Shanthamma Vs Gurupadappa

THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 15.4.2013 PASSED IN R.A.NO.8/10 ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT, SAGAR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED 28.10.2009 PASSED IN OS.NO.106/2000 ON THE FILE OF ADDITIONAL CIVIL JUDGE (SR.DN.), JMFC, SAGAR.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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NC: 2025:KHC:20217 RSA No. 1289 of 2013

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HC-KAR

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CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI

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ORAL JUDGMENT

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This Regular second appeal is filed by the appellants challenging the judgment and decree dated 15.04.2013, passed in R.A.No.8/2010 by the learned Fast Track Court, Sagar, and the judgment and decree dated 28.10.2009 passed in O.S.No.106/2000 by the learned Additional Civil Judge (Sr.Dn.) and JMFC, Sagar.

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For convenience, parties are referred to based on their rankings before the trial Court. The appellants were the plaintiffs, and the respondents were the defendants.

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Brief facts leading rise to the filing of this appeal are as follows:

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The plaintiffs filed a suit against the defendants for a declaration, seeking to declare the registered sale deed dated 08.05.1997 as void and for a permanent injunction. It is the case of the plaintiffs that the suit schedule

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property is the joint family property of the plaintiffs, and they are in possession and enjoyment of it. Eshwar Shetty is the son of Honnaiah Shetty and Gulabi Shedthy, the plaintiffs are the wife, son and daughters of Eshwar Shetty and are members of the joint family. Plaintiff No.1 is the wife of Eshwar Shetty, and Plaintiff No. 2 to 7 are the children of Eshwar Shetty. Honnaiah Shetty was the manager of the joint family, and he had constructed a house in a Government land bearing Sy.No.236 at Goranahalli village. He was residing in the said house jointly with his son and his other family members. He was cultivating the land in Sy.No.231/3, measuring 3 acres and 5 guntas as tenant under one Mallappa Gowda. The said land was granted in favour of Honnaiah Shetty by the Land Tribunal; thereafter, Honnaiah Shetty and his wife Gulabi Shedthi, as well as his son Eshwara Shetty, were cultivating the suit schedule property. As Honnaiah Shetty was 80 years old, he could not manage the joint family properties. Eshwara Shetty started managing the joint

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family properties. It is stated that as Honnaiah Shetty turned older and older, he cultivated the habit of consuming alcohol and he used to quarrel with his son when he refused to pay money for his bad habits, he also became hostile towards his son and he used to live separately.

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3.1. The husband of defendant No.1, taking advantage of the weakness of Honnaiah Shetty, and by playing a fraud, obtained a registered sale deed dated 08.05.1997. The husband of plaintiff No.1, filed a suit against his father for partition in O.S.No.56/1997, on 02.05.1997, apprehending that the strangers might knock away the family properties as his father was always under the influence of alcohol. In the said suit, the order of temporary injunction was granted against Honnaiah Shetty, restraining him from alienating the suit schedule property. During the pendency of the said suit, Honnaiah Shetty sold the suit schedule property in favour of the husband of defendant No.1. It is contended that Honnaiah

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Shetty died on 18.10.1997, and his wife passed away on 16.08.1998 and the husband of plaintiff No.1, i.e., Eshwar Shetty also died on 05.08.1999. Taking advantage of the death of Honnaiah Shetty, husband of defendant No.1, started to interfere with the plaintiffs’ peaceful possession and enjoyment of the suit schedule property. Thus, a cause of action arose for the plaintiffs to file a suit for declaration and permanent injunction. Accordingly, prays to decree the suit.

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3.2. The defendants filed a written statement

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contending that Eshwar Shetty is not the son of Honnaiah Shetty and Gulabi Shedthy and he does not belong to the Nadava Banta caste by birth. He is the son of one Krishnappa of Hondala gadde and he belongs to the Madivala community and he has no relationship with Honnaiah Shetty. It is stated that the suit land was granted in favour of Honnaiah Shetty by the Land Tribunal. During his lifetime, he and his wife, Gulabi Shedthy, executed the registered sale deed in favour of the husband

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of defendant No.1 on 08.05.1997. Subsequently, after the execution of the registered sale deed, Honnaiah Shetty and his wife passed away. Based on the registered sale deed executed by Honnaiah Shetty and his wife, the husband of defendant No.1 became the absolute owner of the suit schedule property. Based on the registered sale deed, the name of defendant No.1’s husband was entered in the revenue records. It is contended that the suit filed by the plaintiffs is not maintainable and hence, prays to dismiss the suit.

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3.3. The trial court, based on the pleadings of the

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parties, framed the necessary issues.

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3.4. The plaintiffs, to substantiate their case, plaintiff No.1 was examined as PW.1, examined 2 witnesses as PWs.2 and 3 and marked 46 documents as Exs.P1 to P46. In rebuttal, defendant No.1 was examined as DW.1, examined two witnesses as DWs.2 and 3, marked 2 documents as Exs.D1 and D2. The trial court,

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after recording the evidence, assessing the verbal and documentary evidence, dismissed the suit of the plaintiffs vide judgment dated 28.10.2009. The plaintiffs, aggrieved by the judgment and decree passed in O.S.No.106/2000, preferred an appeal in R.A.No.8/2010 on the file of learned

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Fast Track Court, Sagar.

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3.5. The first Appellate Court, after hearing the

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parties, framed the relevant points for consideration. The first Appellate Court, after reassessing the verbal and documentary evidence, dismissed the appeal vide judgment dated 15.04.2013, and confirmed the judgment and decree passed by the trial Court.

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3.6. The plaintiffs, aggrieved by the impugned

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judgments filed this Regular Second Appeal.

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Heard the arguments of Sri. Shanthi Bhushan H., learned counsel for the plaintiffs.

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Learned counsel for the plaintiffs submits that Eshwar Shetty is the son of Honnaiah Shetty and Gulabi Shedthy. After their demise, Eshwar Shetty has succeeded to the suit schedule property. He submits that Eshwar Shetty died in 1999. He also submits that the husband of defendant No.1, by playing fraud on Honnaiah Shetty and Gulabi Shedthy, executed a registered sale deed dated 08.05.1997. He submits that the registered sale deed alleged to have been executed by Honnaiah Shetty and Gulabi Shedthy is void and unenforceable. He also submits that Gulabi Shedthy executed a Will bequeathing the suit schedule property in favour of the plaintiffs. Hence, the plaintiffs became the absolute owner by virtue of a will executed by Gulabi Shedthy. These aspects have not been properly considered by the courts below. Hence, the judgments and decrees passed by the courts below are arbitrary, perverse and erroneous. Accordingly, prays to allow the appeal.

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Perused the records and considered the

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submissions of the learned counsel for the plaintiffs.

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Admittedly, the suit schedule property was

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granted in favour of Honnaiah Shetty by the Land Tribunal. Based on the order passed by the Land Tribunal, Honnaiah Shetty was in possession and enjoyment of the suit schedule property. Though the plaintiffs have contended that Eshwar Shetty is the son of Honnaiah Shetty and Gulabi Shedthy, the defendants filed a written statement denying the relationship of Eshwar Shetty with Honnaiah Shetty and Gulabi Shedthy. Further, Honnaiah Shetty and his wife Gulabi Shedthi had executed the registered sale deed in favour of the husband of defendant No.1 on 08.05.1997. Though Honnaiah Shetty died in 1997, his wife was alive for more than one year. During her lifetime, she did not challenge the registered sale deed executed in favour of the husband of defendant No.1 alleging that the husband of defendant No.1 had played a fraud on Honnaiah Shetty and Gulabi Shedthi and obtained

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the said registered sale deed. Based on the registered sale deed, name of the husband of defendant No.1 was entered in the revenue records. Although the plaintiffs claim to be the absolute owners based on the Will. The Will was executed by Gulabi Shedthi in favour of the plaintiffs in 1998. As on the date of the execution of a Will bequeathing the suit schedule property in favour of the plaintiffs, neither Honnaiah Shetty nor his wife Gulabi Shedthi had any right, title, or interest over the suit schedule property. Gulabi Shedthi had no right to execute the Will, bequeathing the suit schedule property in favour of the plaintiffs. The plaintiffs have not acquired any title by virtue of the Will alleged to have been executed by Gulabi Shedthi. Further, the plaintiffs have not sought a relief of declaration of title, but only cancellation of registered sale deed.

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Admittedly, the plaintiffs were not the parties to

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the registered sale deed. Hence, the suit filed for mere cancellation of the registered sale deed is not

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maintainable, unless the plaintiffs seek the relief of declaration of title. Both the Courts below have recorded a finding of fact that the plaintiffs have failed to prove that the sale deed dated 08.05.1997 is void and also they are in lawful possession over the suit schedule property as on the date of the filing of suit. The trial Court has held that the plaintiffs are not entitled for the relief of declaration and a permanent injunction. The first Appellate Court confirmed the judgment and decree passed by the trial Court. The Courts below have concurrently recorded a finding of facts against the plaintiffs. Hence, I do not find any error in the impugned judgments or any substantial question of law that arises for consideration, in this appeal.

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9. Accordingly, I proceed to pass the following:

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ORDER

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i. The Regular Second Appeal is dismissed.

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ii. The judgments and decrees passed by

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the courts below, are hereby confirmed.

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