Shivappa vs Amogeppa and Others

K.N. Phaneendra, J.—This Regular Second Appeal is preferred against the judgment and decree passed in R.A. No. 31/2008 by the Principal Senior Civil Judge, Bijapur, confirming the judgment and decree passed in O.S. No. 341/2005 dated 07.02.2008 by the Principal Civil Judge (Junior Division), Bijapur.

Plaintiff who is the appellant before this Court has filed a suit in O.S. No. 341/2005 for declaration and perpetual injunction against the defendants. Defendant No. 1-Gourawwa is none other than the mother of plaintiff Defendant No. 2-Sankawwa and defendant No. 3-Gurusiddawwa are sisters of plaintiff and daughters of defendant No. 1. The plaintiff has filed suit claiming that the land bearing Sy. No. 83 measuring 13 acres 5 guntas of Hunashyal village was previously owned and possessed by grand father of the plaintiff Now the suit land is standing in the name of first defendant. The first defendant has got four sons including plaintiff and two daughters who are the defendant Nos. 2 and 3 who can succeed to the suit land. The second defendant has taken son of her elder brother-Amogeppa in adoption. The other brothers of plaintiff are supporting defendant Nos. 2 and 3 in getting transfer of the suit land in their names. Thus, defendant Nos. 2 and 3 in collusion with the other brothers are trying to get the suit land, in order to avoid share to the plaintiff in the same. The first defendant taking advantage of her name appearing in the ROR in respect of the suit land, at the instigation of other sons trying to transfer the same in the names of defendant Nos. 2 and 3 ignoring 1/5th share of the plaintiff in the suit land. In spite of request of the plaintiff, the first defendant is bent upon to transfer the land in favour of defendant Nos. 2 and 3. Therefore, the suit was filed.

The defendants have appeared before the Trial Court. The first defendant filed her written statement and the same was adopted by defendant Nos. 2 and 3. It is the specific case of the first defendant that the suit land was previously owned and possessed by grand father of defendant No. 1 and thereafter, it was got mutated in the name of first defendant as the other lady by name Neelawwa has relinquished the property in favour of first defendant. After the relinquishment, property was mutated in the name of the first defendant in the year 1961 itself. Since that date she has been in possession and enjoyment of the said property as absolute owner and the plaintiff absolutely has no manner of right title, interest or share and possession over the said property and therefore, he is not entitled for any relief

On the basis of the above said pleadings of the parties, the Court has framed the following issues:

"i. Whether plaintiff proves that he is having 1/5th share in "suit Land"?

ii. Whether he further proves that 1st defendant is illegally trying to alienate the "Suit Land"?

iii. Whether plaintiff is entitled for Suit reliefs as prayed?

iv What order or decree?"

The plaintiff himself examined as P.W. 1 and got marked Exs. P1 to P3. The first defendant examined herself as D.W. 1 and got marked Exs. D1 to D9. The Court after hearing the arguments, answered issue Nos. 1 and 2 in the negative and ultimately, dismissed the suit of the plaintiff

The Trial Court appreciated the oral and the documentary evidence on record. In fact, the evidence of the plaintiff was very much relied upon by the Trial Court. It is observed by the Trial Court in the course of cross-examination of the plaintiff that he has categorically admitted that property originally belong to maternal grand father of the plaintiff i.e., through mother of the first defendant. A lady by name Neelawa who is the mother of defendant No. 1 relinquished her share in the property in favour of the first defendant. Therefore, it is admitted by plaintiff that the first defendant became the absolute owner of the suit schedule property got through her mother. From the year 1961, the mutation has been accepted in her name and she has been in physical possession and enjoyment of the said land. Considering the above said cross-examination and also the documents i.e., the mutation register extracts marked at Ex. P2, revenue records at Ex. P1 and copy of the order in RTS. 54/2005-06, the Trial Court has come to the conclusion that defendant No. 1 was the absolute owner in possession and enjoyment of the property as on the date of the suit. Therefore, the plaintiffs suit came to be dismissed.

Aggrieved plaintiff filed an appeal in R.A. No. 31/2008 and during the pendency of the said appeal, it appears the first defendant died and the legal representatives including the plaintiff (appellant) were brought on record. It is the contention that during the pendency of the appeal, in the year 2011, during lifetime of first defendant she has executed a gift deed in favour of defendant Nos. 2 and 3. It is alleged that by forcefully said gift deed was got executed in favour of them by the first defendant. In fact, the appellate Court has considered the applications filed under Order XLI Rule 27 of CPC and under Order VI Rule 17 of CPC wherein, the plaintiff intended to amend the plaint to incorporate the grounds urged before the First Appellate Court with regard to challenging of the gift deed as well as sought for production of certain documents. All these subsequent events occurred only after the death of first defendant. The Court has to see whether the plaintiff has got any cause of action to file suit itself and whether the cause of action for the purpose of filing applications under Order XLI Rule 27 of CPC and Order VI Rule 17 of CPC do survive before the First Appellate Court. As could be seen from the records, it is the absolute property of first defendant which was claimed by the plaintiff that he is entitled for 1/5th share but during the course of pleadings and also the evidence, the plaintiff has categorically admitted the absolute ownership and possession of property by the first defendant and she got the property through her mother. Therefore, it shows that during lifetime of the first defendant, plaintiff absolutely had no manner of title, right and interest or any share over the property. Even he has no right or chance to succeed to the property during lifetime of the first defendant. It is only spes successionis i.e., chance of succession pleaded by the plaintiff it cannot be called as substantive right existed in favour of the plaintiff during the lifetime of the first defendant. Therefore, in my opinion, suit itself is barred for want of right, title and interest over the property by the plaintiff When it is proved to the satisfaction of the Trial Court on facts and evidence that first defendant is the absolute owner in possession and enjoyment of the property, the plaintiff has no cause of action to restrain her from alienating the property or enjoying the property as per her will and wish. Even otherwise, at the most, after the death of first defendant if she dies intestate, then only plaintiff may succeed to the property of the first defendant. It is the claim of the plaintiff before the First Appellate Court that defendant Nos. 2 and 3 forcibly in collusion with first defendant have got executed a gift deed in their favour fraudulently in order to defeat his valuable succession right to claim his share in the property of the first defendant. The cause of action so far as that aspect is concerned cannot be equated to the cause of action claimed by the plaintiff when he filed the suit, so as to substitute that claim with that of the original plaint. Even that amendment is allowed, the application under Order XLI Rule 27 of CPC is allowed, it totally changes the basic version and foundation of the suit. If on the date of the filing of the suit, no right was in existence in favour of the plaintiff, if any right is accrued subsequently, during the pendency of the appeal that cannot be called as cause of action to the original suit. The cause of action pleaded in the plaint has to be taken into consideration for the purpose of testing whether the plaintiff has got any right, interest over the property or any type of right he can exercise against the defendants as on the date of the suit. When such right was not in existence, dismissal of the suit and dismissal of the applications under Order XLI Rule 27 of CPC and Order VI Rule 17 of CPC by the First Appellate Court at any stretch of imagination cannot be said that the said order is erroneous.

Under the above said circumstances, I am of the opinion that neither the Trial Court nor the First Appellate Court have committed any irregularity or illegality in dismissing the suit of the plaintiff Therefore, no substantial question of law arises for consideration before this Court. Therefore, Regular Second Appeal deserves to be dismissed.

However, it is made clear that if the plaintiff has accrued any right after the death of the first defendant, he can agitate before the proper forum if law permits. Accordingly, the appeal is dismissed.