Sri. Ramabhovi Vs Smt. Thayamma

THIS RSA FILED U/S.100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 30.03.2019 PASSED IN RA.NO.10/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE, HOLENARASIPURA DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 21.01.2014 PASSED IN OS.NO.107/2003 ON THE FILE OF THE CIVIL JUDGE AND JMFC, HOLENARASIPURA.

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IN RSA NO. 1181/2019:

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BETWEEN:

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SRI. RAMABHOVI, AGED ABOUT 66 YEARS S/O CHIKKABHOVI,

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SRI. VENKATESHA, AGED ABOUT 36 YEARS, S/O CHIKKABHOVI, BOTH ARE R/AT KATTEBELAGULI PALYA, K.G. PALYA, HELEKOTE HOBLI, HOLENARASIPURA TALUK,

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HC-KAR

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HASSAN DISTRICT KARNATAKA 573110.

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...APPELLANTS

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(BY SRI. BASAVARAJU H., ADVOCATE FOR A-2; V/O. DATED 02.07.2024, APPEAL IS ABATED IN RESPECT OF APPELLANT NO.1)

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AND:

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SMT. CHANNAMMA, AGED ABOUT 60 YEARS, W/O ANNABHOVI, KATTEBELAGULI PALYA, (K.G. PALYA) HELEKOTE HOBI, HOLENARASIPURA TALUK, HASSAN DISTRICT, PIN CODE:573 211.

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...RESPONDENT

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(BY SRI. GURURAJ R., ADVOCATE FOR C/RESPONDENT)

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THIS RSA FILED U/S. 100 OF CPC., AGAINST THE JUDGEMENT DECREE DATED 30.03.2019 PASSED IN R.A.NO.09/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., HOLENARASIPURA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 21.01.2014 PASSED IN OS.NO.108/2003 ON THE FILE OF THE CIVIL JUDGE AND JMFC., HOLENARASIPURA.

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THESE APPEALS ARE COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE RAJESH RAI K

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HC-KAR

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ORAL JUDGMENT

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These two regular second appeals are by the defendants.

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O.S.No.107/2003 and R.A.No.10/2014. RSA No.1181/2019 arising out of O.S.No.108/2003 and R.A.No.9/2014.

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The plaintiff in O.S.No.107/2003 is the daughter of plaintiff in O.S.No.108/2003. Both of them filed suit against the common defendants for the relief of permanent injunction in respect of land measuring 1 acre 20 guntas each situated at Sy.No.10 block No.16 in Channapura Village, Halekote Hobli.

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The dispute with regard to suit schedule property between the plaintiff in both the suits and defendant No.3-Chikkabovi, who is the father of defendant No.1 and the grandfather of defendant No.2 in O.S.No.12/1997 was compromised and the plaintiffs got 1 acre 20 guntas of land each as their share. A decree was

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also drawn in accordance with the compromise. Defendant Nos.1 and 2 also endorsed the said compromise decree as per Ex.P2. Subsequently, during the pendency of the present suit, the said compromise decree was challenged by defendant No.1 in OS.No.100/2006 seeking declaration

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in respect of land measuring 3 acres in Sy.No.10 block No.16 i.e., the share allotted to the plaintiff in both the suits, which was dismissed by the Trial Court.

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The case of the plaintiff in both the suits is that ever since from the date of compromise decree, they are in peaceful possession and enjoyment of their respective shares i.e., suit schedule property. Further, the defendants without having any right, title or interest had unnecessarily interfered with the suit schedule property and thereby disturbed the possession of the plaintiffs over the suit schedule property. As such, both the plaintiffs

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have filed the suit in O.S.No.107/2003 and O.S.No.108/2003 against the defendants i.e., the appellants herein.

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HC-KAR

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After serving of suit summons, the defendants

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entered their appearance and filed written statement by denying the plaint averments.

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It is contended that the suit schedule property was granted in favour of defendant No.3 i.e, Chikkabovi under darkasth and it is a joint family property. The plaintiffs have no right or interest over the said property since the same is in the possession of defendants. It is further contended that the suit schedule property is the joint family property and therefore, the question of interference by the defendants does not arise at all. Further, the land was granted in favour of defendant No.3 i.e., Chikkabovi as a manager/karta of the family, as such, he has no right to enter into compromise in OS.No.12/1997 by allotting the suit schedule property as share to the plaintiffs.

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The Trial Court, after considering the rival pleadings, framed the relevant issues and after reporting

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the evidence of both the parties, decreed both the suits field by the plaintiffs and thereby restrained the defendants their men, agents, servants or any other persons acting under them by interfering with the possession of the suit schedule property in both the suits. Both the judgment and decree i.e, O.S.No.107/2003 and O.S.No.108/2003 were challenged by the defendants before the First Appellate Court in R.A.No.10/2014 and R.A.No.9/2014. However, the First Appellate Court, upon reassessment of the evidence and documents on record, confirmed the order passed by the Trial Court in O.S.No.107/2003 and O.S.No.108/2003 respectively and thereby dismissed both the appeals i.e., R.A.No.9/2014 and R.A.No.10/2014. Against the said judgments and decrees, the appellants are before this Court.

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The primary contention of the learned counsel

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for the appellants in both the appeals is that the Trial Court and the First Appellate Court have grossly erred while decreeing the suit of the plaintiffs without

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considering the aspect that the suit schedule land was granted in darkasth in favour of the manager/karta of the joint family namely Chikkabovi i.e., defendant No.3 in both the suits, which either amounts to grant in favour of the individual capacity of the karta or amounts to grant in favour of Hindu Joint Family. As such, the karta/manager of Hindu Joint Family has no such right to alienate or to give consent for the compromise decree drawn in O.S.No.12/1997, thereby allotting share to the plaintiffs i.e., 1 acre 20 guntas each in the suit schedule property. He also contended that at no point of time, defendants had interfered with the suit schedule property as claimed by the plaintiffs and the plaintiffs were not in possession of the suit schedule property. Since the suit schedule property is the joint family property of the plaintiffs and defendants, there is no question of interference by the defendants in the suit schedule property. This aspect of the matter has not been appreciated by the Trial Court

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and the First Appellate Court. Hence, he prays to allow the appeals.

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Per contra , learned counsel for the respondentplaintiffs by supporting impugned judgments passed in regular appeal and the original suit, contended that the original grantee-Chikkabovi is none other than the father of defendant No.1 and grandfather of defendant No.2, who had been initially granted the suit land in his individual capacity and subsequently, the plaintiffs filed a suit for declaration in O.S.No.12/1997 against the said Chikkabovi. The said suit was ended up with the compromise decree on 07.07.1997 by granting 1 acre 20 guntas each to both the plaintiffs. Ever since, both the plaintiffs were in possession and enjoyment of their respective shares. Subsequently, Ramabovi filed a suit in O.S.No.136/2001 for partition of the suit schedule property and defendant Nos.1 to 3 had entered into compromise decree on 27.03.2003. However, the trial Court and the First Appellate Court have rightly observed

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that the said compromise was entered subsequent to the earlier compromise entered in O.S.No.12/1997 i.e., 07.07.1997, as such, Chikkabovi has no legal right to enter into compromise in O.S.No.136/2001 since he had already relinquished his right over the suit schedule property in the earlier compromise decree in OS.No.12/1997. Further, the plaintiffs also established their possession over the title and possession of the suit schedule property by placing reliance on Exs.P1-P8 - documents and the interference of the defendants with the suit schedule property by the evidence of PW1. Though the compromise decree entered in OS.No.12/1997 was questioned by defendant No.1 in OS.No.100/06, the said suit was dismissed and confirmed in R.A.No.170/2010. In such circumstance, according to the learned counsel, both the Trial Court and the First Appellate Court have rightly passed the impugned judgment and decree which do not call for any interference at the hands of this Court.

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HC-KAR

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I have given my anxious consideration to the submissions made by the learned counsel for the respective parties and also carefully perused the documents and evidence placed before me.

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As could be gathered from records, the relationship between the parties are not in dispute i.e., plaintiff in OS.No.108/2003 is the mother of the plaintiff in OS.No.107/2003. The defendant in both the suits i.e., defendant No.3 - Chikkabovi is none other than the father of defendant-No.1 and grandfather of defendant No.2. It is also not in dispute that originally the suit schedule property i.e., measuring 3 acres was granted in darkhasth in favour of defendant No.3-Chikkabovi. Subsequently, a suit had been filed by both the plaintiffs in OS.No.12/1997 against the said Chikkabovi, which was ended with a compromise decree dated 07.07.1997 as per Ex.P2. Accordingly, the plaintiffs in both the suits got land measuring 1 acre 20 guntas each as their respective shares. Thereafter, defendant No.1, who is the son of

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Chikkabovi filed a suit against his father Chikkabovi for partition in respect of the suit schedule property i.e., 3 acres of suit property. Then interestingly, the said suit also ended up with a compromise decree between defendant No.3 and defendant No.1 who are none other than the

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father and the son vide compromise decree dated 27.03.2003. In the said compromise, suit schedule property i.e., 3 acres were allotted to the share of defendant No.1-Ramabovi.

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It is the specific case of the plaintiffs that the defendants having no right, title and interest over the suit schedule property, started to interfere with the possession of the plaintiffs over the suit property. Hence, the plaintiffs filed the present suit in O.S.No.107/2003 and O.S.No.108/2003 against the defendants for the relief of injunction for their interference. During the pendency of these suits, defendant No.1-Ramabovi once again filed a suit in O.S.No.100/2006 for declaration to declare him as

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a lawful owner in respect of the entire 3 acres of suit

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schedule property and also to cancel the compromise decree entered in O.S.No.12/1997. However, the said suit in O.S.No.100/2006 was dismissed on 17.09.2010. The Trial Court while decreeing the suit has observed that the subsequent compromise entered in O.S.No.136/2001 between defendant No.1 and defendant No.3 in respect of the suit schedule property cannot be considered for the reason that the same was entered in the year 2003 i.e., subsequent to the compromise entered into between plaintiffs and defendant No.3 in O.S.No.12/1997 dated 07.07.1997. As such, the plaintiffs have proved their right, title, lawful possession and also the interference of the defendants in respect of suit schedule property. The said findings of the Trial Court were also affirmed by the First Appellate Court.

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The contention of the learned counsel for the respondents/defendants that the suit schedule property was darkhasth which was granted in the name of Chikkabovi in the capacity of karta/manager of the joint

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family property, as such, Chikkabovi had no such legal right to enter into compromise decree in OS.No.12/1997 and allotting the share to both the plaintiffs, cannot be accepted for the simple reason that Chikkabovi voluntarily entered into compromise in OS.No.12/1997 and subsequently, the said compromise was challenged in OS.No.100/2006 by the son of Chikkabovi i.e., Ramabovi and the same was also dismissed and confirmed in R.A.No.170/2010. Further, the both the Courts have rightly come to the conclusion that the suit filed by Ramabovi in OS.No.136/2001 is a collusive suit between the father and the son in order to deploy the rights of plaintiffs.

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In such circumstances, I am of the considered view that both the Trial Court and the First Appellate Court have rightly appreciated the evidence on record and passed the impugned judgments and decrees which do not call for any interference at the hands of this court. As

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