Smt. Ganapamma, Smt. Nagarathna, Manjappa and Annappa vs Smt. Kamala and Smt. Devi

S.N. Satyanarayana, J.—The widow and children of original plaintiff, Venkatagowda, have come up in this second appeal impugning the concurrent finding of both the Courts below in rejecting their prayer for the relief of declaration of title and permanent injunction with reference to land bearing Sy. No. 72 measuring to an extent of 2 acres 31 guntas and Sy. No. 71 measuring to an extent of 3 acres 8 guntas which are suit schedule item Nos. 1 and 2 situated in Mavinasara Village, Anandapuram Hobli, Sagar Taluk. The case of the original plaintiff and also his widow and children, who are appellants herein, is that the aforesaid lands bearing Sy. Nos. 71 and 72 were granted in favour of original plaintiff Venkatagowda in the year 1956, since then he was in possession and enjoyment of the same. The original plaintiff filed a suit in O.S. No. 292/1989 on the file of Munsiff, Sagar, for the relief of permanent injunction against first defendant in the suit, namely Jattamma. It is seen that subsequently said Venkatagowda has withdrawn the suit filed by him for the relief of permanent injunction in O.S. No. 292/1989 and thereafter filed a comprehensive suit in O.S. No. 13/1993 for the relief of declaration of his title to the lands bearing Sy. Nos. 71 and 72 of Mavinasara Village and also for the relief of permanent injunction as against the defendant Nos. 1 to 3, who according to him are total strangers.

In the said suit, defendant Nos. 1 to 3 entered appearance, filed their written statement, according to which first defendant is widow of one Chowdagowda @ Gundagowda and defendant Nos. 2 and 3 are the children of first defendant and her husband, Chowdagowda @ Gundagowda. It is their specific case that the plaintiffs father, Giddegowda had in all three sons, first son is Chowdagowda, father of defendant Nos. 2 and 3 and husband of first defendant. Second son is Huchhegowda and third son Venkatagowda, original plaintiff in O.S. No. 13/1993. According to them, first son of Giddegowda, namely Chowdagowda died 25 years prior to filing of the suit for the relief of permanent injunction and that second son of Giddegowda, namely Huchhegowda has no issues and so far as third son, Venkatagowda is concerned, he was managing the affairs of the family of Giddegowda. It is also their case that the land bearing Sy. Nos. 71 and 72 was under the cultivation of the family of Giddegowda. Subsequently at the time of filing an application seeking grant of the land under their cultivation, the father of original plaintiff died and so also his first son, who is husband of first defendant and therefore the third son, Venkatagowda, who was managing the affairs of the family, filed an application seeking grant of the said land in his favour. Though in the written statement, there is a specific plea to the effect that in the grant application, the particulars of all the family members are furnished, which included the name of first defendant''s husband, plaintiff in the suit has not secured and produced the same to substantiate that the defence raised in the original suit by defendant Nos. 1 to 3 is incorrect and also to substantiate that the defendants are not the widow and children of Chowdagowda as contended by them and he has also failed to produce genealogy tree to show that Giddegowda had only two sons, namely Venkatagowda and Huchhegowda and not three sons as contended by the defendants.

In the original suit, the Trial Court framed the following issues:

Whether plaintiff proves that schedule lands are his self-acquired properties and as such, he holds exclusive and absolute title over them?

Whether plaintiff proves that he has been enjoying lawful and exclusive possession over the schedule lands, since date of grant, in his favour?

Whether defendants prove that Chowdagowda was elder brother of plaintiff and schedule lands are joint family properties and as such are in joint possession and enjoyment of themselves and plaintiff as contended in para - 2 of written statement?

Whether plaintiff proves his lawful possession and enjoyment over 1A. 15G. in Sy. No. 72 more-fully described in para-3 of W.S. as on the date of suit?

Whether defendants prove the family arrangement as stated in paras 3 and 4 of W.S.?

Whether suit for declaration and injunction, without possession is not maintainable?

Whether the suit is bad for non-joinder of necessary parties?

Whether plaintiff is entitled to the relief claimed?

What Decree or Order?

After the evidence was recorded, first, second and fourth issues which were framed based on the plaint averments are answered in the negative in denying that the suit schedule properties are the self acquired properties of Venkatagowda and that he was in exclusive possession and enjoyment of the same and also after his death, plaintiff is in lawful possession and enjoyment of 1 acre 15 guntas in Sy. No. 72 which is more-fully described in para 3 of the written statement as on the date of suit, whereas the issues which were framed, namely issue Nos. 3 and 5 to 7 are answered in the affirmative accepting that the first defendant is widow of Chowdagowda and defendant Nos. 2 and 3 are her children and that they are the members of the family of Giddegowda, i.e., the original plaintiffs father and the defence that was raised by them to the effect that 1 acre 15 guntas was given to their share in the family partition in property bearing Sy. No. 72 was also accepted and their possession and enjoyment is also accepted pursuant to the evidence adduced by both the parties. In the result, the suit of the plaintiff came to be rejected.

It is seen that as against the Judgment and Decree dated 10.06.2005 passed in O.S. No. 13/1993, widow and children of original plaintiff, Venkatagowda preferred an appeal in R.A. No. 213/2005, wherein the Lower Appellate Court after framing the following points for consideration:

Whether plaintiff proves that the suit schedule lands are his self acquired properties and as such, he is having exclusive and absolute title over the same?

Whether plaintiff further proves that he has been in lawful possession and enjoyment of the suit schedule lands since the date of grant in his favour?

Whether the defendant proves that Chowdagowda was elder brother of plaintiff and the suit schedule lands are the joint family properties?

Whether the defendant proves that there was a Jubani Hissa about 15 years back and the joint family properties were partitioned as contended in para-3 of the written statement?

Whether the suit is bad for non-joinder of necessary parties?

Whether the appellants prove that the impugned judgment and decree passed by the learned Senior Civil Judge & JMFC, Sagar, in O.S. No. 13/93, dated: 10-6-2005 is erroneous, capricious, arbitrary, contrary to the facts and law and needs to be set aside?

What order or decree?

has answered point Nos. 1, 2 and 6 of them in the negative and point Nos. 3 to 5 of them in the affirmative in effect confirming the Judgment and Decree dated 10.06.2005 passed by the Court below with the reasons as stated therein. On going through the aforesaid Judgment of both the Courts below, it is clearly seen that there is indeed an attempt on the part of Venkatagowda in filing a suit for permanent injunction at the first instance in O.S. No. 292/1989 in claiming land belonging to his brother, Huchhegowda to an extent of 1 acre 15 guntas in the land bearing Sy. No. 72 of Mavinasara Village, which was given to him in the oral partition in the family and also trying to put an adverse claim over the same in denying the relationship of husband and wife between first defendant and his deceased brother Chowdagowda and tried to disown his relation with them., with an intention of declining their title to an extent of 1 acre 15 guntas in Sy. No. 72 of Mavinasara Village. Both the Courts below have rightly appreciated the pleadings and evidence available on record. The failure on the part of the plaintiff in the original suit in not producing the genealogy tree to show that Giddegowda had only two sons and not three sons as claimed by the original plaintiff and non production of entire records with reference to grant of aforesaid two lands in his name, to show that the grant was not in favour of the family, but in his individual capacity has led the Court below to rightly accept the defence that the defendants are the members of the family of Giddegowda. That the lands bearing Sy. Nos. 71 and 72 are granted in the name of Venkatagowda for the benefit of the family and not for his individual use. Both the Courts below on appreciation of the pleadings and evidence has rightly accepted prior oral partition in the family and allotting 1 acre 15 guntas to the share of defendants in Sy. No. 72 and the same being in possession and cultivation.

In that view of the matter, this Court feel that this is an unscrupulous litigation by the plaintiff with deliberate intention of depriving the legitimate right of defendant Nos. 1 to 3 who are none other than the widow and children of Chowdagowda, S/o Giddegowda and brother of original plaintiff, Venkatagowda. Therefore this second appeal filed by the plaintiffs in O.S. No. 13/1993 on the file of Civil Judge (Sr. Dn.), Sagar, does not merit admission and accordingly the same is dismissed.

While doing so, it is made clear that the defendants are entitled to cost throughout, in addition to penal cost of Rs. 5,000/- which is payable by appellants to defendants in forcing them to defend the unscrupulous litigation initiated by appellants. It is made clear that the cost of Rs. 5,000/- which is awarded in this second appeal is subject to charge on the property, which is available with the plaintiffs in the original suit.