Sri Venkataswamy Vs Sri Prakash

SRI. MUNILAKSHMAMMA W/O. SRI. MUNIYAPPA, AGED ABOUT 62 YEARS, R/O. KURUBUR VILLAGE, MYLANDAHALLI POST, CHINTAMANI TALUK, CHIKKABALLAPUR DIST. – 563 125

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SMT. MUNIVENKATAMMA W/O. SRI. B. NARAYANA AGED ABOUT 54 YEARS, TEACHER,

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R/O. PETECHAMANAHALLI, VEERANJANEYA NAGAR HAROHALLI, KOLAR – 563 101

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SMT. NAGARATHNAMMA W/O. SRI. K H MUNIYAPPA, MEMBER OF PARLIAMENT, (CENTRAL MINISTER) AGED ABOUT 53 YEARS, S/O. SANJAYANAGAR,

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6^TH CROSS, 6^TH MAIN ROAD, BENGALURU – 560094

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SMT. PARVATHAMMA W/O. SRI. GANGAPPA, AGED ABOUT 21 YEARS, R/O. MATHIKERE, BENGALURU – 560054

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SMT. PADMAMMA W/O. SRI. NARASIMHAIAH, AGED ABOUT 49 YEARS, R/O. BULLET KRISHNAPPA LAYOUT, THINDLU CIRCLE, KODIGENAHALLI MAIN ROAD, BENGALURU – 560 022

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SMT. SHARADHAMMA W/O. SRI. VENKATESH, AGED ABOUT 44 YEARS, R/O. GANGENAHALLI, NEAR VETERINARY COLLEGE, YALAHANKA, BENGALURU – 560 064

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…APPELLANTS

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(BY SRI. R B SADASIVAPPA., ADVOCATE)

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AND:

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SRI PRAKASH S/O. LATE. SRI. DODDAVENKATAPPA, AGED ABOUT 44 YEARS,

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SRI. SANDEEP PRASAD S/O. LATE. SRI. NARAYANASWAMY, AGED ABOUT 24 YEARS,

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SRI. VINAYAK PRASAD S/O. LATE. SRI. NARAYANASWAMY, AGED ABOUT 26 YEARS,

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SMT. NAGAMMA W/O. LATE. SRI. NARAYANASWAMY, AGED ABOUT 54 YEARS,

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RESPONDENTS 1 TO 4 ARE

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R/O HAROHALLI,

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KOLAR TOWN, KOLAR – 563 101

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SMT. SAROJAMMA D/O. LATE. SRI. DODDAVENKATAPPA, AGED ABOUT 54 YEARS

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SMT. SAVITHRAMMA D/O. LATE. SRI. DODDAVENKATAPPA, AGED ABOUT 49 YEARS

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RESPONDENTS 5 AND 6 AER R/O. K B HOSAHALLI, NARASAPURA HOBLI, KOLAR TOWN, KOLAR – 563 101

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SMT. NETHRAVATHI D/O LATE. SRI. LAKSHMAMMA AND LATE. SRI. THIPPANNA, AGED ABOUT 36 YEARS, R/O. RAMASANDRA, ANDHRA PRADESH – 585 321

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…RESPONDENTS

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(BY SRI. VARADARAJAN M S, ADVOCATE FOR R2 TO R7 V/O DATED 22.08.2024, R1 ABATED)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 08.08.2016 PASSED IN RA.NO.58/2012 ON THE FILE OF THE II ADDL. DISTRICT SESSIONS JUDGE, KOLAR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 02.04.2012 PASSED IN OS.NO.241/2004 (OLD NO.330/2000) ON THE FILE OF THE I ADDL. CIVIL JUDGE, (SR.DN.) AND CJM, KOLAR.

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

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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 08/08/2016 passed in R.A.No.58/2012 by the ll Additional District and Sessions Judge, Kolar.

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

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

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The plaintiffs filed the suit against the defendants for partition and separate possession. It is the case of the plaintiffs that plaintiff no. 1’s father, the late Doddavenkatappa and defendant no. 1’s father, the late Police Minuyappa were the brothers and the members of a

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Hindu Joint Family. It is contended that originally the suit property belonged to one Umersab s/o Ibrahim Sab and the father of plaintiff no. 1 and defendant no. 1 were jointly cultivating the suit property as a tenant for more than 20 years. Police Muniyappa applied before the Land Tribunal for the grant of occupancy rights and the khata was changed to the defendant’s name vide order dated 28/05/1999. It is further the case of the plaintiffs that for 25 years Doddavenkatappa and Police Muniyappa were jointly cultivating the suit property and were in joint possession of the suit property. It is contended that Police Muniyappa was working as Constable in different places for 35 years and at that time plaintiff’s father was cultivating the suit property. After the death of Doddavenkatappa and Police Muniyappa, the plaintiffs demanded partition. However the defendants did not give heed to their request. Hence a cause of action arose for the plaintiff to file a suit for partition and separate possession. Accordingly, prays to decree the suit.

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4. After the service of summons, the defendants

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appeared before the court through their counsel and filed a written statement denying the entire plaint averments. It is conceded that the late Doddavenkatappa and Police Muniyappa resided separately and never owned any ancestral and joint family properties. Further, it is contended that Police Muniyappa was the tenant and he applied for the grant of occupancy rights of the suit property, before the Land Tribunal. The Land Tribunal granted the occupancy right in his favour. After his death, the khata is changed in the defendants name and they are

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in possession of the suit property. Therefore, the suit property is the exclusive and self acquired property of the late Muniyappa. The plaintiffs have absolutely no right, title and interest over the suit property. It is contended that the defendants were in possession of the suit property for more than 40 years without any interference and hence they have perfected their title by way of adverse possession. Further, the plaintiffs’ suit is barred by

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limitation and bad for non-joinder of necessary parties.

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Hence, on these grounds they pray to dismiss the suit.

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The trial Court, based on the pleadings of the

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parties, framed the following issues:

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1. Whether the plaintiff proves that the suit schedule property is the joint family property of the plaintiff and the defendant ?

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2. Whether the defendant proves that the suit schedule property is the self acquired property of her husband?

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3. Whether the defendant proves that she perfected her title to the suit schedule property by way of adverse possession?

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4. Whether the defendant proves that suit is barred by time?

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5. Whether the defendant proves that suit is bad for nonjoinder of necessary parties?

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6. Whether plaintiff is entitled for a share in the suit schedule property ? If so, how much?

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What decree or order?

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To substantiate the case of the plaintiffs, the

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original plaintiff, Venkatamma was examined as PW-1, plaintiff no.1 was examined as PW-2, examined 4

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witnesses as PW-3 to PW-6 and marked 6 documents as Exs.P.1 to P.6. On the other hand, defendant No.1 was examined as DW-1, examined 3 witnesses as DW-2 to DW-4 and marked 27 documents as Exs.D 1 to D 27.

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The trial Court, after recording the evidence, hearing on both sides and on the assessing the verbal and documentary evidence, answered issues no 1, 3, 4 and 6 in the negative, issue no. 2 in the affirmative, issue no.5 does not arise for consideration and issue no. 7 as per the final order. Consequently, dismissed the plaintiffs’ suit vide judgment dated 02.11.2012.

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Aggrieved by the judgment and preliminary decree dated 02.04.2012 passed by the trial Court in O.S. No. 241/2004, the plaintiffs preferred an appeal in R.A.No.58/2012, on the file of ll additional District and Sessions Judge, Kolar.

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The first Appellate Court, after hearing the parties, framed the following points for consideration:

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1. Whether the pleadings and proof is sufficient to uphold the plea of the plaintiffs that the suit schedule property is the joint family property of the plaintiff and defendant? If so whether the plaintiff is entitled for half share in it?

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2. Whether the pleadings and proof is sufficient to uphold the plea of the defendant that the suit schedule property is the self acquired property of her husband?

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3. Whether the judgment and decree of the trial court requires interference in the appeal ?

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4. What order?

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The first Appellate Court, on reassessing the

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verbal and documentary evidence, answered points no. 1 and 3 in the affirmative, point no. 2 in the negative and point no. 4 as per the final order. The first Appellate Court allowed the appeal vide judgment dated 08.08.2016, setting aside the judgment and preliminary decree passed by the trial Court. Consequently, the suit of the plaintiff was decreed. It is ordered and declared that the legal representatives of original plaintiff is entitled to a ½ share in the suit property by partition and separate possession by metes and bounds. Defendants, aggrieved by the impugned judgment, filed this regular second appeal.

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Heard the arguments of learned counsel for the

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defendants and the plaintiffs.

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Learned counsel for the defendants submits that the suit schedule property was granted to police Muniyappa i.e., the father of defendant No.1, as he was cultivating the land as a tenant and he filed an application for grant of occupancy rights before the Land Tribunal, Kolar. Police Muniyappa passed away in 1995 and his wife Poojamma came on record and occupancy rights were granted in favour of Smt. Poojamma. Smt. Poojamma passed away on 01.03.2007. After her demise, the defendants are the legal representatives of the late Police Muniyappa and his wife late Poojamma.

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The defendants have produced a copy of the order passed by the Land Tribunal. The first appellate Court did not properly considered the said aspect and committed an error in recording its finding that the suit schedule property is the joint family property of the plaintiffs and defendants and granted a share to the

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plaintiffs. Hence, on these grounds he submits that the impugned judgment passed by the first appellate Court is arbitrary and erroneous. He also submits that PW-1 has admitted that police Muniyappa acquired the said property out of his own income. The first appellate Court did not properly appreciated the said admission. He also submits that defendant No.2 Chinnamma died during the pendency of the appeal and her legal representatives were not brought on record. Hence, the judgment and decree passed by the first appellate Court is against a dead person. Hence, prays to allow the appeal.

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Per contra , learned counsel for the plaintiffs submits that police Muniyappa was working in the Police Department and he was discharging his duty as a Police Constable, wherein Dodda Venkatappa was cultivating the suit schedule property. The police Muniyappa and Doddavenkatappa were in joint possession of the suit schedule property. The said police Muniyappa was in service for 35 years and working in different places.

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Hence, he being in physical possession of the suit schedule property does not arise. He also submits that Doddavenkatappa was in possession of the suit schedule property and that the suit schedule property was granted by the Land Tribunal for and on behalf of the family and not in the individual capacity. He submits that the plaintiff

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has produced the deposition of Muniyappa who has deposed before the Land Tribunal marked as Ex.P.2. He submits that the police Muniyappa has admitted that Doddavenkatappa was in possession of the suit schedule property.

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He submits that the defendants to establish that the suit schedule property was granted in favour of police Muniyappa in his individual capacity, has not produced Form No.7 which goes to the root of the case. He also submits that as on appointed date, Muniyappa was in service. He submits that DW-2 has admitted that Doddavenkatappa was in joint possession of the suit schedule property. He submits that the first appellate

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Court relying on the depositions of the witnesses who have deposed before the Land Tribunal and the admission of the DW-2, has rightly held that the suit schedule property is the joint family property of the plaintiffs and defendants and rightly granted a share to the plaintiffs.

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He submits that Chinnamma died during the pendency of the appeal, but none of the parties have brought to the notice of the Court regarding the death of Chinnamma. The first appellate Court proceeded with the appeal as if the Chinnamma was alive. He submits that it is the bounden duty of the counsel to bring it to the notice of the Court as per Order 22 Rule 10(A) of the Code of Civil Procedure, 1908. It can not be said that the judgment and decree passed by the first appellate Court is against a dead person. Further, he also submits that the legal representatives of Chinnamma did not make any attempt to come on record as the legal representatives of the deceased Chinnamma. He submits that the appellate Court was justified in passing the impugned judgment. He

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submits that the judgment and decree passed by the first appellate Court is just and proper, and hence, does not call for any interference. Accordingly, prays to dismiss the appeal.

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Perused the records and considered the

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submissions of the learned counsel for the parties.

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This Court admitted the appeal, to consider the

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following substantial questions of law:

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1) Whether the First Appellate Court in derogation to the findings of the trial Court has ignored the admission of PW-1 and wrongly recorded the finding in decreeing the suit of the plaintiff?

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2) Whether the First Appellate Court has committed any legal error in holding that the occupancy rights granted in favour of Police Muniyappa is for and on behalf of the entire family ignoring the admission of PW-1?

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3) Whether the First Appellate Court has committed any legal error in decreeing the suit of the plaintiff though all the family members were not brought on record?

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4) Whether the First Appellate Court has committed any legal error in passing the decree against a dead person or whether the second respondent is substantially represented before the Court?

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Re-Substantial Questions of Law No.1 to 4:

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These substantial questions of law No.1 to 4 are interconnected and they are taken for common discussion to avoid repetition of facts.

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The plaintiff to substantiate her case examined herself as PW-1. She reiterated the plaint averments in examination-in-chief and stated that police Muniyappa and Doddavenkatappa are the brothers and police Muniyappa

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was appointed in the Police Department and he was serving at different places. Doddavankatappa i.e., the husband of the plaintiff was cultivating the suit schedule property and occupancy right was granted for and on behalf of the family of police Muniyappa and was not granted in favour of police Muniyappa in his individual capacity. Further, to establish that the suit schedule property is the joint family property, the plaintiff has produced Ex.P.1, Genealogical Tree. Exs.P.2 to P.5 are the certified copies of depositions of witnesses who have deposed before the Land Tribunal in LRF No.50/74-75

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Ex.P.6 is the special power of attorney executed in favour of PW-2.

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One Prakash was examined as PW-2. He has deposed that Doddavenkatappa and police Muniyappa were in joint possession and enjoyment of the suit schedule property and the suit schedule property is the joint family property of the plaintiffs and defendants and they are the members of the Hindu Undivided Family and no partition is effected. In the cross-examination he deposed that his grandfather had a wife who was calling as Gundeeramma @ Chinnamma. Police Muniyappa, Doddavenkatappa, Chikvenkatappa, Police Venkatswamy, Venkataramappa and Gangamma are the children of Chinnamma. He admitted the suggestion to the effect that Doddavenkatappa and police Muniyappa were residing separately. During the cross-examination of PW-2 it is elicited that Doddavenkatappa did not give a statement before the Land Tribunal. It is suggested that the police Muniyappa was in possession of the suit schedule property

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and occupancy rights were granted in favour of police Muniyappa in his individual capacity and the said suit schedule property is the separate property of the police Muniyappa. PW-2 denied the said suggestions.

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Further, the plaintiff has also examined 4 witnesses as PW-3 to PW-6. They have deposed that Doddavenkatappa and police Muniyappa were the brothers and they were jointly cultivating the suit land as a tenant under Umarsab, who was landlord. Police Muniyappa was educated and working in the Police Department, he had only filed a declaration before the Land Tribunal. They also deposed that the police Muniyappa had working in the Police Department for 35 years in different places.

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During the pendency of the suit, the defendant died, and his legal representatives were brought on record. The legal representatives of defendant No.1 i.e., Venkataswamy was examined as DW-1. He has deposed

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that police Muniyappa was in possession of the suit schedule property as a tenant and he submitted Form-7.

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The Land Tribunal granted occupancy right in favour of police Muniyappa. The said property was owned and possessed by police Muniyappa.

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He deposed that Doddavenkatappa had no right, title or interest over the suit schedule property and further to prove the defence of the defendant, the defendant has produced Exs.D.1 to D.4 the certified copies of the voters list, Ex.D.5 is the endorsement, issued by Tahasildar, Ex.D.6 is the re-grant certificate. Ex.D.7 is the Mutation register extract. Exs.D.8 & D.9 are two RTC extracts. Ex.D.10 is the copy of the order sheet in LRF No.50/197475. Ex.D.11 is the tax paid receipt. Ex.D.12 is the patta receipt book. Ex.D.13 is Muniyappa;s death certificate. Ex.D.14 is the certified copy of the order passed in LRF No.50/74-75, Exs.D.15 and D.16 are the certified copies of the voters list pertaining to the plaintiffs family. Ex.D.17 is the certificate issued by BESCOM, Ex.D.18 to D.26 are the tax paid receipts and Ex.D.27 is the endorsement issued by the Tahasildar.

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During the cross-examination, DW-1 admitted

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that his father was examined before the Land Tribunal in

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the proceedings before it. Further, the defendant also examined Sri. Samarangappa, as DW-2, who has deposed that the husband of the defendant are cultivating the suit schedule property, after the death of police Muniyappa. He

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submits that the defendants being the legal representatives of police Muniyappa are in possession of and cultivating the suit schedule property and Doddavenkatappa was working as a coolie for his livelihood, and police Muniyappa alone was cultivating the suit schedule property by engaging labours and Doddavenkatappa was also working under him.

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The defendant also examined two witnesses as DWs-3 and 4. They have deposed in similar terms of DW2. From the oral evidence placed on record, it is clear that police Muniyappa has been working in the Police Department for 35 years. Further, Doddavenkatappa was illiterate, and police Muniyappa was educated and he

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submitted Form -7 before the Land Tribunal for the grant of occupancy right. The land Tribunal held an enquiry wherein during the course of the enquiry Venkatachala, R Chinnappa and Venkataramaiah, gave statement before the Land Tribunal as per Exs.P.3 to P.5. They have stated that police Muniyappa was the tenant under Umarsab and the Land Tribunal granted occupancy right in favour of police Muniyappa.

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From the perusal of the statement of Venkatachala, R. Chinnappa and Venkatramaiah, they gave a statement before the Land Tribunal that Doddavenkatappa was in possession of the suit schedule property, wherein police Muniyappa was discharging his duties as police at different places. It is not the case of the defendant that police Muniyappa was not working in the Police Department. Admittedly, as on the cutoff date, police Muniyappa was not in possession and enjoyment of the suit schedule property. Doddavenkatappa was cultivating the suit schedule property for and on behalf of

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the entire family and further, the first Appellate Court has reproduced the statement of Venkatachala and R.Chinnppa in the impugned judgment at Paragraph No.19 of the judgment.

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As observed above, police Muniyappa was not personally cultivating the suit land, it was Doddavenkatappa who was cultivating the suit land for himself and on behalf of his brothers and police Muniyappa. Police Muniyappa taking undue advantage of the illiteracy of Doddavenkatappa has submitted Form-7 before the Land Tribunal for grant of occupancy rights regarding the suit schedule property. It is also brought on record that police Muniyappa was appointed as a police constable at the age of 20. The defendants have not denied that Doddavenkatappa was cultivating the suit land.

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During the cross-examination of PW-1, she has stated that she and her husband were residing separately by doing coolie work and had a cart to earn their livelihood.

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The witnesses of police Muniappa gave a statement before the Land Tribunal that Doddavenkatappa was in possession of the suit schedule property. The said police Muniappa was working at a different places as a police constable. Further income derived from the suit schedule property, was not sufficient to maintain a family Doddavenkatappa was also doing coolie work. Though DW-2 in the course of cross-examination, admitted with regard to the cultivation of the land by Doddavenkatappa.

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In view of the law laid down by the Division Bench of this Court reported in 2007 (3) Kar.L.J.28(Division Bench) in the case of Puttanna Shetty (D) legal representatives Vs. Padma Shetty (D) legal representatives. It is clear that stray statement elicited from the party in cross-examination cannot be construed as admission and hold against party so as to deprive him his right.

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From the perusal of the Exs. P.3 to P.5 and admission of DW-2, it is sufficient to hold that the Land

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Tribunal granted occupancy rights in favour of police Muniyappa for and on behalf of the family. The suit schedule property is a joint family property of the police Muniyappa and Doddavenkatapaa. No partition is effected between them. The plaintiff being the legal heirs of Doddavenkatappa and the defendants being the legal heirs of police Muniyappa have succeeded to the suit schedule property.

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The Appellate Court has examined that occupancy right granted by the Land Tribunal regarding the suit schedule property is a joint family property. Once the Land Tribunal granted an occupancy right, it becomes Functus Officio and the question of determination of nature of tenancy incidentally, at a subsequent point of time, would not arise for consideration except for determination of rights inter-say between the family members. It is the Civil Court that has the jurisdiction to determine whether the suit schedule property occupancy

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right was granted in favour of the grantee in the individual

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capacity or for the enure of the family.

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The plaintiff has produced the statement of three witnesses who stated before the Land Tribunal which the admission of the DW-2, is sufficient to hold that Doddavenkatappa was in possession of the suit schedule property on behalf of police Muniyappa and the Land Tribunal granted occupancy rights for the benefit of the family and not in individual capacity. The plaintiff and defendants being the legal heirs of police Muniyappa and Doddavenkatappa are entitled to a share in the suit schedule property.

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PW-1 in the course of cross-examination has deposed that Police Muniyappa acquired the suit schedule property, admittedly the occupancy right was granted by the Land Tribunal and there is no question of paying a consideration amount for and acquiring the suit schedule property. Premium was paid and it is not the case of the defendants that police Muniyappa paid the premium. The

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said alleged admission of PW-1 is not sufficient to hold that the Land Tribunal granted occupancy right in favour of police Muniyappa in his individual capacity. The Appellate Court has rightly ignored the alleged admission of PW-1. The Court is required to consider the entire depositions of PW-1 and cannot pick up stray sentence.

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The trial Court has committed an error in picking up a stray sentence and dismissing the suit of the plaintiff. The First Appellate Court, considering the entire material on record, was justified in decreeing the suit of the plaintiff.

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Though defendants have taken a contention that all the family members were not brought on record, the defendants have not stated, who are the family members, who were not included and who were not brought on record. Merely taking the defence that the suit is not maintainable for nonjoinder of necessary parties is not sufficient. Further a suit cannot be dismissed on the ground of non-joinder of the necessary parties.

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Though, the defendants have contended that

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Chinnamma died during the pendency of the appeal before the First Appellate Court, from the perusal of the entire records, none of the parties have intimated about the death of Chinnamma before the First Appellate Court. It is the duty of the counsel to intimate about the death of a party as per Order 22 Rule 10A of Code of Civil Procedure, 1908. In the absence of reporting the death of Chinnapppa, the First Appellate Court proceeded with the appeal as if the Chinnappa was alive. The first Appellate Court has properly re-appreciated the entire evidence on record and rightly passed the impugned judgment.

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The defendant did not produce Form-7 which goes to the root of the case. The first appellate Court has rightly drawn an adverse inference against the defendant for not producing Form -7 which goes to the root of the case, whether the police Muniyappa submitted Form-7 in his individual capacity or for and on behalf of the entire family? Hence, I do not find any error in the impugned

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