Siddanagouda vs Shantavva and Others

B. Veerappa, J.—This is a plaintiffs regular second appeal against the judgment and decree dated 30.01.2012 made in Regular Appeal No. 2/2010 on the file of the Fast Track Court at Gadag, confirming the judgment and decree dated 30.11.2009 made in Original Suit No. 118/2004 on the file of the Civil Judge (Sr. Dn.) Ron, dismissing the suit for declaration of title and consequential relief of permanent injunction.

The factual matrix of the case are:

According to the plaintiff that the defendant Smt. Shantabai is the full sister of plaintiff who married to one Chudappagouda Shiddanagouda Patil of Asuit Village, who was retired Engineer. Defendant Nos. 2 and 3 are the full sisters of plaintiff. The suit land bearing Sy. No. 391/2 measuring 6 acres 39 guntas, Sy. No. 106/1 measuring 5 acres 3 guntas standing in the name of Smt. Shankravva R.S. No. 94/5 measuring 3 acres 16 guntas standing in the name of Fakiravva. R.S. No. 303/2 measuring 1 acre 38 guntas standing in the name of plaintiff situated at Asuit Village, Hobli Hole-Alur, Taluk Ron and the said lands are ancestral family properties of plaintiff. The father of plaintiff by name Venkanagouda Basanagouda Patil died on 14.07.1987 leaving behind his only sole surviving son - the plaintiff. Thus plaintiff is sole surviving coparcener of plaintiff''s family. The suit land after demise of plaintiff''s father had been in actual, physical and lawful possession and ownership of plaintiff and there was no family partition had been effected between the plaintiff and defendants in the suit land at any point of time or even till today. The husband of defendant No. 1 is highly educated and in respectable post and whose entire family is also highly educated and had been in respectable Government post. The defendants colluding with husband of defendant No. 1 and his family members at the instigation of ill-wishers of plaintiff and colluding with revenue authorities illegally and unauthonsedly without the knowledge and behind back of plaintiff got created false untenable M.E. No. 6471, as if so there is a family partition between the plaintiff and the defendants whereby it has falsely shown in the alleged mutation entry that the suit lands had fallen to the share of defendants. In the result, name of the defendant alone entered in the record of rights of suit land. Defendant No. 2 name entered to R.S. No. 94/5 and defendant No. 3 name entered to R.S. No. 106/1. As such, the alleged M.E. No. 6471 is concocted and collusive and contrary to the law. Hence, the same is not binding on the plaintiff and deserved to the rescinded as null and void. There is no transfer or possession of suit land in favour of defendants by virtue of alleged M.E. No. 6471. The alleged M.E. No. 6471 does not create any right, title or interest much less possession to the defendants over the suit properties. The defendants taking undue advantage of their name in the record of rights in respect of suit land is trying to obstruct the plaintiff''s peaceful possession and enjoyment over the suit land.

During the pendency of the suit, the 1st defendant died and her LRs. have been brought on record as defendant Nos. 1(a) to 1(c) and later defendant Nos. 2 and 3 the full sisters of plaintiff have been impleaded by the plaintiff and since during the pendency of the suit, the defendant No. 1(a) sold the suit land Sy. No. 391/2 in favour of defendant No. 4. Therefore, defendant No. 4 was impleaded in the suit.

The defendant No. 1 filed the written statement and denied the entire plaint averments, but admitted that the defendant No. 1 is the sister of the plaintiff and married to one Chudappagouda and her husband is now retired after serving as an Engineer at Gadag. It is also admitted that the suit schedule properties are the ancestral properties of deceased Veeranagouda and the said Veeranagouda died on 14.07.1997 leaving behind him plaintiff and defendant No. 1 as well as other two daughters as his legal heirs, and denied that after the demise of Veeranagouda, plaintiff has been in actual, lawful possession of the suit properties and there is no family partition between the plaintiff, defendants and other two sisters. So, the suit schedule properties have fallen to the share of the defendants and R.S. No. 106/1 has fallen to the share of Smt. Shankravva, R.S. No. 94/5 has fallen to the share of Fakiravva and R.S. No. 303/2 has fallen to the share of plaintiff. As such, the partition has been effected on 07.02.1991 and as per the partition, M.E. No. 6471 is certified by the Revenue authorities and it is binding on all the legal heirs of the deceased Venkanagouda. Since from the date of partition, their names were appearing in the record of rights of their respective shares, etc. Therefore, the defendants pray for dismissal of the suit.

Defendant No. 4 filed written statement contending that, plaintiff has no right, title or interest in the suit land Sy. No. 391/2, measuring 6 acres 39 guntas. The suit land was under the ownership of the deceased defendant No. 1 and after her death, the husband of 1st defendant has become the owner, who has executed the registered sale deed on 09.05.2006 and he is in possession and enjoyment of the same. Therefore, he sought for dismissal of the suit.

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

(i) Whether the plaintiff proves that the suit schedule properties are the undivided joint family properties of plaintiff and defendant Nos. 1 to 3?

(ii) Whether the plaintiff proves that ME No. 6471 is concocted, collusive and not binding on him?

(iii) Whether the plaintiff proves his lawful possession of the suit properties as on the date of the suit?

(iv) Whether the plaintiff is entitled for the reliefs?

(v) Whether the defendants prove the partition dated 07.02.1991?

(vi) What order/decree?

Additional issue:

Whether the defendant No. 4 proves that he is bona fide purchaser of suit land R.S. No. 391/2 for consideration without notice of litigation?

In order to establish plaintiffs case, plaintiff examined himself as PW-1 and another witness as PW-2 and got marked documents as Exs. P-1 to 7. On the other hand, the defendant No. 4 examined himself as DW-1 and defendant No. 1A as DW-2 and got marked documents as Exs. D-1 and 2.

After considering the entire material on record, the trial court recorded a finding that the plaintiff failed to prove that the suit schedule properties are the undivided joint family properties of plaintiff and defendant Nos. 1 to 3 and also failed to prove that ME No. 6471 is concocted, collusive and not binding on him and the plaintiff also failed to prove his lawful possession of the suit properties as on the date of the suit and therefore, he is not entitled for the reliefs sought for. Accordingly, the trial court dismissed the suit.

Being aggrieved by the said judgment and decree, the plaintiff filed an appeal in RA No. 2/2010 before the Fast Track Court, Gadag, who after hearing both parties, by the impugned judgment and decree, dated 30.01.2012, has dismissed the appeal and confirmed the judgment and decree of the trial court. Hence, the present appeal is filed.

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

Sri. Chandrashekar P. Patil, learned counsel for the appellant, has contended that all the suit schedule properties are the joint family properties and there was no partition and after the death of the male members of the family, the plaintiff alone became the owner and he is in possession and enjoyment of the suit schedule properties. The said aspect has not been considered by both the courts below. Therefore, he sought to set aside the impugned judgment and decree of the courts below.

Per contra, Sri. P.G. Mogali, learned counsel for the 6th respondent sought to justify the impugned judgment and decree of the courts below and contended that there was a partition in the joint family and it has been admitted by PW-1 in his cross-examination. Therefore, both the courts below were justified and therefore, he sought to dismiss the present second appeal.

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

The main grievance of the plaintiff/appellant is that the suit schedule properties are the joint family properties and there was no division and after the death of the male members of the joint family, he has become the absolute owner and he is in possession and therefore, he approached the Court for the relief sought for. To substantiate his case, he has adduced evidence of PWs-1 and 2 and produced documents Exs. P-1 to 7. On the contrary, defendants denied the entire plaint averments and contended that there was a partition. In order to disprove the claim of the plaintiff, defendant No. 4 examined as DW-1 and another witness as DW-2, and produced documents Exs. D-1 and 2.

Based on the material on record, the trial court recorded a finding that in his cross-examination, PW-1 has admitted that his father Venkanagouda died in the year 1987, and himself and three sisters i.e., defendants 1 to 3 are the children of his father Venakanagouda. In the cross-examination, PW-1 has clearly admitted that, after the death of their father, he and the defendants gave a Waradi to the revenue authorities along with death certificate of their father to enter their names as heirs of said Venakanagouda. He further admitted that all the properties should not be in the name of all persons and it should be partitioned and accordingly, he himself and defendant Nos. 1 to 3 gave a joint Waradi to the revenue authorities and got effected partition of the suit lands and accordingly, M.E. No. 6471 was certified by the revenue authorities and consequently, the names of defendant Nos. 1 to 3 namely Shantavva, Fakiravva, Shankravva and himself are entered in the revenue records, such as record of rights. So, there is a clear admission on the part of the plaintiff that, there was severance of joint status of joint family in between the plaintiff and defendant Nos. 1 to 3 as long back as 07.02.1991. The same is admitted by the plaintiff. Accordingly, the plaintiff, defendants 1 to 3 gave a joint Waradi to the revenue authorities to allot their respective shares and to enter their names in their respective shares. The trial court also recorded a finding that when the plaintiff himself has admitted the severance of joint family by giving a clear admission in the cross-examination, nothing more is required to prove that ME No. 6471 is binding on the plaintiff as well as defendants. The plaintiff has further admitted that, he has got knowledge of ME No. 6471 in the year 1991. Under such circumstances, when the plaintiff himself was aware of ME No. 6471 in the year 1991, what prevented the plaintiff to challenge the said ME No. 6471 in the earliest point of time is not forthcoming. The said ME No. 6471 was effected in the year 07.02.1991 and the suit was filed after a lapse of six years. Therefore, the plaintiff is estopped from challenging the validity of ME No. 6471. Under the provisions of Section 58 of the Indian Evidence Act, 1872, the facts admitted need not be proved. Apart from said admissions and material, the plaintiff has not produced any land revenue receipts in respect of suit land to show that the suit lands have been in possession of the plaintiff himself. The plaintiff examined one more witness as PW-2, who deposed that the suit lands are in actual, physical possession of plaintiff and since, he is cultivating the said lands as a coolie, on behalf of the possession for several years, he is aware of all these facts. But, in the cross-examination, it is stated that he does not know whether the children of Venkanagouda partitioned the suit lands among them. He does not know which land was allotted to whom and who is in actual possession of which land. He admits that he does not know who is in actual possession of those lands. So, the evidence of PW-2 is not helpful to the plaintiff in establishing his plea that, suit lands are in actual possession of the plaintiff. Therefore, the trial court held that the plaintiff has failed to prove that he is the lawful owner and in possession of the suit schedule properties as on the date of the suit. Accordingly, dismissed the suit.

The lower appellate court concurring with the finding of fact recorded by the trial court has dismissed the appeal and held that, on going through the copy of ME No. 6471 of Asuti village, that all the suit lands i.e., R.S. Nos. 391/2, 106/1, 94/5 and 303/2, are partitioned between plaintiff and defendants 1 to 3.

In view of the recital in Ex. P-3/copy of ME No. 6471 of Asuti village and in view of admission by PW-1 in his cross-examination that the suit lands are partitioned between him and defendant Nos. 1 to 3 after the death of his father Venkanagouda, it can be said that, there is already a partition between plaintiff and defendants 1 to 3 in respect of the suit lands vide Ex. P-5/copy of ME No. 6471 of Asuti village. Therefore, the lower appellate court held that the evidence on record clearly indicates that the plaintiff failed to prove that there was no partition between himself and defendants 1 to 3 and that he is in exclusive possession of all the suit lands. Accordingly, the lower appellate court dismissed the appeal and confirmed the judgment and decree of the trial court.

The courts below have concurrently held that the plaintiff failed to prove that there was no partition between the family members and he is in exclusive possession of the suit schedule properties, as on the date of the suit, such a finding of fact is based on the cogent and legal evidence on record and as such, the finding of fact cannot be interfered with by this Court under the provisions of Section 100 of the Code of Civil Procedure, 1908. No substantial question of law is involved in the present appeal. Accordingly, the regular second appeal is dismissed at the stage of admission.