Smt. Yellamma vs Sri. Devaraju

Heard learned counsel for the appellants and learned counsel for respondent No.1(a) to (c).

This second appeal is filed praying this Court to set aside the judgment and decree passed by the Principal Civil Judge, (Sr. Dn.) at Ramanagara in R.A.No.53/2007 dated 15.09.2007 and upheld the judgment and decree of the Trial Court passed in O.S.No.409/1997 dated 15.03.2007 on the file of Civil Judge (Jr. Dn.) and JMFC at Kanakapura.

The factual matrix of case of the plaintiff while seeking the relief of declaration and possession in O.S.No.409/1997 is that plaintiff is the absolute owner of the property which is morefully described in the schedule which was purchased vide registered sale deed dated 18.03.1944. It is contended that from the date of purchase, the plaintiff has been in lawful possession and enjoyment of the same. The plaintiff purchased the land in Sy.No.85 measuring 4 acres, 5 guntas and subsequently, the said land has been phoded into 6 bits starting from Sy.Nos.85/1 to 85/6 and Sy.Nos.85/2, 85/6 and 85/4 measuring 0.34 guntas, 0.22 guntas and 0.32 guntas respectively were mortgaged in favour of one Puttaswamiah without the knowledge of the plaintiff. It is contented that plaintiff has mortgaged the property and subsequently, plaintiff got redeemed the said property. The plaintiff is an illiterate and innocent women and hence, she could not be able to get khatha of the schedule property in her favour soon after purchase i.e., Sy.Nos.85/1, 85/3, 85/5, 85/2, 85/6 and 85/4 were standing in the name of the plaintiff i.e., totally measuring 4 acres, 15 guntas and in the revenue records, it is shown as Sy.Nos.85/1 to 85/6.

It is contented by the plaintiff that khatha in respect of the property mentioned at Sl.Nos. a to c stands in the name of the plaintiff and in respect of other properties mentioned at Sl.Nos. d to f are without any right and the defendant colluding with the revenue officials had obtained khatha and on the basis of said khatha and also taking advantage of the fact that the plaintiff is a very old, weak and illiterate lady, the defendant took illegal possession of the property mentioned at Sl.Nos.(e) and (f). The plaintiff requested the defendant several times to give back possession of the suit property on which the defendant occupied illegally. The defendant, instead of complying the request of the plaintiff, dodged to handover the possession of the suit property on one or the other pretext. Hence, the plaintiff without any other alternative got issued a legal notice to the defendant asking him to handover possession of the schedule property, for which also the defendant declined to comply with the demand. It is contended that the defendant is not at all having any relationship with the plaintiff and he is a stranger. Hence, the suit is filed for the relief of declaration, possession and for permanent injunction.

The suit was resisted by the defendant filing a written statement and denied the averments made in the plaint. The defendant set up his own defence in the written statement that entire land in Sy.No.85 belongs to Chullaiah, son of Siddaiah, who is none other than the grand-father of the defendant. The defendant has filed the preliminary record extract which shows that Chullaiah, son of Siddaiah was owner of the entire land in Sy.No.85. The said survey number totally measures 4 acres and 23 guntas and out of this, 7 guntas is the kharab land. The defendant has filed Tippani Uthar and Phodi Uthar. Subsequently, the said Sy.No.85 has been phoded by the Assistant Director of Land Records and as per the Tippani, the phoded numbers are shown. Thus, the said Sy.No.85 being the ancestral property of the defendant, the defendant has got his share in the lands bearing Sy.Nos.85/2, 85/4, 85/6 and khatha of these properties have been made out in his name. The defendant has filed RTC extract of these lands from 1970-71 to 1998-99 which would clearly show his right and possession. The defendant herein had preferred revenue appeal in R.A. (LKP) 175/1991-92 questioning the khatha of the properties and the said appeal has been dismissed on 27.10.1995. The defendant has been in long and continuous possession of these lands in his own right, without any interference or interruption. The plaintiff is not entitled for any relief of declaration and possession and claims for dismissal of the suit.

The Trial Court, having considered the pleadings of the parties, framed the following issues which reads as hereunder:

The plaintiff, in order to prove her case, examined the second plaintiff as P.W.1 and also examined four witnesses as P.W.2 to P.W.5 and in total, got marked the documents as Exs.P1 to P22. On the other hand, the defendant examined himself as D.W.1 and also examined other four independent witnesses as D.W.2 to D.W.5 and relied upon the documents Exs.D1 to D56.

The Trial Court having considered both oral and documentary evidence placed on record, answered issue Nos.1 to 7 as ‘affirmative’, in coming to the conclusion that plaintiff has purchased the suit schedule properties under the registered sale deed dated 18.03.1944. It is also held that plaintiff was in possession of the suit properties after the purchase and the contention of defendant that suit properties have fallen to his share and that they earlier belonged to his grand-father one Chullaiah is not accepted. The issue Nos.4 to 7 are answered that the defendant has taken illegal possession of the suit properties and entitled for declaration, recovery of possession and permanent injunction and decreed the suit mainly based on the document of Ex.P21 i.e., sale deed which discloses that the plaintiff had purchased the property in the year 1944 and the said sale deed has not been challenged by the defendant and taken note of documents which have been marked in paragraph No.17 of the judgment and so also, answered issue Nos.2 and 3 in coming to the conclusion that grand son of vendor of the plaintiff namely, Devaraju has illegally trespassed into the suit schedule properties in the year 1991-1992 and has cultivated the said property which would clearly indicate that the defendant has trespassed into the suit schedule properties in the year 1991-1992 and prior to it, the plaintiff was in possession of the said property. The defendant has dispossessed the plaintiff during the year 1992 on the strength of preliminary records and the defendant illegally took possession over the suit schedule properties. The defendant also admitted in his cross-examination that he came to know about the sale deed executed by Lingaiah in favour of Yellamma in the year 1985, but not challenged the said sale deed.

Being aggrieved by the judgment and decree of the Trial Court, an appeal is filed before the First Appellate Court and the First Appellate Court has reversed the judgment of the Trial Court in R.A.No.53/2007, particularly taking note of the very documents of plaintiff, who had produced Exs.P17 and P18 which clearly depict the name of the defendant's grand-father and so also, taken note of document Exs.D1, D2 and Exs.D54 to D57, particularly in paragraph No.23, though there is an entry in Ex.P17 about redemption of mortgage deed, the said entry pertains to the land bearing Sy.No.85/5 and not in respect of the suit schedule properties. It is also held that there is nothing on record on behalf of the plaintiff to show ownership of her vendor over the suit schedule properties, particularly the entire Sy.No.85. On the other hand, her own document Exs.P17 and P18 shows ownership and possession of the defendant’s grand-father and there is nothing on behalf of the plaintiff to show that she acquired ownership and possession of the suit schedule properties from the defendant's grand-father or his successors. It is observed that, merely because there is a sale deed in favour of the plaintiff in respect of the entire land bearing Sy.No.85, as there is nothing go to show that plaintiff's vendor was the owner of the entire land bearing Sy.No.85, much less the suit schedule properties, the plaintiff cannot acquire ownership and possession of the suit schedule property under Ex.P21. The First Appellate Court mainly taken note of admission on the part of P.Ws.2 and 3 with regard to possession being admitted by the defendant. Apart from that, Exs.D2 and D56 Hissa Tippani Extracts, Ex.D54 Pucca Book Extract and Ex.D4 Preliminary Record shows that grand-father of defendant Chulla, son of Sidda owned and possessed the suit properties. The First Appellate Court also taken note that Exs.P17 and P18 and also RTC extracts Exs.D27 to D53 since 1975-1976, show that suit properties were owned and possessed by Chulla earlier and that later, by his son Jogisiddaiah and that subsequently, the defendant is in possession and enjoyment of those properties. Though, the Trial Court has questioned the entries in the name of the defendant by saying that there is no evidence to show as to how the defendant got the suit properties, it did not bother about tracing of title of plaintiff's vendor over the suit properties and comes to the conclusion that Exs.P17 and P18 negates the contention of the plaintiff. Hence, reversed the findings of the Trial Court. Being aggrieved by the reversal of finding, the present second appeal is filed before this Court.

The main contention of learned counsel appearing for the appellants in his argument is that suit is filed for the relief of declaration. The contention of the plaintiff is that suit schedule properties were purchased in the year 1944 i.e., entire extent of land in Sy.No.85 measuring 4 acres, 5 guntas. The sale deed Ex.P21 is very clear with regard to purchasing of entire property. The counsel would vehemently contend that though number of witnesses are examined on both the sides, the First Appellate Court failed to consider the material available on record and committed an error in reversing the finding of the Trial Court.

The first contention of learned counsel appearing for the appellants is that Ex.P21-sale deed executed in favour of plaintiff was not considered properly by the First Appellate Court and the same was not challenged by the defendant. The counsel would contend that D.W.1 and D.W.2 admitted possession of the plaintiff and also contend that illegal possession was proved by the plaintiff. The counsel would contend that property was mortgaged by the plaintiff in the year 1964-1965 in favour of one Venkataswamiah and the same was also redeemed. When the plaintiff had approached the revenue authorities, she was directed to avail the remedy in the Civil Court. The Trial Court rightly considered each and every documents placed before the Court. But, the First Appellate Court erred in reversing the same. The Trial Court in detail discussed in paragraph No.17 of the judgment relying upon the documents which have been produced by the plaintiff and detailed discussion was made and rightly decreed the suit, but the First Appellate Court committed an error.

Per contra, learned counsel appearing for respondent No.1(a) to (c) in his arguments would vehemently contend that the First Appellate Court rightly considered each and every material, particularly the documents prior to purchasing of the property in terms of Ex.P21. The counsel would vehemently contend that even prior to purchase of this property by the plaintiff, the property was already phoded and given Sy.Nos.85/1 to 85/6. The suit schedule properties are Sy.Nos.85/2, 85/6 and 85/4 and the same stands even prior to purchase in the year 1944 in the name of grand-father of the defendant i.e., Chullaiah i.e., Chulla son of Sidda. The Sy.Nos.85/1, 85/3 and 85/5 were allotted in favour of Lingaiah and suit schedule properties i.e., Sy.Nos.85/2, 85/4 and 85/6 belongs to grand-father of the defendant i.e., Chullaiah. These documents clearly evidence the fact that property was phoded even prior to the sale made in favour of the plaintiff in the year 1942 itself and the documents Exs.D1 and D2 is evident from the records. The counsel would contend that very vendor of the plaintiff was not having any title in respect of entire land measuring 4 acres, 5 guntas and suppressing the same, obtained the sale deed in a fraudulent manner to the entire extent. The counsel would contend that legal notice was issued in the year 1997 and there was no pleading on what date, the plaintiff was dispossessed and there is no material to that effect and the same is not pleaded and not adduced any evidence. The counsel would vehemently contend that Exs.D1 and D2 evidence the fact that earlier, there was division and the property is an ancestral property which belongs to Chullaiah and Lingaiah and though the plaintiff purchased the property from Lingaiah, the said Lingaiah was not having absolute right over entire extent of 4 acres, 5 guntas. The counsel also vehemently contend that document Exs.D1, D2, D4, D54 to D56 clearly disclose that earlier there was division and suit schedule properties flow in favour of the defendant’s family and not the vendor of the plaintiff and the same was considered by the First Appellate Court in detail. Hence, question of interference by this Court does not arise.

Having considered the arguments of respective counsels, this Court has to consider the substantial questions of law framed on the date of admission of second appeal dated 19.02.2010 and following substantial questions of law was framed by this Court:

Having considered the contentions and the pleadings of both the parties, this Court has to consider the substantial questions of law. In this second appeal, substantial questions of law were framed that whether the first appellate Court was justified in reversing the finding of the Trial Court on the basis of Exs.D2 and D4, which indicated the land having been phoded, but the first appellate Court having proceeded on the basis that it was in 1942 and having arrived at findings in favour of the respondent, whether the first appellate Court was justified in holding that there was a joint family property of Lingaiah and Chullaiah, though there was no pleading or proof in support of any such joint family property or partition and whether the first appellate Court was justified in giving finding in favour of the respondent’s case, though there was no challenge to the title deeds and other documents.

Having considered substantial questions of law, when the plaintiff has filed the suit for the relief of declaration, the law is settled that the plaintiff, while seeking the relief of declaration has to stand on her own legs and not on the weakness of the defendant. First, the plaintiff has to prove that the vendor of the plaintiff i.e., Lingaiah had title over the suit schedule properties to convey the same in favour of the plaintiff. Having perused the plaint, the plaintiff in paragraph No.2, except claiming that she is the absolute owner of the property bearing Sy.No.85 having purchased from one Lingaiah, nothing is pleaded as to how vendor Lingaiah had got entire extent of the property measuring 4 acres, 5 guntas in Sy.No.85 and it is only stated that subsequent to purchase in the year 1944, said land has been phoded. It is important to note that when the land was phoded into 6 bits, nothing is stated, except stating that it was subsequently phoded. But, it is contended that suit schedule properties to the extent of 34, 22 and 32 guntas in Sy.Nos.85/2, 85/6 and 85/4 were mortgaged in favour of Puttaswamaiah and to prove the said fact also, mortgage deed is not produced before the Court.

It is also important to note that in paragraph No.4 of the plaint, it is pleaded that total extent of land bearing Sy.No.85 is 4 acres, 15 guntas and it is also pleaded with regard to sub-numbers given i.e., Sy.Nos.85/1 to 85/6. But, it is specifically contented that Sy.Nos.85/1, 85/3 and 85/5 stands in the name of the plaintiff and not Sy.Nos.85/2, 85/4 and 85/6. But, allegation is made that with the help of revenue entries, the defendant got changed the khatha of the property. It is important to note that the very contention of the plaintiff is that she is a very old, weak and illiterate lady, but defendant took illegal possession of the property i.e., in respect of Sy.Nos.85/2, 85/4 and 85/6. But, in the plaint, nowhere specifically pleaded as to on what date, illegal possession of the property was taken. But, it is contended that the plaintiff requested the defendant to give back possession of the properties of the plaintiff which was occupied illegally and the same was dodged for one or the other reason. Hence, legal notice was issued.

It is also important to note that, it is contended that plaintiff and defendant are strangers and there was no relationship. It has been noted that there was no relationship between the plaintiff and defendant and that the property not belongs to the same family. But, the fact is that Lingaiah is the brother of grand-father of the defendant Chullaiah. The defendant also in the written statement specifically stated in paragraph No.8 that original suit Sy.No.85 belongs to one Chullaiah, who is none other than grand-father of the defendant. In support of his claim, he also relies upon Preliminary Record extract, Tippani Uthar and Phodi Uthar and contend that phodi work was done even prior to purchase of the property by the plaintiff in the year 1944. No doubt, the plaintiff had purchased the property in the year 1944, the Trial Court also carried away on the presumption that she has got title. But, failed to take note of the fact whether the vendor of the plaintiff Lingaiah had exclusive right over the property to the extent of 4 acres, 5 guntas. The First Appellate Court having considered the material available on record, particularly the document of Exs.P17 and P18 which are relied upon by the plaintiff herself before the Trial Court by marking the said documents, comes to the other conclusion.

Having perused the Records of Rights i.e., Form No.5, it is very clear that property stands in both the names i.e., Linga, son of Sidda and Chulla, son of Sidda, who are the brothers. The entry 212 shows the name of Linga, son of Sidda who are the brothers and entry 213 shows the name of Chulla, son of Sidda. Hence, it is clear that both of them are brothers i.e., Linga, son of Sidda and Chulla, son of Sidda and claim of the defendant is also that both of them are brothers and properties were divided even prior to sale of the property as per Ex.P21. It is also important to note that index of land which is marked as Ex.P18 also clearly discloses that Sy.No.85 was phoded and different measurements are shown to the extent of 22 guntas, 34 guntas, 33 guntas, 34 guntas, 38 guntas and 22 guntas i.e., Sy.No.85/1 to 85/6 and these documents also goes against the plaintiff and the same is taken note of by the First Appellate Court. It is also important to note that defendant relied upon the document Ex.D1, wherein the same was sub-divided as Sy.Nos.85/2, 85/4 and 85/6. But, this document was issued in the year 1991 and that does not mean that it was phoded in the year 1991.

The Court has to take note of document Ex.D2 and it is very clear that phodi work was carried out in the year 1942, wherein also, with regard to sub-division of Sy.No.85, the name of Chulla, son of Sidda is mentioned in respect of Sy.Nos.85/2, 85/4, 85/6 i.e., suit scheduled properties. It is very clear that Sy.No.85 was phoded long back in the year 1942. The First Appellate Court also taken note of document of Ex.D54. Ex.D54 is also very clear that in respect of Sy.Nos.85/1 to 85/6, name of vendor of the plaintiff is mentioned in respect of Sy.Nos.85/1, 85/3 and 85/5 and in respect of suit schedule properties i.e., Sy.Nos.85/2, 85/4 and 85/6, the name of grand-father of the defendant was mentioned and the same is in terms of Hissa record. So also, the document at Ex.D55 discloses that sub-number is given in respect of the said properties. So also, the document at Ex.D56 discloses in respect of Sy.Nos.85/1 to 85/6 and Tippani Nakalu discloses that already the extent of kharab is also divided in respect of Sy.Nos.85/3, 85/4 and 85/5. The Tippani also discloses the same and in respect of Sy.Nos.85/2, 85/4 and 85/6, name of Chulla, who is the grand-father of the defendant is mentioned. All these documents were taken note of by the First Appellate Court and these documents were not taken note of by the Trial Court while considering the material on record while decreeing the suit in favour of the plaintiff.

No doubt, learned counsel appearing for the appellants brought to notice of this Court that Trial Court has taken note of each and every document in paragraph No.17 while discussing the title of the plaintiff is concerned. But, no discussion was made in respect of these documents prior to 1944, when already phodi work was done prior to 1944. But, property was sold mentioning Sy.No.85 to the entire extent in favour of the plaintiff by the vendor. It is also important to note that when the pleading was made that he was illegally dispossessed and no such averment was made in the plaint on what date he was dispossessed. But, the Trial Court comes to the conclusion that dispossession was made in the year 1992 without any basis and there was no pleading or evidence to that effect and plaint is silent about the same. But, the Trial Court comes to the conclusion that plaintiff was in possession, subsequent to purchase and nothing is placed on record in respect of the suit schedule properties is concerned that plaintiff was in possession prior to dispossession and the very dispossession has not been proved. On the other hand, all the documents stand in the name of grand-father of the defendant and the First Appellate Court also taken note of the admission on the part of P.W.2 and P.W.3 that possession was with the plaintiff, even prior to 10 years of filing of the suit. But, it is contented that one year prior to filing of the suit, they were dispossessed and it goes back to 1996 not 1992, as the Trial Court made an observation with regard to dispossession without any basis. The plaintiff is not sure about date of dispossession of the property. The First Appellate Court also, particularly while reassessing the evidence, taken note of cross-examination of P.W.2 that he admits that father of the defendant died about 8 to 10 years back and that prior to the defendant, his father possessed the suit properties. As per this admission of P.W.2, it is clear that earlier, the father of the defendant possessed the suit properties and after his death about 8 to 10 years back, the defendant has been in possession and enjoyment over the suit schedule properties and even P.W.3 also admitted the same. But, the evidence of P.W.2 and P.W.3 negates the evidence of P.W.1, P.W.4 and P.W.5, who claim that plaintiff is in possession of the property.

It is also important to note that P.W.2 and P.W.3 have admitted that defendant’s father died about 10 years back and P.W.4 states that he died about 4 years back and these contradictions were also taken note of. But, it is very clear that land bearing Sy.Nos.85/1, 85/3 and 85/5 had fallen to the share of vendor of the plaintiff and suit schedule properties had fallen to the share of father of the defendant and the same was not taken note of by the Trial Court. But, it is very clear that it is the defence of the defendant that suit property belongs to grand-father of the defendant i.e., Chullaiah and though not pleaded that it was a joint family property and there was division between Chullaiah and Lingaiah and the First Appellate Court has also made such an observation. But, documents available before the Court even prior to sale deed of the year 1944 as per Ex.P21, already there was division and property was also phoded and the same was standing in the name of both Linga, son of Sidda and Chulla, son of Sidda.

The First Appellate Court in paragraph No.22 taken note that Exs.P17 and P18 shows that vendor of the plaintiff Lingaiah owned and possessed the land bearing Sy.Nos.85/1, 85/3 and 85/5. Hence, it is very clear that an attempt is made by the plaintiff to knock off the property of the family of the defendant in respect of Sy.Nos.85/2, 85/4 and 85/6 based on the sale deed of the year 1944. The contents of those documents shows that grand-father of defendant i.e., Chulla, son of Sidda was enjoying the suit schedule properties. The documents at Exs.P17 and P18 goes against the plaintiff regarding ownership is concerned and so also with regard to the document at Ex.P21, discussion was made by the First Appellate Court in paragraph No.24. In paragraph No.25 also, clear discussion was made with regard to evidence of D.W.1 to D.W.5, wherein D.W.2 to D.W.5 deposed that possession is with the defendants, who are having their lands nearby the suit schedule properties and particularly, taken note of documents of Exs.D2 and D56-Hissa Tippani Extracts, Ex.D54-Pucca Book Extract and Ex.D4-Preliminary Record which shows that father of the defendant i.e., Chulla, son of Sidda had owned and possessed the suit schedule properties. The First Appellate Court also reassessed other documents i.e., Exs.D6 to D21-Tax Paid Receipts and Exs.D27 to D53-RTC Extracts and the First Appellate Court also made an observation that name of Chulla earlier and later that of his son Jogisiddaiah and that later, the name of the defendant and mere entries in RTC do not confirm right and title of the parties, but failed to take note of particularly, the documents of Exs.D2, D4, D54, Exs.P17 and P18 coupled with Exs.D27 to D53 which fortifies the case of the defendant.

It is also important to note that when the plaintiff claims title to the extent of 4 acres, 5 guntas based on the sale deed, the Trial Court failed to take note of the fact as to how Lingaiah, vendor of the plaintiff got entire extent of the property and ought to have taken note of title of Lingaiah and if he does not have any title to the extent of 4 acres, 5 guntas, he cannot convey better title in favour of the plaintiff and there must be title to vendor of the plaintiff and no such document is placed before the Court. Hence, the First Appellate Court taken note that case of the defendant is more probable than the case of the plaintiff.

When all such materials were taken note, the Trial Court committed an error mainly relying upon the document of plaintiff i.e., Ex.P21 and failed to consider the documents at exhibit ‘D’ series which clearly reflects that properties are inherited by family of the defendant in respect of suit schedule property and already phodi work was done in terms of Exs.D2 to D4 as well as Exs.D54 to D56 which indicates that land has been phoded prior to 1942. But, substantial questions of law was framed that First Appellate Court has proceeded on the basis that phodi was in 1942. When all these documents substantiate that there was division in the year 1942 itself and even though, the plaintiff specifically pleaded that it was subsequently phoded, no such order regarding phodi or other documents placed before the Court that Sy.No.85 was subsequently phoded. No doubt, no specific pleading was made by the defendant that it was a joint family property of Lingaiah and Siddaiah, but both oral and documentary evidence placed on record before the Court is very clear that property belongs to the family of Chullaiah and Lingaiah and it was divided among brothers and phodi work was done and particularly, Sy.Nos.85/1, 85/3 and 85/5 are in the name of Lingaiah, the vendor of the plaintiff and in the name of Chullaiah, son of Siddaiah in respect of suit schedule properties are concerned and sale deed executed by vendor of the plaintiff without any title to the entire extent does not convey any title. When the suit is filed for the relief of declaration, the plaintiff ought to have proved the fact that entire land belongs to Lingaiah and there is no title deed produced before the Court in respect of title of vendor of the plaintiff and unless, the title of vendor of the plaintiff is proved, question of declaring title in respect of the suit schedule properties in favour of plaintiff cannot be confirmed. Hence, the very material assessed by the First Appellate Court is probable and there is preponderance of probabilities in favour of the defendant and not in favour of the plaintiff. Hence, I answer substantial questions of law (a) to (c) accordingly.

In view of the discussion made above, I pass the following:

The regular second appeal is dismissed.