AI Structured Summary
Not yet generated for this judgment
Judgment
Subhash B.Adi
This appeal is by the defendant Nos. 1 and 2 in O.S. No. 7/2002 against the judgment and decree dated 16.11.2002 on the file of Civil Judge (Sr.Dn.), Challakere. Parties would be referred to as per their ranking in the trial court.
Plaintiffs i.e., respondent Nos.1 to 7 and 9 to 13 filed a suit seeking declaration, declaring that the judgment and preliminary decree passed in O.S. No. 3/1991 on the fie of Civil Judge (Sr.Dn.), Challakere, is illegal, void, collusive, fraudulent and not enforceable in law. Consequently for a decree of permanent injunction against defendant Nos.1 and 2.
Case of the plaintiffs was that, one Ragiseeme Bheemaiah @ Boraiah had three sons. All of the three sons viz., Gundaiah, Nangi Muttaiah and Bheemaiah @ Gondaiah, were living in joint. However, on account of difference of opinion amongst the women folk, they got divided the ancestral property bearing Nos. 32 and 29 situated at Katanayakanahalli village, Molakalmuru taluk and Guddadahalli village, Kasaba hobli, Molakalmuru taluk, Chitradurga District. 15 acres 26 guntas in Sy. No. 32 went to the share of Gundaiah, 7 acres 26 guntas in Sy. No. 29, which was irrigated and 8 acres 26 guntas dry, out of which, 3 acres 20 guntas Bagayat and 4 acres 13 guntas dry was divided into two shares, accordingly, 7 acres 33 guntas, which went to second son of Bheemaiah and 7 acres 33 guntas in favour of third son Bheemaiah @ Gondaiah. Gundaiah became the absolute owner of Sy. No. 32 ''A'' schedule property, Nangi Muttaiah, who is the grand father of defendant Nos.1 and 2 became the absolute owner of land measuring 7 acres 33 guntas in Sy. No. 29. Since then, they were cultivating the lands separately. After the partition, Nangi Muttaiah, grand father of defendant Nos.1 and 2 sold his share of land for Rs.90/- and half share to Gundaiah. Propositus Bheemaiah was predeceased 70 years prior to the partition.
Gundaiah had five sons viz., plaintiff Nos. 10, 11 and 12 and father of defendant No. 3 and father plaintiff Nos. 4, 5 and 6. They were all living in joint. In the year 1976, they separated themselves, divided the properties into five shares in both Sy.Nos. 29 and 32. In the year 1979, father of defendant Nos. 1 and 2 Patraiah filed a suit in O.S. NO. 125/1979 against the father of defendant No. 3 Bagaraiah and four others. After filing of the written statement, father of defendant Nos. 1 and 2 filed a memo for withdrawal of the suit with liberty to file a fresh suit on the same cause of action, however no suit was filed.
Difference arose between the plaintiffs and father of defendant No. 3 - Bagaraiah, Bagaraiah filed a suit in O.S. No. 311/1979 before the Munsiff, Chitradurga for declaration in respect of Sy. No. 29 to the extent of 7 acres and odd. The said suit was decreed against which plaintiff Nos.2 and 3 and other members filed Regular Appeal No. 59/1983. The appeal also came to be dismissed.
In 1985, Bagaraiah was ill and was not in a position to understand the legal proceedings. Taking advantage of the same, defendant Nos.1 and 2 in collusion with Bagaraiah filed a suit in O.S. No. 3/1991 before the Civil Judge, Chitradurga for partition and separate possession of the half share of the suit schedule property therein. Bagaraiah did not contest the suit and filed written statement but admitted the claim of the father of defendant Nos. 1 and 2. In the said suit, preliminary decree was passed on 8.3.1991. However, defendant Nos. 1 and 2 have no right, title and interest in the suit schedule property as Nangi Muttaiah, grand father of defendant Nos.1 and 2 had sold the property to Gundaiah, son of Bheemaiah. A decree passed in O.S. No. 3/1991 being barred by limitation as earlier suit in O.S. No. 125/1979 had been dismissed as withdrawn and no fresh suit was filed within the limitation. As such, the second suit in O.S. No. 3/1991 was barred by limitation. Plaintiffs were not made party in O.S. No. 3/1991, as such, the suit was bad for non-joinder of the parties and the said decree is obtained by collusion with father of defendant Nos. 1 and 2 by fraudulent means.
Cause of action arose in December 2001, when the defendants-1 and 2 tried to interfere with the possession of the plaintiffs, as such, suit was filed for declaration.
The said suit was contested by defendant Nos.1 and 2 interalia denying the claim of the plaintiffs and alleged that, defendant Nos.1 and 2 had filed a suit in O.S. No. 3/1991 for partition against the father of defendant No. 3 for their legal share in the suit schedule property. On the basis of the defence filed by the Bhagaraiah, father of defendant Nos.1 and 2, the suit was decreed and decree was passed. In pursuance of the preliminary decree, final decree proceedings were initiated in F.D.P. No. 1/1992 and the same was executed by taking the warrant to the extent of 8 acres 23 guntas in Sy. No. 29/P and 6 acres 36 guntas in Sy. No. 32/P. Therefore, plaintiffs have no manner of right, title or interest in the suit schedule property and sought for dismissal.
The trial court on the basis of these pleadings, framed the following issues:
Whether plaintiffs prove their title of the suit land?
Do they prove that the decree obtained by defendants No. 1 and 2 in O.S. No. 3/91 on the file of this Court is a fraudulent and collusive decree?
Do they prove their lawful possession of suit lands as on the date of suit?
Whether the plaintiffs are entitled for the relief sought?
What order or decree?
Before the trial court, son of 11th plaintiff got himself examined as PW-1 and plaintiffs also examined one witness as PW-2 and got Exs.P1 to P18 marked. First defendant got himself examined as DW-1, he got marked Exs.D1 and D2.
Trial court on the basis of the evidence led by both the parties held that, the plaintiffs have proved their title to the suit property. Further held that, the decree passed in O.S. No. 3/1991 on the file of Civil Judge (Sr.Dn.), Chitradurga, is collusive and fraudulent. Plaintiffs have proved the lawful possession of the suit schedule property. Plaintiffs are entitled for the declaration and consequential injunction. It is against the said judgment and decree, defendants-1 and 2 are in appeal.
Sri. B.K. Manjunath, learned Counsel appearing for the defendant Nos.1 and 2 contended that, father of defendant No. 3 filed a suit in O.S. No. 311/1979 as per Ex.P17 against the plaintiffs and the said suit was for declaration and injunction in respect of Sy. No. 29 and Sy. No. 32. By the judgment and decree dated 30.7.1983, the said suit was decreed declaring that the father of defendant No. 3 is the owner of the suit ''A'' and ''B'' schedule property viz., 3 acres 32 guntas in Sy. No. 29 wet land and 7 acres 33 guntas dry land in Sy. No. 29. In the said suit, father of the defendant No. 3 had stated that, in the year 1976, after the partition amongst the five brothers, Bheemaiah @ Gondaiah sold the property to Bhagaraiah, father of defendant No. 3 under registered sale deed dated 30th June 1939 for consideration of Rs. 200/-. It was stated as ''B'' schedule property. Hence, Bhagaraiah was in possession of the suit properties, as such, father of defendant Nos. 1 and 2 filed a suit for partition and separate possession in O.S. No. 125/1979. However, the said suit was dismissed as withdrawn with liberty to file fresh suit on the same cause of action. He submitted that, since it was only a suit for partition and suit was dismissed as withdrawn with liberty, there was no impediment for the father of defendant Nos.1 and 2 to file fresh suit, seeking partition. As long as there is no partition, limitation amongst the co-parceners to seek partition does not arise. Accordingly, the father of defendant Nos.1 and 2 filed a suit in O.S. No. 3/1991, seeking for partition against the father of defendant No. 3 - Bhagaraiah. In the said suit, father of defendant Nos.1 and 2 and Bhagaraiah had specifically stated that, father of defendant Nos.1 and 2 and Bhagaraiah constitute a Hindu Joint family and are co-parceners and accordingly, he sought half share in the suit schedule property, as the third son Gondaiah had died issueless and there were only two branches remaining viz., Gundaiah''s and Nangi Muttaiah''s. The said suit was decreed by judgment and decree dated 8.1.1991 and in pursuance of which, final decree proceedings were initiated in F.D.P. No. 1/1992 and by taking the warrant in execution of the proceedings, defendant Nos.1 and 2 have been put in possession. It is long after the same, the present suit is filed by the plaintiffs seeking for declaration.
He further submitted that, there is no dispute amongst the parties that, the original propositus was Ragiseeme Bheemaiah @ Boraiah. He had three sons and amongst three sons, one son died issueless, one branch represented by defendant Nos.1 and 2, another branch is represented by plaintiffs and father of defendant No. 3, they represent the branch of Gundaiah. As such, even otherwise also, defendant Nos.1 and 2 are entitled for half share in the suit schedule property. Since Bhagaraiah was representing the share of Gundaiah, he was alone made party in O.S. No. 3/1991, that by itself does not amount to collusion or a decree detrimental to the interest of the plaintiffs.
Sri. B.M. Siddappa, learned Counsel appearing for the plaintiffs submitted that, there was already a partition amongst Gundaiah, Nangi Muttaiah and Gondaiah, three sons of Raagiseeme Bheemaiah and Nangi Muttaiah had sold his share for Rs. 90/-. Thus, defendant Nos.1 and 2 had no share in the suit schedule property. O.S. No. 3/1991 was filed only against the father of third defendant, but included the suit schedule property. Plaintiffs were not parties in O.S. No. 3/1991. Further, when there was already a partition and Nangi Muttaiah, the grand father of defendant Nos.1 and 2 had sold the property to Gundaiah, without there being any share, in collusion with Bhagaraiah, the suit was decreed, as such, suit in the absence of necessary parties and based on collusion, decree will not bind the plaintiffs. Long before even the suit was filed by the father of defendant Nos. 1 and 2, there was a partition and sale of the suit property. The suit filed in O.S. No. 3/1991 was in respect of nonest share of the father of defendant Nos.1 and 2 and as such, the trial court having noticed all these circumstances had decreed the suit.
In the light of the contentions raised by both the Counsel, the point that arises for consideration in this appeal is:
Whether the judgment and decree of the trial court calls for interference?
Facts, which are not in dispute are that, the suit schedule properties were the ancestral properties. Raagiseeme Bheemaiah was the propositus, the genealogy/family tree is as under:
GENEOLOGICAL TREE
From the genealogy, it is clear that, the plaintiffs and the father of defendant No. 3, they represent Gundaiah i.e., they are all lineal descendants of Gundaiah. Defenant Nos. 1 and 2 represent the branch of Nangi Muttaiah. They are the grand sons of Nangi Muttaiah. The third son of Raagiseeme Bheemaiah viz., Gondaiah died issueless, but in the plaint, the plaintiffs alleged that, there was a partition between Gundaiah, Nangi Muttaiah and Gondaiah. First son Gundaiah got the share in Sy. No. 32 whereas, Nangi Muttaiah and Gondaiah got 7 acres 33 guntas each in Sy. No. 29, but Nangi Muttaiah had sold his share of property to Gundaiah for Rs.90/- and thereafter, five sons of Gundaiah had also partitioned among themselves.
Admittedly, the suit properties being ancestral properties and inherited by three branches, O.S. No. 311/1979 was the first suit, which was filed by the father of defendant No. 3 for declaration on the basis of the allegation that there was a partition amongst three sons of Raagiseeme Bheemaiah and thereafter there was also a partition amongst the children of Gundaiah, i.e., first son of Raagiseeme Bheemaiah, however, neither Nangi Muttaiah''s son Patraiah nor defendant Nos.1 and 2 were parties in O.S. No. 311/1979. The declaration in the said suit was against the plaintiffs herein only.
At the same time, it is also not in dispute that, the father of defendant Nos.1 and 2 had filed O.S. No. 125/1979 for partition and the said suit was dismissed as withdrawn with liberty to file a fresh suit. It is thereafter, the father of defendant Nos.1 and 2 had filed O.S. No. 3/1991. It is also not in dispute that, in O.S. No. 3/1991, suit schedule properties were Sy. No. 32 measuring 12 acres 27 guntas and Sy. No. 29/P measuring 11 acres 29 guntas. Admittedly, these two properties being the ancestral properties inherited by the plaintiffs'' branch and defendant Nos.1 and 2''s branch and another deceased Gondaiah, if the father of defendant Nos.1 and 2 was seeking partition of the suit schedule property, which was ancestral joint family property, he ought to have impleaded these plaintiffs in O.S. No. 3/1991, as such, the decree in the said suit is binding on the plaintiffs. Further, the written statement in O.S. No. 3/1991 filed by the father of defendant No. 3 produced at Ex.P4 also discloses that, he had not contested, in turn, he supported the claim of the plaintiffs. This proves that, the said suit was a collusive one.
Hence, the trial court considering these circumstances has rightly found that, O.S. No. 3/1991 in the absence of plaintiffs being party and inclusion of the suit property and decreeing the partition only between father of defendant Nos.1 and 2 and father of defendant No. 3 was collusive and not binding on the plaintiffs.
Though the parties are not disputing the relationship to each other, however, the plaintiffs in their suit, they claim that there was a partition amongst the three sons of Raagiseeme Bheemaiah. However, except allegation, there is no record to show that there was partition, further, it is claimed that there was a partition amongst the five children of Gundaiah. As far as partition amongst five children of Gundaiah is concerned, that may not have any bearing, as far as shares of defendant Nos.1 and 2 are concerned, they represent Nangi Muttaiah. However, plaintiffs allege that, Nangi Muttaiah had sold his share of property to Gundaiah for Rs.90/-. To prove the same, though such plea is raised, but it is stated that, it was an oral sale. To support the same, there is no record as to how Nangi Muttaiah, grand father of defendant Nos.1 and 2 parted with his share of the property in favour of Gundaiah.
Even in earlier suits, all the members of the joint family were not made parties, though they were all co-parceners inherited to the ancestral properties. Thus, from these proceedings that the suit in O.S. No. 311/1979 was filed again by the father of defendant No. 3 against the plaintiffs in which the father of defendant Nos.1 and 2 was not party and the second suit, which was filed by the father of defendant Nos.1 and 2 against the father of defendant No. 3, plaintiff were not parties, another suit in O.S. No. 125/1979 filed by the father of defendant Nos. 1 and 2 was dismissed as withdrawn with liberty to file fresh suit, the present suit being only for declaration that the judgment and decree in O.S. No. 3/1991 is not binding on the plaintiffs, there is no reason to hold that there was a partition or no partition amongst the coparceners. The evidence does not show that there was any effective partition either by means of court decree or otherwise.
If there is no evidence as to the actual partition, no findings could be given on the basis of allegations in the plaint.
Since there is no dispute that it is an ancestral property and it is not in dispute that there were three branches, one branch is represented by defendant Nos.1 and 2, another branch is represented by plaintiffs and defendant No. 3 and another branch is represented by Gondaiah, who died issueless, as such, parties have to work out their remedy.
In these circumstances, I affirm the judgment and decree of the trial court to the extent that, O.S. No. 3/1991 is not binding on the plaintiffs.
As far as the decree of permanent injunction is concerned, since it is a co-parcenery property, injunction restraining one coparcener from another, cannot be granted. Further, the father of defendant Nos.1 and 2 alleged to have executed the preliminary decree in O.S. No. 3/1991 in F.D.P. No. 1/1979 and taken possession. In these circumstances, the findings arrived by the trial court that the plaintiffs are in possession, is not supported by any cogent evidence. As such, the same is not sustainable. I find that, the trial court has not addressed to the said issue and accordingly, to this extent, the judgment and decree is modified, confirming the decree for declaration that the decree in O.S. No. 3/1991 is not binding on the plaintiffs.
Accordingly, this appeal is partly allowed.
(i) The judgment and decree dated 16.11.2002 in O.S. No. 7/2002 on the file of Civil Judge (Sr.Dn.), Challakere, is confirmed insofar as declaration is concerned;
(ii) The judgment and decree dated 16.11.2002 in O.S. No. 7/2002 on the file of Civil Judge (Sr.Dn.), Challakere, insofar as decree of permanent injunction is concerned, same is set aside.
Parties to bear their own cost in this appeal.