Mahadev vs Nagawa and Others

B.V. Nagarathna, J.—1. Though the appeal is listed for admission, with the consent of learned counsel on both sides, it is heard finally.

Plaintiff in O.S. No. 103/1994 has preferred this second appeal assailing judgment and decree dated 24.11.2009 passed by Civil Judge (Sr. Dn.) Yellapur, sitting at Haliyal, in R.A. No. 138/2007, by which, judgment and decree of Civil Judge (Jr. Dn.), Haliyal, dated 20.06.1997 has been confirmed.

For the sake of convenience, parties shall be referred to, in terms of their status before the trial Court.

Plaintiff has sought for the following prayers in O.S. No. 103/1994 :

"11) Prayer of the plaintiff : The plaintiff prays as under :

i) Suit land be partitioned into two equal parts and the separate possession of the said equal parts be handed over to the plaintiff and the necessary division in the suit block No. 21/2 be made and separate two numbers be directed to be given to concerned authorities.

ii) The costs of the plaintiff''s suit be awarded from the defendants.

iii) Any other reliefs that the Court thinks fit may please be granted.

iv) The plaintiff be permitted to amend the plaint if found necessary.

v) Judgment and decree be passed as prayed for in the interest of justice and equity."

In the substance, plaintiff is seeking division or partition of his half share in plaint schedule property by metes and bounds i.e., for separate possession of said property. It is the case of plaintiff that suit property is agricultural land bearing block No. 21/2 measuring 5 acres 22 guntas situated at Hullatti village is in the joint possession of both plaintiff and defendants, as joint owners. That plaintiff has 50% share, whereas defendants together have 50% share in suit land. They are paying land revenue assessment of suit land equally. Earlier the suit land belonged to Basavanneppa and his brother plaintiff i.e., 50% of ownership each. Basavanneppa died recently and after his death, his widow and children have become owners of half the extent of suit land. Plaintiff and defendants are in ''self and joint'' cultivation of suit land and sharing the crops equally. Two years prior to filing of the suit, defendants requested plaintiff to give up or surrender his 50% ownership in the suit land without there being any reason for that. Defendants then took away the crops from plaintiffs share and they caused loss to plaintiff. It appears that Basavanneppa had taken loan of more than Rs. 25,000/- and now it had become Rs. 50,000/-. The debts were created on their 50% share of the suit property. Therefore, defendants were putting pressure on the plaintiff through elders to give up or surrender his ownership rights of 50%. Alternatively, plaintiff has contended that it is not beneficial to keep the suit land in joint cultivation of plaintiff and defendants. Therefore, he sought for division of suit land.

On suit summons and Court notices being served on defendants, defendant No. 3 appeared and filed written statement denying the plaint allegations. It was contended that plaintiff in order to illegally grab the suit property had filed a suit. That plaintiff, Nagappa, Basavanneppa and Madiwalappa are brothers. That Mallavva, Shivathayavva and Savantrevva are their sisters. All were residing in a rented house at Javali oni, Haliyal. They did not possess any property nor have any source of income. Madiwalappa died at a young age. Nagappa and Basavanneppa were doing tailoring business. They were the only two earning members in the family and maintaining the joint family including their mother Fakiravva @ Basamma. Nagappa and Basavanneppa took care of the education of plaintiff and met all his necessities regarding his food and education. By the time of birth of defendant No. 2, the joint family had separated. Basavanneppa started residing along with his family members in a rented house in Jawahar road, Haliyal. Plaintiff got a job and was residing separately.

That Basavanneppa took possession of suit land from its owners under a sale agreement in the year 1954. Thereafter he had to face litigation with its owners. Ultimately suit land was purchased under a registered sale deed dated 13.01.1959 with his own cost. Plaintiff has no right, title or interest of any nature with the suit land. Plaintiff is an avaricious person and intends to grab property by hook or by crook. That plaintiff with the assistance of Village Accountant and Revenue Officers got his name entered in respect of suit land and a false Mutation Entry No. 1248 dated 15.12.1962 came into existence. But, he has never entered the suit land till date. He has never taken part in the cultivation of suit land nor has he received any share in the yield from the land. He has never paid any assessment in respect of suit land.

That Basavanneppa was in possession and cultivation of suit land, during his life time, with the assistance of defendants and thereafter defendants are in exclusive possession and cultivation of suit land. That on the death of Basavanneppa, defendants came to know about the entry of name of plaintiff in the records of suit land. They requested plaintiff to take steps to get his name deleted, but plaintiff has filed a false suit. Defendants contended that they have become owners of suit land by adverse possession. Suit is bad for nonjoinder of necessary parties. Deceased Basavanneppa has two daughters, as legal heirs. Hence, he prayed for dismissal of the suit.

Defendants No. 1, 2, 4 and 5 adopted the written statement of defendant No. 3 by filing a memo in that regard.

On the basis of aforesaid pleadings, trial Court raised the following issues and additional issues :

"1. Whether the plaintiff proves that the suit property is the joint family property?

Whether the plaintiff proves that he is having 1/2 share in the suit property?

Whether the plaintiff proves that the alleged refusal to effect partition and separate possession by the defendants?

Whether the defendants prove that the suit property is the self acquired property of the deceased Basavanneppa as contended in the W.S.?

Whether the suit is bad for non-joinder of necessary parties?

Whether the plaintiff is entitled to partition of his 1/2 share?

What order or decree?

Additional Issue :

Whether the defendants prove that they have perfected their title over the suit property by way of adverse possession as pleaded in para 8 of W.S.?"

In support of his case, plaintiff examined himself as P.W.1. He relied upon 12 documents, which were marked as Exs.P-1 to P-12. Defendants examined 5 witnesses as D.Ws. 1 to 5. They produced 30 documents, which were marked as Exs.D-1 to D-30. On the basis of said evidence, trial Court answered additional issue No. 1 in negative and issues No. 1 to 3 and 6 in affirmative. Issue No. 4 in the negative and issue No. 5 as does not survive for consideration, and decreed the suit in the following terms:

ORDER

"1. The suit of the plaintiff is decreed as prayed in the plaint declaring that the plaintiff has got 1/2 share in the plaint property.

Draw a preliminary decree also send a copy of the preliminary decree to the Deputy Commissioner, Karwar, for effecting the partition of the plaint property by metes and bounds as required under Section 54 of C.P.C.

Under the facts and circumstances of the case there shall be no order as to costs."

Being aggrieved by the judgment and decree of trial Court dated 20.06.1997, defendants preferred R.A. No. 138/2007 before First Appellate Court, which, on hearing the parties framed the following points for its consideration :

"1. Whether the judgment and decree passed by the trial Court is capricious, perverse, unjust, not proper, contrary to law, illegal and unsustainable under law and requires interference by this Court?

What order?"

It answered point No. 1 in affirmative and allowed the appeal and dismissed the suit of plaintiff.

Being aggrieved by the judgment and decree of First Appellate Court dated 24.11.2009 plaintiff has preferred this second appeal.

I have heard learned counsel for appellant and learned counsel for respondents No. 2, 4 and 5A. Respondent No. 1 is dead and his legal representatives are already on record. Respondents 5B, 5C, 6 and 7 are served and unrepresented.

It is contended on behalf of appellant plaintiff that First Appellate Court was not right in dismissing the suit filed by plaintiff. She contended that there were two reasons given for dismissing the suit. Firstly, because the amendment to the plaint sought before the trial Court was not carried out in the original plaint but it was carried out only in the amended plaint and, therefore, there was no amendment in the eye of law. Secondly, First Appellate Court dismissed the suit because there were no pleadings as the amendment was not carried out, and hence, plaintiff was not entitled to any relief in the absence of pleadings. She drew my attention to the original records and contended that plaint was filed on 19.12.1994. Thereafter there was an amendment carried out pursuant to Court order dated 30.01.1996 and defendants No. 6 and 7 were added as parties to the suit. Subsequently, plaintiff sought one more amendment to plaint by which there was an amendment carried out to para 3. The said amendment was made on 24.01.2006 by carrying out amendment to the amended plaint in para 3 and also by attaching the amendment in a separate sheet. She contended that after first amendment, an amended plaint was filed. It is in that amended plaint, that the second amendment in para 3 was made, which is evident from pages 39 to 41 of lower court records. She, therefore, submitted that First Appellate Court was not right in holding that there was no amendment made to the plaint. She further contended that, on perusal of pleadings in para 3 of the amended plaint it becomes evident that plaintiff had contended that he had paid a part of the sale consideration for purchase of suit land to his brother, Basavanneppa and that though the suit land was purchased in the name of Basavanneppa, plaintiff and Basavanneppa continued to enjoy said property as joint owners. Recognising this fact, Basavanneppa gave a ''wardi'' to revenue authorities for inclusion of plaintiffs name in revenue records in the year 1969. In continuation of that fact, on the death of Basavanneppa, his legal representatives also gave a ''wardi'' to enter their names only in respect of half share of Basavanneppa in the suit land. The fact that plaintiff has been in possession of suit land since the year 1962 is established. All that plaintiff was seeking in the suit was partition and separate possession of that half share in suit property. When the defendants declined to recognise separate half share of plaintiff, he was constrained to file the suit. She, therefore, contended that trial Court was right in decreeing the suit and First Appellate Court was not right in dismissing the suit and that substantial questions of law would arise in this appeal, which would call for admission of the matter for answering the same.

Per contra, learned counsel for respondent contended that Ex. D-1 is the sale deed dated 13.01.1959, which clearly indicates that suit property was purchased in the name of Basavanneppa exclusively. No right, title or interest accrued to plaintiff under Ex. D-1. It is not known as to whether plaintiff had indeed contributed any sum for the purchase of said property. But the fact remains that title to suit property was with Basavanneppa only. It is not known under what circumstances Exs.P-6 and 7 came into existence. Merely because the name of plaintiff was entered under Ex. P-6, he does not get any right, title or interest in respect of suit property. In the absence of plaintiff having any title to the suit property, suit seeking partition in respect of half share is not maintainable.

He, further contended that trial Court was not right in decreeing the suit by treating the suit property as joint family property and as if the partition of joint family property was to take place and separate possession by metes and bounds had to be granted. Supporting the judgment of First Appellate Court, he contended that the suit was rightly dismissed as the plaintiff without seeking declaration of title could not have sought for division of property by metes and bounds and that the trial Court was not right in granting declaration of title when no such relief was claimed by plaintiff.

In support of his contention, he placed reliance on the judgment of the Hon''ble Supreme Court in the case of Bachhaj Nahar v. Nilima Mandal & Ors., , AIR 2009 Supreme Court 1103. By placing reliance on para 16, he contended that appeal does not give raise to any substantial question of law, and therefore, it may be dismissed in limine.

Having heard learned counsel for the parties and on perusal of the material on record as well as the original records, I am of the view that the appeal gives rise to the following substantial questions of law:

"1. Whether the First Appellate Court was right in dismissing the suit of appellant plaintiff by holding that there was no amendment to the original plaint and, therefore, the contents of amended para 3 had to be eschewed and in the absence of pleading in support of the relief claimed by plaintiff he was not entitled to any relief?

Whether plaintiff is entitled to separate possession of half share in suit schedule property?"

From the material on record, it is established that plaintiff Mahadevappa and husband of defendant No. 1 Basavanneppa were brothers and inter alia sons of Gurupadappa. Ex. D-1 is the sale deed under which suit property was purchased, which is a registered instrument dated 13.01.1959. On a perusal of said document it becomes clear that suit schedule property was purchased in the name of husband of defendant No. 1 only. Plaintiff has admitted that suit schedule property was purchased in the name of husband of defendant No. 1 Basavanneppa. But, he has claimed partition and separate possession of his half share in the suit property. According to him he had contributed Rs. 500/- + Rs. 1,500/-, in total Rs. 2,000/- towards sale consideration. It is the case of plaintiff that as he was in service and working in different places, he had requested that suit property be purchased in the name of Basavanneppa and accordingly it was registered in his name. But, in fact, it belonged to both the brothers i.e., plaintiff and Basavanneppa. Thereafter both of them were jointly cultivating the suit property. They were earning an income from it jointly and also spending on it jointly. Therefore, Basavanneppa got plaintiffs name entered in the revenue records as per Ex. P-6 dated 15.12.1962 and recognising this fact, on the death of Basavanneppa, his widow and children got their name entered only in respect of half share of Basavanneppa. That plaintiffs name has been in the revenue records since the year 1962. These aspects were sought to be brought on record by the plaintiff by seeking amendment of para 3. Trial Court granted amendment by order dated 07.01.2006. The amended plaint which was filed pursuant to an earlier amendment was amended on 24.01.2006 at para 3 by indicating that separate amendment has been filed. The said amendment is at pages 39 to 41 of the lower Court records. Para 3, as amended, reads as under :

"3) Both plaintiff and the defendants are paying the assessment of the said land equally. Early the suit land belonged to one Basavannappa and plaintiff two persons that is 50% of ownership of each. The said Shri. Basavanneppa is the elder brother of the plaintiff and both of them have purchased the suit land together out of their joint funds. The plaintiff has paid an amount of Rs. 500-00 before the agreement of sale relating to the suit land in the year 1954 and an amount of Rs. 1,500-00 before the purchase of the suit land in the year 1959 out of his income from salary to his elder brother Basavanneppa towards the sale consideration amount of the suit land. Basavanneppa contributed the remaining amount and expenses. Since the plaintiff was staying at the place of his service and because of the good faith and mutual understanding between the plaintiff and Basavanneppa, the said land was initially purchased in the name of Basavanneppa alone. However, both of them continued to be the joint owners of the said land by sharing its annual income and expenditure equally. Subsequently, Shri Basavanneppa got the said land amicably recorded in the joint names of himself and the plaintiff in the year 1962 by giving a varadi to the revenue officials. Accordingly, the suit land came to be recorded in the names of Basavanneppa 1/2 and the plaintiff 1/2 as per Hullatti M.E. No. 1248 effected and duly certified in accordance with law. Thereafter, Basavanneppa and the plaintiff amicably continued the cultivation of the said land jointly by sharing the annual income and expenditure equally. Thus, the suit land is a jointly owned property of the plaintiff and Basavanneppa. Basavanneppa recently died and after his death the widow of him and three sons i.e., the defendants have become owners of half of the said land. Defendant No. 2 has given a varadi and got effected Hullatti Varsa M.E. No. 2387-A and got recorded the names of all the defendants to their 1/2 share in the suit land. The said entry is also effected and duly certified in accordance with law. The principle of Estoppel debars the defendants from denying the joint ownership of the suit land in view of their previous conduct also."

Therefore, it is held that plaintiff had indeed amended the plaint i.e., the plaint which had already undergone one amendment. It was not necessary for plaintiff to amend the original plaint because the original plaint was not to be looked into at all as it was substituted by an amended plaint, which had been filed pursuant to amendment carried out in original plaint on 05.02.1996. Hence, substantial question No. 1 is answered in favour of appellant by holding that the amendment to plaint was rightly carried out by appellant - plaintiff and, therefore, suit could not have been dismissed on that ground.

The next question is as to, whether plaintiff is entitled to the relief as sought by him. On reading of the prayers extracted above, it becomes clear that plaintiff has not sought for declaration of title in respect of suit land. His simple prayer is to give separate possession of half the extent in suit property. It is nobody''s case that suit schedule property was joint family property of plaintiff and Basavanneppa. However, trial Court raised an issue as to, whether plaintiff had proved that the suit property is joint family property. Trial Court also raised an issue as to, whether plaintiff has ownership of half share in suit property. In the face of those issues, trial Court also raised an issue as to, whether defendants had perfected their title on suit property by way of adverse possession. While answering that issue in the negative, trial Court answered other issues in affirmative and decreed the suit of plaintiff by declaring that plaintiff had got half share in suit property and issued a direction to Deputy Commissioner, Karwar, for effecting partition of plaint schedule property by metes and bounds under Section 54 of C.P.C. as it stood prior to Karnataka Amendment. In my view, trial Court could not have granted the relief of declaration to the plaintiff when the same was not sought by him. All that the plaintiff wanted was separate possession of half extent in suit property. When the relief of declaration was not sought by plaintiff, trial Court was not right in converting the suit into one for partition and separate possession of joint family property and thereafter declaring that plaintiff had half share in plaint property. Trial Court could not have granted a relief, which was not asked for by plaintiff. Trial Court granted a greater relief than what was sought by plaintiff. In this context, it is relevant to quote para 16 from the judgment of Hon''ble Supreme Court, referred to above, which reads as under :

"16. The observation of the High Court that when a plaintiff sets forth the facts and makes a prayer for a particular relief in the suit, he is merely suggesting what the relief should be, and that it is for the court, as a matter of law, to decide upon the relief that should be granted, is not sound. Such an observation may be appropriate with reference to a writ proceeding. It may even be appropriate in a civil suit while proposing to grant as relief, a lesser or smaller version of what is claimed. But the said observation is misconceived if it is meant to hold that a civil court may grant any relief it deems fit, ignoring the prayer. It is fundamental that in a civil suit, relief to be granted can be only with reference to the prayers made in the pleadings. That apart, in civil suits, grant of relief is circumscribed by various factors like court fee, limitation, parties to the suits, as also grounds barring relief, like res judicata, estoppel, acquiescence, non-joinder of causes of action or parties etc., which require pleading and proof. Therefore, it would be hazardous to hold that in a civil suit whatever be the relief that is prayed, the court can on examination of facts grant any relief as it thinks fit. In a suit for recovery of Rs. one lakh, the court cannot grant a decree for Rs. Ten lakhs. In a suit for recovery possession of property ''A'', court cannot grant possession of property ''B''. In a suit praying for permanent injunction, court grant a relief of declaration or possession. The jurisdiction to grant relief in a civil suit necessarily depends on the pleadings, prayer, court fee paid, evidence let in, etc."

Therefore, defendants were right in assailing judgment of the trial Court before First Appellate Court. But the First Appellate Court while holding that the judgment of trial Court was capricious, perverse, contrary to law and not sustainable in law, however, dismissed the suit of plaintiff. That, in my view, is also incorrect. When the plaintiff was not seeking a declaration of title, the only question that had to be gone into was as to, whether plaintiff was entitled to possession of half share in the suit property. He claimed possession on the basis of the fact that he had contributed towards the purchase of said property. Thereafter he was in joint enjoyment of said property along with his brother, Basavanneppa. That Basavanneppa got plaintiffs name entered in the revenue records on 15.12.1962 pursuant to his application dated 09.11.1962 Ex. P-6. Continuing the same after the demise of Basavanneppa, his legal representatives got their names entered in the revenue records only to the half extent in the suit land. Basavanneppa died on 08.09.1992. His legal representatives requested their names to be entered and it was so entered on 29.10.1993. That since the year 1962, name of plaintiff was in the revenue records in the column regarding possession. Therefore, on that basis, he sought for his separate possession by division of suit property. But the First Appellate Court had misdirected itself by referring to Section 17 of the Indian Registration Act, 1908 and provisions of Karnataka Land Revenue Act, 1964, to hold that plaintiff not having any title to suit land could not seek separate possession. A person may not have a title to suit land, but could definitely have a possessory right.

In this case, on the basis of his possessory right, particularly from 15.12.1962 plaintiff has sought for his separate possession in half extent of suit property so that only his name could be entered in the revenue records in respect of half extent in the column relating to possession and defendants names could be entered in respect of other half extent in respect of suit property. Such a suit is definitely maintainable. Plaintiff is indeed entitled to that relief, particularly, when the defendants have sought for the decree of adverse possession against plaintiff. But without going into that aspect of the matter, it is held that plaintiff is entitled to separate possession of half extent in suit property. It is made clear that title in respect of this half extent is not declared in the name of plaintiff as it was also not sought for by plaintiff in the suit. Therefore, substantial question of law No. 2 also is answered, in the aforesaid terms, in favour of appellant - plaintiff. The appeal is allowed.

Parties to bear their respective costs.

Office to draw up preliminary decree stating that plaintiff is entitled to separate possession in respect of half extent of plaint schedule property. He is entitled to take steps for taking separate possession in terms of Section 54 of Code of Civil Procedure, 1908 (Karnataka Amendment).