Shivakka vs Halappa and Others

B.V. Nagarathna, J.—1. Defendant No. 1 in O.S. No. 21/2000 has preferred this second appeal, assailing judgment and decree passed in R.A. No. 163/2009 dated 21.12.2013 by II Additional Senior Civil Judge, Hubli, by which, judgment and decree of Civil Judge (Jr. Dn.), Kundagol, in O.S. No. 21/2000 dated 09.11.2009 has been confirmed.

For the sake of convenience, parties shall be referred to, in terms of their status before the trial Court.

Respondent No. 1 plaintiff filed the suit seeking the relief of declaration, possession and permanent injunction against defendants in respect of suit schedule property consisting of house bearing No. CTS. No. 595, Old Municipal No. 1025 and new No. TMC 1031 and presently bearing No. 1522 of Pattan Panchayat and the backyard bearing No. 597, which are more fully described in the schedule and hand-sketch. According to the plaintiff the suit property originally belonged to late Kenchanagouda Ranganagouda Nadiger of Kundagol. Plaintiffs ancestors rendered services to their landlord K.R. Nadiger, who, in recognition of their services and out of love and affection executed a deed of gift in favour of Venkappa Hanumappa Bhovi. The said Gift Deed was registered on 27.06.1958. Possession was also delivered by K. R Nadiger to the donee who is none other than the father of plaintiff in fact plaintiffs parents and his grandmother were in possession and enjoyment of the suit property during their lifetime. Plaintiffs father''s name was entered in the municipal records as he was in exclusive possession of suit property. Plaintiff was born in the year 1960. Plaintiffs father died in the year 1968. His mother died in 1975. Plaintiff was looked after by his maternal grand parents for some time and thereafter, name of plaintiff was entered in the municipal records as owner in possession.

According to the plaintiff, he is the only legal heir of his father. He is the absolute owner in possession of the suit property. He is residing therein along with his wife and children and he has been enjoying the backyard appurtenant to the house property. Plaintiffs grandmother Smt. Neelawwa died in the year 1994. Her name was also entered in the municipal records in respect of the suit property. According to plaintiff, name of one Yellawa wife of Venkappa Bhovi was falsely and illegally entered in the municipal records. Defendants are daughters of Yellappa and Yellawa. Yellawa died in the year 1998. The first defendant, Shivakka has married one Ramappa Bhovi and is residing with her husband in Dambala village, Gadag taluk. The second defendant is also married to one Basappa Lakshmeswar and is residing with him in Lakshmeshwar. Defendants have no manner of right, title and interest in respect of the suit property. But they created false and bogus documents in connivance with the revenue officials in order to cause loss to plaintiff by entering their names in respect of suit property. This was in connivance with the City Survey authorities as heirs of Yellawa in the year 1998. Plaintiff challenged the said entry before the Assistant Director of City Survey, Kundagol, seeking deletion of names of defendants from the records. The request made by plaintiff was rejected by order dated 13.10.1998 without considering registered gift deed. Plaintiff filed an appeal against the order dated 13.10.1998 before the Deputy Director of Land Records, Dharwad, and he rejected the appeal and directed plaintiff to approach the Civil Court, by order dated 31.03.1999. It is under the aforesaid circumstance that the plaintiff filed suit contending that the defendants have no right, title or interest in respect of the suit property but they were trying to interfere and dispossess him. During the pendency of the suit, plaintiff died and his legal representatives were brought on record and they have continued proceedings.

On receipt of suit summons and court notices from the trial court, defendants appeared and filed their written statement denying averments in the plaint. They contended that the suit property measures East-West 50 feet, and North to South 14 feet. They denied that the suit property was gifted to the father of plaintiff by late K.R. Nadiger. According to defendants, property bearing No. 1030 was given in partition by the original owner of the property K.R. Nadiger to (1) Sri. Bharamappa Bheemappa Bhovi (2) Sri. Hanumanthappa Rajappa Bhovi and (3) Sri. Yallappa Rajappa Bhovi. The portions given to them have been indicated in the hand sketch. Also a portion was given to plaintiffs grandfather. Grandfather of plaintiff Hanumanthappa died in the year 1953. After his death his son Venkappa was in possession and enjoyment of the property as allotted to his father during his lifetime. Thereafter plaintiff is in possession and enjoyment of the suit property allotted to his grandfather. Yellappa, father of defendants died in the year 1956. Thereafter defendants have been in possession and enjoyment of the property allotted to their father as exclusive owners. Their mother''s name was entered in the revenue records. That the Gift Deed is a concocted document. Mother of defendants got her name entered in the survey and municipal records in respect of the share allotted to her husband in the suit property. The defendants got their names entered in the revenue records after the death of their mother, Yellawa. Plaintiff challenged the same before the Deputy Director of Land Records, Dharwad, and the appeal was dismissed. The plaintiff has not filed any further appeal. Defendants have been in possession and enjoyment of the house allotted to the share of their father as also the backyard. The plaintiff is not owner in possession and enjoyment of the suit property. As such, question of interference by the defendants does not arise. Therefore, defendants contend that there is no cause of action against them and sought dismissal of the suit.

On the basis of rival pleadings the trial court framed the following issues for its consideration:

"Issue No. 1: Whether the plaintiff proves that the suit property was gifted to his father by original Land Lord of Kenchanagouda Nadiger?

Issue No. 2: Whether the plaintiff proves that his parents were put in possession of the suit properties?

Issue No. 3: Whether the plaintiff proves that the gift of the suit property and title of his father over the suit property was acted upon?

Issue No. 4: Whether plaintiff proves his title over the suit properties?

Issue No. 5: Whether plaintiff proves his lawful possession over the suit properties?

Issue No. 6: Whether plaintiff proves the alleged interference to his possession by the defendants?

Issue No. 7: Whether the defendants prove that the plaintiff has furnished wrong boundaries to the suit properties?

Issue No. 8: Whether the defendants prove that previously the original owner Kenchanagouda Nadiger had alienated the suit properties in favour of one Bharamappa Bhimappa Bhovi, Rajappa Hanumanthappa Bhovi, Yallappa Rajappa Bhovi?

Issue No. 9: Whether the defendants prove their possession over the suit properties?

Issue No. 10: Whether the suit is maintainable?

Issue No. 11: Whether the defendants prove that the plaintiff has furnished wrong measurements to the suit properties?

Issue No. 12: Whether the Court fee is insufficient?

Issue No. 13: Whether the plaintiff is entitled for the relief of declaration of his title over the suit properties?

Issue No. 14: Whether the plaintiff is entitled for the relief of permanent injunction?

Issue No. 15: Whether the plaintiff is entitled for the alternative relief of possession over the suit property?

Issue No. 16: What order or decree?"

In support of his case, the original plaintiff examined himself as P.W. 1 and he produced 10 documents, which were marked as Ex. P.1 to Ex. P.10. Defendants examined three witnesses. They produced 3 documents which were marked as Ex. D.1 to Ex. D.3.

On the basis of the said evidence, the trial court answered issue Nos. 1 to 6 and 12 to 14 in the affirmative. Issue Nos. 7 to 11 were answered in the negative. Issue No. 15 is answered as does not arise for consideration and consequently decreed the suit of the plaintiff by holding that plaintiff, now represented by his legal representatives, is declared as the absolute owner of the entire suit schedule house bearing CTS No. 595 (Old Municipal No. 1025/TMC No. 1031), and suit schedule backyard bearing CTS No. 597 of Kundagol town. The plaint hand-sketch was to form part and parcel of the judgment. The defendants or any other person claiming through them were restrained by way of decree of permanent injunction from interfering with the peaceful possession and enjoyment of the suit property by the plaintiffs.

Being aggrieved by the judgment and decree of the trial court dated 9.11.2009, the first defendant preferred R.A. 163/2009 before the I Appellate Court, which, on hearing the learned Counsel for respective parties framed the following points for its consideration:

It answered point Nos. 1 and 2 in the negative and dismissed the appeal, by confirming the judgment and decree of the trial court, by judgment and decree dated 21.12.2013.

Being aggrieved by the judgment and decree of the I Appellate Court, the first defendant has preferred this appeal.

I have heard learned Counsel for the appellant and learned Counsel for respondents-1 (a) to 1(d) and perused the material on record. At this stage, it may be noted that defendant No. 2 did not file any appeal before the I Appellate Court against the judgment and decree of the trial court.

It is contended on behalf of the appellant that the courts below were not right in decreeing the suit of the plaintiff and defendants belong to the same family. They were all serving the family of Sri K.R. Nadiger of Kundagol. In recognition of their services, Sri K.R. Nadiger has given several strips of land to the family members of plaintiff and defendants so that they could cultivate the suit land and eke out their livelihood. The house property was also part of the said partition which was made by Sri K.R. Nadiger. That in terms of Ex. D.1 and Ex. D.2 the defendants have been enjoying their share as given by Sri. K.R. Nadiger. The names of parents of defendants were entered in the revenue records and after their death the names of defendants were entered. The revenue authorities rightly rejected the application as well as appeal filed by the plaintiff But the courts below have granted the decree based on the Gift Deed dated 31.05.1958 registered on 27.06.1958 by ignoring Ex. D.1 and D.2 documents, namely, agreement of partition and partition deed respectively. He contended that substantial question of law would arise in this appeal and therefore, the appeal may be admitted for a detailed hearing.

Per contra, learned Counsel for respondent-1 drawing my attention to the written statement, contended that the defendants Smt. Shivakka and Smt. Padmavathi do not belong to the branch of the family of plaintiff He contended that the Gift Deed was made by K.R. Nadiger on 31.5.1958 which was registered on 27.6.1958 in favour of Venkappa Hanumappa Bhovi, the father of the plaintiff Having regard to the contents of Gift Deed comprising of suit schedule property the plaintiff, as successor to the donee, is the rightful owner in possession of the suit property. But the defendants who are married to persons of two different families and are residing in their respective matrimonial houses, illegally got their names entered in the revenue records in respect of the suit property. Thus plaintiff had to take steps for deletion of their names and in terms of the order of the Deputy Director of Land Records the suit was filed. He contended that both the courts below were right in giving credence to Ex. P.4 registered Gift Deed as against Ex. D.1 and Ex. D.2 which are un-registered instruments and that the judgments of the courts below would not call for interference in this appeal. That no substantial question of law would arise in the appeal. He therefore, submitted that the appeal may be dismissed in limine.

Having heard learned Counsel for the parties and on perusal of the material on record as well as the original records, it is noted from the genealogy given in the written statement by defendants that Bhimappa was the original propositus. He had two sons, namely Rajappa and Bharamappa. Rajappa had two sons, namely Hanamantappa and Yallappa. One of the sons of Hanamanthappa is Venkappa and his son Hanamantappa @ Halappa is the plaintiff The defendants are daughters of Yellappa who is one of the sons of Rajappa. Thus the relationship between the parties would establish that defendants do not belong to the family of plaintiff They are plaintiffs cousins. It may be that K. R Nadiger, for whom the family of plaintiff and defendants served may have, in recognition of their services, granted some lands or even house properties for their use. But what we are concerned in this appeal is with regard to the suit schedule properties, namely, house and backyard, which is subject matter of Gift Deed dated 31.05.1958 and registered on 27.6.1958 Ex. P.4 by which the suit schedule property was gifted to plaintiffs father. Since then plaintiffs father was in possession and enjoyment of the same and on his death plaintiff, as his successor, has been in possession and enjoyment of the same along with members of his family. Whatever may have been granted to defendants'' father Yallappa and also the father of plaintiff, under Ex. D.1 the fact remains that Ex. D.1 is an unregistered instrument, whereas Ex. P.4 Gift Deed is a registered instrument under which the suit schedule property was gifted by K.R. Nadiger to the father of plaintiff Therefore, there was conveyance and transfer of title from K.R. Nadiger in favour of the donee who is father of plaintiff

Under Section 50 of the Registration Act, 1908, every document of the kind mentioned in clauses (a), (b), (c) and (d) of section 17, sub-section (1), and clauses (a) and (b) of Section 18, shall, if duly registered, take effect as regards the property comprised therein against every unregistered document relating to the same property, and not being a decree or order, whether such unregistered document be of the same nature as registered document or not. From this it becomes clear that even if it is assumed that Ex. D.1 related to the suit schedule property it has no validity in the eye of law in the face of Ex. P.4 which is a registered instrument. There is thus a valid conveyance from K.P. Nadiger to plaintiffs father under Ex. P.4 Gift Deed. Plaintiff has succeeded to his father''s estate on the demise of his father in the year 1976 and he has been enjoying the suit property since then. Defendants have no right, title and interest in respect of the subject matter of gift. They therefore illegally got their names entered in the revenue records pertaining the suit schedule property. Courts below were therefore justified in giving weightage to the Ex. P.4 which is a registered document and not giving any credence to Ex. D.1 which is an unregistered instrument even if there is reference to the suit schedule property in Ex. D.1. Thus, there is no infirmity in the judgment and decree of the courts below. No substantial question of law would arise in this appeal. The appeal is dismissed.

Parties to bear their own costs.