Sunanda and Others vs Shankaravva and Others

S.N. Satyanarayana, J.—The 3rd and 4th defendants in O.S. No. 700/2008 on the file of Prl. Civil Judge and JMFC, Dharwad, have come up in this second appeal impugning the concurrent finding of both the Courts below in decreeing the suit of plaintiff for the relief of declaration and permanent injunction with reference to 10 acres 23 guntas of land situated on the western side of Block No. 618 measuring 16 acres 23 guntas situated at Karadigudda village in Dharwad taluk and district.

The brief facts leading to this second appeal are as under:

a) The suit schedule property is admittedly the property of one Gurappa Hugar who is the propositus of his family consisting of himself, his wife Sangavva and daughter by name Mallavva. It is seen that Gurappa who had no male issues took one Basappa in adoption. The said Basappa is genitive son of Malleshappa who had in all four sons and a daughter. The daughter is none other than Gurappa''s wife Sangavva and among the four sons the first one is Channappa, second is Parappa, third is Bhimappa who is son-in-law of propositus Gurappa and fourth is Basappa who is taken in adoption by Gurappa Hugar. With this Basappa became the adopted son of Gurappa and Sangavva and brother of Mallavva.

b) For proper appreciation of the parties, the genealogy of Gurappa''s family and as well as Malleshappa''s family is reproduced as hereunder:

c) It is seen that Basappa, adopted son of Gurappa died in the year 2005 leaving him surviving his widow Shankravva who is the plaintiff in O.S. No. 700/2008 wherein she sought for declaration and injunction with reference to the suit schedule property i.e., 10 acres 23 guntas in Block No. 618. The said suit is filed by her against her husband Basappa''s genitive brother Bhimappa''s two sons. The first defendant Mallappa is 1st son of Bhimappa through his 1st wife Mallavva and incidentally Mallavva is the daughter of propositus Gurappa and 2nd defendant Siddappa is first son of Bhimappa''s 2nd wife Kashavva.

d) It is stated that during the pendency of the original suit Siddappa died leaving him surviving his mother Kashavva who is 2nd wife of Bhimappa and his younger sister Sunanda who is Bhimappa''s daughter through Kashavva. It is seen that during the pendency of the original suit 2nd defendant Siddappa died and 3rd and 4th defendants continued as his legal heirs. In the said suit the defendants took up a defence to the effect that during the life time of Basappa a mutation entry came to be made in M.E. No. 3232 wherein the suit schedule property is said to have registered in the name of his genitive brother Bhimappa as if the said property is relinquished in his favour. Though such a defence is taken in the evidence, which was recorded in the proceedings before the trial Court, the defendants were not able to demonstrate how a relinquishment deed could be executed by adopted son of Gurappa in favour of his genitive brother Bhimappa who continues to be the member of Malleshappa''s family, was not properly explained.

e) In the light of that the revenue entry was not believed in as much as the release of right can only be in favour of a person having existing right in the property, since there is nothing on record to demonstrate that Bhimappa had any semblance of right in the suit schedule property which is the property of Bhimappa''s adoptive father. The trial Court refused to believe the mutation entry M.E. No. 3232 and considering the fact that the suit schedule property was the property of propositus Gurappa which was subsequently succeeded by his adopted son Basappa and accordingly decreed the suit filed by Shankaravva for declaration and injunction.

f) Being aggrieved by the same, the 3rd and 4th defendants in the original suit namely Sunanda and Kashavva who are none other than the 2nd wife of Bhimappa and the daughter of Bhimappa through his second wife Kashavva filed an appeal in R.A. No. 97/2011. It is necessary to mention at this juncture the 1st defendant Mallappa who is Bhimappa''s 1st son through his 1st wife Mallavva did not choose to challenge the judgment and decree dated 26.9.2011 passed in O.S. No. 700/2008. It may also be necessary to mention at this juncture that Mallappa is son of Bhimappa through his 1st wife Mallavva who in turn is daughter of original propositus Gurappa.

g) The learned counsel appearing for respondent i.e., original plaintiff Shankaravva would submit that she has taken the grandson of Mallavva in adoption, who is none other than the sister-in-law of Shankaravva also. That may be one of the reason as to why Mallappa did not choose to challenge the judgment in O.S. No. 700/2008. However it is argued by the 3rd and 4th defendants that the lower appellate Court on going through the pleadings, oral and documentary evidence available on record being convinced that mutation entry in M.E. No. 3232 based on the alleged relinquishment of right in favour of Bhimappa was not accepted by the lower appellate Court also for the same reason that there could not have been common right existing between Basappa and Bhimappa in the said property though they are full blood brothers. By adoption Basappa has gone into the family of Gurappa as his adoptive son. Therefore his title to the suit property is, as that of adoptive son of Gurappa and whereas Bhimappa continued to be the son of Malleshappa.

h) In that view of the matter there could not have any common possession and enjoyment of the suit property as common owners between Bhimappa and Basappa. In the absence of common right to them in the property, the question of Basappa relinquishing his right in suit property in favour of Bhimappa would not arise. Therefore the lower appellate Court also has rightly rejected the defence taken in the original suit. Consequently both the Courts below have held that the suit schedule property was absolute property of Basappa during his lifetime. Therefore dehors the revenue entry in M.E. No. 3232, title and possession remained with the legal heirs of deceased Basappa namely Shankaravva the plaintiff in the original suit and accordingly dismissed regular appeal filed by 3rd and 4th defendants in the original suit.

As against the concurrent finding of both the Courts below, this second appeal is filed on several grounds; one is that both the Courts below have not properly looked into the revenue entry in M.E. No. 3232 which remained undisturbed for long period; and that there being delay in seeking declaratory right; and also that Basappa never challenged the revenue entry during his lifetime. Therefore the judgment of both the Courts below is erroneous.

Heard the learned counsel for both the parties. On going through the revenue records it is clearly seen that merely because there is an erroneous entry existing in the revenue records, the same would not give any kind of right to the defendants for claiming title to the suit property. Though it is stated by the defendants 1 to 4 in the original suit that pursuant to the revenue entry they are in possession and cultivation of the suit land, nothing is available on record to substantiate the same. In the absence of possession and title being established, the question of denying declaration and injunction to the rightful owner of suit property does not arise. In the instant case Shankaravva has established through pleading and evidence that the suit schedule property continued to be the property of her husband Basappa adoptive son of Gurappa and that the suit schedule property is in their possession and cultivation.

In that view of the matter, this Court feel that in the absence of any semblance of right with Bhimappa to claim relinquishment right to suit property from his genitive brother Basappa and in the absence of relinquishment of right by Basappa in favour of Bhimappa being properly explained and demonstrated in both the Courts below, this Court find that no justifiable grounds are made out to interfere with the concurrent findings of both the Courts below in decreeing the suit of the plaintiff for the relief of declaration and injunction. Accordingly this second appeal is hereby dismissed.