Karnataka High Court
Eregowda Since Dead Represented ... vs Smt. Chennajamma on 10 February, 2022
Bench: N S Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
R.S.A NO.947 OF 2013 (DEC/INJ)
C/W
R.S.A NO.946 OF 2013 (DEC/INJ)
IN R.S.A NO.947 OF 2013:
BETWEEN:
1. SMT. PARVATHAMMA
W/O SRI EREGOWDA
AGED ABOUT 43 YEARS
2. SMT. MANJULA
D/O SRI EREGOWDA
W/O SRI JAVAREGOWDA
AGED ABOUT 27 YEARS
3. SMT. ANITHA
D/O SRI EREGOWDA
W/O SRI MANJU
AGED ABOUT 21 YEARS
4. SMT. SHANTHA
D/O SRI EREGOWDA
AGED ABOUT 19 YEARS
ALL ARE R/O BANDIPALYA VILLAGE
KASABA HOBLI
MYSORE TALUK-570 025
... APPELLANTS
(BY SRI.P.CHANDRASHEKAR, ADVOCATE)
AND:
1. SMT.CHENNAJAMMA
W/O LATE EREGOWDA
AGED ABOUT 72 YEARS
RESIDENT OF BANDIPALYA VILLAGE
2
KASABA HOBLI
MYSORE TALUK AND DISTRICT-570 025
... RESPONDENT
(BY SRI.S.A.MARUTHI PRASAD, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST
THE JUDGEMENT & DECREE DTD 7.9.2012 PASSED IN
R.A.NO.688/2011 ON THE FILE OF PRESIDING OFFICER, FAST
TRACK COURT-IV, MYSORE, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGEMENT AND DECREE DTD 1.10.2011
PASSED IN OS.NO.205/1999 ON THE FILE OF C/c II CIVIL JUDGE
AND JMFC, MYSORE.
IN R.S.A NO.946 OF 2013:
BETWEEN:
EREGOWDA SINCE DEAD REPRESENTED BY HIS LRS
1. SMT. MANJULA
D/O SRI EREGOWDA
W/O SRI JAVAREGOWDA
AGED ABOUT 27 YEARS
2. SMT. ANITHA
D/O SRI EREGOWDA
AGED ABOUT 21 YEARS
W/O SRI MANJU
3. SMT. SHANTHA
D/O SRI EREGOWDA
AGED ABOUT 19 YEARS
4. SMT. PARVATHAMMA
W/O SRI EREGOWDA
AGED ABOUT 43 YEARS
ALL ARE RESIDING AT BANDIPALYA VILLAGE
VARUNA HOBLI, MYSORE TALUK
MYSORE
... APPELLANTS
(BY SRI.P.CHANDRASHEKAR, ADVOCATE)
AND:
1. SMT. CHENNAJAMMA
W/O LATE EREGOWDA
3
AGED ABOUT 70 YEARS
RESIDENT OF BANDIPALYA VILLAGE
KASABA HOBLI
MYSORE TALUK
2. SMT. VASANTHAMMA
W/O LATE SRI EREGOWDA
AGED ABOUT 56 YEARS
3. MANI
S/O LATE SRI EREGOWDA
AGED ABOUT 25 YEARS
4. MANU
S/O LATE SRI EREGOWDA
AGED ABOUT 23 YEARS
RESPONDENT NOS.2, 3 AND 4 ARE
RESIDING AT BANDIPALYA VILLAGE
VARUNA HOBLI
MYSORE TALUK
MYSORE
5. SMT. SARASWATHI
W/O LATE SRI NAGESH
AGED ABOUT 32 YEARS
6. SRI. YESHWANTH
S/O LATE SRI NAGESH
AGED ABOUT 10 YEARS
RESPONDENT NOS.5 AND 6 ARE
RESIDENTS OF YENNEHOLEKOPPAL KASABA
PANDAVAPURA TALUK
MANDYA DISTRICT
... RESPONDENTS
(BY SRI.S.A.MARUTHI PRASAD, ADVOCATE )
THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST
THE JUDGEMENT & DECREE DTD 7.9.2012 PASSED IN
R.A.NO.686/2011 ON THE FILE OF PRESIDING OFFICER, FAST
TRACK COURT-IV, MYSORE, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGEMENT AND DECREE DTD 1.10.2011
PASSED IN OS.NO.130/2003 ON THE FILE OF C/c II CIVIL JUDGE
AND JMFC, MYSORE.
4
THESE APPEALS COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. RSA No.946/2013 arises out of O.S No.130/2003.
The said suit was instituted for declaration that the plaintiff
had perfected her title by way of adverse possession and for
consequential relief of injunction. The said suit was decreed
in-part and the prayer for declaration was refused, but the
prayer for injunction was granted. This decree was confirmed
in appeal.
2. RSA No.947/2013 arises out of O.S.No.205/1999
by which the plaintiff therein i.e., Parvathamma and her
children sought for declaration that they were the absolute
owners in possession of the suit property and for a
consequential decree of injunction. The said suit was
dismissed, against which, the appeal was preferred and the
appeal has also been dismissed.
3. The parties are referred to by their names for the
sake of convenience.
4. In both the suits, the suit property in Survey
No.14/1 (New No.14/1 A-3), measuring 10 guntas and the
parties to both the suits are one and the same.
5. Smt.Parvathamma and her children filed the suit
in O.S No.205/1999 seeking for a declaration. Their claim
was for declaration and the said suit was filed against her
husband Eregowda and Chennajamma, who happened to be
her father-in-law and brother's wife. The basis of her claim
for ownership is that her husband Eregowda had executed a
relinquishment deed dated 10.05.1993, in lieu of pre-existing
right of hers for maintenance and ever since then she was in
possession as owner thereof. She contended that her
husband was trying to sell the property to the second
defendant and was attempting to dispossess the plaintiffs.
Hence, she was constrained to file the suit.
6. This suit was not contested by her husband-first
defendant. However, Chennajamma, the second defendant
contested the suit. She put-forth the contention that
Parvathamma and her husband had executed an agreement
of sale dated 13.07.1981 agreeing to convey the suit property
and had received the entire sale consideration of `5,000/-.
She also stated that she was put in possession and the sale
deed could not be executed in view of the Karnataka
Prevention of Fragmentation and Consolidation of Holdings
Act, 1966 being in operation. She stated that after the said
Act was repealed, Smt.Parvathamma and her husband did not
come-forward to execute the sale deed. She denied the
assertion that the plaintiffs had acquired title by virtue of
relinquishment deed executed by Eregowda. She also stated
that she had filed O.S No.186/1999 for specific performance
of the agreement of sale and the said suit was pending
adjudication.
7. During pendency of this suit filed by
Smt.Parvathamma, the suit filed by Chennajamma for specific
performance was dismissed on 31.05.2003 on the ground
that the suit was barred by limitation.
8. Immediately, thereafter Chennajamma filed a suit
for declaration that she had perfected her title by way of
adverse possession and for consequential decree of
Injunction. In the said suit which had been instituted against
Eregowda, no written statement was filed by him. However,
after his death, Smt.Parvathamma came on record and
contended that the plaintiff - Chennajamma was never in
possession and the suit filed by her in O.S.186/1999 had
been dismissed and therefore, the suit was barred by the
principles of res judicata. She stated that on the death of
Eregowda, by virtue of being Class-I heirs, she and her
children had become the owners of the property and
therefore, plaintiff - Chennajamma was not entitled for any
relief.
9. The Trial Court after appreciating the evidence
adduced by Smt.Parvathamma in O.S No.205/1999 came to
the conclusion that the basis of Parvathamma's claim being
the unregistered relinquishment deed dated 10.05.1993, she
could not obviously claim title under the said deed. The Trial
Court also came to the conclusion that she was not in
possession and enjoyment of the suit property. The Trial
Court held that it was Chennajamma who was in possession
of the suit property on the basis of agreement of sale dated
13.07.1981, as it had been admitted by Eregowda that he
had in fact executed agreement of sale. The Trial Court also
noticed that as on 13.07.1981 admittedly, Smt.Parvathamma
possessed no right over the suit property and therefore, the
admission of her husband in the suit established that
Chennajamma was in possession.
10. In O.S No.130/2003, the Trial Court on
consideration of evidence came to the conclusion that
Chennajamma had failed to prove that she had perfected her
title by way of adverse possession. The Trial Court, however,
came to the conclusion that her possession was established
and she was only be entitled for decree of injunction and the
prayer of declaration was refused.
11. It is not in dispute that, Chennajamma had
accepted the dismissal of her suit seeking for relief of
declaration, inasmuch, as she did not prefer any appeal as
against the said judgment.
12. Being aggrieved by the dismissal of the prayer of
declaration and injunction in O.S No.205/1999 and also being
aggrieved by the grant of injunction in favour of
Chennajamma in O.S No.130/2003, Smt.Parvathamma and
her children preferred an appeal both as plaintiffs and also as
legal heirs of Eregowda.
13. The Appellate Court on re-appreciation of the
evidence found that the findings recorded by the Trial Court
was based on proper appreciation of evidence and there was
no need to interfere with the judgment rendered by it. The
Appellate Court accordingly dismissed both the appeals.
14. It is as against dismissal of both the appeals,
Smt.Parvathamma and her children have preferred this
second appeal.
15. Learned counsel for the appellants principally
contended that the suit for declaration and injunction filed by
Chennajamma was not maintainable having regard to the
dismissal of her suit for specific performance in
O.S.No.186/1999. He contended that in a suit which was not
maintainable, the grant of decree of injunction, could not be
sustained.
16. In my view, in RSA No.946/2013, the following
substantial question of law arises for consideration:
"Whether the Appellate Court could
have refused the prayer of declaration, even
though claim for title on the basis of
relinquishment deed was not maintainable,
when it was not disputed that both
Parvathamma and Chennajamma admitted
that the suit property belonged to Eregowda
and on the death of Eregowda, by intestate
succession, the plaintiffs had become the
owners of the suit property?"
17. It is not in dispute that Chennajamma had filed a
suit contending that the agreement of sale had been executed
in her favour by Eregowda and Smt.Parvathamma and she
was entitled to a deed of conveyance from them. Thus,
Chennajamma admitted that Eregowda was the owner of the
suit property.
18. Admittedly, Smt.Parvathamma also contended
that the suit property belonged to Eregowda and it is her
claim that he had relinquished title in her favour under the
relinquishment deed dated 10.05.1983. Thus, the fact that
Eregowda was the owner of the suit property cannot be in
dispute at all.
19. By the dismissal of O.S.No.186/1999, the fact
that the title remained with Eregowda cannot also be in
dispute. It is to be stated here that Smt.Parvathamma
claimed title under an unregistered relinquishment title deed.
Obviously, by means of an unregistered deed, an immovable
property cannot be conveyed. Therefore, even as on 1983,
Eregowda was the owner and continued to be the owner of
the property till his death.
20. On the death of Eregowda by operation of law, his
wife and children succeeded to the property. In the light of
the undisputed fact that Eregowda possessed title over the
property till his death, on his death, the plaintiffs being his
Class-I heirs would definitely succeed to the property.
Therefore, the Appellate Court was not justified in refusing
the plea of declaration.
21. No doubt, before the Appellate Court the claim
was made on the basis of an unregistered relinquishment
deed. However, the fact that when Eregowda died the
plaintiffs had succeeded to his title cannot be in dispute. In
fact, a plea in this regard was made by Smt.Parvathamma
and her children in their written statement in O.S
No.130/2003.
22. In view of these undisputable facts, it will have to
be held that the plaintiffs (Parvathamma and her children) in
O.S No.205/1999 would have to be declared as the owners of
the suit property. To that extent, the judgment of the
Appellate Court would stand modified and the question of law
is accordingly answered in favour of the appellants in RSA
No.947/2013.
23. As far as the refusal to grant injunction in O.S
No.205/1999 and grant of injunction in favour of
Chennajamma in O.S No.130/2003 is concerned, both the
Courts have noticed that Eregowda, when he was the
undisputed owner of the suit property, admitted the
execution of agreement of sale. The Courts have taken into
consideration that in the said agreement of sale , there was a
clear recital of possession being delivered to Chennajamma
and having regard to the fact that the owner of the property
himself had admitted that he had handed over possession to
Chennajamma, the prayer for injunction could not be refused
in her suit.
24. In my view, this finding of fact recorded by both
the Courts is unexceptionable and deserves to be accepted.
In view of the above, I find no substantial question of law
arising for consideration in RSA No.946/2013 and the same is
dismissed.
25. As already held above, the judgment passed in
RSA No.947/2013 deserves to be modified to the extent of
declaring that the appellants therein i.e., Parvathamma and
her children are the owners. However, the decree for
injunction which has been confirmed by the Appellate Court in
RSA No.947/2013 is upheld.
26. Both the appeals are accordingly disposed of.
27. Liberty is reserved to Smt.Parvathamma and her
children to initiate proceedings for recovery of possession in
accordance with law.
Pending I.A's in both the appeal stand disposed of.
Sd/-
JUDGE
SKS
