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Judgment
N. Kumar, J.—The third defendant in the suit has preferred this appeal Challenging the judgment and decree of the Trial Court which has decreed the suit of the plaintiffs for partition and separate possession as prayed for.
For the purpose of convenience the parties are referred to as they are referred to in the original plaint.
Plaintiff''s 1 and 2 and defendants 1 and 2 are children of deceased M.S. Ashwathanarayana Shastry and Smt. Sundaramma. The property bearing Sy. No. 87(189) measuring 4 acres which is more particularly described in the ''A'' schedule was granted by the Government of Mysore in favour of their father by an order dated 22.04.1962. Similarly, another extent of 4 acres in the very same Sy. No. was granted in favour of their mother by an order dated 22.04.1962. Both of them paid the amount fixed as the value of the property on 12.07.1963. Subsequently, saguvali chit was issued in their favour. Katha was made in their names. Pahanies were mutated in their name They were paying kandayam till their death. Ashwathanarayana Shastry died in the year 1986 and Sundaramma died in the year 1999 intestate leaving behind the plaintiffs and the defendants 1 and 2 as their legal heirs. After the death of Ashwathanarayana Shastry, the mutation of the schedule property was changed to the name of their mother Sundaramma in respect of ''A'' schedule property. After her death the children constituted the Hindu undivided joint family and inherited both ''A'' and ''B'' schedule properties. After the death of their mother when the plaintiffs tried to take up cultivation in the land in question they came to know that the name of the third defendant had been entered in the mutation records. She was not cultivating the land as a tenant, she was allowed to cultivate the land as a labourer Taking advantage of the same the third defendant colluding with the revenue officials as her husband was a revenue officer working in Revenue Department got false entry made in the revenue record by showing her name in cultivators column. Defendants. 1 and 2 are not co-operating to develop the agricultural land. Recently the Government acquired ''A'' and ''B'' schedule properties for the purpose of International Airport at Devanahalli and also for Industrial Development. The acquisition proceedings have been completed. The LAC case is also pending for consideration. Third defendant has also filed a claim petition before Land. Acquisition Authority taking advantage of the fact that her name has been mentioned in the cultivators column in RTC extract. The plaintiffs have issued a legal notice to the Land Acquisition Authority with & request not to disburse the amount to defendant No. 3, since she is not the owner of the said properties. As defendants 1 and 2 did not agree for partition and separate possession of the schedule properties, the plaintiffs have filed a suit for partition and separate possession.
After service of summon, defendants 1 to 3 appeared through their Counsel, but defendants 1 and 2 did not contest the suit by filing any statement. It is only the third defendant who has filed the written statement. It is her specific case that in view of the acquisition of the schedule properties by the Government for the purpose of International Airport at Devanshalli, in order to take monitory benefits of the property, the plaintiffs colluding with defendants 1 and 2 have filed the suit. On the date of filing of the suit the land had already been acquired by the Government by fixing a minimum compensation of Rs. 5 lakhs per acre and total value of the schedule properties is about Rs. 40 lakhs, Therefore the plaintiffs are bound to value the suit at Rs. 40 lakhs and they have to pay advoleram Court fee of Rs. 1,47,127/ -. Plaintiffs are not in possession of the property, the third defendant is in possession of the property, Late Sundaramms, first plaintiff and first defendant who were all members of the joint family agreed to sell total 8 acres of land in her favour for sale consideration of Rs. 5,000/- on 16.02.1986. All of them received an advance amount of Rs. 101/- by executing an agreement dated 26.02.1986, The possession of the schedule properties were already given to her from the begining i.e. from the date of grant of suit schedule properties in favour of deceased M. S. Ashwathanarayan Shastry and Sundaramma. She herself and the said persons were friends from the beginning. Late M.S. Ashwathanarayana Shastry was working in Taluk Office at Devanahalli, as Sheristedar and the husband of the defendant No. 3 was working as Surveyor in Survey Department. She herself and her husband being a native of Devanahallil were helping Late M.S. Ashwathanarayana Shastry and Smt. Sundaramma in respect of cultivation of the schedule properties Late Sundaramma had required to enhance the sale consideration at Rs. 6,001/-Accordingly, in furtherance of earlier agreement she had executed another agreement dated 26.12.1987 and received a sum of Rs. 4,001/-. It was agreed that the balance amount Rs. 4,000/- should be paid by her at the time of registration of the sale dead. The defendant No. 3 has also submitted that Smt. Sundaramma further requested to enhance the sale consideration However, by mutual agreement the sale consideration was enhanced to Rs. 24,101/-. Smt. Sundaramma also executed an agreement dated 13.01.1988 for a sum of Rs. 24,101/- and also received entire sale consideration from the third defendant. During the and period there was a prohibition of the registration of the suit schedule properties by the Government. As a result, apart from safe agreement the said Sundaramma has also executed a registered GPA dated 11.01.1988. The RTC extracts of the schedule properties stands in the of M.S. Ashwathanarayana Shastry and Smt. Sundaramma respectively up to their death But the RTC extracts from 1983-84 to 1967-88 at cultivators column has the name of the third defendant. After relaxation of prohibition of registration of the ceiling land, she has issued notice dated 17.07.1997 to Sundaramma, first plaintiff and first defendant The same was served on her on 22.07.1997. They have also replied to the said notice by requesting 15 days time to issue detailed reply notice. But they have not replied. As a result, the third defendant filed a suit in O.S.No. 377/1997 on 05.11.1997 against Sundaramma, A. Krishnamurtiy and A. Udayashankar, with a prayer for specific performance of the contract of the sale agreements. During the pendency of the said suit, Sundaramma died and plaintiff No.2 and defendant No.2 were also brought on record. Filing at the said suit was well within knowledge of plaintiffs and defendants. I and 2. They have colluded with each other by concocting cause of action. The Government has acquired the suit schedule properties by fixing minimum compensation of Rs.40 lakhs. As on ''the date of acquisition, the third defendant is in lawful possession, and enjoyment of the said properties. She has claimed the said compensation amount and also filed her objections and LAC case is pending for consideration Plaintiffs and defendants 1 and 2 who are also claimants in the said petition. Having knowledge of all these facts the plaintiffs 1 and 2 have filed the suit without any reasons and probable grounds. Therefore, the suit is liable to he dismissed awarding cost of Rs. 50,000/-.
On the aforesaid pleadings the Trial Court framed the following 7 issues:
1) Whether the plaintiffs prove that suit property is joint family property?
2) Whether plaintiffs prove that they have got 1/4th share in the suit schedule property?
3) What is amount of mesne profit and who is liable to account for the same?
4) Whether defendant No. 3 proves that the 1st plaintiff, defendant No.1 and Late Sundaramma have executed an agreement of sale in favour of defendant No. 3, agreed to sell the suit property and also Late Sundaramma had executed registered power of attorney in favour of the defendant No.3?
5) Whether defendant No.3 proves that the suit is not property valued and Court fee paid is insufficient?
6) Whether plaintiff is entitled for relief sought in the suit?
7) What Order or decree?
The plaintiffs examined the second plaintiff as PW.1 and they have produced 33 documents which are marked as Exs.P1 to P33. The third defendant was examined as DW.1. She has produced 4 documents which are marked as Exs.D1 to D4.
The Trial Court on appreciation of the aforesaid oral and documentary evidence on record held that the schedule property belongs to father and mother of the plaintiffs and defendants 1 and 2. They have died intestate. They have not alienated the property during their life time. If as contended by the third defendant, Sundaramma has executed any agreement of sale, she has to work out her right in the suit for specific performance which the third defendant has filed in O.S.No.377/ 1997, that cannot be a defence in the suit for partition. As admittedly the plaintiffs and defendants 1 and 2 are class I legal heirs, both u/s 8 as well as u/s 14 they would be entitled to inherit the schedule property in equal share. Therefore, they are entitled to 1/4th share in the schedule property. If the said property is acquired as admitted in tine proceedings they would be entitled to compensation payable in proportion to their share in the schedule property. Insofar as claim of the third defendant is concerned, it held that it is open to the third defendant to agitate her right under the agreement of sale in the suit in O.S.No.377/ 1997 and accordingly the suit was partly decreed. Aggrieved by this judgment and decree, the third defendant has preferred this appeal.
The learned counsel for the appellant/ third defendant assailing the impugned judgment and decree of the Trial Court contended that once Sundaramma the owner of the property executed an agreement of sale in favour of the third defendant and received the consideration mentioned therein and also executed the GFA which is duly registered, she ceases to have any interest in the property on the date of her death and therefore, the plaintiff did not acquire any title to the schedule properly. The Trial Court committed a serious error in holding that the plaintiffs and defendants 1 and 2 are entitled to 1/4th share each. She also contended as the appellant has now filed a suit for specific performance of the agreement of safe and when that suit was pending, the present suit for partition was not schedule property is acquired and a minimum compensation of Rs.40 lakhs is fixed by the Government, plaintiffs and defendants 1 and 2 have preferred their claim petition claiming the said amount which is contested by the third defendant preferring her claim also, the suit for partition was not maintainable and if the decree is not set aside; it will entitle the plaintiffs and defendants 1 and 2 to receive the compensation in derogation of the right of the third defendant and therefore she submits that a case for admission of this appeal is made and also for setting aside the judgment and decree of the Trial Court.
The point that arise for our consideration in this appeal is as under:
Whether the third defendant has acquired any interest in the schedule property under the agreements of sale and general power of attorney?
Admittedly, 4 acres of land was granted to M.S.Ashwathanarayana Shastry on 22.04.1962. He died in the year 1986. On his death, plaintiffs defendants 1 and 2 and his widow Sundaramma inherited the schedule property in equal share i.e., 1/5th share each. By consent of the parties, the Katha of the property was made out in the name of Sundaramma. Sundaramma was also granted 4 acres of land on 22.04.1962 which exclusively belongs to her. On her death on 25.02.1999 intestate that property also devolved plaintiffs and defendants 1 and 2 in equal share i.e., 1/4th share each. Neither Ashwathanarayana Shastry nor Sundaramma alienated the property during their life time. Even any agreement of sale as contended by the third defendant is executed by Sundaramma in her favour, there is no transfer of any interest in the schedule property in the agreement of sale. The legal heirs of Sundaramma the owners of the land in question and their right to this property is in no way the suit and on the date of the decree passed by the Trial Court, It is the plaintiffs and defendants 1 and 2 who are the owners of the property. The alleged agreement of sale on which reliance is placed by the third defendant would not in any way affect the rights of the plaintiffs and defendants 1 and 2. Therefore, as each of them have equal share in the schedule property, Court, below committed no error in decreeing the suit of the plaintiffs declaring that the plaintiffs and defendants 1 and 2 are entitled to 1/4th share each. But it is not in dispute that the said land is acquired and the Government has fixed Rs.40 lakhs as the minimum compensation payable to the said land. Therefore, the plaintiffs and defendants 1 and. 2 would be entitled to equal share it the compensation amount to the extent of their right in the property.
They also have preferred a claim petition before the Land Acquisition Officer and it is in that proceedings they have to get the money. Now the third defendant has preferred claim petition to the LAO and it is for him to consider the said claim. All this would in no way come in the way of the Civil Court declaring the rights of the plaintiffs and defendants 1 and 2 for partition of the schedule property. Therefore, we do not see any error committed by the Trial Court in decreeing the suit of the plaintiffs and holding that the plaintiffs and defendants are entitled to equal share in the compensation payable by the Government for acquiring the schedule property.
Insofar as right of the third defendant is concerned, as she has already filed a suit in O.S.No.377/1997, her right in the agreement would be adjudicated in the said pending suit and rightly the Trial Court declined to go into the said question in this suit for partition.
Insofar as mutation entry in her name is concerned, by more entry of persons name in the mutation entry, title of the owner of the property is in no way affected. Mutation entry is not a document of title and therefore, by more mutation of her name in the revenue record, the third defendant cannot claim title as rightly held by the Trial Court.
We do not see any merit in this appeal Accordingly, it is dismissed.