Dismissed

Maliyappa v. K Nagaraja

Karnataka HC16 Apr 2024RSA/421/2020

Case brief

AI extract

What is this about?

This Court dismissed the appeal filed by the appellant challenging the First Appellate Court's decree in a suit for declaration of title and possession. The Court held the property was self-acquired by the deceased and within the limitation period.

What did the court decide?

The appeal was dismissed; the judgment and decree of the First Appellate Court allowing the appeal and decreeing the suit were upheld.

Maliyappa Vs K Nagaraja — Succession and Inheritance | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF APRIL, 2024

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BEFORE

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THE HON’BLE MR.JUSTICE M.G.S.KAMAL

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R.S.A.NO. 421 OF 2020 (DEC/INJ)

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BETWEEN:

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MALIYAPPA

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AGED ABOUT 72 YEARS S/O LATE KALAIAH R/AT SONDEKOPPA ROAD NEAR KPTCL RECIVING STATION NELAMANGALA - 562 123 BENGALURU RURAL DISTRICT.

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… APPELLANT (BY SRI. S.P. SHANKAR SENIOR COUNSEL FOR SRI. P. RAVI SHANKAR, ADVOCATE)

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AND:

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K. NAGARAJA AGED ABOUT 61 YEARS S/O LATE GANGAMMA R/AT NO.548, C/O SRI GANI GANGADHAR RAO, MARALONI BEEDI NEAR HIPPE ANJANEYASWAMY TEMPLE ADEPETE, NELAMANGALA TALUK - 562 213 BENGALURU RURAL DISTRICT.

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… RESPONDENT

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(BY SRI. RAVINDRANATH KAMATH SENIOR COUNSEL FOR SRI. DIVYATEJ H.N., ADVOCATE FOR RESPONDENTS)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., 1908 JUDGMENT AND DECREE DATED:03.02.2020 PASSED IN RA NO.196/2017 ON THE FILE OF THE IX ADDL.DISTRICT AND SESSIONS JUDGE BANGALORE RURAL DISTRICT BANGALORE

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ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED:24.10.2017 PASSED IN OS NO.610/2009 (OLD OS NO.2382/2006) ON THE FILE OF THE SENIOR CIVIL JUDGE AT NELAMANGALA.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED ON 01.04.2024, COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is by the defendant aggrieved by the Judgment and decree dated 03.02.2020 passed in R.A.No.196/2017 on the file of IX Additional District and Sessions Judge, Bangalore Rural District, Bangalore, (First Appellate Court) by which First Appellate Court while allowing the said appeal set aside the Judgment and decree dated 24.10.2017 passed in O.S.No.610/2009 (old No.2382/2006) on the file of Senior Civil Judge, Nelamangala (trial Court) and decreed the suit of the plaintiff declaring that the plaintiff is the absolute owner of suit schedule property and directed the defendant to quit, surrender the joint possession of suit schedule property in favour of the plaintiff within three months from the date of the order.

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The above suit is filed by the plaintiff seeking relief of declaration of his title over agricultural property measuring 3 acres 16 1/2 guntas in Sy.No.200/1 situated at Nelamangala Village, Kasaba Hobli, Nelamangala Taluk (Schedule property) contending interalia that:

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a) one Maliyappa and Kalamma had a daughter by name Gangamma. That the plaintiff is the son of said Gangamma. Said Gangamma had three sons namely Rangaswamaiah, K.Nagaraj (plaintiff) and Marashetty. Rangaswamaiah and Marashetty passed away unmarried. Grandfather of the plaintiff namely aforesaid Maliyappa had purchased the suit property in terms of deed of sale dated 12.10.1958 from one Nanjundashastry which was subsequently sub-divided. The said Maliyappa later executed a conditional sale deed dated 01.07.1964 and also a lease deed on the same day in favour of one Sri.N.Rajashekarshetty. That the said

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Sri.N.Rajashekarshetty subsequently executed deed of

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sale dated 30.07.1972 in favour of Maliyappa for a consideration of Rs.1,000/-. Revenue records were mutated in his name and he remained in possession and enjoyment of the suit schedule property until his death.

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b) Kalamma and Gangamma wife and daughter of Maliyappa had predeceased him. Maliyappa passed away in the year 1974. Thus, after the demise of Gangamma and Maliyappa plaintiff became entitled to succeed to the schedule property.

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c) That the said Maliyappa had a brother by name Kalaiah who had four sons namely Maliyappa (defendant), Hucchappa, Papaiah and Magadi Rangaiah. The said Kalaiah had purchased land in Sy.No.201(new Sy.No.201/2) of Nelamangala Village, Kasaba Hobli in the year 1958-59. The said property is adjacent to the suit schedule property. That the defendant being one of the

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sons of Kalaiah has no right, title and interest over the suit schedule property.

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d) Defendant was allowed to cultivate the suit property in order to maintain the cordial relationship. The possession of the defendant over the suit property is a permissive possession. That the defendant colluding with revenue officials got his name fraudulently mutated in the revenue records though plaintiff has been in joint possession of the suit property.

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e) That during the year 2004-2005 defendant started to assert his right over the suit property. on enquiry plaintiff learned that claim of the defendant was on the basis of a partition deed alleged to have been executed within his family in the year 1979. Based on which the name of the defendant had been entered into revenue records. Plaintiff learnt about the same in the month of August 2006. Plaintiff had requested the defendant to quit and surrender his possession which

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was refused. As such, plaintiff caused issue of legal notice dated 16.08.2006 to which defendant had issued an untenable reply dated 28.08.2006. That the cause of action to the suit arose on 30.12.2004, 31.03.2005 and on subsequent dates. As such, the plaintiff filed the suit.

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Defendant filed written statement admitting the relationship as pleaded by the plaintiff. Also admitted that Gangamma had predeceased Maliyappa in the year 1969. However contended that one Hucchappa had two sons namely Maliyappa and Kalaiah. That said Maliyappa and Kalaiah were residing together as joint family. That Maliyappa purchased the suit property under the deed of sale dated 12.10.1958 from and out of funds of joint family consisting of Maliyappa and Kalaiah. Maliyappa’s daughter Gangamma was not a member of coparcenary and she had predeceased her father. That the Plaintiff being the grand son of Maliyappa is not entitled for any share. That immovable properties in Sy.Nos.200, 201/1

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and 201/2 of Nelamangala Village devolved upon the defendant and his brothers namely Hucchappa and Magadi Rangaiah and they being the coparceners of deceased Kalaiah. That thereafter a partition was effected amongst Kalaiah and his sons in the year 1979 dividing the joint family properties equally. Under the said family partition, an extent of 3 acre 16 1/2 guntas out of 7 acres 15 guntas including kharab in Sy.No.200 was allotted to the share of one Byramappa, S/o Thimmaiah. The remaining 3 acres 16 1/2 guntas was

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allotted to the share of Maliyappa, S/o Hucchappa and Maliyappa, S/o Kalaiah as per IHC No.5/89. That under the provisions of Hindu Succession Act plaintiff is not entitled to succeed to joint family properties. That the suit is hopelessly barred by limitation. Hence, sought for dismissal of the suit.

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On appreciation of pleading, trial Court framed

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following issues:

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"1. Whether the plaintiff proves that, he is the absolute owner of the suit schedule property?

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2. Whether the plaintiff proves that, the defendant is in permissive joint possession of the suit schedule property?

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3. Whether the defendant proves that, the suit schedule property devolved in favour of the defendant and his brothers under a partition?

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4. Whether the defendant proves that, the suit is barred by the law of limitation?

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5. Whether the plaintiff is entitle for the relief as prayed?

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6. What order or decree?"

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Additional Issues

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1. Whether the defendant proves that, the suit of the plaintiff is bad for non-joinder of necessary parties?

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2. Whether the defendant proves that, the suit of the plaintiff is bad for mis-joinder of parties?

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Plaintiff examined himself as PW-1 and examined

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two witnesses as PW-2 and PW-3 and exhibited 9

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documents marked as Ex.P1 to Ex.P9. In order to prove their defence, defendant No.1 examined himself as DW-1 and one witness Siddaraju as DW-2 and exhibited 18 documents marked as Ex.D1 to Ex.D18. On appreciation

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of the evidence the Trial Court answered Issue Nos.1, 2,

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4, 5 and additional issue No.2 in the negative and issue Nos.3 and additional issue No.1 in the affirmative and consequently dismissed the suit.

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Being aggrieved by the aforesaid judgment and decree plaintiff filed an appeal in R.A.No.196/2017 before

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the First Appellate Court. Considering the grounds urged the First Appellate Court framed the following points for its consideration:

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"1. Whether the plaintiff proves his title and possession over the suit schedule property?

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2. Whether he further proves that the possession of defendant over suit schedule property is permissive in nature?

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3. Whether the defendant proves that he is the absolute owner of suit schedule property by virtue of partition between him and his brothers?

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4. Whether he further proves that the suit is barred by limitation?

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5. Whether he further proves that the suit is bad for non joinder of necessary parties and misjoinder of proper parties?

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6. Whether the judgment and decree is suffers from any error or illegality warranting interference of this Court?

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7. What order or decree?"

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On re-appreciation of the evidence, the First Appellate Court allowed the appeal. Consequently, set aside the Judgment and decree in O.S.No.610/2009 and decreed the suit of the plaintiff declaring that the plaintiff is the absolute owner of the suit schedule property. Further directed the defendant to quit and surrender the joint possession of the suit schedule property in favour of plaintiff within three months from the date of the order. Being aggrieved by the same, defendant is before this Court.

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This Court by its order dated 21.01.2021, admitted the present appeal to consider the following substantial question of law:

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"Whether the interference made by the First Appellate Court with regard to issue No.4 in Original Suit No.610 of 2009 on the file of Senior Civil Judge at Nelamangala, is just and proper?"

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Sri.S.P.Shankar, learned Senior counsel along

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with Sri.P.Ravi Shankar, learned counsel for appellant though submitted that apart from the substantial

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question of law framed by this court as above two additional substantial questions of law requires consideration namely, on the validity of Palipatti or family arrangement at ExD5 and its saving under doctrine of Estoppel and vesting of reversionary rights, however restricted his submissions to the above substantial question of law framed by this Court on 21.01.2021 and submitted that;

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(a) the plaintiff in the plaint had specifically pleaded regarding revenue entries having been mutated in the name of the defendant as far as back in the year 1990 as such the plaintiff had the knowledge of mutation entries from the year 1990.

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(b) He also referred to Ex.D-7 a reply notice dated 11.03.1995 issued on behalf of the appellant/defendant in response to the notice dated 02.03.1995 that had been issued on behalf of the plaintiff.

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paragraph 3 the plaintiff had referred to change of revenue entries in the name of defendant effected in the year 1990 and thus submitted that the pleading at paragraph 6 of the plaint read in the light of aforesaid exchange of notices would reveal that the plaintiff was having knowledge of name of the defendant having been entered in the revenue records even as in the year 1990 and suit filed on 10.10.2010 was thus barred by limitation.

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(d) He submits Ex.P-4 is the RTC extract for the year 1983-84 and Ex.P-5 is the RTC extract for the year 1993-94, 1994-95 and Ex.P-6 is the RTC extract for the year 1997-98 reflecting the name of the defendant and same cannot be ignored.

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(e) He further referred to Ex.D-5 which is a Panchayat Parikath dated 12.09.1979 and submitted that based on the said document RRT proceedings under Sections 127130 of the Land Revenue Act were conducted and since

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the same is to the knowledge of the public at large the plaintiff cannot seek ignorance of the same.

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(f) He referred to Article 58 of the Limitation Act and submitted that the right to sue accrued in the year 1979 and plaintiff not having filed the suit within the time prescribed thereunder was not entitled to file the suit as the same was hopelessly barred by limitation.

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(g) He also referred to evidence of the plaintiff witness filed by way of affidavit and the contents of paragraphs 7, 9, 10 and 12 thereof and submitted that a plain reading of the said affidavit would also indicate that the plaintiff was having knowledge with regard to entries in the mutation records.

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(h) Thus, he submitted the First Appellate Court in the light of aforesaid material pleading and evidence on record ought not to have interfered with the finding of fact recorded by the trial Court and reverse the same by decreeing the suit.

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(j) That family settlement though not registered would operate as estoppel against the parties to such a family settlement and the same can be used as a corroborative evidence.

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(k) He relied upon the following citations in support of his submissions:

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(i) (2019) 6 SCC 409 - Thulasidhara and anr Vs Narayanappa and others

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(ii) (2010) 13 SCC 530 - B.V.Nagesh anr Vs H.V.Sreenivasa Murthy

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(iii) (2011) 12 SCC 174 -State Bank of India and anr Vs Emmsons International Limited and anr

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(iv) (2011) 4 CC 240 - H.Siddique (dead) by Lrs Vs A.Ramalingam

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(v) (2016) 8 SCC 705 -Subraya M.N. Vs Vittala M.N. and others

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(vi) AIR 2020 SC 3717 -Vineeta Sharma and Rakesh Sharma and others

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(vii) AIR 2016 SC 3139 - Union of India Vs K.V.Lakshman

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Per contra, Sri.Ravindranath Kamath, learned

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Senior counsel along with Sri.Divatej H.N., learned

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counsel for the respondent/plaintiff submitted that

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(a) respondent is the grandson of late Maliyappa. The said Maliyappa had only one daughter by name Gangamma. Maliyappa died on 20.10.1974. Gangamma died in the year 1962. The plaintiff was born on 31.05.1955. He submits that upon demise of Maliyappa in the year 1974 plaintiff being the son of predeceased daughter inherited the property and has been in possession and enjoyment of the same. That since the plaintiff was young in age was being assisted by the defendant.

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(b) That it is only on and from the year 2004-05 defendant asserted rights detriment to the interest of the plaintiff. It is only thereafter plaintiff had verified the revenue records and had learnt that defendant had obtained entry of his name in the revenue record along with name of the father of the plaintiff on the basis of alleged partition deed in the year 1979.

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(c) In response to the submission of learned Senior counsel for the appellant regarding the averment made by the plaintiff at paragraph 6 of the plaint and reply notice, he submitted that at paragraph 9 of the plaint the plaintiff has specifically pleaded that he learnt in the year 2004-05 about defendant obtaining his name entered in the revenue records in the year 1990. He submitted plaintiff has never admitted issuance of notice or contents thereof.

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(d) As regards the submission of learned Senior counsel for appellant about defendant issuing reply dated 11.03.1995, he submitted that the plaintiff in the cross examination at paragraph 7 has categorically denied about the legal notice dated 02.03.1995 allegedly sent by him and of receiving the reply dated 11.03.1995 purportedly issued by the defendant. He submits that defendant has not produced legal notice dated 02.03.1995 to which the plaintiff has allegedly issued a reply.

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(e) He further submitted that legal notice dated 28.08.2006 produced at Ex.P13 there is no whisper

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about the earlier notices exchanged between the parties as contended. Thus, he submits limitation for the suit cannot be construed to have commenced from the date of alleged reply notice which is 11.03.1995 as contended by appellant. He relied upon the following citations in support of his submissions:

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(i) 2013 (14) SCC 608 - Azrath Bivi and anr Vs Chinnathambi (dead) through Lrs.

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(ii) 2011(15) SCC 117 - S.C.Jindal Vs UHBVNL through Executive Engineer and anr.

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(iii) AIR 1991 SC 395 -Smt.Gitarani Paul Vs Dibyendra Kundu alias dibyendra Kumar Kundu

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(iv) Judgment of Apex Court in Civil Appeal No.7210/2011 (2023 INSC 1009) - P.Kishore Kumar Vs Vittal K.Patkar

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Heard and perused the records.

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From the pleadings of the parties it is clear that

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Maliyappa purchased the schedule property in terms of deed of sale dated 12.10.1958 from one

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Nanjundashastry and thereafter he sold the same to one N Rajashekar Shetty on 01.07.1964 and he repurchased the same on 30.07.1972. Plaintiff based on the said deeds of sale claimed that the suit property was the self acquired property of Maliyappa and as such plaintiff being the son of predeceased daughter of Maliyappa became entitled for the same. Defendant on the other hand claim that the suit property was the joint family property Maliyappa and his brother Kalaiah to the exclusion of Gangamma and the plaintiff, which was allotted to the share of defendant in terms of unregistered partition deed produced at Ex.D5.

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Trial court opined that though plaintiff claimed

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the suit property to be the self acquired property of Maliyappa, however held that the plaintiff has not placed any documents on record to establish that Maliyappa had independent source of income to acquire the same and further held that as admittedly Maliyappa and Kalaiah

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were living together as Hindu joint family the presumption had to be drawn that suit property was joint family property. It also noted that there was an admission on the part of the plaintiff during the cross examination regarding purchase of the property from joint family income. That after the demise of Maliyappa all properties were partitioned in the year 1978 as per Ex.D5. That the plaintiff has not challenged the said deed of Partition and the subsequent mutation entries. That the name of the defendant was entered in the revenue records in the year 1990 and as per Article 58 of Limitation Act period prescribed is three years when the right to sue first accrued and also from the date of knowledge as such held that plaintiff is not entitled for the relief and consequently dismissed the suit.

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The First Appellate Court on reappreciation of evidence found that the claim of the plaintiff is based on the registered deeds of sale admittedly obtained in the

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name of the Maliyappa. That though defendant contended that the suit property was the joint family property consisting of Maliyappa and Kalaiah and that the same was purchased out of joint family nucleus, defendant had not produced any iota of evidence in that regard. It has also found that other properties of Kalaiah including compensation received against acquisition of some of his properties were treated as his self acquired properties. The First Appellate Court further found that the defendant has not specifically mentioned the date of Deed of partition at Ex-D5 in the written statement and that the said document did not evince the credibility regarding its genuineness. First Appellate Court further found that even otherwise there was no reason or justification in defendant including suit property in the partition at Ex.D5 without having any right thereon. That there was no need for the plaintiff to challenge the Partition as he was not a party to the said document. That admittedly property having been purchased by

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Maliyappa and in the absence of proof of same being joint family property, upon the demise of Maliyappa his heirs would be entitled for the same. That since the only daughter of Maliyappa namely Gangamma had predeceased him leaving behind the plaintiff being class - 1 heir of Maliyappa succeeded to the suit property. That as per Ex.D6 mutation register extract after the death of Maliyappa his brother Kalaiah got the mutation entries effected by stating that there were no legal heirs to his brother Maliyappa and he was the sole legal heir which was incorrect. The First Appellate Court has also found that since the defendant also owned property adjacent to suit property in the normal course and in the facts circumstance of the case it was possible for defendant to have cultivated the land belonging to Maliyappa and that alone cannot be a ground for defendant to claim exclusive possession over the suit property based on the otherwise invalid partition deed. That the name of Maliyappa the grand father of the plaintiff continued in

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the revenue records. The First Appellate Court further found that the plaintiff learnt about the assertion made by the defendant denying the rights of the plaintiff over the property only in the year 2004 as such the suit was within time. Accordingly allowed the appeal and decreed the suit as prayed for.

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It is settled law that there can be a presumption of joint family but not of joint family property. Person who claims the property to be the Joint family property shall prove the same. The burden to prove the property to be joint lies on the person who asserts it. The proof required is not only with regard to jointness of family but also with respect to fact that the property concerned belongs to Joint Hindu family unless there is material on record to show that the property is the nucleus of the Joint Hindu family or that it purchased through funds coming out of the nucleus. [ D.S.Lakshmaiah and anr

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Vs Balasubramanyam and anr reported in (2003)10

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SCC 310 and Bhagwat Sharan(dead) through Lrs Vs Purushottam and others reported in (2020) 6 SCC

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387 ]

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In the instant case trial court was in error in casting the burden on the plaintiff to prove the suit property to be the self acquired property of Maliyappa despite there being registered deeds of sale. A stray admission of the plaintiff in the cross examination as taken note of the by the First Appellate Court is of no consequence. Thus in the absence of defendant proving the suit property to be joint family property in the manner know to law, as rightly held by the First Appellate Court the suit property is the self acquired property of Maliyappa and the plaintiff being the class I heir is entitled for the same.

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On the Question the limitation heavy reliance is placed by the learned Senior counsel for the appellant on the contents of paragraph 6 of the Plaint and the

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documents at Ex.D7 and the RTC extracts at Ex.P-4, 5 and 6 to contend that the said partition had been acted upon to the knowledge of the plaintiff and therefore suit is barred under Article 58 of the Limitation Act, 1963.

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It is settled law that right to sue contemplated under Article 58 would arise when an assertion of right is made and the same is denied. The Apex Court in the case of RASHTRIYA ISPAT NIGAM LIMITED VS. PRATHYUSHA RESOURCES AND INFRA PRIVATE LIMITED AND ANOTHER reported in (2016)12 SCC 405 has held as under:

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"5. We shall now consider the settled law on the subject. This Court in a catena of judgments has laid down that the cause of action arises when the real dispute arises i.e. when one party asserts and the other party denies any right. The cause of action in the present case is the claim of the respondent/claimant to the determination of base year for the purposes of escalation and the calculation made thereon, and the refusal of the appellant to pay as per the calculations."

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It is the specific case of the plaintiff that he was

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cultivating the land with the aid and assistance of defendant who was in joint permissive possession and

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that only in the year 2005-2006 defendant started to assert his rights detriment of the interest of the Plaintiff.

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The learned Senior counsel for the appellant vehemently submitted that contents of paragraph 6 of the plaint and paragraph 3 of the notice dated 16.08.2006 at Ex.P11 would reveal that the plaintiff had the knowledge of revenue entries effected in the year 1990 reflecting name of defendant, and that a clever drafting of the plaint would not save the limitation. The said submission cannot be accepted inasmuch as at paragraph 9 of the plaint plaintiff has specifically averred the facts and circumstances of he learning about the said revenue entries in the year 2004-2005.

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Further heavy reliance is placed on Ex.D7 reply notice dated 11.03.1995 issued by defendant in response to the notice dated 02.03.1995 allegedly issued by the plaintiff. The said notice dated 02.03.1995 has not been placed before the Court. In the light of plaintiff denying

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issuance of notice dated 02.03.1995 by him and the reply dated 11.03.1995 defendant ought to have proved the exchange of said notices in the manner known to law. In any event there is no reference with regard to any such notice exchanged in the year 1995, in the notice dated 16.08.2006 issued by the plaintiff at Ex.P11 or in the reply issued by the defendant on 28.08.2006 at Ex.P13.

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Thus, the only material evidence being heavily relied upon by the defendant to attribute the knowledge on the plaintiff is Ex.D7 an alleged reply notice dated 11.03.1995. Further as rightly taken note of by the First Appellate Court even the reply notice purportedly issued by the defendant on 11.03.1995 at Ex.D7 and in the notice admittedly issued on 28.08.2006 at Ex.P13 there is no mention either with regard to palupatti produced at Ex.D5, or with regard to mutation entries made in the year 1990. Further as rightly taken note of by the First Appellate Court name of Maliyappa the grand father of

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the plaintiff continued to exist in the revenue records throughout even after filing the suit. Therefore, the contention of defendant being in exclusive possession of the property on and from the date of Palupatti at Ex.D5 cannot be accepted. The First Appellate Court has also taken note of the admission made by DW-1 of he being in permissive possession of the suit property.

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The reliance placed on the Judgments by the

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learned Senior counsel for appellant with regard to evidentiary value of unregistered deed of partition is of no avail inasmuch as suit property was the self acquired property of Maliyappa and defendant has failed to produce any evidence of the same being joint family property as contended. The reasoning of the First Appellate Court in that regard cannot be found fault with. As such, the reliance placed on the Judgments with regard to duty of the First Appellate Court in disposing of the appeal are of no avail.

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In that view of the matter, the defendant has failed to prove that the suit is barred by limitation and First Appellate Court is justified in holding the suit is well within limitation and allowing the appeal and decreeing the suit. Substantial question of law is answered accordingly. Appeal is dismissed.

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Sd/JUDGE

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SBN

Maliyappa v. K Nagaraja

Case brief

What is this about?

What did the court decide?

Maliyappa v. K Nagaraja

Case brief

What is this about?

What did the court decide?

What the court decided

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