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Judgment
V. Jagannathan, J.—These throe second appeals arise out of the common judgment rendered by the lower appellate court in R.A. No. 123/04 and the appellants are lather and son and contesting respondents are the three daughters of the 1st appellant.
The appellants filed a suit O.S. No. 139/96 praying for a declaration that the appellants (plaintiffs) are the absolute owners of the suit schedule lands and also sought for setting aside the mutation entries standing in the names of respondents 1 and 2 (defendants) and also to restrain the respondents/defendants from interfering with the plaintiffs peaceful possession and enjoyment of the suit properties.
The contesting respondents herein namely, Susheelamma, one of the daughters of the 1st appellant Ramareddy and the other daughter Sunandamma also filed respective suits in O.S. No. 264/96 and O.S. No. 265/96 seeking an order of permanent injunction against the appellants herein in respect of the suit properties mentioned by them in the schedule to the respective suits.
The trial court decreed the suit filed by the appellants i.e. O.S. No. 139/96 and dismissed the suits filed by the daughters for injunction. Against the common judgment delivered by the trial court in all these suits, the daughters appealed to the lower appellate court. The learned Judge of the tower appellate court, after considering the contentions put forward and on appreciation of the evidence on record, reversed the decision of the trial court by dismissing the suit filed by the appellants and decreeing the suit filed by the daughters for injunction. Aggrieved by the reversal at the hands of the lower appellate court, the plaintiffs in O.S. No. 139/96 preferred these appeals. Before I refer to the area of controversy between the parties, certain facts which era not in dispute will have to be mentioned first so as to focus only on the grey area.
One Remareddy (senior Ramareddy) was the father of the 1st appellant herein i.e. Ramareddy junior. The said junior Ramareddy married one Gowramma and out of there, three daughters were born end they were Yellamma, Susheetemma and Sunandamma (defendants in the suit filed by junior Ramareddy). After the death of his first wife Gowramma on 12.12.89, junior Ramareddy took second wife Pillakka and out of the union of these two, ton Narayanareddy was born (2nd plaintiff). It is not deputed by the parties that the properties which are subject matter of all these appeals are the ancestral properties of the family. It is the case of the appellants that after the death of senior Ramareddy, all the ancestral properties cams to the hands of the 1st appellant junior Ramareddy and he has been in possession and enjoyment of all the properties as lawful owner thereof.
On the other hand, it is also the stand of the defendants i.e. daughters of junior Ramareddy that their grand father i.e. senior Ramareddy had effected a partition of the joint family ancestral properties and the suit properties and other lands were allotted to the joint family consisting of 1st plaintiff junior Ramareddy and the defendants.
The parties relationship therefore is not in dispute and it can very well be shown with the following diagram.
Rama Reddy (died long back) | | Son Ramareddy (plaintiff No. 1) ----------------------------------------------- | | Gowramma Pillakke (1st wife - died on 12.12.89) (2nd wife) | | Daughters Son | Narayana Reddy ---------------------------- (plaintiff No. 2) | | | D1 D2 D3 Yell- Susheetemma Sunandamma amma Susheetamma
(Def.1) (Def.2) (Def.3)
We now come to the controversial issues which have given rise to these suite. According to the appellant, all the suit properties are the properties of the 1st appellant and it is the 1st appellant who is the owner in possession and enjoyment of the suit properties as he alone was the only heir to senior Ramareddy and after the death of senior Ramareddy, it is the 1st appellant who became the absolute owner of the suit properties.
On the other band, contention of his daughters in that there was an oral family arrangement effected by the 1st appellant herein and pursuant to the said family arrangement, the 1st defendant Yellamma, one of the daughters of junior Ramareddy relinquished her rights in respect of the suit properties and the other daughters namely, Susheelamma and Sunandamma were given the suit propertied which they have mentioned in their respective suits for permanent injunction. In other words, under the said family arrangement, Susheelamma got land bearing Sy. No. 26/1 measuring 1 acre 30 guntas and also Sy. No. 26/2 treasuring 2 acres 13 guntas situated at Maranayakanahalli village, Attibele Hobli, Anekal Taluk and the other daughter i.e. Sunandamma got the land in Sy. No. 28/2 measuring 2 acres 26 guntas. Therefore, the defendants tracing their source to the family arrangement, also contended that their father namely, junior Ramareddy was a party to the family arrangement and it is at hit instance that the daughters got their respective properties and it is also evident from the mutation document Ex.D32. Pursuant to the said document coming into Constance, the revenue records also reflected the names of daughters at owners in possession of their respective suit properties and therefore relied on the entry made in Ex.D32 and other documents like pass books etc., which have been produced by the defendants In their suits as per Ex.D1 to DS, D7 to D30, D34 to D43.
The defendants contended that they have been in personal cultivation of the respective lands that fell to their share and therefore the defendants sought for injunction against the appellants herein and it was also contended by them that the 1st appellant i.e. junior Ramareddy is estopped from going back on the family arrangement which is reflected in Ex.D32.
Another contention taken by the defendants was that the appellants herein challenged the mutation entry Ex.D32 before the revenue authorities and appeal preferred by the appellants was dismissed by the Asst. Commissioner and thereafter the appellants woks up and filed the present suit seeking declaration and ether relief.
The appellants in their suit, while admitting the relationship as well as the nature of the suit properties, did not concede to the defendants contention with regard to the family arrangement and also disputed Ex.D32 and took up the stand that the 1st appellant junior Ramareddy new consented for giving up certain properties in favour of his two daughters and it a the pleadings of the appellants in their suit that the 1st appellant''s signature was obtained by the defendants by playing fraud on the 1st appellant and in collusion with the revenue authorities, the defendants got the imitation and pahanies made in their names and based on the said entries, the RTCs were also issued in the name of the defendants. Therefore, the appellants contended that at no point of time the 1st appellant i.e. junior Ramareddy did with consent effected the mutation entries ha favour of his daughters, but on the other hand contended that the defendants themselves got the properties divided among themselves on the basis of pavathi takta and the 1st appellant being the father, did not give the properties to the shares of the respective defendants i.e. his daughters.
Learned trial judge taking note of the stand taken by the respective parties in their Bindings, framed relevant issues and on appreciation of the evidence on record, came to the conclusion that the appellants, in particular the 1st appellant junior Ramareddy is the absolutes owner of the suit schedule property and the defendants played fraud on the appellants and therefore the revenue records cannot be given much importance and further the trial court also did not accept the theory of family arrangement put forward by the defendants.
Consequent to the said conclusion reached, the trial court decreed the suit filed by the appellants herein and decreed that the appellants are the absolute owners of the suit schedule properties and set aside the acceptance of the limitation of five days and further restrained the defendants from interfering with the peaceful possession and enjoyment of the suit properties by the appellants. Consequent to the said suit of the appellant being decreed the trial court dismissed the other suits filed by the daughters for injunction.
Aggrieved by the dismissal of their suits and suit of the appellant being decreed, the defendants namely, daughters of Junior Rama Reddy, preferred appeals before the lower appellate court and the lower appellate court reversed the decision of the trial court by dismissing the suit fried by the appellants herein and decreed the suits filed by the daughters for injunction.
I have heard the arguments addressed by the learned Counsel Sri A.V. Gangadharappa for appellants and the learned Counsel Sri M.G. Alva, for respondents and also perused the entire material on record.
The learned Counsel Sri A.V. Gangadharappa for appellants, at the outset argued that the theory of family arrangement was a creation or invention of the defendants and no such family arrangements are ever taken place. In this connection, it was contended that there is no proof of earlier family arrangement being placed on record and the first appellant, i.e., Junior Rama Reddy never gave any application to the revenue authorities for transferring use suit items in favour of his three daughters. In order to substantiate this contention the learned Counsel took me through the evidence of the defendants, In particular, to submit that the defendants are stated in their evidence that they were not aware of the application being given before the Tahsildar and that everything took place on the one and the same date and therefore, the said evidence of the defendants would go to show that the procedure contemplated under the Land Revenue Act was not followed and so also the relevant Rules, namely, Rules 62, 63 and 64 of the Rules.
Referring to the aforesaid provisions of law it is contended that the requirement of Sections 126 and 129 of the Karnataka Land Revenue Act and the procedure prescribed thereunder was not followed and therefore, no importance could be attached to the Ex.D32.
He again contended that at the time of effecting mutation entry in Ex.D32 the son of the first plaintiff i.e. Narayana Reddy was also arrived and therefore, one could not conceive of the conduct of the first appellant in giving up even, the rights of the 2nd defendant in the ancestral properties in favour of the defendants and this would go to show that there was no family arrangement whatsoever and Bx.D32 therefore, will have to be bald as void in law as the interest of Narayana Reddy eon of Junior Rama Reddy could not have been transferred in favour of the daughters of Junior Rama Reddy. It is also contended that so long as the father of the defendants, i.e., Junior Rama Reddy is alive the daughters have no right whatsoever and their right accrue only after death of their tether and in accordance with succession rules.
The above contentions put forward in regard to family arrangement that the family arrangement was made only to resolve the dispute between the family members, considering their rights over the properties and there is conflict interest or dispute between the family members, the Question of family arrangement coming into existence will not arise. In the instant case, in evidence of the defendants, it is pointed out that daughters have deposed before the trial court that they have no quarrel whatsoever with their either and everything was well in the family.
The other witnesses who are present during the family arrangement ware none other than the father-in-law of the respective daughters and as such they were also interested witnesses. Referring to the stand taken by the defendants in their written statement it is submitted that the defendants once admit that the suit properties are the ancestral joint family properties and that they came into the hands of the first appellant Junior Rama Reddy in a partition and as the daughters got married long ago, the question of daughters are getting any right in suit properties, therefore, will not arise.
Considering the possession of the suit properties having put forward is that the defendants were never in possession of the suit items in since clear from the evidence of DW1, DW2, DW3 and DW5 and the appellants were in possession of the suit properties as at no point of time the possession was given to the defendants. Therefore, the appellants have successfully rebutted the presumption as regards the entries in the revenue records as they are in favour of the defendants. The possession continued with the appellants notwithstanding the revenue entries.
So far as the first appellant Junior Rama Reddy giving the suit items claimed by the defendants to them under the family arrangement and the subsequent mutation entries in Ex.D32 is concerned, the submission is made that even if it is construed as a gift by the father, unless the said transaction fulfills the requirement of the Registration Act, there could be no transfer of interest of immovable properties and more over it is no bodies case that the suit properties were transferred by the first appellant in favour of his daughters for dine purpose. Therefore, there was no occasion at all for any family arrangement becoming to existence.
It is the case of the defendants that the family arrangement come into existence throe days after the funeral ceremony of the first wife of Junior Rama Reddy and therefore, the burden is on the defendants to show that the family arrangement took place as contended by them at there is no evidence to indicate as to whom the application was given by the father of the defendants or whether any statement of Junior Rama Reddy was recorded in this connection. Except producing the order passed by the Assistant Commissioner and Ex.D32 the defendants have not placed any material to show that the procedure contemplated under Land Revenue Act were followed in the instant case. Therefore, the appellants have successfully rebutted the presumption in respect of revenue entries standing in the names of the defendants and as such the lower appellate court was not justified in only taking into account Ex. D32 and based on that the lower appellate court could not have reversed the findings of the trial court.
Referring to Section 135 of the Karnataka Land Revenue Act, 1964, the submission is made that notwithstanding the mutation entries effected as per Ex. D32 and the consequent disposal of the appeal preferred by the appellants before the Assistant Commissioner the appellants are not precluded from questioning the revenue entries and Ex. D.32 before the Civil Court by filing a suit and this is clear from the proviso to Section 135 of the Act. Therefore, the appellants soon after dismissal of the appeal by the Assistant Commissioner have moved the trial court by filing suit for declaration.
Under the said circumstances the question of suit filed by the appellants being barred by limitation does not arise. In this connection, it is further argued that the right to sue accrues with the appellants only when their right is thereatend. In other words, when there la a threat, then only the time begins to run and in the instant case, when the Assistant Commissioner dismissed the appeal filed by the appellants only then, the appellants were aware of the real threat and therefore, suit has been filed within limitation period. As such the suit being bared by time does not arise.
So far as Section 34 of the Specific Relief Act is concerned, learned Counsel argued that the appellants have been in possession of the suit properties right from the time when the Junior Rama Reddy became in possession of the same, following the death of his father Senior Rama Reddy and therefore, the plaintiffs have sought for the relief of declaration and setting aside the mutation entries and also for relief of injunction and as such question of seeking possession does not arise and as such bar u/s 34 of the Act cannot come into effect in the instant case.
In support of all the above contentions put forward, the learned Counsel Sri A.V. Gangadharappa for appellant placed revenue on the following decision:
1) AIR 1965 SC 823;
2) Jana Bai Vs. Deputy Commissioner, ;
3) AIR 2000 SC 3529;
4) AIR 1966 SC 162;
5) 1983(2) Kar.L.J. 191;
6) Kale and Others Vs. Deputy Director of Consolidation and Others, ;
7) Hanumappa Bhimappa Koujageri Vs. Bhimappa Sangappa Asari, ;
8) AIR 1938 AP 147;
9) 1911 37 IA 87;
10) AIR 1955 9C 481.
Relying on the aforementioned rulings and the contentions as above the learned Counsel Sri A.V. Gangadhareppa for the appellant therefore, sought for setting aside the Judgement of the lower appellate court by allowing this appeal and restoring the judgement of the trial court.
On the other hand, the learned Counsel Sri M.J. Alva, for the passengers while conceding that the parties do not dispute the relationship and that the parties do not dispute the fact of the properties involved in the suit being ancestral properties of the family. However, contended that the pleading of the appellants is of variance with the evidence placed by them and therefore, much importance cannot he attached to the stand taken by the appellants concerning family arrangement. Explaining this aspect it is further submitted that the first appellant has failed to produce any documents to show that the suit properties came to the first appellant under partition between first appellant and his brother.
Secondly, it is contended that in the plaint first Appellant has stated that he is innocent and illiterate person and except putting his signature he dues not know anything and that the defendants are played fraud on the first plaintiff. This version in the plaint is totally contrary to the evidence of the first appellant, in as much as, before the trial court the first appellant - Junior Rama Reddy examined as PW1, has come up with the story that in connection with the repayment of loan to the bank the defendants are placed a blank paper before the first appellant and obtained the first appellant''s signature on the said blank paper. Therefore, when there is variant between the pleadings and the evidence, the question of accepting the plaintiffs version does not arise.
Referring to the presumption in favour of the defendants as regards revenue entries is concerned, the submission put forward is that the said presumption has not been rebutted in the instant case and ell the revenue entries stand in the name of the defendant and these entries were made pursuant to the family arrangement and change effected as per Ex.D32 and further more the defendants in their suit have only claimed relief of injunction and therefore, for the limited purpose of establishing their case that they are in possession of the suit items the defendants have referred to the family arrangement More over, as per Ex.D32 the properties have been mutated not only in the names of the defendants but also in the name of the first appellant, i.e., their father. As such the presumption is available to the defendants by virtue of Section 133 of the Karnataka Land Revenue Act, as well as pursuant to Section 35 of the Indian Evidence Act
It m submitted that the appellants herein questioning the entry made in Ex.D32 before the Revenue Authorities by preferring an appeal and said appeal was dismissed by the Assistant Commissioner and there afterwards appellant was not pursing further by filing any revision before the higher authorities under the Act and as such the order passed by the Assistant Commissioner therefore, becomes final.
As regards the allegations of fraud is concerned the learned Counsel has argued that except stating in the plaint that the defendants played fraud upon hint the first appellant has placed no evidence before the court to prove the fraud and moreover when the very mutation entry at Ex.D32 was questioned before the Assistant Commissioner and when appeal filed by the appellant was dismissed, the question of any fraud has been played by the defendants in collusion with the revenue authorities, therefore, does not stand proved.
It m then submitted by the learned Counsel Mr. Alva for respondents that to declare the appellants as Absolute owner no material has been placed and no document evidencing the suit properties coming to the hands of the first appellant under partition has been placed on record and further more as the appellants do not dispute the fact of the suit properties also being ancestral properties defendants being daughters of Junior Rama Reddy also haw their right in the suit items and therefore, question of declaring Junior Rama Reddy as absolute owner of the suit items, does not arise.
So far as non-compliance of the requirement of Section 128 and 129 of the Karnataka Land Revenue Act is concerned, the learned Counsel argued that the procedure irregularities pointed out by the appellants'' Counsel were also subject matter of the appeal before the Assistant Commissioner and when the Assistant Commissioner has up held the Ex.D32 the mutation entries and when the appellants have not challenged the said order before any higher authorities, the question of raising the very same grounds of procedure irregularities before this court in second appeal, therefore, will not arise.
It is contended in this regard that u/s 136 of the Karnataka Land Revenue Act, provides for appeal arid revision and if there is any irregularities in effecting mutation entries, the appellants court have preferred appeal or revision and having not exhausted those remedies available under the Act, the appellants cannot now contend that the defendants have played fraud on the appellants.
So far as the oral family arrangement is concerned the learned Counsel Sri Alva argues that no issues were framed by the trial court in this regard nor have there any pleadings by the appellants and the trial court also did not framed any issue concerning the right of the daughters or there are any issues framed on the plaint allegation of fraud. Therefore, all the arguments addressed by the appellants'' Counsel in connection with the family arrangement, therefore, of not of such importance and more so the defendants in their suits have only sought for relief of injunction and in order to get the suit relief all the defendants are required to prove that they a re in possession of the respective items and nothing more and as such the question of right of the daughters as a owners of the suit properties were not subject matter of the said trait.
The learned Counsel then argued that the suit of the appellants h also barred by time, in as much as, this prayer in the suit is for declaration of ownership and the suit ought to have been filed soon after the issuance of Ex.D32 and reckoned from that time the suit filed is barred by time in respect of Article 58 and 113 of the Limitation Act As such the suit ought to have been dismissed on this ground alone.
The next contention put forward is that the suit by the appellants is also not maintainable by virtue of Section 32 of the Specific Relief Act, in as much as the appellants in their suit seeking declaration of ownership over the suit properties also ought to have claimed the specific relief of possession and having not sought such a prayer, the question of grant, of declaration in favour of the appellants therefore, will not arise in view of the proviso to Section 34 of the Specific Relief Act.
It is also contended in that connection that though in the evidence of the defendants it was pointed out by the learned Counsel for the appellants that the appellants are in possession, the said statement will have to be taken into consideration after considering the fact that the appellants are also in possession of the several properties belonging to the joint family and therefore, the said evidence cannot be construed to mean that defendants are not in possession of their respective properties.
Since, the documents produced by the defendants as per Ex.D32 and other documents also go to show that the claims of the defendants find a place in those documents, the presumption of possession will have to be in favour of those having title Bad as such the question of the defendants net being in possession of their respective suit items, does not arise.
Lastly, concerning family arrangement, it was argued that there is nothing strange in the lather giving certain items to his daughters, notwithstanding that there was no dispute at the relevant time, the rights of the parties, ere concerned, it is not necessary, but them must be a conflict of interest or dispute over the rights or existence and in this regard the learned Counsel referred to Section 114 of the Evidence Act as against to Section 56 of the said Act.
In support of an the above submissions the learned Counsel Mr. Alva appearing for passengers, placed reliance on the following decisions:
1) 2008(1) SCJ 334;
2) Thimmamma Vs. Siddarangaiah, ;
3) 2008 (3) SCJ 438;
4) Sri Thimmaiah Vs. Shabira and Others, ;
5) Vinod Kumar Arora Vs. Surjit Kaur, ;
This court while admitting those appeals had raised fallowing substantial questions of law for consideration:
1) Whether the lower appellate court was right in recording a finding that under an oral family arrangement the respondents were given the suit properties and thus taking a contrary view in impact of the oral family arrangement?
2) Whether the tower appellate court was justified in reversing the judgement to the trial court and in the process, ignored the provisions of Section 128 and 129 of the Karnataka Land Revenue Act and the procedure prescribed under Chapter DC of the Karnataka Land Revenue Rules?
In addition to the above substantial questions of law, in the light of the arguments addressed, one more question of law also arises and that is as under:
Whether the suit filed by the appellants is barred by time?
Reg: First substantial Questions of Law
As regards the first question of law raised is concerned, the answer that is sought is as regards the justification of findings of the lower appellate court in taking the view that the defendants were given the suit properties under oral family arrangement. The trial court had declined to accept the family arrangement theory put forward by the defendants.
As far as this aspect is concerned, before going into the facte of the case before us, it is useful to keep in mind the law laid down by the Apex Court in the decision referred to by the learned Counsel Sri A.V. Gangadharappa for the appellants.
In the case of Kale and Others Vs. Deputy Director of Consolidation and Others, , the Apex Court dealt exhaustively on the concept of family settlement and has referred to several earlier decisions, held thus:
The family settlement must be a bonafide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family.
The said settlement must be voluntary and should not be Induced by fraud, coercion or undue influence.
The family arrangement may be even oral in which case no registration is necessary. The registration would be necessary only if the terms of the family arrangement are reduced into uniting. Here also, a distinction should be made between a documents containing the terms and (sic) of a family arrangement made under the document and a mere memorandum prepared alter the family arrangement had already been made ether for the purpose of the record or for information of the court for making necessary mutation. In such s case the memorandum itself does not create or extinguish any rights in immovable properties and is, therefore, not compulsorily registerable.
The members who may be parties to the family arrangement must have some antecedent title, claim or interest even e possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to tin settlement has no title but under the arrangements the other party relinquishes alt its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedents title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same.
Even if bona fide disputes, present or possible which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.
Where the family arrangement was oral and the mutation petition was merely filed before the court of the Assistant Commissioner for Information and for mutation In pursuance of the compromise.
Held, that the compromise was not required to be registered. Even if the family arrangement was not registered it could be used for a collateral purpose, namely, for the purpose of showing the nature end character of possession of the parties in pursuance of the family settlement.
Held further that assuming, that the said document was compulsorily registrable the family arrangement being binding on the parties to It would operate as an estoppel by preventing the parties after having taken advantage under the arrangement to resile from the same or try to revoke it.
It is the case of the defendants that pursuant to a family arrangement the first appellant, when their father accepted to give the suit items to the respective daughters, which daughters have referred to in their suite and based on the said act on the part of their father, Ex.D32 come into existence. The suit document is produced before the trial court and looking at the said document reveals that it is not only defendants, the daughters of Junior Rama Reddy, hut even the first appellant, i.e., father of the defendants was also given certain items of land. It is also clear from the said document that the brother of Junior Rama Reddy by name Channa Reddy died earlier and therefore, the portion of land that has fallen to Channa Reddy was also enjoyed by the first appellant and following the death of the first wife, Junior Rama Reddy and three daughters being left behind by the first wife and the second wife also giving birth to the son Narayana Reddy to the first appellant, the necessary changes in the katha has been ordered and W that all the parties again have signed. The said document also mentions that Form No. 21A was also published and no objections have received.
It is based on the document at Ex.D32 that subsequent revenue entries came to be made in favour of the defendants, the documents were also produced before the trial court as Ex.D1 to D5, Ex.D7 to D30 and Ex. D34 to D43.
The main contention of the learned Counsel for appellant is that though family arrangement was never brought into existence and as there was no conflict of interest between father and daughters, question of arriving at family settlement, do not arise and even daughters have not complained about any problem and that all members of the joint family were living in harmony.
Under these circumstances whether family arrangement could have been brought into existence. Ho doubt, in the decision inferred to above the Apex Court has observed that ''the family settlement must be a bonafide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family.''
In the vary same decision it is also observed by the Apex Court at Para-19, thus:
Thus, it would appear from a review of the decisions analysed above that the courts have taken a very liberal and broad view of the validity of the family settlement and have always triad to uphold it and maintain it. The central Idea In the approach made by the courts ft that if by consent of parties a matter has been settled, it should not be allowed to be to-opened by the parties to the agreement on frivolous or untenable grounds.
In the instant case, the stand of the first appellant is that no such family arrangement took place, which ultimately resulted in Ex.D33. So far as this contention in concerned, in the plaint at Para-6 it has been stated by the plaintiff that the first plaintiff is innocent person and knows only to put his signature and taking advantage of his illiteracy the defendants played fraud on The plaintiff end in collusion with the revenue authorities created documents. This version in the plaint is not supported by the corresponding evidence being placed by the first plaintiff.
As rightly pointed out by the learned Counsel for respondents, in the court the first plaintiff is examined as PW1 has come out with different version, which is contrary to the very pleadings. In the evidence it is deposed by him that his signature was obtained on the blank papers in connection with repayment of bank loan. Thus, the first plaintiff admits that he signed on a paper whereas in the pleadings there is no mention that his signature was obtained on a blank paper. In other words, the evidence placed by the plaintiff is clearly at material variance with the corresponding stand taken in the pleadings.
In this connection it is also relevant to refer to the decision of the Apex Court reported in Vinod Kumar Arora Vs. Surjit Kaur, , wherein the Apex Court held that the pleadings of the parties form foundation of their case and it is not open to thorn to come up a case set out in the pleadings and propound a new and different case. Therefore, the evidence of the first plaintiff that he signed on a blank paper, therefore, cannot be given any weight as it is contrary to the very pleadings of the first plaintiff.
The defendants have referred to the family arrangement only to show that pursuant to the said family arrangement necessary changes were effected in the mutation entries at per Ex.D32. It is also their case that family arrangement was an oral one. The lower appellate court took the family arrangement case put up by the defendants in order to ascertain as to whether the defendants are in possession of the suit items. The Apex Court in the very decision referred to by the appellants'' Counsel reported in Kale and Others Vs. Deputy Director of Consolidation and Others, , has also held that where the family arrangement was oral and the mutation entry was merely fifed before the Court of Assistant Commissioner for information and for mutation in pursuance of the compromise, such compromise was not required to be registered and even after the family arrangement was not registered, it could be used for a collateral purpose, namely, for the purpose of showing the nature and character of possession of the parties in pursuance of the family settlement.
in the instant case, the lower appellate court took note of the family arrangement that lead to the mutation entries being made as per Ex.D32 and as the very pleading of the first appellant, a contrary to the version given before the Court by him, the lower appellate court held that when pursuant to the family arrangement, the entries came to be effected in the names of the defendants, mere one sentence in the evidence by first appellant that hit signature was taken on a blank paper was not sufficient to rebut the presumption, which was in favour of the defendants following Ex.D32.
It is under these circumstances that the lower appellate court was of the view that the finding of the trial court that the defendants have not proved the family arrangement, is erroneous and secondly, the lower appellate court held that it is only pursuant to family arrangement that the entries came to be made in the revenue records in favour of the defendants.
So far as the evidence of DW1, DW2, DW3 and DW5, concerning the first appellant having consented for changing mutation entry in favour of the defendants on the basis of the family arrangement is concerned, though it was pointed out by the learned Counsel for appellant that evidence of these witnesses throe is lot of doubt about the family arrangement being acted upon by the parties and the possibility of the witnesses being tuted as they were unable to give survey numbers and DW5 and DW6 having deposed to the effect that they hove not seen the actual delivery of possession is concerned, it has to be noted that the first of all the trial court itself has not framed any issue concerning the family arrangement but looking at the issues trial court framed reveals that all that the first appellant is required to prove was that he is absolute owner and possession of the suit schedule properties and that the defendants played fraud upon the plaintiffs colluding with revenue authorities in obtaining mutation entries.
Apart from this even perusal of the plaint, it is not indicated that any such plea was taken by the first plaintiff to the effect that there was no family arrangement at all and as already pointed out except saying that he put his signature and that the defendants played fraud upon him, there was no other evidence to back up the contention put forward concerning the family arrangement. Apart from this as already opined by me that the family arrangement was only brought to the focus by the defendants for the limited purpose of showing that they are in possession of the suit items. The defendants in their respective source and pursuant to the entries in the revenue records are in possession.
As such the lower appellate court is therefore, took into account all these factors and on the finding that the first plaintiff was not able to give material particulars of fraud committed by the defendants in collusion with the revenue officials and the endorsement in the document Ex.D32 also indicating that there was consent by all the concerned parties, the statement made by the aforesaid witnesses in their evidence therefore, could not have lead to any other view being taken than the one taken by the teamed judge of the lower appellate court.
Further the lower appellate court being the final court on foots and having considered the entire evidence from proper perspective, the conclusion reached by it on the facts in the light of the documents produced by both sides, cannot be interfered with in second appeal, merely because the evidence of the aforesaid witness also gives rise to another view being possible from the evidence on record.
Therefore, the view taken by the lower appellate court cannot be termed as persuasive or unreasonable or contrary to the position in law. Accordingly, this point is answered.
Reg. second substantial Questions of Law:
The second substantial question of law that needs to be answered 12 as to whether the lower appellate court could have reversed the judgement of the trial court and not doing so ignoring the provisions of Section 128 and 129 of the Karnataka Land Revenue Act, on the procedure prescribed under Chapter-DC of the Karnataka Land Revenue Rules.
So far as that question is concerned, the contention of the learned Counsel for the appellants is that the procedure contemplated under Sections 128 and 129 of the Karnataka Land Revenue Act, 1964 was not followed in the instant case and, therefore, no importance can be attached to the revenue entries. In addition to the aforesaid submission, reliance was also placed on the relevant rubs i.e., Rules 62, 63, 64 and 66 of the Karnataka Land Revenue Rules to point out that there has teen no compliance of the procedure prescribed under the aforesaid Rules as well.
As far as this aspect is concerned, the very mutation entry effected as per Ex.D-32 was questioned by the appellants before the Assistant Commissioner and, in turn, the Assistant Commissioner passed an order as per Ex D-6. The said appeal preferred by the first appellant in R.A. No. 96/93-94 questioning the entries made in the revenue records and so far as the challenge to the order passed by the Deputy Tahasildar, Nadekacheri, is concerned, the Assistant Commissioner considered all the grounds raised by the first appellant and ultimately held that as the first appellant herein and the defendants had agreed for the order to be passed and having signed in this regard and Form 21-A also being published and no objections having been received, these factors, therefore, led the Assistant Commissioner to arrive at the conclusion that the first appellant was a party to the proceedings and had the knowledge of the proceedings and moreover the name of the first appellant is also shown in respect of some of the lands and at the time of passing of the order, a mahazar was also drawn.
Taking note of all these circumstances, the Assistant Commissioner ultimately hold that there is no illegality committed in passing the order on 12.7.1991. Consequent, the appeal preferred by the first appellant herein was dismissed.
Thus, it is clear from the above proceedings before the Assistant Commissioner that all the irregularities raftered to by the learned Counsel for the appellant before this court by pointing out to the relevant provisions of the Land Revenue Act and the Rules thereunder, and when the Assistant Commissioner has put his stamp of approval and declining to hold that there is any illegality in the order passed, the next course of action that was left to the appellants in view of the provisions contained in the Land Revenue Act was that to question the said order by filing an appeal as contemplated u/s 136 of the Land Revenue Act. The appellants did rot take any such steps and thereby led the order passed by the Assistant Commissioner reaching finality. As such, once again questioning the mutation entries found in Ex.D-32 as being vitiated on account of non-compliance of the provisions of Sections 126 and 129 of the Land Revenue Act, 1964 and the relevant rules referred to above, therefore, cannot be permitted to be urged at this stage. When the appellants took the order from the Assistant Commissioner and did not think it proper to approach the other higher authorities under the Land Revenue Act, it is not open to the appellants to content that the order passed on 12.7.1991 effecting mutation in favour of the defendants suffers from procedural irregularities.
No doubt, the learned Counsel for the appellants is right in referring to Section 135 of the Land Revenue Act while submitting that any person aggrieved by an entry made in any register maintained under Chapter XI has the right to institute a suit against the person denying the tame and. therefore, mere entry in the record of rights itself cannot be the be all and end all of the dispute between the parties insofar as any legal right which an aggrieved person claims to be in possession or for a declaration of such right and various rulings referred to by the appellants'' Counsel in this regard also lay the proposition of law that insofar as the rights of a person dawning title to a property is concerned, it is the civil court which will have to ultimately decide the said question and revenue entries by themselves cannot be an answer to the same.
Therefore, by conceding to the said argument of the appellants'' Counsel and also various decisions referred in this connection laying down the law to the above enact, it must also be kept in view that, in the instant case, a look at the endorsement in Ex.D-32 does not give the impression that the prescribed procedures contemplated in Sections 128 and 129 are not followed and as Section 136 of the Land Revenue Act by Sub-section (2) gives the right to an affected person to challenge the entries made in the mutation registers within the period mentioned in Sub-section (2), the appellants having not exhausted the said remedies and having allowed the order of the Assistant Commissioner to become final, cannot once again re-agitate the very same contention of the mutation entries being not in accordance with the procedure prescribed under the aforementioned Sections and Rules of the Land Revenue Act.
For the aforementioned reasons, I am of the view that the lower appellate court did not commit any error in reversing the judgment of the trial court and it also cannot be said that the lower appellate court had ignored the relevant provisions of Sections 128 and 129 of the Karnataka Land Revenue Act and the procedure prescribed under Chapter DC of the Karnataka Land Revenue Rules. Therefore, the second question of law is accordingly answered.
Coming to the question of the suit being barred by limitation, it has to be borne in mind that the suit filed by the appellants was for declaration and also for setting aside the mutation entries end for injunction on the ground of the appellants having possession. As for as the declaration is concerned, it is clear from the provisions of the Limitation Act, 1963 that the suits relating to declarations are concerned, if the suit is to declare forgery of instrument or to obtain a declaration as regards alleged adoption being invalid, it is three years and likewise, by virtue of Article 58, the period of limitation to obtain any other declaration is also three years and the time (sic) running when the right to sue first accrues.
In the instant case, the appellants'' suit is for a declaration that they be declared as the absolute owners of the suit properties. Therefore, the period of three year starts running when the right to sue first accrued. It is not in dispute that Ex.D-32 was issued on 28.5.1991. The suit was filed on 16.3.1996. Thus, between the date of mutation entry in Ex.D-32 and the date of filing of the suit, more than three years had elapsed. As such, the suit of the plaintiff is tarred by time.
As far as the contention put forward by the learned Counsel for the appellants that the appellants questioned the order passed on 12.7.1991 before the Assistant Commissioner find following the dismissal of the said appeal on 6.1.1996 and, therefore!, the suit was filed soon after the dismissal of the appeal and, as such, the suit is not barred by limitation is concerned, it has to be kept in view that pursuant to the mutation entry effected as per Ex.D32, all the other entries were also made in favour of the defendants as per the documents produced by them at Exs.D-1, D-5, D-7, D-30, D-34 and D-43. Therefore, it cannot be said that the real threat to the appellants'' right came only when the Assistant Commissioner dismissed the appeal nuclei ml by the appellants. Under these circumstances, the suit of the plaintiffs i.e., the appellants herein, is also barred by time and the learned judge of the lower appellate court has also referred to this aspect of the matter in the course of his judgment at paragraph-4 at page-20 by observing that from the date of knowledge of certification of mutation as per Bx.D-32, the suit filed by the plaintiffs on 16.3,1996 seeking declaration appears to be barred by time.
No doubt, the trial court did not frame any issue concerning limitation aspect nor was there any pleadings to that effect as could be seen from the pleadings of the parties. Nevertheless, it is clear from a plain reading of Section 3 of the Limitation Act that every suit instituted, appeal unpaired and applications made after the prescribed period shall be dismissed although the limitation has not been set up as a defence. In visor of the said provision contained in Section 3, the question of limitation though not raised by the parties ought to have been considered by the trial court Apart from that, there is no bar to rake the plea of limitation in a second appeal and this is also well settled position in law as has been laid down by the Apex Court.
Coming to the possession aspect of the matter, the suit filed by the defendants i.e., the daughters of Junior Rama Reddy, Susheelamma and Sunandamma, was for permanent injunction on the footing that they were in possession of their respective suit items mentioned in the plaint. Jn order to show that they are in possession, apart from relying on Ex.D-32, the defendants have also produced a number of documents which have been referred to earlier and consistently the revenue entries show the names of the defendants in respect of their respective items of the property. As there s no evidence placed by the appellants to show that the defendants have played fraud and had colluded with the revenue authorities, the presumption will have to be raised in favour of the defendants insofar as the entries in the revenue records are concerned. While deposing in their evidence, the defendants have also stated that they father i.e., Junior Rama Reddy, is also in possession of certain items of lands. That itself will not give room to take the view that the defendants are not in possession of their respective properties.
Moreover, it has been pointed out by the learned Counsel for the respondents that apart from the properties which were subject mutter of family arrangement leading to the mutation entry as per Ex.D-32, there are other properties held Ly the first appellant. Under these circumstances, the evidence of the defendants that the first appellant is also in possession cannot be construed to mean that, that pertains to the properties held by the defendants and the said stand taken by the learned Counsel for the respondents is also amply supported by all the revenue documents produced before the court. Since the defendants i.e., Susheetemma and Sunandamma, have been able to place revenue records to support their claim as regards possession of the respective properties by them, it is obvious that the appellants herein also ought to have sought the relief of possession from the defendants and by not making a prayer to that effect and confining the declaration only as regards declaration of ownership of the suit items, the suit of the plaintiffs that the appellants herein, therefore, will have to be held as not being in conformity with the provisions of Section 34 of the Specific Relief Act. In other words, when the plaintiffs failed to seek further relief of possession from the defendants, the court could not have made a declaration to the effect that the plaintiffs ore the owners of the suit schedule properties and, as such, the trial court was in error in granting the decree of declaration in favour of the appellants herein despite the bar contained in proviso to Section 34 of the Specific Relief Act.
As far as the decisions referred to by the learned Counsel for the appellants are concerned Potti Lakshmi Perumallu Vs. Potti Krishnavenamma, was pressed into service to contend that the defendants ought to have shown that there was a necessity for effecting a family arrangement. In the intent case, though the defendants have stated in their evidence that there is no quarrel between them and their father i.e., Junior Rama Reddy, the mere fact that their father Junior Rama Reddy, after the demise of his first wife took second wife in Billakka and, therefore, this circumstance necessitated a family arrangement being made, cannot be ignored and though no conflict of interest was there between the appellants and the defendants, yet, the circumstance of the second wife coming into the family, therefore, must have prompted the first appellant to go in for a family arrangement.
The decision reported in AIR 2000 SC 3529 (2) is referred in connection with the first appellant having consented to the suit items being given to the two daughters and at the time of Ex.D-32, the second appellant i.e., Narayana Reddy, son of the first appellant, also being alive, the first appellant could not have consented to give the properties to the defendants at the cost of the second appellant, who is the son, and, therefore, the family arrangement cannot be upheld in law. For this proposition, the above ruling in cited and it was held by the Apex Court in that case that when items could not have been donated by one him, the deed of gift was impermissible under Hindu Law. This ruling is not applicable to the instant case. As stated earlier, the defendants pressed into service the family arrangement only for the limited purpose or for the collateral purpose for showing that the revenue entries were effected in their favour pursuant to the family arrangement and as the suit filed by the defendants was one for permanent injunction based on possession, all that the court was required to examine was whether the defendants have placed in the evidence to show that they are in possession of the respective suit items.
The decision reported in AIR 1956 SC 162 is referred in connection with the validity of the family arrangement and the Apex Court ruled that the validity of a family arrangement of disputed rights depends on the facts existing at the time of transaction and will not be affected by subsequent judicial determinations showing the rights of the parties to be different from what was supposed, or that one party had nothing to give up.
I have already referred to the family arrangement aspect by referring to the Apex Court decision reported in Kale and Others Vs. Deputy Director of Consolidation and Others, , and a family arrangement could come into being not only when there is a conflict of interest or dispute over the rights, but even to take care of possible future litigation among the members of the joint family. Therefore, when the family arrangement is made to avoid possible or an anticipated future dispute, such an arrangement cannot be said to be illegal or unnecessary merely because, at the time of entering into family arrangement, there existed no real conflict of interest among the members of the family.
As far as the ruling reported in 1983(2) Kar.L.J. 191 is concerned, that decision was referred m connection with the limitation issue and reference was made by the learned Counsel for the appellants to paragraph-19 of the said judgment. Having gone through the facts and the circumstances of the case as appearing in paragraph-19, I am of the view that the said decision is not applicable to the instant case and that was a case where 12 years had not elapsed from the date of the defendant claiming to be in adverse possession of the suit property. In the instant case, we are not concerned with a case of adverse possession but as to the right of the appellants to seek declaration in respect of ownership over the suit property from the time when the right actually accrued.
As far as the ruling reported in ILR 1996 Karnataka 1517 is concerned, the said decision was also cited in connection with the applicability of the residuary Article of the Limitation Act and that was a ease where, in a suit for injunction, the court found that the right had accrued somewhere in December 1979 and the suit was filed in the same year on 15.12.1979 and, therefore, on facts, it was found that the suit was not barred by time. The facts of the present case are entirely different.
AIR 1958 AP 147 was pressed into service by the learned Counsel for the appellants to submit that the burden is on the defendants to prove the family arrangement and the said burden has not been discharged. As far as this ruling is concerned, it is also not applicable because, we have seen that, in the instant case, the trial court had not framed any issue in respect of the family arrangement in the plaint and no issues were framed and apart from this, the defendants, in their suit, haw only sought the relief of injunction based on possession and in order to trace the title to the possession, the defendants haw referred to Ex.D-32 and to the family arrangement. By producing various documents reflecting their names in the revenue records, the defendants have been able to establish that their possession is based on those relevant entries in the revenue records which entries draw a presumption in favour of the defendants. Therefore, it cannot be said that, in the instant case, the defendants have not discharged, their burden and the presumption is in their favour by virtue of the documents produced by them but, on the other hand, in order to establish that the first appellant became the absolute owner of the suit properties under a partition, no documentary evidence is placed and none of the revenue records produced before the trial court had indicated the name of the first appellant as being the owner of the suit properties.
So far as the decision reported in Indian Appeals, Volume XXXVIII, page 87, is concerned, that was a case where the court found that a compromise entered by way of an agreement in 1860 between the daughters of a pre-deceased son and heir-at-law of a Mahomedan convert could not be construed as amounting to alienation having regard to the surrounding circumstances and the court held that the defendants, therefore, did not derive title from their daughters and it was also held that the compromise based on title of the parties existing antecedent thereto and acknowledged and defined thereby. This ruling is also inapplicable on facts to the case before us.
The last decision is the one reported in AIR 1935 SC 481, in which the Apex Court dealt with the family arrangement concept and held that a family arrangement can, as a matter of law, be implied from a long source of dealings between the parties and a family arrangement between a widow and her daughters is bonding on the daughters who are parties to it, but not on their minor sons, who are not parties to it, not having been represented by their guardian. This ruling it cited by the appellants'' counsel to submit that Narayana Reddy, second appellant herein, was not a part to the family arrangement nor is there any material placed to show that the first appellant father acted on behalf of his son Narayana Reddy also and, therefore, the question of family agreement being entered into with the consent of the first appellant does not arise. Dealing with this aspect earlier in the course of the judgement. I nave also held that the family arrangement foundation was laid by the defendants to show that the subsequent entries in the revenue records were based on the family arrangement and pursuant to those entries, the defendants came to be in possession of the suit properties. As already observed by me, the suit filed by the defendants was not one wherein they claim their right of ownership over the suit properties, but it was only a suit for mere injunction baaed on possession.
As far as the rulings referred to by the learned Counsel for the respondents are concerned, the Apex Court, in the case reported in 2006(1) SCJ 334, has held that where there were allegations of fraud, misrepresentation and undue influence alleged, it was the bounden duty of the plaintiff to prove his case by placing acceptable evidence, This ruling is referred to in connection with the submission that the appellants harem have placed no documentary evidence at all to prove that; they are the absolute owners of the suit items.
As far as the decision reported in ILR 1988 Karnataka 1919 is concerned, this court has taken the view that u/s 133 of the Karnataka Land Revenue Act, an entry in the record of rights and a certified entry in the register of mutation shall be presumed to be true until the contrary is proved or a new entry is substituted thereof and thus, this presumption is rebuttable and contrary facts may be established by the very circumstances of a case or by other evidence found in the records of a case. The court also observed that the presumption to be drawn has its weight only at the outset of a case since it may get diluted, rebutted or overrun in the course of the trial. In the instant case, there is no evidence by the appellants to show that the presumption drawn in favour of the defendants either got diluted, rebutted or overrun.
The decision of the Apex Court reported in 2008(3) SCJ 436 Jays down the well-known proposition of law that a revenue record is not a document of title and entries made in the revenue records though give rite to presumption of correctness, such presumption is rebuttable. In the very same ruling, the Apex Court also took note of Section 35 of the Evidence Act and referring to an earlier decision, observed that the record of rights is not a document of title and entries made therein in terms of Section 35 of the Evidence Act, although are admissible as relevant piece of evidence, it is beyond any doubt or dispute that such a presumption in rebuttable. In the very same ruling, it was also further held that a revenue record is not a document of title but it merely raises a presumption in regard to possession.
As far as the decision reported in 2006(2) Kar.L.J. 296 is concerned, this decision was referred to by the learned Counsel for the respondents to contend that a plaintiff, who not in possession is not entitled to the relief of permanent injunction without claiming recovery of possession. The Apex Court rules that before an injunction can be granted, it has to be shown that the plaintiff was in possession.
Thus, on consideration of all the rulings referred to by the learned Counsel for the parties and having answered the question concerning limitation aspect, the result of the aforesaid discussion concerning each one of the substantial questions of law raised is that the judgment of the lower appellate court does not suffer from any infirmity and it cannot be said that the lower appellate Court committed any error either while appreciating the evidence on record or in applying the provisions of law to the case on hand and, therefore, I see no case made out by the appellants for this court to interfere in second appeal against the view taken by the learned judge of the lower appellate court. La arriving at this conclusion, I also place reliance on the law laid down in the case reported in 2003 AIR SCW 2417. The Apex Court has referred to various exceptions which permit the High Court to interfere with the findings of facts of the courts below and the said observations are as under:
(A) As a general rule, the High Court will not interfere with the concurrent findings of facts unless the case comes within the well recognised exceptions viz., (i) the courts below have ignored the material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to ''decision based on no evidence'', it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.
As none of the three exceptions mentioned above gets attracted to the case on hand insofar as the findings reached by the lower appellate court are concerned, I am of the view that the appeals preferred by the plaintiffs in O.S. No. 139/1996, therefore, will have to be dismissed.
Accordingly, I pass the following order:
All the three appeals are dismissed. No costs. The dismissal of the appeals is confined only as regards the appeals preferred by the appellants as against defendants-2 and 3 i.e., Susheelamma and Sunandamma, are concerned.