Devaraja Naika and Others vs Chikkegowda and Others

Ravi V. Malimath, J.—The case of the plaintiffs is that the land in Survey No. 50 of Bommalapura Village, Bilikere Hobli, Hunsur Taluk was purchased by their mother Smt. Puttamma, by virtue of a registered sale deed dated 26.09.1962. She was in peaceful possession and enjoyment of the same till her death. After her death, the sons namely, plaintiffs succeeded to the property. Under a family partition, 1 acre 10 guntas of land fell to the share of the first plaintiff and 29 guntas of land fell to the share of the second plaintiff. Ever since then, they have been in peaceful possession and enjoyment of their respective share.

The defendants having no manner of right, title or interest, attempted to interfere with the peaceful possession and enjoyment of the property. When, the plaintiffs restrained the defendants from doing so, the defendants filed suit in O.S. No. 47/2004 against the plaintiffs and their brother Papegowda in respect of land bearing Survey No. 107/28, measuring 35 guntas of Mallinathapura Village, Bilikere Hobli, Hunsur Taluk, by wrongly describing the said property by including the properties of the plaintiffs also. It is further contended that about three days prior to filing the suit, the defendants illegally trespassed into the suit schedule property and destroyed a portion of the ragi crop grown therein. Hence, he filed the suit seeking a declaration of title and for permanent injunction.

In pursuance to the summons, the defendants entered appearance and denied the suit averments. They contended that the second defendant is the absolute owner in possession of the land bearing survey No. 43/10.P.1, measuring 4 acres, situated at Sabbanahalli Village, Bilikere Hobli, Hunsur Taluk. It was granted by the Tahsildar, Hunsur in favour of the second defendant''s father under a saguvali chit in the year 1982-83. After the death of the second defendant''s father, the katha was changed in favour of the second defendant. From the date of grant, the second defendant and his father are cultivating and enjoying the same as absolute owners. Hence, they pleaded that the suit be dismissed.

On the basis of the pleadings, the trial court framed the following issues:

"1. Whether the plaintiff proves declaring that he is the absolute owner and possessor of the suit property as on the date of the suit?

Whether the plaintiff further proves that the alleged interference by the defendant?

Whether the plaintiff is entitled for the relief as prayed for?

What order/decree?"

The plaintiff was examined as PW-1 and marked 10 documents. Defendant No. 1 was examined as D.W.-1 and four documents were marked. All the issues were held in the negative and the suit was dismissed.

Aggrieved by the same, the plaintiffs preferred an appeal. The first appellate court allowed the appeal and set-aside the judgment and decree passed by the trial court. The first appellate court decreed the suit holding that the plaintiffs are the absolute owners in possession of the suit schedule property and restrained the defendants from interfering with the peaceful possession and enjoyment of the same. Aggrieved by the same, the defendants have filed this second appeal.

By an order dated 20.08.2014, the appeal was admitted to consider the following substantial question of law:

"When the suit of respondents for declaration and injunction was dismissed by the trial court on the basis of evidence on record, whether the first appellate court was justified in reversing the findings and granting a decree as prayed for and in doing so, did not assign appropriate and valid reasons to overcome the findings of the trial court and thereby committed an illegality in the impugned judgment and decree?" 8. Heard learned counsels on the same.

On hearing learned counsels, I''am of the considered view that the substantial question of law requires to be reframed. Hence, the substantial question of law is reframed as follows:

"Whether any suit could be entertained in the face of false pleadings by the plaintiff and whether the suit could be maintained when the mother of the plaintiffs was still alive? 10. The case of the plaintiffs as narrated in the plaint is that their mother purchased the suit schedule property by virtue of a registered sale deed in terms of Exhibit-P9. That after her death, they succeeded to her property by virtue of a partition being effected. PW-1 is the first plaintiff. Even in his evidence, he has stated that after the death of his mother he and the second plaintiff divided the suit schedule property and that 1 acre and 10 guntas had fallen to the share of the first plaintiff and 29 guntas of land had fallen to the share of the second plaintiff. It is this issue that is strongly contended by the defendants. They contend that the mother was not dead and she was alive. Infact she was alive even as on the date of decretal of the suit. Therefore, when the plaintiff sought for a decree to declare them as the owners in possession and consequent reliefs, whether the suit could be maintained when the mother was still alive.

The case of the plaintiffs is that an application seeking amendment of the plaint to indicate that the mother is actually alive and not dead, was filed. The same was filed at the fag end of the trial at the stage when the suit was set-down for judgment. Therefore, the trial court abstained from considering the application on the ground that it was too late to consider such an application. That the plaint averments were further reiterated in the plaintiff''s evidence himself and the evidence of other witness were recorded. The matter was argued and at that stage, the application was made. Since the application was filed with a malafide intention, the same was dismissed.

The first appellate court has given elaborate reasons justifying the act of the plaintiffs. The appellate court was of the view that it is a mere error committed by the plaintiffs which requires be rectified. That the plaintiffs gain nothing by saying that their mother is dead. Therefore, the appellate court went on considering the merits of the case. It even went to the extent of stating in para-21, that when the plaintiffs have stated in the examination-in-chief that their mother is dead the same requires to be condoned because " as now a days plaint averments would be copied to file the examination-in-chief affidavits". It was of the view that the Trial Court should have allowed the amendment of the pleadings, since it was only as error that crept into the plaint.

Having considered the judgment of the first appellate court in detail, I''am of the considered view that the first appellate court exceeded itself in giving reasons not even pleaded by the plaintiffs. It goes without saying that the appellate court has created a new case only to assist the plaintiffs. The reasons assigned by the appellate court are unsustainable. It is preposterous for the appellate court to say that the plaint averments are copied to file the examination-in-chief. When the plaintiff has deliberately stated that his mother is dead and he succeeded to the property and reiterated the very same in his evidence that his mother is dead, the same cannot be considered as an error. When the party himself states that his mother is dead and comes to the court seeking for a relief based on that, I''am of the considered view that the suit should have been dismissed on that ground itself. The uncalled for interest that has been expressed by the appellate court in giving substantial reasons to support the case of the plaintiff is unacceptable. Under these circumstances, substantial question of law is answered by holding that in the facts and circumstances of the case and in view of the false pleadings as well as the evidence of the plaintiff himself, such a suit could not have been maintained and should have been dismissed as not maintainable.

Consequently, the appeal is allowed. The judgment and decree of the first appellate court dated 01.10.2010, passed by the Additional Senior Civil Judge and JMFC, Hunsur in R.A. No. 78/2006 is set-aside. The judgment and decree dated 01.04.2006, passed by the Civil Judge (Junior Division) And JMFC, Hunsur in O.S. No. 89/2004 is affirmed.

Parties to bear their own costs.