Siddalingappa vs Shivamma

Budihal R.B, J.—The appellants, who are the legal representatives of original defendant, have preferred this appeal being aggrieved by the judgment and decree dated 17.8.2006 passed in appeal R.A. No. 8/2003 on the file of the Civil Judge (Sr. Dn.), Chamaraja Nagar confirming the judgment and decree dated 24.9.2002 passed in O.S. No. 78/98 on the file of the Civil Judge (Jr. Dn.), Gundlupet, granting decree in part holding that the respondent-plaintiff and defendants are the joint owners.

The facts leading to this case are that respondent plaintiff filed the aforesaid suit for the relief of declaration that defendants and herself were the joint owners of the suit schedule properties and that, she was entitled for partition and separate possession of half share in the suit schedule properties. Alternatively, she had also sought that if the court comes to the conclusion that suit schedule properties were already partitioned between the parties and southern half share of both properties were fallen to the share of the plaintiff''s father, then declaration and possession of the above said southern half share of the suit schedule properties in her favour with metes and bounds. The suit schedule properties are the two landed properties bearing Sy. Nos. 107/1 and 109 situated at Nenekatte village, Kasaba Hobli, Gundlupet Taluk, as shown in the plaint schedule. The plaintiff has furnished the genealogy of the family in para No. 2 of the plaint.

In the suit, the plaintiff has stated that one Nanjappa was the propositor of the family having three daughters Channamallamma Kempamma and Madamma. Nanjappa died leaving his three daughters and they succeeded to the property of the deceased Nanjappa. On 4.3.1960, Kempamma and Madamma, the daughters of Nanjapppa, jointly sold all the properties of Nanjappa in favour of Kalappa, the father of the plaintiff, and Pavathamma consented for the above said sale transaction and put her signature as witness to the said sale deed. Thereafter, the said Kalappa and Siddalingappa, the original defendant, entered into a panchayat karar under which southern half portion of the suit schedule properties fallen to the share of Kalappa and northern half portion fallen to the share of the defendant. It was also pleaded that after the death of Kalappa, his sons Puttaswamappa and Mallappa and the plaintiff were in possession of the above said southern portion of the property. Puttaswamappa and Mallappa settled their right in favour of the plaintiff through a registered sale deed and hence, she was in possession and enjoyment of the southern half portion of both the lands. It was also pleaded that the defendant filed a false case O.S. No. 47/1984 before the Munsiff Court at Nanjangud seeking the relief of declaration and permanent injunction. The suit was partly decreed in respect of injunction relief and title relief was kept open. The suit schedule properties were jointly purchased by the plaintiff''s father and defendant and as such, he was entitled for half share in the suit schedule properties.

The defendant in the written statement admitting the genealogy contended that Madamma, daughter of Nanjappa, had three other daughters Gangamma, Gowramma and another. He admitted that plaintiff''s father Kalappa and himself jointly purchased the suit schedule properties from Kempamma and Madamma. He further contended that in the year 1964, plaintiff''s father and himself entered into an unregistered panchayat settlement and family arrangement came into existence. The entire suit schedule properties fell to his share and other properties fallen to the share of the plaintiff''s father and hence, plaintiff''s father had no right over the suit schedule properties. The defendant being in peaceful possession and enjoyment of the entire suit schedule properties for more than statutory period of twelve years, without interference from the plaintiff or anybody, perfected his title to the property.

On the basis of the said pleadings, the trial court framed the following issues:

"1. Whether the plaintiff proves that southern half portion in both the suit properties fell to the share of the father of the plaintiff as contended in para 6 of the plaint?

Whether the plaintiff proves that father of the plaintiff and defendant jointly purchased the suit schedule properties and they were in joint possession till the partition?

Whether the plaintiff further proves that after the death of her father she was in lawful possession and enjoyment of southern half share in both the suit schedule properties till 5.11.1998?

Whether the plaintiff proves that after the decision of O.S. 47/84, dated 5.11.88 the defendant taken the southern half portion of the suit schedule properties?

Whether the defendant proves that entire suit properties fell to the share of defendant and other properties fell to the share of the plaintiff''s father as per the un-registered panchayat settlement?

Whether the defendant proves that plaintiffs father sold all his properties to one Shri. Basavanna, Nenekatte village?

Whether the defendant proves that he has perfected his title by law of adverse possession?

Whether the plaintiff is entitled for partition?

Whether the plaintiff is entitled for declaration over the suit schedule properties?

Whether the plaintiff is entitled for possession of the suit schedule property?

What order or Decree?"

After considering the merits of the case, the trial court decreed the suit of the plaintiff holding that she is having half share in the suit schedule properties and she is entitled to partition and separate possession of the half of the suit schedule properties. Being aggrieved by the judgment and decree of the trial court, the appellants herein preferred R.A. No. 8/2003. The first appellate court after considering the merits of the case, dismissed the appeal confirming the judgment and decree of the trial court. Hence, the appellants have preferred the present appeal.

While admitting the above appeal, this Court has framed the following substantial questions of law for consideration in this appeal:

"i) Whether the Courts below have erred in decreeing the suit of the plaintiff?

ii) Whether the Courts below have committed an error in not properly appreciating the effect of the decree dated 05.11.1988 passed in O.S. No. 47/84 and in that regard whether the aspect of limitation has not been properly considered?"

Heard the arguments of learned Counsel appearing for the appellants defendant and also the learned Counsel appearing for the respondent plaintiff.

Learned Counsel for the appellants, referring the judgment and decrees of the courts below submitted, that the respondent plaintiff lost her right long back in respect of the suit schedule properties and this aspect had been over looked by both the courts below. He submitted that even though there was oral as well as documentary evidence about the ouster of the respondent, the courts below had wrongly observed that the said fact was not established with satisfactory materials, which finding is totally perverse and capricious. The findings recorded by the trial court which were affirmed by the first appellate court are against the pleadings, oral and documentary evidence adduced by the parties before the courts below. He submitted that the appellants have established their case and hence, appeal may be allowed by setting aside the judgment and decrees of both the courts below.

As against this, learned Counsel appearing for the respondent plaintiff submitted that the trial court had considered each and every material and came to the right conclusion in decreeing the suit of the plaintiff, which was confirmed by first appellate court. There are concurrent findings of the courts below regarding the material facts involved in the case and in fact, no substantial questions of law are involved in this appeal and hence sought to dismiss the appeal.

I have perused the pleadings of both sides presented before the trial court, oral evidence of P.W. 1 and D.Ws. 1 and 2 as also the documents produced at Exs. P. 1 to P.5 and Exs. D1 to D.27, judgment and decrees of the courts below and the grounds urged in the appeal memorandum in the above appeal.

The relationship of the parties is not in dispute. The other admitted facts are that after the death of Nanjappa, the propositor of the family of the plaintiff and defendants, the three daughters of Nanjappa succeeded to his estate. Firstly, all the properties were entered in the name of eldest daughter Channemallamma and her daughter Parvathamma. On 4.3.1960, Kempamma and Madamma, the 2nd and 3rd daughters of Nanjappa, jointly sold the properties in favour of one Kalappa, the father of the plaintiff, and the defendant Siddalingappa. Accordingly, Kalappa and Siddalingappa became the joint owners of the said property. it was contended by the plaintiff that Kalappa and Siddalingappa entered into panchayat karar and in the suit schedule properties, southern half portion in both survey numbers fallen to the share of plaintiff''s father and northern half portion in the said properties fallen to the share of Sidlingappa, the defendant. Since from the said partition, her father was in possession and enjoyment of the southern half portion of the property. After the death of plaintiff''s father Kalappa, his two sons Puttaswamappa and Mallappa, who were in joint possession of the said southern portion of the properties, settled their right in favour of plaintiff through a registered sale deed and put her in possession of the said portion. However, during the course of evidence, the plaintiff was not able to prove the alleged partition between her father and the defendant Siddalingappa. It was the contention of the defendant in his written statement that in the year 1964, plaintiff''s father and himself entered into settlement through an unregistered panchayat settlement and family arrangement came into existence. In the said settlement, the entire suit schedule properties were given to the share of the defendants and the other properties fell to the share of plaintiff''s father Kalappa. Even with regard to contention of the defendant, during the course of the trial, when he wanted to get the unregistered panchayat settlement, it was objected by the plaintiff''s side on the ground that it was an unregistered document and not admissible in evidence. The defendant had also not placed any other materials to prove the said aspect. Hence, the courts below held that the defendant had not established the burden casted under issue No. 5. Considering the admitted fact that father of the plaintiff and Siddalingappa, the defendant, were in joint possession of the properties, ultimately, decreed the suit holding that plaintiff and defendant are the joint owners of the suit schedule property and the plaintiff is entitled for partition and possession half share in the suit schedule property by metes and bounds.

It is no doubt true that the defendant who is the appellant before this court also took up a contention that as he alone was in continuous possession of the suit schedule properties, adversely to the interest of the plaintiff for more than 12 years, he became true owner of the suit schedule properties by adverse possession. But considering the said averment so also his evidence during the course of the trial, the trial court had recorded negative finding on issue No. 7, which was confirmed by the first appellate court.

Perusal of the judgment and decrees passed by both the courts, it is clear that they have considered each and every aspect of the matter i.e. oral and documentary evidence produced in the case and ultimately, decreed the suit of the plaintiff holding that she is the joint owner along with the defendant and entitled for partition and separate possession of half share in the suit schedule properties. No illegality has been committed by the courts below nor there is any perverse or capricious view taken by them. There is no error in the concurrent findings recorded by the courts below. The appeal is devoid of merits and it is accordingly dismissed.