Smt. Jayamma Vs Smt. Chennamma

THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGEMENT & DECREE DTD 03.07.2013 PASSED IN R.A.NO.77/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE &

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HC-KAR

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JMFC., CHANNAPATTANA, RAMANAGAR DISTRICT, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 28.1.2012 PASSED IN O.S.NO.54/2008 ON THE FILE OF THE ADDL. CIVIL JUDGE & JMFC., CHANNAPATNA.

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

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CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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ORAL JUDGMENT

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This Second Appeal is filed by the plaintiff in O.S.No.54/2008 on the file of Additional Civil Judge (Jr.Dn.), Channapattana.

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The suit is filed in respect of three properties namely, House No. 54 and 55 situated at Olageredoddi, Devarahalli Hamlet, Malur Hobli, Channapattana Taluk, land bearing Sy.No.71/9 measuring 01 acre - 01 gunta situated

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at Olageredoddi, Devarahalli Hamlet, Malur Hobli, Channapattana Taluk.

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The said suit is for the relief of declaration and injunction. Declaration is sought on the premise that the properties originally belonged to one Ankegowda and Thagadegowda, the sons of Marihidegowda. The plaintiff

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also sought the declaration of title based on adverse possession on the premise that the plaintiff is in possession of suit properties despite a settlement deed dated 18.07.1968 in the name of Chennamma-first defendant in the said suit. Second defendant is son of first defendant.

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The defendants contented that the properties in dispute originally belonged to Ankegowda and Thagdegowda and after their demise, the properties were inherited by Thimmamma, W/o Ankegowda, Raghavegowda S/o Ankegowda, Channegowda S/o Ankegowda and Kempamma W/o Thagdegowda.

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It is not in dispute that Thagdegowda and his wife Kempamma did not have any issues from their marriage. The defendants took a contention that there was a partition in the family on 18.06.1968 and the properties were divided into four parts and 'A' schedule properties described in the said partition deed were allotted to Thimmamma, 'B' schedule properties were allotted to Kempamma, 'C' schedule properties to Ranghavegowda

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and 'D' schedule properties to Channegowda. This partition deed of 1968 is not in dispute.

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The defendants further contend that,

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Raghavegowda who was allotted 'C' schedule properties in the partition dated 18.06.1968, settled the suit properties in favour of Chennamma under the registered settlement deed dated 18.07.1968. The defendants contend that ever since the settlement deed dated 18.07.1968, they are in possession of the suit properties.

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The Trial Court rejected the plaintiff’s claim of ownership over the suit properties. The alternative plea of adverse possession is also rejected. The plaintiff's first appeal is also dismissed by First Appellate Court. Hence, the present second appeal.

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Learned counsel appearing for the plaintiff would contend as under:

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HC-KAR

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The properties in question originally belonged to the family of Ankegowda and Thagdegowda. Chennamma-first defendant had filed a suit in O.S.No.181/1975 which was later renumbered as O.S.No.102/1989 and the said suit was filed claiming partition in respect of all the properties held by the family of Ankegowda and Thagdegowda excluding three properties which are the suit properties in the present suit. The said suit was dismissed with a finding that Chennamma is not wife of Raghavegowda as claimed by her.

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Against the said judgment and decree, an appeal is filed in RA No.57/1990 and the said appeal was allowed. Consequently, the said suit was decreed. Aggrieved by the judgment and decree passed by First Appellate Court, RSA No.914/2002 was filed by the defendants in O.S.No.102/1989 and that appeal was allowed holding that Chennamma is not the legally wedded wife of Raghavegowda.

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HC-KAR

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Learned counsel further would also contend that

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since Chennamma is declared as not the wife of Raghavegowda, she cannot claim any right over the suit schedule properties said to have been settled in her favour under the registered settlement deed dated 18.07.1968.

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It is also urged that, though there was a settlement deed on 18.07.1968, Chennamma was not in possession of the properties and the plaintiff was in possession of the properties and this was known to Chennamma. Later only after the demise of Channegowda, Chennamma made an attempt to get her name entered in the property records, and this fact itself would suggest that plaintiff is in possession of the suit properties and Chennamma and her son i.e., second defendant are not in possession of the suit properties. Thus, it is urged that the Trial Court and First Appellate Court were not justified in dismissing the suit and the said suit ought to have been decreed declaring the plaintiffs as the absolute owners of the suit properties.

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HC-KAR

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Learned counsel for the respondents would submit that both registered partition deed dated 18.06.1968 and registered settlement deed dated 18.07.1968 are held to be valid in the previous suit O.S.No.102/1989. There is no challenge to the registered settlement deed dated 18.07.1968 and the registered partition deed of 18.06.1968. Under the partition of 1968, the suit properties are allotted to share of Raghavegowda, and under the settlement deed dated 18.07.1968, the suit properties are settled in favour of Chennamma. Thus, he would urge that even if Chennamma is not the wife of Raghavegowda, since the settlement deed is duly registered, Chennamma would acquire right over the properties under the registered settlement deed dated 18.07.1968.

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It is his further contention that merely because Chennamma’s name was not entered in the property records for few years after the registered settlement deed of 1968, that does not mean that Chennamma is not in

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possession of the suit properties. It is also urged that pursuant to the registered settlement deed dated 18.07.1968, name of Chennamma is entered in the property records and the order directing entry of name of Chennamma in property records was questioned in revenue jurisdiction and the matter had come up before this court in writ proceeding and the writ petition is dismissed.

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Learned counsel for the plaintiff by way of reply would contend that the order passed in the writ petition does not come in the way of plaintiff establishing her title over the property. This court in the said writ petition has observed that rights of the parties will have to be adjudicated in a properly constituted civil suit.

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This Court has considered the contentions

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raised in the Bar and perused the records.

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After going through the plaint as well as the documents produced on behalf of the plaintiff, one thing

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is apparent that there is nothing to hold that the plaintiff inherited the suit properties from ancestors or that plaintiff derived title under a valid title deed.

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Admittedly, the suit properties were subject

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matter of partition deed dated 18.06.1968 and in the said partition, the suit properties along with some other properties were allotted to share of Raghavegowda.

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It is noticed that on 18.07.1968, Raghavegowda settled the properties in favour of his wife Chennamma. The said finding relating to settlement deed dated 18.07.1968 has attained finality. This being the position, the plaintiff cannot claim title over the suit properties either as a successor of Raghavegoweda or Chennnegowda. The plaintiff being the wife of Chennegowda has failed to establish that her husband Chennegowda acquired the properties in the partition of 18.06.1968.

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HC-KAR

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Now the question is, "Whether the plaintiff has

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acquired the title of the properties by way of adverse possession?"

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This Court has perused the pleadings relating to adverse possession. The learned counsel for the plaintiff would urge that paragraph No.10 in the plaint incorporates all the requirements relating to plea of adverse possession.

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After having considered the averments in paragraph No.10 of the plaint, this Court does not find that the plaintiff has incorporated all the requirements relating to plea of adverse possession. Even the evidence relating to plea of adverse possession lacks necessary ingredients.

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From the tenor of the averments in the plaint, it is apparent that the plaintiff has claimed adverse possession on the premise that she is in possession of the property. This court after having considered the evidence

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on record is of the view that even the plaintiff's possession over the property is not established, much less the claim of adverse possession. The registered settlement deed of 1968 would clearly reveal that the properties are settled in favour of Chennamma. The beneficiary Chennamma is put in possession of the said properties.

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It is also noticed that the date on which the possession became adverse, is not pleaded. The date on which the plaintiff came in possession is also not pleaded and it is also relevant to notice that the properties were allotted to the share of Raghavegowda in the partition of 1968. The partition deed would also reveal that Raghavegowda was put in possession of these properties. When and from whom, the plaintiff acquired possession or dispossessed the real owner is also not forthcoming from the pleadings.

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For the reasons recorded above, this court does not find any merits in the contention relating to adverse possession.

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Though there is an observation in the earlier writ proceedings that the rights of the parties have to be adjudicated in a properly constituted civil suit notwithstanding the dismissal of the writ petition, this court after having gone through the evidence placed on record is of the view that the plaintiff has failed to establish the plea relating to the right over the properties as well as the possession of the properties.

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No substantial question of law would arise and accordingly, the appeal stands dismissed .

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Sd/(ANANT RAMANATH HEGDE) JUDGE

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BSV List No.: 1 Sl No.: 11.

Smt. Jayamma v. Smt. Chennamma

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Smt. Jayamma v. Smt. Chennamma

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