Dismissed

Nagaraj v. Sri Nanje Gowda

Karnataka HC1 Sept 2021RFA/1741/2005

Case brief

AI extract

What is this about?

Appeal by legal representatives challenging dismissal of a suit for declaration and permanent injunction regarding suit schedule property. The High Court affirmed the trial court's decision that the suit was barred by limitation due to delay in challenging a 1965 settlement deed and dismissed the appeal.

What did the court decide?

Judgment and decree of the trial court dismissing the suit for declaration and permanent injunction are affirmed; appeal dismissed with no costs.

Nagaraj Vs Sri Nanje Gowda — Succession and Inheritance | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST DAY OF SEPTEMBER, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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R.F.A.NO.1741/2005 (DEC/INJ)

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BETWEEN:

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NAGARAJ

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SINCE DEAD BY HIS LR

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K.T.THIMMEGOWDA SINCE DEAD BY HIS LR’s

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a) SMT. DEVAMMA W/O LATE K.T.THIMMEGOWDA AGED 60 YEARS

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b) KUMARI VARALAKSHMI D/O LATE K.T.THIMMEGOWDA AGED 36 YEARS

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c) SMT.RAJESHWARI W/O MADHUSUDAN D/O LATE K.T.THIMMEGOWDA AGED 35 YEARS

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d) SRI YOGESH

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S/O LATE K.T.THIMMEGOWDA AGED 35 YEARS

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e) SMT.SUPRIYA W/O LOKESH D/O LATE K.T.THIMMEGOWDA AGED 31 YEARS

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ALL ARE R/AT KIKKERI CHOULTRY STREET K.R.PET TALUK MANDYA DISTRICT. … APPELLANTS

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(BY SRI NITISH K.N., ADVOCATE FOR SRI K.V.NARASIMHAN, ADVOCATE)

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AND:

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1 . SRI NANJE GOWDA S/O LATE GIRI GOWDA a) SMT.LAKSHMAMMA W/O NANJEGOWDA AGED 65 YEARS b) SRI T.N.ANAND S/O LATE NANJEGOWDA AGED 44 YEARS c) SRI RAVI S/O LATE NANJEGODA AGED 43 YEARS d) SRI RAMEGOWDA S/O LATE NANJEGOWDA AGED 41 YEARS 2 . SMT. SUSHEELAMMA W/O LATE RAJANNA AGE: MAJOR RESPONDENTS ARE R/AT TURUKARAKOPPALU VILLAGE KIKKERI HOBLI, K.R.PET TALUK MANDYA DISTRICT. ... RESPONDENTS

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(BY SRI G.RAVISHANKAR SHASTRY, ADVOCATE FOR SRI K.A.CHANDRASHEKARA, FOR LR’s OF R1(a-d) AND R2)

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THIS R.F.A. IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 16.11.2002 PASSED IN O.S.NO.12/1995 ON THE FILE OF THE PRL. CIVIL JUDGE, (SR. DN.) AND JMFC, SRIRANGAPATNA, DISMISSING THE SUIT FOR DECLARATION AND PERMANENT INJUNCTION.

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THIS R.F.A. HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 06.08.2021 THROUGH ‘VIDEO CONFERENCE’ THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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J U D G M E N T

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This appeal is filed challenging the judgment and decree of dismissal of the suit in O.S.No.12/1995 dated 16.11.2002 on the file of the Principal Civil Judge, (Sr. Dn.) and JMFC at Srirangapatna.

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The parties are referred to as per their original rankings before the Trial Court to avoid the confusion and for the convenience of the Court.

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The factual matrix of the case is that the plaintiff had filed the suit seeking the relief of declaration and permanent injunction in respect of the suit schedule property. It is his claim that one Yalakkigowda had two sons namely, Venkategowda and Girigowda. These two brothers divided their properties long

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back and the suit schedule property fell to the share of Venkategowda. This Venkategowda had a son by name Javaregowda, who was a Vagabond. During his absence, it seems that Venkategowda had executed a gift deed in favour of defendant No.1 and Rajanna, the husband of defendant No.2 in respect of the suit schedule property. The property being ancestral joint family property, the gift deed dated 08.05.1965 is void-ab-initio . Even otherwise, it was not acted upon and Venkategowda himself dealt with this property as owner.

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It is also the case of the plaintiff that on 17.01.1968,

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the very same Venkategowdaa and his son Javaregowda sold the suit schedule property to one Dyavegowda, son of Narasegowda. In turn, Dyavegowda sold the suit schedule property in favour of Venkategowda under a registered sale deed dated 04.03.1971. The said Venkategowda performed the marriage of his son Javaregowda with Sarojamma @ Devamma, daughter of Narasegowda and Puttamma. Javaregowda begot two children Boregowda and Prema. The said Venkategowda died in the year 1973. Javaregowda died in the year 1975 and Sarojamma @ Devamma died in the year 1978 and the minor children of

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Javaregowda and Sarojamma, came under the care and protection of Puttamma, wife of Narasegowda, the grandmother. The suit schedule property also came into the possession of Puttamma. The said Puttamma as guardian of minor children, Boregowda and Prema, sold the suit schedule property to Kalamma under a registered sale deed and put her in possession of the same. The entries in the revenue records continued in the name of Boregowda, Prema and their guardian Puttamma. It was incumbent upon the revenue authorities under Section 128 of the Karnataka Land Revenue Act to mutate the same to the name of Kalamma and accordingly made the entries.

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The defendants had filed an appeal before the Assistant Commissioner of Pandavapura in R. Mis. No.15/81-82 challenging the entries in the name of vendors of Kalamma on the ground that they have succeeded the schedule land from Venkategowda in view of settlement deed and as such the khatha should have been changed to their name. The Assistant Commissioner remanded the matter to the Tahsildar at K.R. Pet, who registered a case in DIS No.RR-CR-1/83-84. Finally, on

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29.05.1992, the Tahsildar ordered to enter the name of the defendants in the R.T.C. Kalamma, the respondent No.5 had died on 01.07.1991 leaving behind the appellant and six other sons. But, the legal representatives were not brought on record and the order was passed in their absence. Puttamma had filed an appeal against this order in the Court of the Assistant Commissioner at Pandavapura in R. Mis. No.30/92-93, who has mechanically confirmed the order of the Tahsildar on 28.11.1994, without examining the legal aspects. The plaintiff is in possession and enjoyment of the suit schedule property as the manager of his joint family and there are 20 coconut palms and a jack fruit tree on the suit schedule property. The defendants are trying to trespass on the suit schedule property and cut the trees on the strength of the revenue records. Hence, the suit is filed for the relief of declaration and permanent injunction.

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In pursuance of the suit, the defendant Nos.1 and 2 appeared through counsel and defendant No.1 filed the written statement claiming that he is in possession of the suit schedule property. The defendant No.2 adopted the written statement of defendant No.1. The defendants admitted the relationship of

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Yalakkigowda and Venkategowda. It is their claim that Venkategowda and his brother Girigowda divided their joint family properties somewhere in the year 1949. The said Venkategowda married three wives. During his life time, he had a son by name Javaregowda through his second wife, whose whereabouts are not known for a period from more than 7 years prior to 1965. All the wives of Venkategowda were also passed away earlier to 1965. Under these circumstances, there were none to look after Venkategowda. Hence, he had executed a registered settlement deed dated 08.05.1965 in favour of the first defendant and his brother Rajegowda, who is none other than the deceased husband of the second defendant, settling all the properties, which fell to his share, including the suit schedule property. Pursuant to the said settlement deed, the first defendant and his brother Rajegowda were put in possession of the settled properties and they are in possession and enjoyment of the suit schedule property. The said settlement deed was acted upon and it is valid and binding.

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The defendants in the written statement deny the

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fact that Javaregowda, who is the son of Venkategowda had two

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children i.e., Boregowda and Prema. However, they contend that they are born to Sarojamma through illicit connection and they are not at all the sons of Javaregowda and not in possession of the suit schedule property. After the death of Sarojamma during the year 1978, the alleged grand-mother, Puttamma attempted to knock off the suit schedule property colluding with the local revenue officials and got changed the khatha of the suit schedule property in favour of the minors, Boregowda and Prema, styling herself as the guardian. After noticing this illegal attempt of Puttamma, the first defendant and his brother filed an appeal before the Assistant Commissioner, Pandavapura in R.Mis.No.15/81-82 and the same was allowed and the matter was remanded to the Tahsildar, K.R. Pet. The Tahsildar, after detailed enquiry had passed the orders in RRCR.1/83-84 dated 29.05.1992 directing to write the khatha and RTC in favour of the defendants. Against the said order, the plaintiff and one Krishna filed an appeal before the Assistant Commissioner, Pandavapur in R.Mis.No.30/92-93 and the same was dismissed by the order dated 28.11.1994.

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It is also the claim of the defendants that the said

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Boregowda and Prema, the minors have filed the suit before the Munsiff, K.R.Pet through their next friend Puttamma against the first defendant and his brother Rajegowda in respect of the suit schedule property and the said suit was also dismissed as withdrawn. Puttamma, the guardian of minor children Boregowda and Prema had no authority or power to sell the property in favour of Kalamma, the mother of the plaintiff. The alleged sale deed, if any is void and ineffective in law and the same does not confer any right in favour of the plaintiff. It is contended that the defendants are in continuous possession and enjoyment of the suit schedule property as per the settlement deed adverse to the knowledge of all the concerned, thereby they perfected their title to the suit schedule property by law of adverse possession. Hence, claimed that the suit is liable to the dismissed. It is also their contention that the suit is hit by law of res-judicata and also barred by limitation and plaintiff is not entitled for any relief.

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On the basis of the pleadings, the Trial Court has framed the following issues:

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“1. Whether plaintiff proves that Gift Deed dated 08.05.1965 is ab-initio void and not acted upon?

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2. Whether plaintiff proves that the suit schedule property belongs to the joint family of plaintiff and they are in possession of the suit schedule property?

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3. Whether plaintiff proves the interference as averred in the plaint?

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4. Whether defendants prove that they are in possession of suit schedule property as per registered Settlement Deed dated 08.05.1965?

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5. Whether the suit is hit by law of res-judicata?

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6. Whether the suit is barred by limitation?

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7. Whether plaintiff is entitled for the relief claimed in the suit?

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8. What order or decree?”

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The plaintiff, in order to prove his case, examined

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himself as P.W.1 and got marked the documents Ex.P1 to P15.

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The defendants have neither examined P.W.1 nor led any evidence.

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The Trial Court, after considering both oral and documentary evidence available on record, answered issue Nos.1 to 5 as ‘negative’, issue No.6 as ‘affirmative’ in coming to the conclusion that the suit is barred by limitation and dismissed the suit answering issue No.7 as ‘negative’. Hence, the present appeal is filed before this Court.

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The appellants-plaintiffs in this appeal would contend that the impugned judgment of the Trial Court is erroneous. The Trial Court erred in placing undue reliance on the orders of Revenue Authorities though they are not the documents of title. The Revenue Authorities have no right to decide the title and said aspect comes within the jurisdiction of the Civil Court. In the absence of settlement deed on which the respondents rely, the Trial Court erred in holding adverse inference has to be drawn against the appellants on the ground that the plaintiffs have not produced the gift deed which is referred to in the plaint. The respondents have not accepted that there is gift deed but, they claimed the right through the settlement deed.

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The defendants have also not produced the said settlement deed. Though the Trial Court could not act upon the sale deed produced by the plaintiffs, erred in not considering the respective sale deeds. The very appreciation of the material by the Trial Court is perverse and contrary to the evidence available on record. Neither Boregowda nor Prema had initiated any proceedings against the sale deed executed by Puttamma. As such, the Trial Court erred in holding that by virtue of sale deed executed by Puttamma in favour of Kalamma, the plaintiffs did not get any title is erroneous. Hence, it requires interference of this Court.

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The learned counsel appearing for the appellantsplaintiffs in his argument he reiterates the grounds urged in the appeal memorandum narrating with regard to the gift deed of the year 1965, sale deed of the years 1968, 1971 and also brought to the notice of this Court particularly, Exs.P1 to P11. The counsel would submit that in the written statement, defendant No.1 categorically admitted that there was a partition between Venkategoeda and his brother Girigowda. The defendants have not cross-examined P.W.1 and also not led any

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evidence before the Trial Court. Under the circumstances, the Trial Court ought not to have come to the conclusion that there was a violation of Section 11 of the Guardians and Wards Act, 1890 and ought not to have come to the conclusion that the sale deed executed by the grand-mother is not valid. The Trial Court mainly relied upon Ex.P11 with regard to the settlement deed and no such settlement deed is placed before the Trial Court. The Trial Court also committed an error in coming to the conclusion that suit is barred by limitation. The counsel would vehemently contend that even though the plaintiffs have pleaded with regard to the gift deed, it is categorically contended that the same is not acted upon. The defendants have not placed any material to show that the said document is acted upon. The Trial Court also answered issue No.4 as ‘negative’ and when the Trial Court has answered issue No.4 as ‘negative’ in coming to the conclusion that defendants have not proved that they are in possession of the suit schedule property as per registered settlement deed dated 08.05.1965, the Trial Court ought to have granted the relief in favour of the plaintiffs. But, erroneously comes to the conclusion that the plaintiffs have not produced any document to grant the relief of declaration. The very

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approach of the Trial Court invoking Section 11 of the Guardians and Wards Act, 1890 is erroneous, since no such issue has been framed by the Trial Court.

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The P.W.1 has not been cross-examined and the Trial Court has come to the conclusion that minors have not challenged the settlement deed. When the Trial Court comes to the conclusion that defendants are not in possession, it ought to have granted injunction in favour of the plaintiffs. The very reasoning of the Trial Court that the suit has fell short fall of Section 11 of the Guardians and Wards Act, 1890 is erroneous and no opportunity is given to the parties to meet Section 11 of the Guardians and Wards Act, 1890 without framing a separate issue. Hence, the plaintiffs are entitled for possessary right when the Trial Court has come to the conclusion that the defendants are not in possession of the suit schedule property.

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Per contra, learned counsel appearing for the respondents-defendants would submit that in para No.5 of the written statement, a specific defence is taken that minors are not the children of the said Javare Gowda and they are born to Sarojamma through illicit relationship. The defendants have also

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denied that those minor children were not under the care of Puttamma. The counsel would submit that the settlement deed is executed on 08.05.1965 and right has been transferred in favour of defendant No.1 and his brother. When the P.W.1 has admitted the execution of the settlement deed dated 08.05.1965, the Trial Court has rightly come to the conclusion that the sale deed of the year 1981 executed by the said Puttamma in favour of Kalamma will not create any right in favour of the plaintiff’s mother. The counsel would also submit that when the defendants have denied that they are not the children born to Javaregowda, the plaintiffs ought to have placed the documents to show that they are the children of Javaregowda and nothing is placed on record. Ex.P1 executed by Puttamma in favour of Kalamma does not create any right.

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The counsel would vehemently contend that Trial Court has rightly pressed into service of Section 11 of Guardians and Wards Act, 1890 and the de-facto guardian cannot sell the property of minor children without permission from the Court. The counsel also would submit that on perusal of Ex.P1, it is categorically mentioned that the property of the minors was sold

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for discharge of her debt and not for any family necessity. The defendants are in possession of the suit schedule property, consequent upon the settlement deed and no title is proved in favour of the plaintiffs. The counsel would also vehemently contend that the Trial Court has rightly dismissed the suit in coming to the conclusion that the suit is barred by limitation. When the plaintiffs admit the document of the year 1965 and transfer made in favour of the defendants and the said transfer is more than 30 years old, they cannot institute a suit for challenging the document of the year 1965. Hence, there are no grounds to entertain the appeal and the appeal is devoid of merits.

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In reply to the arguments of the learned counsel for the respondent-defendants, the learned counsel for the appellants-plaintiffs would submit that Ex.P15 clearly discloses the date of birth of Javaregowda as 01.06.1974 and hence, the suit is not barred by limitation as contended by the learned counsel for the defendants. In Ex.P15, it is clearly mentioned that the name of the father of Javaregowda is Javarappa. Hence, they cannot contend that Boregowda is not the son of

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said Javaregowda. The counsel also would contend that the gift deed cannot be executed in favour of a stranger and the defendants are the strangers.

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Having heard the respective counsel and also on

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perusal of the material available on record, the points that arise

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for consideration of this Court are:

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(i) Whether the Trial Court has committed an error in dismissing the suit in coming to the conclusion that the plaintiffs did not get any title in respect of the suit schedule property?

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(ii) Whether the Trial Court has committed an error in dismissing the suit answering issue No.6 as ‘affirmative’ that the suit is barred by limitation?

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(iii) What order?

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Point Nos.(i) and (ii)

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The main contention of the appellants-plaintiffs before the Trial Court is that gift deed dated 08.05.1965 is voidab-initio and the same is not acted upon. Apart from that, they claim that they have purchased the property from Puttamma, who is the grand-mother of the minor children of Javaregowda

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and they are in possession and having title in respect of the suit schedule property. The claim of the defendants before the Trial Court is that a settlement deed dated 08.05.1965 was executed in favour of defendant No.1 and his brother and the same is acted upon and when they came to know about the fact that revenue entries are changed in favour of the plaintiffs, they have approached the Assistant Commissioner and the Assistant Commissioner has allowed the appeal and remanded the matter to the Tahsildar and the Tahsildar in turn rightly ordered to keep the revenue entries in the name of the defendants. It is also their contention that the suit is barred by limitation.

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Now, this Court has to examine whether the plaintiffs

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have proved their case to declare that they are the owners of the suit schedule property and they are entitled for the relief of declaration and permanent injunction as sought. It is not in dispute that Yalakkigowda was having two sons i.e., Venkategowda and Girigowda. It is also not in dispute that there was a partition between Venkategowda and Girigowda. But, the claim of the plaintiffs is that the suit schedule property belongs to the joint family of the plaintiffs and they are in possession. It

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is also important to note that the plaintiffs themselves have pleaded in the plaint that Venkategowda had executed the gift deed dated 08.05.1965 and the said document is void-ab-initio and the same is also not acted upon.

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It is the first and foremost contention of the plaintiffs that the suit schedule property is a joint family property and in order to substantiate that the same is a joint family property, no material is placed before the Court. However, it is not in dispute that two brothers have divided the property i.e., Venkategowda and Girigowda. Even according to the plaintiffs, the property of Venkategowda was gifted in favour of defendant No.1 and his brother. But, in order to show that it is void-ab-initio , no material is placed before the Court. However, it is contended that, in the year 1968, both Venkategowda and his son Javaregowda have executed the sale deed in favour of Dyavegowda. In turn, Dyavegowda has sold the property in favour of Venkategowda in terms of Exs.P2 and P3. When once the gift deed is executed vide document dated 08.05.1965 as admitted by the plaintiffs, unless the same is nullified by any competent Court of law, the question of executing the sale deed

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again does not arise. The son of Venkategowda has also not challenged the same.

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It is also the contention of the plaintiffs that the document of gift deed dated 08.05.1965 has not been acted upon. In order to prove the said fact also, no material is placed before the Court. It is evident that the plaintiffs got changed their name from the name of the defendants based on the sale deed of Kalamma. However, the defendant Nos.1 and 2 are relying upon the document of settlement deed dated 08.05.1965. But, none of the parties have produced the document dated 08.05.1965 before the Court either as gift deed or as a settlement deed. The defendants have also not led any evidence and even not cross-examined P.W.1. But, there is an admission that gift deed is executed by Venkategowda on 08.05.1965 in favour of defendant No.1 and his brother in the pleading and also the evidence of P.W.1. I have already pointed out that unless the said document of settlement deed is nullified by any competent Court of law, the same is a valid document. Even if any documents are executed subsequently, the same will not confer any right. It is also important to note that, it is the

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claim of the plaintiffs that Puttamma, who is the grand-mother of the Byregowda and Prema, who claims that they are the children of Javaregowda have executed the sale deed in favour of Kalamma. First of all, the defendants have disputed that they are not the children of Javaregowda but, his wife Sarojamma got these two children by illicit relationship. But, in order to prove the paternity, no material is placed before the Court.

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It is also important to note that, I have already pointed out that when the document dated 08.05.1965 is in existence and the said document is not nullified by any competent Court of law, no right will confer on any of the parties. Apart from that, the Trial Court also observed that the de-facto guardian, who claims to be the grand-mother has not obtained any permission from the competent Court to sell the properties of the minor children. It is also important to note that, in the document of settlement deed, it is mentioned that for discharge of her debt, she is selling the same. When such being the case and it is not for the benefit of the minors, the property of the minors would only be sold by obtaining the

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permission from the competent Court of law for the minors’ benefit and the same has not been done.

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The Trial Court has also taken note of the fact that the document of settlement deed of the year 1965 has been challenged after more than 30 years and the same is not challenged by the son of Venkategowda. Though the minor children filed a suit through grand-mother Puttamma, the same was withdrawn. But, the same is challenged by the plaintiffs, who claim right based on the sale deed of the year 1971 executed by Puttamma and the document dated 08.05.1965 is questioned by the subsequent purchaser and the legal heir of Venkategowda i.e., Javaregowda has not challenged the same during his life time. When such being the facts and circumstances of the case, I am of the opinion that the Trial Court has rightly come to the conclusion that the suit is barred by limitation. The plaintiffs’ mother also purchased the property long back in the year 1981 and the suit is filed in the year 1995.

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When the plaintiffs have not proved the fact that the document dated 08.05.1965 is not nullified by any competent Court of law, the right conferred upon which would be defective

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title. Under the circumstances, the very contention that the plaintiffs are entitled for the relief of declaration and injunction cannot be accepted. It is also an admitted fact that the revenue entries which have been made based on the sale deed of the year 1981 has been questioned and as on the date of filing the suit, the same stood in the name of defendant Nos.1 and 2 and the order passed by the Commissioner has attained its finality. When such being the facts and circumstances of the case, the question of granting the relief of declaration and permanent injunction in favour of the plaintiffs also does not arise. All the records are standing in the name of defendant Nos.1 and 2 in terms of the order of the Assistant Commissioner. When such being the facts and circumstances, I do not find any force in the contention of the learned counsel for the appellants-plaintiffs that the Trial Court has committed an error in answering the issues as negative and the Trial Court has rightly come to the conclusion that the suit is barred by limitation and the right claimed by the plaintiffs will not confer any title in respect of Kalamma and the plaintiffs, who are the legal heirs of Kalamma also will not succeed in the suit claiming right in respect of the suit schedule property.

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Point No.(iii)

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In view of the discussions made above, I proceed to

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pass the following:

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ORDER

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(i) The appeal is dismissed. No costs.

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Sd/JUDGE

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Nagaraj v. Sri Nanje Gowda

Case brief

What is this about?

What did the court decide?

Nagaraj v. Sri Nanje Gowda

Case brief

What is this about?

What did the court decide?

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