Vasudev vs Tukaram Bhimappa Naik

A.V. Chandrashekara, J.—Respondents herein were defendants in an original suit bearing O.S. No. 196 of 1990, which was pending on the file of Additional Civil Judge (Junior Division), Raibag. Appellants were plaintiffs in the said suit. Parties will be referred to as plaintiffs and defendants as per their ranking before the Trial Court. Plaintiffs 1 and 2 were minors at the time of filing suit. One Yellappa is the father of plaintiffs 1 and 2 and husband of plaintiff 3. Suit schedule properties measuring 1.14 acres in Sy. Nos. 19/1A/1B/3 and 5 guntas in Sy. Nos. 19/1A/1B/4 of Khanagal Village, Raibag were the ancestral property of plaintiffs and Yellappa. The said Yellappa sold these properties in favour of three members belonging to the family of Jodatti through a registered sale deed in the year 1983 for a consideration of Rs. 15,000/-. Later on, the purchasers i.e., the members of the Jodatti family sold the same in favour of defendants 3 and 4 through a registered sale deed in the year December 1984.

According to plaintiffs, Yellappa had no legal necessity to alienate the property and there was no pressure on the estate of joint family to alienate the property in favour of members of the Jodatti family. According to the plaintiffs, they are in lawful possession of these properties and at no point of time, possession was handed over to Jodatti family, who are alleged to have sold the same to defendants 3 and 4, who claim title strongly on the basis of the deed stated to have been executed by Jodatti family in their favour. Hence, they had sought for the relief of permanent injunction.

Defendants had filed detailed written statement denying all the material evidence. According to them, the properties in question were sold during the minority of plaintiffs 1 and 2 for the benefit of the joint family. Therefore alienation made binds them. It is further pleaded that alienation made by the Jodatti family in favour of defendants 3 and 4 is also valid and hence, they are in lawful possession. According to the defendants, suit is bad for non-joinder of necessary parties in the light of not making the members of the Jodatti family as parties to suit. It is further pleaded that suit is not maintainable without seeking relief of declaration to the effect that alienation so made in favour of the members of the Jodatti family and subsequent alienation do not bind the plaintiffs.

On the basis of the above pleadings following issues had been framed:

(a) Whether plaintiffs proves that they are in actual possession and enjoyment of suit property in jointly since long up till now?

(b) Whether he further proves that defendants are obstructing and disturbing the actual peaceful and exclusive and lawful possession enjoyment and which of the suit property by the plaintiffs?

(c) What relief and decree?

On behalf of the plaintiffs, plaintiff 3 is examined as P.W. 1 and in all 3 exhibits have been marked. On behalf of the defendants, Sudkaram Bhimappa Naik has been examined as D.Ws. 1 and 6 exhibits have been marked.

After hearing the learned Counsel for the parties, the learned Judge of the Trial Court chose to dismiss the suit, as against, a regular appeal was filed u/s 96 of Civil Procedure Code, 1908 in R.A. No. 26 of 1999. Several grounds had been urged in the appeal filed u/s 96 of CPC. On hearing the arguments, the regular appeal is allowed in its entirety and the suit has been dismissed and relief of injunction is set aside. It is this divergent finding which is called in question on various grounds as set out in the appeal memo.

My learned predecessor has framed following substantial question of law for consideration:

Whether the finding of the First Appellate Court reversing the judgment and decree passed by the Trial Court is contrary to the materials on record and is perverse and arbitrary?

The learned Counsel for the parties have submitted the arguments at length.

Reasons:

Evidence includes documentary evidence. Suit schedule properties are the ancestral properties of Yellappa. Entries in revenue records relating to agricultural lands have significance and they have to be considered in the light of the testimony of the witnesses examined on behalf of the parties. The fact that the properties in question belonged to Yellappa, the father of plaintiffs 1 and 2 and husband of plaintiff 3 is not in dispute. Hence, they are the ancestral properties at the hands of plaintiffs 1 and 2 also. It is true that alienation was made by Yellappa during the minority of plaintiffs 1 and 2. If any alienation is made during the minority of a coparcener, he can challenge the same either during his minority represented by a guardian or after attaining majority. Only caveat is that such alienation will not bind the coparceners provided such alienation is made is for legal necessity. Burden is always on the alienee to prove that alienation so made by Kartha of the joint family was for legal necessity of the joint family or that there was pressure on the estate of the joint family. As argued by the learned Counsel for the respondents, no suit is filed challenging the said alienation by the plaintiffs till this day.

We do not know whether the properties both movable and immovable have been divided between plaintiffs 1 and 2 and their father. But we will have to see whether records really disclose that possession was handed over to the purchaser i.e., members of the Jodatti family in whose favour alienation was made by Yellappa. Defendants, who claim to be in possession of the property rely upon Ex. P. 3 the sale deed dated 29-9-1983 executed by Yellappa in favour of three persons of Jodatti family. This discloses that possession was handed over to the defendants on the said date. Subsequently, sale deed was executed by the members of the Jodatti family in favour of defendants 3 and 4 in the year 1984 through a registered sale deed. Ex. D. 2 the certified copy of the sale deed executed by the members of the Jodatti family in favour of defendants 3 and 4. There is a reference about handing over the possession on the very same date. If the purchasers i.e., defendants 3 and 4 were really in possession of the suit schedule property, their names would have found place both in Columns 9 and 12 of RTC. Exs. P. 1 and P. 2 are RTC of schedule lands. The name of Yellappa is found in Column 9 of RTC. Column 12(2) of RTC is earmarked for indicating the name of the person in possession. It is mentioned as Kuddhu (own). No explanation is forthcoming as to why the names of earlier purchasers or defendants 3 and 4 are not forthcoming either in Column 9 or 12 of RTC. In a suit for injunction, revenue entries play a major role more particularly in the light of presumption available u/s 133 of the Karnataka Land Revenue Act, 1964.

It is argued by the learned Counsel for the respondents that it was the duty of the Revenue Authorities u/s 128 of Karnataka Land Revenue Act to incorporate the names of the purchasers, more particularly, when the alienation is made by means of registered conveyance deed. It is true that it is the duty of the Revenue Authorities to incorporate the names of the purchasers, if their names are found as purchasers in the registered sale deed. But no explanation is forthcoming as to why their names are not found in Column 12(2) of RTC, which is specifically earmarked for entering the names of persons who are in possession irrespective of the fact whether he is the kathedar or not.

D.W. 1 has specifically admitted that Yellappa was the manager of the suit property and he was managing the suit schedule property and that he sold the same in favour of members of the Jodatti family. His evidence would also disclose that family of Yellappa was quite well of. If the family was quite well of, there was no necessity for the alienation of the suit schedule property. We cannot forget that alienation was made during the minority of plaintiffs 1 and 2 and nothing is placed on record that Jodatti family was put into possession of suit property, the moment sale deed was executed by Yellappa. The remedy available for the purchasers of property belonging to the joint family is to file a suit for partition and work out their remedies. Having not done so, the purchasers being strangers to plaintiffs 1 and 2 and their father Yellappa, cannot contend to be in possession. Mere payment of Land Revenue would be insufficient to prove the possession of the property. Tax paid receipts have been got marked as Exs. D. 3 to D. 6 bearing dates 17-3-1989, 25-5-1990, 17-3-1989 and 25-5-1990 respectively. Suit was filed in the year 1990 and therefore much credence cannot be attached to Exs. D. 4 and D. 6, dated 25-5-1990 as suit was filed on 11-6-1990.

Though in a suit for injunction, we cannot decide the existence of the family necessity to alienate the joint family properties, this Court can definitely look into the materials produced before the Trial Court as to whether they are sufficient to come to the conclusion that purchasers were put into possession by Yellappa and therefore, subsequent purchasers continued to be in possession after having purchased the same from Jodatti family. In this regard, it can be said that oral and documentary evidence placed on behalf of the defendants is too feeble more particularly, in the light of entries found in the revenue records.

In this view of the matter, the First Appellate Court has not reassessed the matter in right perspective and has given much credence to the contents of the sale deed than other surrounding circumstances such as useful admissions culled out from the mouth of D.W. 1 and entries in the revenue records. In this regard, the judgment of the First Appellate Court is improper and incorrect. The judgment of the First Appellate Court is contrary to the material evidence placed on record.

The First Appellate Court has two-fold duty while dealing with an appeal filed u/s 96 of CPC more particularly while upturning a well-considered judgment. It has to assign cogent reasons as to what is the proper finding. This can be done only after proper re-appreciation of the entire evidence on record. While upturning the judgment of the Trial Court, it has to clearly indicate as to where the Trial Court has gone wrong.

As per the principles reiterated by the Hon''ble Supreme Court in Santosh Hazari Vs. Purushottam Tiwai (Dead) by Lrs., , the First Appellate Court must come to close quarters and assign its own reasons, if it wants to upturn a well-considered judgment of the Trial Court. Apart from this, it has to assign cogent reasons as to how the Trial Court has gone wrong. If that exercise is not done properly, the First Appellate Court cannot upturn the factual findings given by the Trial Court.

In this view of the matter, the First Appellate Court has not done this exercise properly and is more persuaded by the contents of registered sale deed being executed by Yellappa in favour of members of the Jodatti family and inturn Jodatti family executing sale deed in favour of defendants 3 and 4. Viewed from any angle, the judgment of the First Appellate Court is opposed to law, facts and probabilities and reasons assigned do not have any logic or rationale more particularly while upturning the judgment of the Trial Court. Hence, the substantial question of law is answered in the affirmative. Consequently, appeal is to be allowed:

ORDER

The appeal filed u/s 100 of CPC is allowed. The judgment and decree of the First Appellate Court is set aside.

The judgment of the Trial Court passed in O.S. No. 196 of 1990 is restored.

Notwithstanding the allowing of this appeal, nothing comes in the way of defendants 3 and 4, who are purchasers to work out their remedy insofar as share of Yellappa is concerned.

There is no order as to costs.