Dismissed

Kallappa v. Saibanna

Karnataka HC22 Sept 2016RSA/2306/2007

Case brief

AI extract

What is this about?

This appeal challenges the dismissal of a suit for declaration of title and permanent injunction regarding land. The High Court upheld the lower courts' finding that the plaintiffs failed to prove the land was joint family property, leading to dismissal of the appeal.

What did the court decide?

The appeal was dismissed; the second appeal filed by appellants against the judgment of the first appellate court was dismissed; the stay application was also dismissed.

Kallappa Vs Saibanna — Partition | Karnataka HC (2016)

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IN THE HIGH COURT OF KARNATAKA

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KALABURAGI BENCH

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DATED THIS THE 22^ND DAY OF SEPTEMBER 2016

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BEFORE

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THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA

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RSA No.2306/2007 (DEC-INJ)

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BETWEEN :

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KALLAPPA S/O SIDDAPPA AGED ABOUT 35 YEARS OCC: AGRICULTURE R/O DHUPAT MAHAGAON VILLAGE TALUK AURAD DIST. BIDAR- 585 328

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KARBASSAPPA S/O SIDDAPPA AGED ABOUT 32 YEARS OCC: AGRICULTURE R/O DHUPAT MAHAGAON VILLAGE TALUK AURAD DIST. BIDAR- 585 328

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…APPELLANTS

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(BY SRI SANJEEVKUMAR C. PATIL, ADVOCATE FOR SRI MANIKAPPA PATIL, ADVOCATE)

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AND:

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SAIBANNA DIED BY LRS

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MANIK S/O SAIBANNA HAJANALE AGED ABOUT 45 YEARS OCC: AGRICULTURE R/O VILLAGE DHUPAT MAHAGAON

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TALUK AURAD-B 585 328

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PARAMMA W/O SHARNAPPA HAJANALE AGED ABOUT 43 YEARS OCC: AGRICULTURE R/O VILLAGE DHUPAT MAHAGAON TALU, AURAD-B 585 328

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PRABHU S/O SAIBANNA HAJANALE AGED ABOUT 34 YEARS OCC: AGRICULTURE R/O VILLAGE DHUPAT MAHAGAON TALUK AURAD-B 585 328

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SHAKUNTALA W/O MALLAPPA AGED ABOUT 31 YEARS OCC: AGRICULTURE R/O VILLAGE ASTOOR TALUK BIDAR- 585 328

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NAGAMMA DEAD BY LRS

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5 (A) DHANRAJ S/O SHANKAR AGE: 40 YEARS

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5 (B) KALLAPPA S/O SHANKAR AGE: 10 YEARS

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5 (C) SHARNAPPA S/O SHANKAR AGE: 6 YEARS

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5 (B) & 5 (C) ARE MINOR R/BY 5 (A) NATURAL FATHER R/O MANGEMPUR TQ. AURAD-B, DIST. BIDAR

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(AMENDED AS PER ORDER DATED 20.11.2015)

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…RESPONDENTS

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(BY SRI K.V. SWAMY, & SRI I.G. GACHINMATH, ADVOCATESABSENT)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 5.4.2007 PASSED IN R.A. NO.125/04 ON THE FILE OF THE PRESIDING OFFICIER, FTC-IV, BIDAR, DISMISSED THE APPEAL AND FILED AGAINST THE JUDGMENT AND DECREE DATED 26.08.2000 PASSED IN O.S. NO.137/1989 ON THE FILE OF THE CIVIL JUDGE (JR.DN.,) AURAD-B.

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THIS APPEAL COMING ON FOR ADMISSION THIS DAY, COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The plaintiffs in O.S.No.137/1989 have preferred this second appeal, assailing the judgment and decree passed in R.A.No.125/2004 (old R.A.No.24/2000) dated 05.04.2007 by the presiding officer, FTC-IV Bidar by which, the judgment and decree passed in O.S.No.137/1989 dated 26.08.2000 by the Civil Judge (Jr.Dn) Aurad has been confirmed.

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For the sake of convenience, parties shall be referred to, in terms of their status before the trial Court.

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The plaintiffs filed the suit seeking declaration

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of title in respect of the entire land bearing Sy.No.113 Hissa No.5/b measuring 2 acres 35 guntas sitauted at

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Bhupath Mahagaon village, Tq; Aurad and for perpetual injunction restraining the defendants from interfering and obstructing plaintiff’s possession to an extent of 1 acre 17 guntas of the aforementioned land, as per the boundaries shown in the plaint.

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It is the case of the plaintiffs that they are the

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children of Siddappa who was the younger brother of Sangappa. The said Siddappa and Sangappa were the sons of Bhimanna and they were the joint owners in possession of the suit schedule land measuring 2 acres 35 guntas. That Sangappa and plaintiff’s father were residing jointly as members of Hindu Undivided Family and Sangappa being the elder brother and manager was karta of the family. That Sangappa was a bachelor and during his life time, he resided with his brother’s family and the aforementioned land was jointly cultivated by Sangappa and Siddappa as joint owners. There was no partition between the brothers and after the death of Sangappa, plaintiff’s father Siddappa succeeded as a sole surviving

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coparcener and became the owner of entire land and that Sangappa died in the year 1967. On the demise of the plaintiff’s father Sangappa, plaintiff’s mother, Sangawwa succeeded to the land along with plaintiffs as joint owners. That the defendant has no concern with the suit land, is an adjacent cultivator and he having an evil eye on the suit land intended to grab it. That the plaintiff’s were minors and their mother was illiterate and innocent and Saibanna the defendant had created a false mortgage of the suit land in his favour and had illegally dispossessed the plaintiffs in the year 1977. Thereafter, plaintiff’s mother, Sangawwa had approached the Tahsildar at Aurad for recovery and possession of the suit land and in those proceedings the Tahsildar, Aurad passed an order in the year 1980 to hand over possession of the suit land measuring 1 acre 17 guntas to her after drawing up a panchanama on 13.12.1980. Since then Sangawwa and her sons the plaintiffs have been in actual and physical possession of that portion of the suit land and after the death of their mother in the year 1984, plaintiffs have

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succeeded and are joint owners in possession and enjoyment of the suit land measuring 1 acre 17 guntas. That the possession of the remaining extent of 1 acre 18 guntas towards Southern side was not handed over by the Tahsildar to the plaintiff’s mother based on the sale deed in favour of the original defendant.

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According to the plaintiffs Sangappa had not sold the property to the defendant in the year 1967. That the alleged sale deed relied upon by the defendant is false, forged and fabricated document. Sangappa and the plaintiffs were members of undivided family and there was no specific share allotted to the deceased Sangappa. At the time of his death, Sangappa had no right to alienate 1 acre 18 guntas out of 2 acres 35 guntas to the defendant. The said sale is null and void. Therefore, the plaintiffs sought for declaration of title in respect of the entire land. Plaintiff’s further contended that the order of Tahsildar was assailed by the defendant before the High Court in W.P.N.23895/1980 and that the said order was quashed

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and the possession of the land to an extent of 1 acre 17 guntas was handed over to the defendant. That defendant has no document of title or any legal basis to continue possession over the other portion of the land measuring 1 acre 17 guntas.

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6. That the plaintiffs have cultivated 1 Acre 17

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Guntas of land and that they are in lawful possession in their capacity as owners. Therefore, in respect of that extent of land, plaintiffs sought the relief of permanent injunction against the original defendant - since deceased, now represented by their legal heirs. The plaintiffs denied that Sangappa had ever executed any conveyance in favour of the defendant to an extent of 1 Acre 17 Guntas of the suit land. That the plaintiffs were also in possession of that extent of land as joint owners, but the defendant was interfering with their peaceful possession. The plaintiffs demanded the defendant to hand over peaceful possession of the portion measuring 1 Acre 18 Guntas of land towards the Southern side and to restrain defendant

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from interfering with the Northern portion of the suit land measuring 1 Acre 17 Guntas and also declare that the sale deed, on the basis of which the original defendant claimed to have purchased 1 Acre 18 Guntas of land, as null and void. But the defendant refused to do so and therefore, the suit was filed.

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In response to the suit summons and court notices issued by the trial court the original defendant appeared and filed his written statement denying the averments made in the plaint in toto. While admitting that Siddappa was the father of the plaintiffs and Sangappa was his elder brother, it was denied that Siddappa and Sangappa were joint owners and jointly enjoying the suit land measuring 2 Acres 35 Guntas. They contended that Sangappa was not a bachelor but he had deserted his wife and that Siddappa and Sangappa were not jointly cultivating the suit land as joint owners. Therefore, there was no question of partition between them insofar as the suit land was concerned. That Sangappa was the absolute

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owner of the suit land and he had purchased the suit land under a registered sale deed dated 09/02/1966 being sale deed No.530 from one Ali Ahmed and he was the absolute owner in possession of the same. That neither the plaintiffs nor their father had any right upon the suit land and they were not the joint owners. That when Sangappa purchased the suit land from Ali Ahmed, he was put in possession of the entire extent of land. As he was in need of funds, he had agreed to sell half the extent of land under a registered sale deed dated 01/04/1968 to the original defendant i.e., an extent of 1 acre 18 Guntas. Therefore, defendant was the rightful owner in possession of that extent of land. Defendant also admitted that the Tahsildar’s order dated 26/11/1987 was challenged by him in W.P.No.23895/1980 before the High Court and that an order of stay was granted on 01/01/1981. That the writ petition was allowed and the order of Tahsildar was set aside and in compliance with the order of the High Court, the defendant was put in possession of the suit land by the revenue authorities by completing all the formalities

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required in law and mutation entries were made in his name. Thus, plaintiffs were never in possession of any portion of the suit land. That the order of the High Court in W.P.No.23895/1980 has attained finality. Thus, the defendants were in possession of 1 Acre 18 Guntas of land by virtue of the sale deed dated 02/04/1968 and they were in possession of the remaining extent of land i,.e., 1 Acre 17 Guntas by virtue of the order passed by the court. Contending that the plaintiffs had no right, title and interest in the entire extent of 2 Acres 35 Guntas of land, defendant sought dismissal of the suit as there was no cause of action as against defendants. The defendants further contended that after the death of Sangappa, they were in adverse possession of 1 Acre 17 Guntas of land and they had acquired absolute ownership in respect of that extent of land. Therefore, defendant sought dismissal of the suit.

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On the basis of the aforesaid pleadings, the trial

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court framed the following issues for its consideration:-

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1) Whether plaintiffs prove that the Siddappa and Sangappa are members of Joint Family?

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2) Do they prove that the suit land was their joint family property and were in possession of it as co-owners?

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3) Do they prove that the sale deed in favour of defendant No.1 with respect to suit land is illegal and not binding upon them?

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4) In the alternative do the defendant proves that he has perfected title by adverse possession?

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5) Are the plaintiffs entitled for declaration?

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6) Are they entitled to recover possession?

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7) Are they entitled for injunction prayed

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for?

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8) What order or decree?”

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In support of their case, first plaintiff examined

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himself as P.W.1. Five other witnesses were examined on

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behalf of the plaintiffs. The plaintiffs produced 11 documents, which were marked as Exs.P.1 to P.11. Defendants did not let in any evidence. On the basis of the said evidence on record, the suit was decreed and thereafter, defendants preferred regular appeal before the first appellate court, which set aside the decree and remanded the matter for fresh adjudication. Subsequent to remand also, defendants did not let in any evidence. On the basis of the evidence let in by the plaintiffs, trial court answered the issues in the negative and dismissed the suit by judgment dated 26/08/2000. Being aggrieved by the dismissal of the suit, plaintiffs preferred R.A.No.125/2004 (original R.A.No.24/2000) before the first appellate court which, on hearing learned counsel for the respective parties, framed the following points for its consideration:-

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1. Whether the appellants/plaintiffs prove their title to the suit schedule property?

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2. Whether the appellants/plaintiffs further prove their possession over a part of the suit Sy. number measuring 01-acre 17guntas are entitled to seek for the relief of permanent injunction against defendant/respondent?

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3. Whether the appellants/plaintiffs further prove that they are entitled to take possession of remaining extent of land in that suit survey number measuring 01acre 18-guntas from defendants/respondent?

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Whether the appellants/plaintiffs prove that the appreciation of the evidence by the trial court is erroneous and unsustainable in law?

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What order?

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It answered all points in the negative and dismissed the appeal by confirming the judgment of the trial court.

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Being aggrieved by the judgment of the first appellate court, which has also confirmed the dismissal of

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the suit of the trial court, the plaintiff – appellants have preferred this second appeal.

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I have heard learned counsel for the appellants and perused the material on record.

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Appellants’ counsel contended that the courts below were not right in holding that the suit schedule land measuring 2 Acres 25 Guntas was the exclusive property of Sangappa and not the joint family property. He contended tha Sangappa and Siddappa were brothers, being the children of Bheemappa. They constituted a Hindu undivided family. That the suit land was purchased in the name of Sangappa, but it was infact, a joint family asset. Both the brothers were jointly cultivating the suit land as joint owners. That Sangappa had died issueless and on his demise, the plaintiffs as children of Siddappa had succeeded to the entire suit property. That Sangappa had no right to alienate 1 Acre 18 Guntas of land to the original defendant, Saibanna. That Ex.P.5 - sale deed dated 02/04/1968 is null and void. That even if for a

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moment it is assumed that the said sale in favour Saibanna was valid and legal, the remaining extent of land i.e., 1 Acre 17.5 Guntas of land is in the ownership and possession of the plaintiffs. The trial court has not appreciated this aspect of the matter while dismissing the suit. He further contended that despite opportunities being given, the defendants did not let in any evidence to prove that they had perfected their title with respect to 1 Acre 17 Guntas of land by adverse possession. Therefore, courts below ought to have granted a declaration in respect of that extent of land at least and ought to have held that they were in possession of that extent. Learned counsel further contended that substantial questions of law would arise in this appeal and therefore, the appeal may be admitted for a detailed hearing.

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Having heard learned counsel for appellants and on perusal of the material on record, it is noted that the appellants have proceeded to seek the declaratory denied in respect of the entire extent of 2 Acres 35 Guntas of land

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in Sy.No.113/5/B on the premise that the aid land was the joint family asset. However, this fact has been denied by the averment made in the written statement by the respondents that the suit land was purchased by Sangappa in his individual capacity from on Ali Ahmed under a sale deed bearing No.530 dated 09/02/1966. The sale deed dated 09/02/1966 has not been brought on record by the defendant, but nevertheless this fact has not been proved to be false by the plaintiffs. In other words the plaintiffs have not produced the aforesaid sale deed to prove that the suit land was purchased as a joint family asset.

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On the other hand, the contention of the plaintiffs is that the suit land being the joint family asset, Sangappa could not have alienated 1 Acre 18 Guntas of land in favour of the original defendant – Saibanna, under a registered sale deed dated 02/04/1968 vide Ex.P.5. If the case of the plaintiffs is that the suit land is a joint family asset, then there was no impediment for Sangappa to have alienated his half share in the suit property to

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Saibanna. Therefore, insofar as 2 Acres 35 Guntas of land are concerned, the alienation made by Sangappa to Saibanna under Ex.P.5 dated 02/04/1968 could not have been impleached by the plaintiffs. On the other hand, as already noted, the plaintiffs not having produced any evidence to the effect that Ali Ahmed had sold the suit land to Sangappa as a member of the joint family and that Siddappa, his brother also had a right, title and interest in the suit land, it has to be inferred that Sangappa had purchased the suit land in his individual capacity and he was the absolute owner of the suit land. In fact, the plaintiffs have examined P.W.2 – vendor of Sangappa, though he may have stated in his oral evidence that he had sold the suit land to both Sangappa and Siddappa, Ex.P.5, which is the sale deed dated 09/02/1966, does not bear the name of Siddappa. In the circumstances, it must be held that Sangappa was the absolute owner in possession during his lifetime, to an extent of 2 Acres 35 Guntas. Therefore, the courts below were justified in

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declining to grant relief of declaration to the plaintiffs as they had proceeded on an erroneous premise.

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As far as the remaining extent of 1 Acre 17.5 Guntas of land are concerned, the defendants claim that they were in possession of the said land and though plaintiffs’ mother Sangawwa had taken possession through the Tahsildar, the order of the Tahsildar was set aside by this court in W.P.No.23895/1980 dated 01/01/1981 and possession of that extent of land was restored to the original defendant, Saibanna. In that view of the matter, plaintiffs could not claim that they are in possession of 1 Acre 17.5 Guntas of land and therefore, they were entitled to the relief of permanent injunction as against the defendants.

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Though the defendant did not let in any evidence in the matter even after the first appellate court had remanded the case nevertheless, the admissions made by the plaintiffs in their plaint and also documentary evidence let in by them clearly contradict their pleadings.

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In the circumstances, the courts below were justified in dismissing the suit filed by the plaintiffs. I do not find any infirmity in the judgment of the first appellate court, which has confirmed the judgment of the trial court and has consequently, dismissed the suit filed by the plaintiffs. In my view, no substantial question of law would arise in the appeal. The appeal is hence, dismissed.

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In view of the dismissal of the appeal, I.A.No.II/2007 for stay also stands dismissed.

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Sd/JUDGE

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Msr/*mvs

Kallappa v. Saibanna

Case brief

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Kallappa v. Saibanna

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