Siddappa and Others vs Nagabhushana and Others

S.N. Satyanarayana, J.—These three appeals are filed by the appellants -Siddappa and Nageshi who are the sons of Choudapurada Sannabasappa. These three appeals arise out of the judgment and decree passed in R.A. Nos. 35/2005, 36/2005 and 37/2005 on the file of Civil Judge (Sr. Dn.), Kudligi. Admittedly, the judgment passed in R.A. No. 35/2005, 36/2005 and 37/2005 is common judgment. Incidentally, the appeals in R.A. No. 35/2005 and 37/2005 arise out of the judgment passed in O.S. No. 37/1999 on the file of Civil Judge (Jr. Dn.), Kudligi, whereas R.A. No. 36/2005 arise out of the judgment in O.S. No. 114/98 on the file of Civil Judge (Jr. Dn.), Kudligi.

The contesting parties in O.S. No. 114/1998 and 37/1999 are Siddappa, Nageshi and Kotrappa. The suit in O.S. No. 114/1998 is the first of the suits which is filed by Siddappa and Nageshi against their father Chowdapurada Sannabasappa as first defendant and their another brother Nagabhusuah as second defendant. In the said suit third defendant is one Kotrappa son of Chowdapurada Doddabasappa. It is necessary to mention at this juncture that the third defendant Kotrappa is none other than the cousin brother of plaintiff Nos. 1 and 2 and nephew of first defendant Chowdapurada Sannabasappa. That is the said Kotrappa is none other than the son of Chowdapurada Sannabasappa''s elder brother Doddabasappa in O.S. No. 114/1998 the defendant Nos. 4 to 6 are the daughters of first defendant. The said suit is filed by Siddappa and Nageshi for the relief of declaration of their alleged share in suit schedule properties namely, sy. No. 85/A measuring 2 acres 20 cents, 86/A measuring 5 acres 78 cents and sy. No. 86/C measuring 1 acre 81 cents of the lands situated in Kakuppe village of Kudligi Taluk, Ballari district.

The suit in O.S. No. 114/1998 is filed on 24.08.1998. It is seen that initially the said suit was filed against the father of plaintiffs namely Chowdapurada Sannabasappa and his another son Nagabhushan. It is also necessary to mention that third defendant Kotrappa came on record by filing an application under Order 1 Rule 10(2) r/w Sec. 151 of CPC contending that he is a necessary party to the suit since he has purchased the suit schedule item No. 2 property under a registered sale deed dated 11.08.1998. Accordingly, the said application was allowed and he was permitted to come on record as third defendant. Thereafter, the other daughters of Sannbasappa are also brought on record as defendant Nos. 4 to 6. In the said suit defendant Nos. 1 and 2, i.e., the father and brother of plaintiffs and defendant Nos. 4 to 6 who are sisters of plaintiffs did not file any written statement and did not contest the suit. It is only the third defendant who got himself impleaded and filed written statement contending that name of the first defendant is wrongly mentioned and that there is no joint family status between plaintiff and defendant Nos. 1 and 2 and that there was already a partition in the family of the first defendant on 25.03.1974 before the elders of the village in reducing the terms of partition into writing and parties being put in possession of their respective share and that in the said partition item No. 1 is allotted to second defendant who is the first son of first defendant and item No. 2 of the schedule is allotted to the first defendant-Sannabasappa for his maintenance and item No. 3 is allotted to the first plaintiff. It is contended that for second plaintiff a house was allotted. It is also stated that the partition which was reduced into writing on 25.03.1974 was acted upon between the plaintiffs and defendant Nos. 1 and 2 and on the basis of the partition first defendant who had secured absolute title to suit property has sold the same in favour of third defendant under the registered sale deed dated 11.08.1998 and the suit property is put in possession of the third defendant-Kotrappa and as such he has become the absolute owner of the property. Except the same, there is no statement by any of the witnesses.

It is also seen that the third defendant-Kotrappa besides filing written statement in the aforesaid terms in O.S. No. 114/1998 filed a suit in O.S. No. 37/99 against the plaintiffs and defendant No. 2 in O.S. No. 114/1998 and the said suit is registered in O.S. No. 37/1999. It is seen that as on the date of filing of O.S. No. 37/1999 the first defendant in O.S. No. 114/98 had already died. Therefore, he was not arrayed as party in O.S. No. 37/1999. In the second suit the prayer of plaintiff-Kotrappa is in declaring him as the absolute owner of suit schedule property, namely, sy. No. 86/A measuring 5 acres 78 cents, which is the suit schedule item No. 2 in O.S. No. 114/1998. It is seen that both the suits are tried separately by framing issues and both the suits are dismissed by the trial Court, i.e., the suit in O.S. No. 114/1998 filed by Siddappa and Nageshi, was dismissed by the Court of Civil Judge (Jr. Dn.), Kudligi, by judgment and decree dated 28.07.2005 whereas the suit in O.S. No. 37/1999 filed by Kotrappa against Siddappa, Nageshi and Nagabhushan came to be dismissed by the Court of Civil Judge (Jr. Dn.), Kudligi by judgment and decree dated 28.07.2005. Both the judgments are pronounced separately.

As against the judgments rendered in O.S. No. 114/1998 the plaintiffs therein preferred a regular appeal in R.A. No. 36/2005 on the file of Civil Judge (Sr. Dn.), Kudligi and on the file of very same Court another two appeals came to be filed, one of the appeal is by the plaintiff-Kotrappa in O.S. No. 37/1999 in R.A. No. 37/2005 is in challenge to finding on issue Nos. 4 to 6 framed in O.S. No. 37/1999 which was held against him resulting in dismissing his suit filed for declaration of his title to suit schedule property, namely, sy. No. 86/A which is the suit schedule item No. 2 in O.S. No. 114/1998. Whereas defendant Nos. 1 and 2 in O.S. No. 37/1999, namely, Siddappa and Nageshi preferred another appeal in R.A. No. 37/2005 so far as it pertains to the finding on issue Nos. 1 to 3 in O.S. No. 37/1999 wherein the sale deed dated 11.08.1998 from Sannabasappa to Kotrappa was accepted and the finding that the said property is the absolute property of Sannabasappa was also accepted and the third issue regarding title of plaintiff-Kotrappa over the suit schedule property was answered in his favour.

These three appeals, two of which are filed by Siddappa and Nageshi and another by Kotrappa, are all on the file of Civil Judge (Sr. Dn.), Kudligi. Hence all the three appeals were clubbed together, they were heard and disposed of by common judgment wherein the lower appellate Court by dismissing R.A. No. 36/2005 confirmed the judgment and decree passed in O.S. No. 114/1998 in dismissing the suit filed by Siddappa and Nageshi for the relief of declaration of their share in the suit schedule item Nos. 1 to 3 and also for the relief of partition. While doing so, the appeal which was filed by the very same persons in R.A. No. 37/2005 challenging the finding rendered by the Civil Judge (Jr. Dn.), Kudligi in O.S. No. 37/1999 with reference to the execution of the sale deed by Channabasappa in favour of plaintiff in O.S. No. 37/1999, namely, Kotrappa and the absolute title of Sannabasappa to the said property as well as the said Kotrappa securing absolute title to the suit property was answered against the appellants and their appeal in R.A. No. 37/2005 was dismissed. While doing so, appeal in R.A. No. 35/2005 which was filed by Kotrappa in R.A. No. 37/1999 which is with reference to issue Nos. 4 to 6 wherein his possession to the suit schedule property which was denied by the trial Court and his allegation of illegal interference over the suit property by Siddappa, Nageshi and Nagabhushan which was held against him, while answering issue No. 5 and his prayer for declaration and permanent injunction with reference to suit property which was denied in O.S. No. 37/1999 was reversed and consequently the suit of Kotrappa in O.S. No. 37/1999 which was dismissed by the trial Court, was reversed and the relief was granted to him. Being aggrieved by the same, these appeals are filed.

These three appeals are filed by Siddappa and Nageshi. Appeal in R.S.A. No. 5235/2009 and 5236/2009 are with reference to the judgment and decree rendered by the lower appellate Court in R.A. No. 37/2005 and 35/2005 respectively. Whereas R.S.A. No. 5237/2009 which is filed by the very same Siddappa and Nageshi is with reference to the concurrent findings of both the Courts below in dismissing their suit in O.S. No. 114/1998 and confirming the same in R.A. No. 36/2005.

Heard learned counsel for the appellants Sri H.M. Dharigond, perused the judgments rendered by the lower appellate Court in R.A. Nos. 35/05, 36/05 and 37/05 along with the judgment in O.S. No. 114/1998 as well as in O.S. No. 37/1999. On going through the entire pleadings oral and documentary evidence, the judgments rendered by both the Courts below, it is clearly seen that the entire litigation is revolving round the sale deed dated 11.08.1998 executed by Sannabasappa in favour of Kotrappa with reference to Sy. No. 86/A measuring 5 acres 78 cents of Kakkuppe village, Kudligi Taluk, Ballari District. Plea of the appellants in all the appeals namely, Siddappa and Nageshi is that, their father-Sannabasappa and their brother Nagabhushan and themselves together constitute joint family and three items of the suit property namely Sy. No. 85/A, 86/A and 86/C of Kakkuppe village are the joint family properties in which they have a share. Incidentally, in the trial Court when suit was filed, father of the plaintiffs namely Sannabasappa was alive, he did not file written statement either accepting or denying the suit averments. Similarly, brother of the plaintiff-Nagabhushan also did not choose either to challenge or support the suit filed by the plaintiff for the relief of declaration of the alleged share in the suit property and for partition. In the said proceedings it is seen that daughters of Sannabasappa are also brought on record. Though they are impleaded they also did not either challenge or support the suit claim. It is only the third defendant-Kotrappa who got himself impleaded in the said suit and took up a contention that there is already a partition in the joint family of Sanabasappa reduced to writing on 25.03.1974 before the elders of the village and in terms of the said recording of the earlier partition, each one of the parties to O.S. No. 114/98, namely, plaintiff Nos. 1 and 2 and defendant Nos. 1 and 2 are in possession of the property which is allotted to their respective shares. It is only with the intention of defeating the right of defendant in acquiring title to the suit property No. 86/A measuring 5 acres 78 guntas the present suit in O.S. No. 114/1998 is filed which is a frivolous suit filed in collusion between plaintiffs and defendant Nos. 1 and 2 and 4 to 6.

It is seen that the 3rd defendant in O.S. No. 114/98, viz., Kotrappa, has filed another suit in O.S. No. 37/1999 seeking declaration of his title in respect of suit property, namely, sy. No. 86/A measuring 5 acres 78 guntas. It is in this suit written statement filed by defendant Nos. 1 to 3, i.e., Siddappa, Nageshi and their brother Nagabhushan is in denying his title and also his possession. Based on the pleadings issues were framed, evidence was recorded. Thereafter by answering issues against the plaintiff in O.S. No. 114/1998 the same was dismissed. Whereas in O.S. No. 37/1999 the sale deed executed by Sannabasappa to suit property was accepted also his ownership to suit property, i.e., Sy. No. 86/A, sale deed in favour of plaintiff-Kotrappa was also accepted. However, while deciding the said suit in O.S. No. 37/99 Kotrappa''s possession to said property was not accepted and also alleged interference of defendant Nos. 1 to 3 in the said suit was not accepted and consequently his right to seek declaration and injunction were rejected which is questioned by Kotrappa in R.A. No. 35/05 and Siddappa and Kotrappa by filing two other appeals in R.A. No. 36/05 challenging the judgment and decree in O.S. No. 114/98 and R.A. No. 37/05 with reference to the finding on issue Nos. 1 to 3 in O.S. No. 37/1999.

It is seen that the lower appellate Court while considering all the three appeals has rightly appreciated the finding of the trial Court and rightly confirmed the judgment and decree passed in O.S. No. 114/98 and when it comes to the judgment and decree in O.S. No. 37/1999 it has interfered with the finding on issue Nos. 4 to 6 and consequently decreed the suit.

On going through the common judgment of the lower appellate Court it is clearly seen that the common judgment rendered by the lower appellate court is well reasoned and does not call for interference in these appeals. However, in these appeals the common appellants in all the three appeals tried to insist for admission of these appeals for framing a substantial question of law to consider their prayer for grant of share in at least two other items of properties, namely, in O.S. No. 114/98 by relying upon the judgment rendered by the Apex Court in the matter of T.G. Ashok Kumar Vs. Govindammal and Another, (2010) 10 UJ 5425 .

On going through the said judgment it is clearly seen that the finding rendered in the aforesaid judgments would have no basis to the facts of the case for the reason that the said judgment deal with declaration of title and permanent injunction with reference to suit property which was purchased by one of the parties during the pendency of lis. In the instant case as could be seen the first of the litigation is initiated in O.S. No. 114/1998 on 24.08.1998 whereas the sale of the suit schedule property item No. 2 sy. No. 86/A in the said suit is sold in favour of defendant No. 3 on 11.08.1998, i.e., much earlier to the initiation of the suit. In that view of the matter, this judgment will have no bearing to the facts of the case on hand. Therefore, the same would not inure to the benefit of the appellants. Accordingly, this Court hold that no substantial question of law arise for consideration in this appeal. Accordingly, all the three appeals are dismissed.