoptions and Maintenance Act, 1956?

In order to substantiate their case, the first plaintiff was examined as PW-1 and the second plaintiff who is the sister of the first plaintiff was examined as PW-2. They produced and got marked 12 documents as Exs-P1 to P12. The first defendant stepped into the witness box and adduced her evidence as DW-1 apart from examining one of the attesting witnesses to the Will P. Jayaraja Kajava as DW-2. The trial court on appreciation of evidence held that the plaintiffs failed to prove that the defendants are in occupation of the schedule property as licencee under the plaintiffs, which resulted in dismissal of the suit. Sofar as counter claim set up by defendant No. 1 is concerned, the trial court held that the defendants failed to prove the due execution of the will by Venkamma Shettigarthi in favour of her grandson Sadananda Shettigara - husband of first defendant and father of other defendants, which resulted in rejection of the counter claim by the judgment and decree dated 1.9.2006.

Aggrieved by the dismissal of the suit. The plaintiffs preferred R.A. No. 142/2006 and aggrieved by the rejection of the counter claim, the defendants preferred R.A. No. 20/2007 before the Fast Track Court, Karkala. Both the appeals were heard together and on re-appreciation of evidence, by a common judgment and decree dated 6.4.2011, R.A. No. 20/2007 filed against the rejection of the counter claim came to be dismissed while R.A. No. 142/2006 filed against the dismissal of the suit came to be allowed. Aggrieved by the judgment and decree in R.A. No. 20/2007, the defendants have preferred RSA No. 1345/2011 and aggrieved by the judgment and decree in R.A. No. 142/2006, the defendants have preferred RSA No. 1326/2011.

Both the appeals were admitted and the following substantial questions of law was framed by order dated 30.7.2012 for disposal of both the appeals:-

"When it is admitted in the evidence of PW-2 that the suit property is an ancestral property and when defendants 2 to 7 are claiming to be the sharers, whether the suit against such defendants could be maintained for the relief of possession?"

The plaintiffs'' case as made out in the plaint is that they are the joint owners of the schedule property which was acquired by their mother Venkamma Shettigarthi. After the death of Venkamma Shettigarthi, they succeeded to the schedule property and that the defendants were permitted to occupy the schedule property as a licencee. Now that the schedule property is required by the plaintiffs, they terminated the licence and called upon the defendants to hand over the vacant possession of the schedule property in their favour. Since the defendants failed to hand over the vacant possession, they filed a suit for mandatory injunction to direct them to vacate the schedule property and hand over the possession in favour of the plaintiffs.

The case of the defendants on the other hand is that they are in occupation of the schedule property as its owner. All the defendants have got right, title and interest in the schedule property and it was bequeathed by Venkamma Shettigarthi to her grandson Sadananda Shettigara-first son of the plaintiff Rajeevi; that the first defendant Sampa is the wife of Sadananda Shettigarthi and the other defendants are the children. Venkamma Shettigarthi bequeathed the schedule property to Sadananda Shettigara by a will. After the death of Venkamma Shettigarthi, Sadananda Shettigara succeeded to the schedule property on the strength of the will and after the death of Sadananda Shettigara, the defendants succeeded to the schedule property and hence they sought for dismissal of the suit. The defendant No. 1 also set up a counter claim to declare that the defendants are the owner of the schedule property on the strength of the will executed by Venkamma Shettigarthi in favour of Sadananda Shettigara her grandson.

In order to prove their case, both plaintiff Nos. 1 and 2 stepped into the witness box and led their evidence as PWs-1 and 2. They relied upon as many as 12 documents marked as Exs-P1 to P12. Ex-P1 is the RTC of Sy. No. 277/3A to an extent of 63 cents for the year 2001-2009. It stands in the name of the plaintiffs. The schedule house property is situated in this survey number. Ex-P2 is the office copy of the quit notice of termination of licence notice dated 16.4.2002 issued to defendant No. 1 by the plaintiffs. Ex-P4 is the reply dated 20.4.2002 to Ex-P2 notice. Ex-P5 is the original registration partition deed dated 14.11.2000 between the first plaintiff and the 2nd plaintiff, who got partitioned all the properties including the schedule property left behind by Venkamma Shettigarthi in equal proportion. Exs-P6 to P10 are the tax-paid receipts for having paid taxes by the plaintiffs. Ex-P11 is the bank notice issued to Venkamma Shettigarthi to clear the loan dues. Ex-P12 is the certified copy of the decree in O.S. No. 140/1996 dated 27.1.1998 in a suit for recovery filed by Netravathi Grameena Bank against the defendants.

The first defendant was examined as DW-1. She got marked Exs-D1 to D14. Exs-D1 to D8 are the RTC extracts of different landed properties for the year 2001-2002 showing the names of both the plaintiffs. Ex-D9 is the ration card of defendant No. 1. Ex-DIO is form No. 7 filed by Venkamma - daughter of Appu Shettigara for grant of occupancy rights before the land tribunal. Ex-D11 is the statement of Venkamma Shettigarthi recorded by Revenue Inspector. Ex-D12 is the original will dated 31.1.1985 said to have been executed by Venkamma Shettigara-mother of the plaintiffs. Ex-D13 is the appeal memo having filed by defendant No. 1 in an appeal against the change of khatha by mutation entered in the name of plaintiffs before the Assistant Commissioner, Kundapura. The appeal came to be dismissed directing the parties to approach the Civil Court. Ex-D14 is the RTC extract for the year 1969-1970 in respect of land properties, which shows that Appu Shettigara the father of Venkamma Shettigarthi was tenant for his lands. From the evidence of PWs-1 and 2 and DW-1, it is evident that one Somayya Shettigara was the original propositus of the family. He had two sons by name Appu Shettigara and Yellanna @ Sannanna Shettigara. Appu Shettigara died in the year 1968 leaving behind his widow Venkamma Shettigarthi and two daughters Smt. Rajeevi and Sunanda-plaintiff Nos. 1 and 2. Yellanna Shettigara also died leaving behind his widow Koosamma Shettigarthi, daughter Vimala and son Krishna. K. They are not parties to the suit. Rajeevi had a son by name Sadananda Shettigara, who was married to Sumithra. Out of his marriage with Sumithra, he had four children who are defendant Nos. 2 to 5. Sadananda Shettigara had another wife by name Sampa-defendant No. 1, who had two children who are defendant Nos. 6 and 7. It is not in dispute that all the defendants are in occupation of the schedule house property. Venkamma Shettigara filed a declaration in form No. 7 for grant of occupancy rights before the Land Tribunal. It is not in dispute that she inherited the tenancy rights from her father Appu Shettigara and therefore it was not her individual tenancy. The tribunal granted occupancy rights in favour of Venkamma Shettigarthi. Venkamma Shettigarthi said to have executed a will whereby she bequeathed all the properties in favour of her grand son Sadananda Shettigara-son of plaintiff No. 1. After the death of Venkamma Shettigara, plaintiff Nos. 1 and 2 being the daughters got entered their names to all the properties left behind by Venkamma Shettigarthi in RTC. The defendant No. 1 though set up a will, failed to prove the will. Both the courts below have given a categorical finding that the will Ex-D12 is not proved. Since it is a finding of fact, I have no reason to interfere in the said finding in this second appeal. In that case, the rejection of the counter claim set up by defendant No. 1 to declare that she is owner of the schedule house property on the strength of the alleged will in favour of her husband Sadananda Shettigara by both the courts below is fully justified.

What is to be seen is the effect of rejection of the counter claim. Since the counter claim has been rejected, the defendants cannot claim right over the schedule property on the strength of the will said to have been executed by Venkamma Shettigarthi in favour of her grand son Sadananda Shettigara. It is the case of the defendants that even in the absence of will, they have got ownership over the schedule house property and that they are in occupation of the same as its owner and not as licencee as contended by the plaintiffs. The relationship between the parties as stated above is not in dispute except that Sampa - defendant No. 1 is the second wife of Sadanana. Admittedly, defendant Nos. 2 to 5 are the children born to Sadananda from his first wife Sumithra and defendant Nos. 6 and 7 are the children of Sadananda from his second wife sampa. The property was admittedly belonging to Appu Shettigara the father of Venkamma. He had a lease hold rights in respect of all the landed properties. The Suit house is situated in one of the landed properties bearing Sy. No. 277. If the will said to have been executed by Venkamma Shettigarthi is not proved, after the death of Venkamma Shettigarthi, the property should go to plaintiff Nos. 1 and 2 and the defendants. In that case, the defendants became the co-sharers having right in the schedule house property. If it is so, it can be said that they are in permissive possession of the schedule property or a licencee under the plaintiffs. The trial court has appreciated the evidence in its proper perspective and dismissed the suit. Whereas the First Appellate Court failed to appreciate the evidence in its proper perspective. The First Appellate Court wrongly held that there is no provision to claim inheritance in the ancestral properties through maternal side except in Aliyasantana law. The First Appellate Court has committed an error in holding that the defendants being the legal heirs of Sadananda Shettigara, are claiming property belonging to plaintiffs'' maternal side. Thus the learned judge totally misdirected himself as to the law of inheritance applicable to the parties which made him to reverse the judgment and decree passed by the trial court. Needless to say, that the judgment and decree passed by the First Appellate Court reversing the dismissal of the suit by the trial court is perverse and not sustainable in law. The decisions relied upon by the learned counsel for the appellants are of no application to the facts of the case. In the decision reported in AIR 1995 Bombay 210 in the case of Conrad Dias of Bombay vs. Joseph Dias of Bombay, the father was the owner of the property and the son was residing with the father and therefore was in joint possession with the father. Difference of opinion arose. Son made an attempt to exercise his right over the property. Father filed a suit for injunction against the son. The Bombay High Court held that since the defendant son has no legal right to continue to stay in the premises, the plaintiff father is perfectly right in seeking injunction against defendant his son. But in the case on hand, defendants being the children of Sadanand have acquired right over the Schedule Property by birth. Their possession cannot be called as permissive possession or illegal possession. The plaintiffs cannot maintain a suit for possession of the house against the defendants. As such the decision is of no application to the facts of the case.

Accordingly, RSA No. 1345/2011 is dismissed as devoid of merits. RSA No. 1326/2011 is allowed. The judgment and decree dated 6.4.2011 in R.A. No. 142/2006 on the file of Fast Track Court, Karkala is hereby set-aside while confirming the judgment and decree dated 1.9.2006 in O.S. No. 198/2002 on the file of Prl. Civil Judge (Jr. Dn.), Karkala.