Karnataka High Court
Smt Krishnamma vs Smt Puttamma on 20 December, 2023
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MRS. JUSTICE M G UMA
REGULAR FIRST APPEAL NO. 378 OF 2007 (RES)
C/W
REGULAR FIRST APPEAL NO. 1272 OF 2007 (DEC/INJ)
REGULAR FIRST APPEAL NO. 1273 OF 2007 (DEC/INJ)
IN R.F.A.NO. 378/2007
BETWEEN:
1. SMT. KRISHNAMMA,
W/O K. MUNIYAPPA,
D/O LATE. MUNIVENKATAPPA
AGED ABOUT 56 YEARS,
R/AT HEBBAL,
ANANDAGIRI EXTENSION.
R.T. NAGAR POST,
BANGALORE - 24
2. SMT. SAKAMMA, W/O ERAPPA,
D/O LATE. MUNIVENKATAPPA,
AGED ABOUT 49 YEARS,
RESIDING AT SYNDICATE BANK COLONY,
BSK 3RD STAGE,
BANGALORE - 85.
3. SMT. GOVINDAMMA,
W/O LATE. MUNIYAPPA
D/O LATE. MUNIVENKATAPPA,
SINCE DECEASED BY
HER LRS 3(A) TO 3(B)
3(A) SMT. VIMALA, D/O LATE. GOVINDAMMA,
W/O N. KRISHNAPPA,
AGED ABOUT 50 YEARS,
RESIDING AT NO.38/4,
CHUNCHUGATTA A.K. COLONY,
2
NEAR YELLAMMA TEMPLE,
CHUNCHUGATTA, KONANKUNTE POST,
BANGALORE - 62.
3(B) SMT. R. CHANDRA, W/O K.Y. KRISHNA,
D/O LATE. GOVINDAMMA,
AGED ABOUT 40 YEARS,
RESIDING AT NO.52,
7TH CROSS, HARSHA LAYOUT,
KENGERI, BANGALORE - 60.
... APPELLANTS
(BY SRI: R ABDUL REYAZ KHAN, ADVOCATE)
AND:
1. SMT. PUTTAMMA,
W/O LATE. CHIKKAMUNIYAPPA,
AGED ABOUT 68 YEARS,
SINCE DECEASED BY HER
LRS R1(A) TO (G)
R1(A) SRI. C. KRISHNAPPA,
S/O LATE. CHIKKAMUNIYAPPA,
AGED ABOUT 58 YEARS
R1(B) SMT. YESHODHAMMA,
D/O LATE. CHIKKAMUNIYAPPA,
AGED ABOUT 70 YEARS,
R1(C) SRI. SUBRAMANI,
S/O LATE. CHIKKAMUNIYAPPA,
AGED ABOUT 60 YEARS,
SINCE DECEASED BY HIS
LRS R1(C)(I) TO R1(C)(III)
R1(C)(I) SMT. VASANTHA,
W/O LATE. SUBRAMANI,
AGED ABOUT 50 YEARS,
R1(C)(II) SRI. GAGAN,
S/O LATE. SUBRAMANI,
AGED ABOUT 26 YEARS
3
R1(C)(III) KUM. POOJA,
S/O LATE. SUBRAMANI,
AGED ABOUT 23 YEARS
R1(D) SMT. VIJAYA,
D/O LATE. CHIKKAMUNIYAPPA,
AGED ABOUT 58 YEARS,
R1(E) SRI. C. SRINIVASA,
S/O LATE. CHIKKAMUNIYAPPA,
AGED ABOUT 38 YEARS,
R1(F) SRI. C. RAMESH,
S/O LATE. CHIKKAMUNIYAPPA,
AGED ABOUT 35 YEARS,
R1(G) SMT. KANTHA,
D/O LATE. CHIKKAMUNIYAPPA,
AGED ABOUT 50 YEARS,
ALL ARE RESIDING AT NO.784,
NEAR MARIYAMMA TEMPLE,
H.A. FARM POST, HEBBAL,
BANGALROE - 24.
R(2) SRI. C. KRISHNAPPA,
S/O LATE. CHIKKAMUNIYAPPA,
AGED ABOUT 60 YEARS,
RESIDING AT NO.784,
NEAR MARIYAMMA TEMPLE,
H.A.FARM POST,
HEBBAL, BANGALORE.
... RESPONDENTS
(BY SRI: YESHU MISHRA, ADVOCATE FOR R-1(A), R-1(B) AND R2
R-1(C) I, (C) II, (C) III, R-1(D), R-1(E) R-1 (F) AND R-1(G)
- SD AND UNREPRESENTED)
THIS R.F.A. IS FILED UNDER SECTION 96 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 04.12.2006 PASSED IN
OS.NO.2123/1997 ON THE FILE OF THE XXIV ADDL. CITY CIVIL
JUDGE, BANGALORE CITY (CCH.NO.6) DISMISSING THE SUIT FOR
PERMANENT INJUNCTION.
4
IN R.F.A.NO. 1272/2007
BETWEEN:
1. SMT. KRISHNAMMA,
W/O K. MUNIYAPPA,
D/O LATE. MUNIVENKATAPPA
AGED ABOUT 56 YEARS,
R/AT HEBBAL,
ANANDAGIRI EXTENSION.
R.T. NAGAR POST,
BANGALORE - 24
2. SMT. SAKAMMA,
W/O ERAPPA,
D/O LATE. MUNIVENKATAPPA,
AGED ABOUT 49 YEARS,
RESIDING AT SYNDICATE BANK COLONY,
BSK 3RD STAGE,
BANGALORE - 85.
3. SMT. GOVINDAMMA,
W/O LATE. MUNIYAPPA
D/O LATE. MUNIVENKATAPPA,
SINCE DECEASED BY
HER LRS 3(A) TO 3(B)
3(A) SMT. VIMALA, D/O LATE. GOVINDAMMA,
W/O N. KRISHNAPPA,
AGED ABOUT 50 YEARS,
RESIDING AT NO.38/4,
CHUNCHUGATTA A.K. COLONY,
NEAR YELLAMMA TEMPLE,
CHUNCHUGATTA, KONANKUNTE POST,
BANGALORE - 62.
3(B) SMT. R. CHANDRA,
W/O K.Y. KRISHNA,
D/O LATE. GOVINDAMMA,
AGED ABOUT 40 YEARS,
RESIDING AT NO.52,
7TH CROSS, HARSHA LAYOUT,
KENGERI, BANGALORE - 60.
... APPELLANTS
(BY SRI: R ABDUL REYAZ KHAN, ADVOCATE)
5
AND:
1. SMT. PUTTAMMA,
W/O LATE. CHIKKAMUNIYAPPA,
AGED ABOUT 68 YEARS,
SINCE DECEASED BY HER
LRS R1(A) TO (G)
R1(A) SRI. C. KRISHNAPPA,
S/O LATE. CHIKKAMUNIYAPPA,
AGED ABOUT 58 YEARS
R1(B) SMT. YESHODHAMMA,
D/O LATE. CHIKKAMUNIYAPPA,
AGED ABOUT 70 YEARS,
R1(C) SRI. SUBRAMANI,
S/O LATE. CHIKKAMUNIYAPPA,
AGED ABOUT 60 YEARS,
SINCE DECEASED BY HIS
LRS R1(C)(I) TO R1(C)(III)
R1(C)(I) SMT. VASANTHA,
W/O LATE. SUBRAMANI,
AGED ABOUT 50 YEARS,
R1(C)(II) SRI. GAGAN,
S/O LATE. SUBRAMANI,
AGED ABOUT 26 YEARS
R1(C)(III) KUM. POOJA,
S/O LATE. SUBRAMANI,
AGED ABOUT 23 YEARS
R1(D) SMT. VIJAYA,
D/O LATE. CHIKKAMUNIYAPPA,
AGED ABOUT 58 YEARS,
R1(E) SRI. C. SRINIVASA,
S/O LATE. CHIKKAMUNIYAPPA,
AGED ABOUT 38 YEARS,
R1(F) SRI. C. RAMESH,
S/O LATE. CHIKKAMUNIYAPPA,
AGED ABOUT 35 YEARS,
R1(G) SMT. KANTHA,
D/O LATE. CHIKKAMUNIYAPPA,
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AGED ABOUT 50 YEARS,
ALL ARE RESIDING AT NO.784,
NEAR MARIYAMMA TEMPLE,
H.A. FARM POST, HEBBAL,
BANGALROE - 24.
... RESPONDENTS
(BY SRI: YESHU MISHRA, ADVOCATE FOR R-1(A), R-1(B) AND R2
R-1(C) I, (C) II, (C) III, R-1(D), R-1(E) SD)
THIS R.F.A. IS FILED UNDER SECTION 96 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 04.12.2006 PASSED IN
OS.NO.7851/1996 ON THE FILE OF THE XXIV ADDL. CITY CIVIL
JUDGE, BANGALORE CITY, CCH.NO.6, DISMISSING THE SUIT FOR
DECLARATION AND PERMANENT INJUNCTION.
IN R.F.A.NO. 1273/2007
BETWEEN:
1. SMT. KRISHNAMMA, W/O K. MUNIYAPPA,
D/O LATE. MUNIVENKATAPPA
AGED ABOUT 56 YEARS,
R/AT HEBBAL, ANANDAGIRI EXTENSION.
R.T. NAGAR POST, BANGALORE - 24
2. SMT. GOVINDAMMA,
W/O LATE. MUNIYAPPA
D/O LATE. MUNIVENKATAPPA,
SINCE DECEASED BY
HER LRS 2(A) TO 2(B)
2(A) SMT. VIMALA, D/O LATE. GOVINDAMMA,
W/O N. KRISHNAPPA,
AGED ABOUT 50 YEARS,
RESIDING AT NO.38/4,
CHUNCHUGATTA A.K. COLONY,
NEAR YELLAMMA TEMPLE,
CHUNCHUGATTA,
KONANKUNTE POST,
BANGALORE - 62.
2(B) SMT. R. CHANDRA,
W/O K.Y. KRISHNA,
D/O LATE. GOVINDAMMA,
7
AGED ABOUT 40 YEARS,
RESIDING AT NO.52,
7TH CROSS, HARSHA LAYOUT,
KENGERI, BANGALORE - 60.
2. SMT. SAKAMMA,
W/O ERAPPA,
D/O LATE. MUNIVENKATAPPA,
AGED ABOUT 49 YEARS,
RESIDING AT SYNDICATE BANK COLONY,
BSK 3RD STAGE,
BANGALORE - 85.
... APPELLANTS
(BY SRI: R ABDUL REYAZ KHAN, ADVOCATE)
AND:
1. SMT. PUTTAMMA,
W/O LATE. CHIKKAMUNIYAPPA,
AGED ABOUT 68 YEARS,
SINCE DECEASED BY HER
LRS R1(A) TO (D)
R1(A) SMT. YESHODHAMMA,
D/O LATE. CHIKKAMUNIYAPPA,
AGED ABOUT 70 YEARS,
R1(A) SRI. C. KRISHNAPPA,
S/O LATE. CHIKKAMUNIYAPPA,
AGED ABOUT 58 YEARS
R1(B) SRI. SUBRAMANI,
S/O LATE. CHIKKAMUNIYAPPA,
AGED ABOUT 60 YEARS,
SINCE DECEASED BY HIS
LRS R1(B)(I) TO R1(B)(III)
R1(B)(I) SMT. VASANTHA,
W/O LATE. SUBRAMANI,
AGED ABOUT 50 YEARS,
R1(B)(II) SRI. GAGAN,
S/O LATE. SUBRAMANI,
AGED ABOUT 26 YEARS
8
R1(B)(III) KUM. POOJA,
S/O LATE. SUBRAMANI,
AGED ABOUT 23 YEARS
R1(C) SMT. VIJAYA,
D/O LATE. CHIKKAMUNIYAPPA,
AGED ABOUT 58 YEARS,
R1(D) SMT. KANTHA,
D/O LATE. CHIKKAMUNIYAPPA,
AGED ABOUT 50 YEARS,
ALL ARE RESIDING AT NO.784,
NEAR MARIYAMMA TEMPLE,
H.A. FARM POST, HEBBAL,
BANGALROE - 24.
2 SRI. C. KRISHNAPPA,
S/O LATE. CHIKKAMUNIYAPPA,
AGED ABOUT 58 YEARS,
3 SRI. C. SRINIVASA,
S/O LATE. CHIKKAMUNIYAPPA,
AGED ABOUT 38 YEARS,
4 SRI. C. RAMESH,
S/O LATE. CHIKKAMUNIYAPPA,
AGED ABOUT 35 YEARS,
RESPONDENTS 1 TO 4 ARE ALL
RESIDING AT NO.784,
NEAR MARIYAMMA TEMPLE,
H.A.FARM POST,
HEBBAL, BANGALORE - 24.
... RESPONDENTS
(RESPONDENTS SERVED,
VAKALATH FILED BY SRI: A M SURESH REDDY
FOR INDOLEGAL INC - RETURNED WITH O/O)
THIS R.F.A. IS FILED UNDER SECTION 96 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 04.12.2006 PASSED IN
OS.NO.8269/1995 ON THE FILE OF THE XXIV ADDL. CITY CIVIL
JUDGE, BANGALORE CITY (CCH.NO.6) DISMISSING THE SUIT FOR
DECLARATION AND PERMANENT INJUNCTION.
THESE R.F.AS. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 15.09.2023 COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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COMMON JUDGMENT
Defendants in OS No.2123 of 1997 on the file of the
learned XXIV Additional City Civil Judge, Bengaluru City (CCH-
6), (hereinafter referred to as 'the Trial Court' for brevity),
have preferred Regular First Appeal No.378 of 2007
impugning the common judgment and decree dated
04.12.2006 decreeing the suit OS No.2123 of 1997 and
declaring that the plaintiff - Puttamma is the owner of suit
property and restraining the defendants from interfering with
plaintiff's peaceful possession and enjoyment of the same.
2. The plaintiffs in OS Nos.8269 of 1995 and 7851 of
1996 before the Trial Court have preferred Regular First
Appeal Nos.1272 and 1273 of 2007, impugning the above
common judgment and decree of the Trial Court in dismissing
their suits with costs.
3. For the sake of convenience, the parties shall be
referred to as per their ranks and status before the Trial Court
in OS. No.2123 of 1997.
4. Brief facts of the case are that, the plaintiff -
Puttamma filed the suit OS No.2123 of 1997 for declaration of
10
her title over the schedule property and for permanent
injunction against the defendants from interfering with her
peaceful possession and enjoyment of the land. The
defendants in OS No.2123 of 1997 have filed the suit OS
No.8269 of 1995 seeking permanent injunction against the
plaintiff therein in respect of the suit property. Similarly, they
have filed OS No.7851 of 1996 against the very same plaintiff
seeking declaration that the sale deed dated 16.04.1963
marked as Ex.P3 is not binding on them and for permanent
injunction restraining Puttamma from interfering with their
peaceful possession and enjoyment of the suit property.
5. The schedule appended to the plaint describes the
piece and parcel of 11 guntas of land in Sy.No.122/1 of
Hebbal village, Kasaba Hobli, Bengaluru North Taluk, with the
boundaries mentioned therein (hereinafter referred to as the
suit property). It is contended by the plaintiff in OS No.2123
of 1997 that she is the absolute owner in possession of the
suit property. The larger extent of the land was originally held
by one Abdul Gafar and he sold the property measuring 35
guntas in favour of Nesageri Muniyappa under the registered
sale deed dated 06.12.1951, marked as Ex.P2. Said Nesageri
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Muniyappa had three sons viz., Munivenkatappa, Chikka
Muniyappa and Venkataswamy. Nesageri Muniyappa divided
the property into three equal shares and allotted to his sons.
Thus, each of the sons got 11 guntas of land in Sy.No.122/1.
Nesageri Muniyappa died in the year 1965. Munivenkatappa
died in the year 1994 and Chikkamuniyappa died in the year
1975. The plaintiff is the wife of Chikkamuniyappa, who
succeeded to the property after the death of her husband.
The defendants are the daughters of late Munivenkatappa.
6. It is contended that Munivenkatappa, the father of
defendants sold his share of 11 guntas of land in Sy.No.122/1
in favour of the plaintiff by executing the registered sale deed
dated 14.06.1963. His father Nesageri Muniyappa also joined
in executing the sale deed, which is as per Ex.P3. The
plaintiff paid the mutation fees of Rs.4/- to effect the change
of khata by the revenue authorities. However, after coming
into force of Urban Land Ceiling Act, 1976, the plaintiff filed
an application requesting to mutate her name in the revenue
records as the same was not mutated in her name, as
required under law.
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7. It is therefore contended that the plaintiff
purchased 11 guntas of land i.e., the suit property from
Munivenkatappa under Ex.P3. Her husband Chikkamuniyappa
had got 11 guntas of land under the oral partition and after
his death, the plaintiff succeeded to the said land and thus
she became the owner of 22 guntas of land in Sy.No.122/1. It
is contended that the husband of the plaintiff put up a
construction in the land that was allotted to his share and was
living in it, till his death. The plaintiff along with her children
continued to be in possession and enjoyment of the said 11
guntas of land left behind by her husband and also the 11
guntas of land purchased by her under the sale deed i.e., the
suit property.
8. It is contended that after selling the suit property
in favour of the plaintiff, Munivenkatappa left the village and
was staying with defendant No.1. He never cultivated the
land at any point of time. None of the defendants resided in
the suit property. It was the plaintiff who paid the revenue
and cultivating the same. It is contended that the Village
Accountant has not entered the name of the plaintiff in the
revenue records and therefore, the plaintiff filed an
13
application before the Tahsildar, Bengaluru North Taluk for
rectification of entries on 16.05.1977. In spite of such
application, her name was not mutated in the revenue
records. Taking advantage of the wrong entries in the pahani,
Munivenkatappa filed an application in Form No.7 before the
Land Tribunal seeking grant of occupancy right in respect of
the suit property. The said application came to be rejected by
the Land Tribunal by recording his statement, where he
conceded about execution of the sale deed in favour of the
plaintiff. Munivenktappa never challenged the said order and
had accepted the same. However, he had filed a suit for
permanent injunction against the plaintiff and her sons
claiming to be the absolute owner in possession of the
property. The said suit came to be filed just 5 days after filing
Form No.7 before the Land Tribunal. The plaintiff herein who
arrayed as defendant filed the written statement in the said
suit OS No.254 of 1997 which was re-numbered as OS
No.2309 of 1980. Munivenkatappa never led any evidence in
the said suit and it came to be dismissed for default.
Munivenkatappa had not pursued the matter further.
14
9. It is contended that one Subramani, the second
son of the plaintiff joined hands with the defendants even
though he was arrayed as defendant No.3 in OS No.2309 of
1980. He along with defendants manipulated the revenue
records with the help of the Village Accountant. The said
Subramani got the general power of attorney deed executed
by the defendants in his favour and started asserting right
over the schedule property. In the meantime, during 1978-79
as per mutation order - MR No.3 of 1979-80, the suit property
was mutated in the name of the plaintiff. However, the said
Subramani and the defendants managed to get the mutation
in MR No.3 of 1994-95 in respect of 11 guntas of land i.e., the
suit property. Since the Village Accountant had colluded with
them, the application submitted by the plaintiff was never
entertained. Therefore, the plaintiff filed an appeal in RA
No.11 of 1995-96 before the Assistant Commissioner
challenging the mutation entries in the name of the
defendants. The said appeal came to be allowed and MR No.3
of 1994-95 was set aside. The said order was confirmed by
the Deputy Commissioner and even by this Court.
15
10. It is contended that the defendants started
denying the title of the plaintiff and Subramani, the son of the
plaintiff as power of attorney holder of the defendants filed
the suit OS No.8269 of 1995 seeking permanent injunction in
respect of the suit property. When the plaintiff filed the
written statement in the said suit asserting her right under
the registered sale deed, the defendants filed OS No.7851 of
1996 seeking declaration and permanent injunction in respect
of the suit property. Since the defendants were bent upon to
deny the rights of the plaintiff over the schedule property, she
has filed the present suit seeking declaration of her title and
for permanent injunction.
11. It is contended that after executing the sale deed
as per Ex.P3, Munivenkatappa was not having any right, title
or interest over the schedule property. In spite of that, the
dispute was kept alive by the defendants at the instance of
Subramani, the son of the plaintiff, who was not in good
terms with her. Therefore, the plaintiff prayed for declaration
that she is the absolute owner of the schedule property and
for permanent injunction restraining the defendants from
16
interfering with her peaceful possession and enjoyment of the
property.
12. The defendants have filed their common written
statement denying the contention taken by the plaintiff. The
relationship between the parties as stated in the plaint and
genealogical tree is admitted. It is denied that
Chikkamuniyappa died in the year 1975, but on the other
hand, it is contended that he died in the year 1972. Nesageri
Muniyappa purchasing 35 guntas of land in Sy.No.122/1
during 1951 and allotting 11 guntas of land to each of his
sons are admitted. It is contended that Munivenkatappa
never sold the suit property in favour of the plaintiff by
executing the sale deed. On the other hand, it is contended
that he was in peaceful possession and enjoyment of the suit
property and was cultivating the same. The sale deed relied
on by the plaintiff is a sham document. The defendants being
the daughters of Munivenkatappa were in possession and
enjoyment of the property. Neither Munivenkatappa nor his
father Nesageri Muniyappa were having absolute right, title or
interest to alienate the schedule property in favour of the
plaintiff. The said sale deed is the product of collusion
17
between Chikkamuniyappa - the husband of the plaintiff and
his father Nesageri Muniyappa. The sale deed was got
executed only to knock off the property of the defendants.
But however, the possession of the suit property remained
with Munivenkatappa and he was cultivating the same. It is
contended that selling of 11 guntas of land by
Munivenkatappa for a meagre sum of Rs.1,000/- itself falsifies
the contention of the plaintiff. The revenue records stood in
the name of Munivenkatappa even during 1994, when he
died. After his death, the revenue entries were mutated in
the names of the defendants and they came in possession and
enjoyment of the property.
13. It is contended that since the plaintiff along with
her children started interfering with the peaceful possession
and enjoyment of the schedule property by the defendants,
they have filed suit OS No.8269 of 1995. The temporary
injunction was granted in their favour. Even though, the
plaintiff challenged the said order in MFA No.2756 of 1996
before this Court, the same came to be dismissed. Thus the
temporary injunction granted by the Trial Court was
confirmed. The plaintiff who was arrayed as defendant in the
18
said suit started asserting that she has purchased the
schedule property from Munivenkatappa under the sale deed
dated 16.04.1963. Therefore, the defendants have filed the
suit OS No.7851 of 1996 against the plaintiff for declaration
that the said sale deed is not binding on them and for
permanent injunction. Filing of the appeal in RA No.11 of
1995-96 before the Assistant Commissioner by the plaintiff
challenging the mutation entries effected by the Tahsildar is
admitted. However, it is contended that the said appeal is
still pending.
14. It is contended by the defendants that his father
Munivenkatappa has categorically stated in OS No.2309 of
1980 that he was in need of money and had borrowed a sum
of Rs.1,000/- from his brother Chikkamuniyappa, who is the
husband of the plaintiff and as security, Munivenkatappa had
executed a document on 14.06.1963. Chikkamuniyappa took
advantage of the illiteracy of Munivenkatappa and got the sale
deed executed. However, the possession of the property
remained with Munivenkatappa and the revenue records also
continued in his name. The value of the property was much
19
more than Rs.10,000/-. But the sale deed came to be
executed for meagre amount of Rs.1000/-.
15. It is contended that the suit property was the joint
family property of the defendants and there was no necessity
for Munivenktappa to alienate the same. The defendants
were minors as on the date of the sale deed. Therefore, the
same is not binding on them. Hence, he prayed for dismissal
of the suit.
16. On the basis of these pleadings, the Trial Court
framed the following issues for consideration:
O.S.No.2123/97 on 7.4.2003:
"1. Whether the plaintiff proves that the
father of the defendants Smt. Munivenkatappa
and his father Nasagiri Muniyappa have jointly
sold the land allotted to the share of
Munivenkatappa measuring 11 guntas in favour of
the plaintiff?
2. Whether the plaintiff proves that she
is in possession of schedule property as an
absolute owner subsequent to the alleged sale?
3. Whether the plaintiff proves
subsequent to the death of her husband late
Chikkanuniyappa she is in possession of the land
20
Sy.122/1 measuring to an extent of 11 guntas
allotted to the share of her husband apart from 11
guntas of land alleged to have been purchased by
her from late Munivenkatappa?
4. Whether the plaintiff proves that
subsequent to the alleged sale Munivenkatappa
was not cultivating the schedule land?
5. Whether the defendants proves that
after the death Munivenkatappa they are in
possession and enjoyment of the schedule
property as absolute?
6. What order or decree?"
O.S.No.8269/95 on 27.10.98:
"1. Whether the plaintiffs prove their
lawful; possession of suit schedule property?
2. Whether they prove the alleged
interference by the defendants?
3. Are the plaintiffs entitled to the relief
of injunction as prayed?"
O.S.No.7851/96, on 14.10.98:
"1. Whether the plaintiffs prove their title
to the suit property?
2. Whether the plaintiffs prove perfection
of their title to the suit property by way of adverse
possession?
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3. Whether they prove that the sale deed
dt.14-6-63 executed by their father in favour of
defendant is not binding on them?
4. Whether the suit is barred by time?
5. Whether the defendants prove that
the plaintiff has no cause of action?
6. Whether the plaintiffs are entitled to
the relief prayed?
7. Whether the plaintiffs prove that the
alleged transaction dt.14-6-63 is only a mortgage
transaction and not a sale?
8. Whether the plaintiff prove that the
suit schedule property is a joint family property?
9. Whether the plaintiffs prove that their
father as 'Kartha' of the family had no right to
alienate the suit schedule property?"
17. The pleadings in the 3 suits are similar.
Therefore, all the suits were clubbed together and common
evidence was ordered to be recorded. Accordingly, OS
No.8269 of 1995 and OS No.7851 of 1996 were clubbed with
OS No.2123 of 1997 and common evidence was led.
22
18. The plaintiff in OS No.2123 of 1997 got examined
her son Krishnappa as PW1 and got marked Exs.P1 to P147 in
support of her contention. The defendants got examined
DWs.1 to 3 and got marked Exs.D1 to 31 in support of their
defence. The Trial Court after taking into consideration all
these materials on record, passed the common judgment
decreeing the suit OS No.2123 of 1997 declaring that the
plaintiff is the absolute owner of the suit property and
restraining the defendants from interfering with the peaceful
possession and enjoyment of the plaintiff, while dismissing
the suits OS No.8269 of 1995 and OS No.7851 of 1996 with
costs.
19. Being aggrieved by the same, the defendants in
OS No.2123 of 1997 have preferred RFA No.378 of 2007 and
the plaintiffs in OS No.7851 of 1996 and OS No.8269 of 1995
have preferred RFA Nos.1272 and 1273 of 2007, respectively.
20. Heard Sri.R.Abdul Reyaz Khan, learned counsel for
the appellants and Sri. Yeshu Mishra, learned counsel for the
respondent Nos.1(a)(b) and respondent No.2.
23
21. Learned counsel for the appellants contended
that the relationship between the parties are admitted.
Muniyappa, the grandfather of the defendants had purchased
35 guntas of land under Ex.P.2 dated 06.12.1951 for total
consideration of Rs.5,000/-. However, he partitioned 33
guntas of land into three parts and allotted 11 guntas each to
his sons. Munivenkatappa the father of defendants after
getting his 11 guntas of land, constructed a house and was
residing with defendants therein. The revenue records were
standing in the name of Munivenkatapa and after his death in
the year 1994, it was standing in the name of his eldest
daughter. Thus from the records, it is clear that defendants
were in possession and enjoyment of the property even after
death of Munivenkatappa.
22. It is contended that, since the plaintiffs started to
interfere with their peaceful possession and enjoyment of the
suit property, they have filed the suit OS No.8269/1995,
seeking permanent injunction. The plaintiff-Puttamma had
filed written statement in OS.No.8269/1995 asserting that
Munivenkatappa had executed sale deed in her favour in
respect of the suit property on 11.06.1963 and therefore, the
24
defendants have filed suit OS.No.7851/1996 seeking
declaration that the said sale deed is null and void and not
binding on the plaintiff therein. After filing the said suit the
plaintiffs has filed OS.No.2123/1997 seeking declaration of
her title in respect of the suit property on the basis of the sale
deed dated 14.06.1963 said to have been executed by
Munivenkatappa.
23. Learned counsel further submitted that
admittedly, the revenue entries were standing in the name of
Munivenkatappa and thereafter in the name of his daughter.
But it was never mutated in the name of the plaintiffs on the
basis of the sale deed dated 14.06.1963. Since the plaintiffs
filed the written statement in OS.No.8269/1995 on
21.12.1995, it gave raise to the cause of action for filing the
suit OS.No.7851/1996. Till then, the said sale deed had not
seen the light of the day. Therefore, the suit
OS.No.7851/1996 was within time and should have been
decreed.
24. The learned counsel further submitted that the
suit property in all the three suits are common i.e., 11 guntas
25
of land in OS No.2123/1997, OS No.8269/1995 and OS
No.7851/1996. In fact, Munivenkatappa approached his
brother Chikkamuniyappa for hand-loan of Rs.1,000/- and
Chikkamuniyapa taking advantage of illiteracy and innocence
of Munivenkatappa, appears to have got sale deed dated
14.06.1963. Therefore, it is not a sale deed in true sense of
the term and consideration was never passed on.
25. Learned counsel further submitted that
Munivenkatappa had never filed form No.7 as contended by
the plaintiff. But it was filed by Chikkamuniyappa. He further
submitted that the left thumb impression found in Ex.P.19 is
entirely different from left thumb impression found in the sale
deed dated 14.06.1963. Therefore, it is a fabricated
document, which is visible to the bare eyes.
26. Learned counsel submitted that the revenue
records and the electricity bills relied on by the plaintiff is with
regard to 11 guntas of land, which was allotted to the share of
Chikkamuniyappa but not to the suit property. The plaintiff
has never stepped into the witness box and there is no
explanation as to why she was not examined. Therefore, the
26
adverse interference will have to be drawn for non
examination of the plaintiff. Thus, the plaintiff failed to prove
the execution of sale deed dated 14.06.1963 and the
possession of the property by the plaintiff.
27. Learned counsel further contended that as per
Ex.P.4, the name of plaintiff-Puttamma was mutated in
respect of suit property only during 1979-80. If at all sale
deed was executed in 1963, there is no reason as to why her
name was not mutated from 1963 till 1979. But revenue
records were standing in the name of Munivenkatappa and
after his death, it was mutated in the name of defendant
No.1. It cannot be believed that Munivenkatappa sold the suit
property for mere Rs.1,000/- in 1963 when the same was
purchased for Rs.5,000/- by his father during 1951. All these
facts and circumstances were not considered by the trial Court
but proceeded to decree the suit OS.No.2123/1997 and
dismissed the other two suits, without any basis. The Trial
Court has not taken into consideration oral and documentary
evidence placed before it in proper perspective and hence,
prays for allowing the appeals in the interest of justice.
27
28. Per contra, learned counsel for the
respondent/plaintiff opposing the appeals submitted that the
registered sale deed dated 14.06.1963 was executed by
Munivenkatappa in favor of the plaintiff. Even though the
plaintiff requested for mutation of her name, same was not
mutated. The property was purchased by late Nasgeri
Muniyappa under Ex.P.2 on 06.12.1951. In the partition
between the brothers Munivenkatappa got 11 guntas of land.
Therefore, the property is not ancestral property as tried to be
contended by the defendants. Defendants have not derived
any title in the same. Muniventakappa admittedly died on
31.05.1994. Thirty long years he never challenged the sale
deed. Even though defendants contended that they were
minors at the time of execution of sale deed, even after
attaining majority, they never challenged the same.
Therefore, the suits filed by the defendants are barred by
limitation.
29. Learned counsel submitted that Munivenkatappa
had filed form No.7 as per Ex.P.19 on 23.08.1977. But when
his statement was recorded before the Land Tribunal, he
categorically stated that he had executed the sale deed in
28
favour of the plaintiff. Munivenkatappa had even filed the suit
OS.No.254/1977 but subsequently, he had not prosecuted the
same. The said suit was renumbered as OS.No.2309/1980
and came to be dismissed for default. Therefore, it is clear
that Munivenkatappa had made an attempt to deny the right
of the plaintiff but was not successful during his life time. The
defendants in collusion with revenue officials and one of the
son of the plaintiff, managed to file the suit by concocting
revenue entries. As per Ex.P.4 - ME No.3/1979-80 was
recorded by mutating the name of plaintiff. But defendants
managed to effect ME No.3/94-95 i.e., as could be seen in
Ex.D.17. The Assistant Commissioner rightly set aside the ME
No.3/94-95, which was confirmed by the Deputy
Commissioner as per Ex.P.41. Even the writ petition filed
challenging the said order, was came to be dismissed as per
Ex.P.42. From all these materials, it is clear that the plaintiff
has proved her contention including execution of sale deed by
Munivenkatappa.
30. Learned counsel submitted that plaintiff-
Puttamma was aged about 80 years and therefore, she could
not attend the Court and steped into the witness box.
29
Ex.P.145 is the medical certificate, which discloses her
condition. Therefore, she got examined her son as PW.1.
Under such circumstances, no adverse interference could be
drawn against the plaintiff.
31. Learned counsel further submitted that
defendants have sought for declaration of their title by
adverse possession. Unless the defendants admit the title of
the plaintiff, they cannot seek title by adverse possession. The
conduct of the defendants discloses that they are bent upon
to claim the suit property without any basis. The trial Court
after taking into consideration the materials on record,
dismissed the suit filed by the defendants, while decreeing
the suit filed by the plaintiff. There are no merits in the
contention taken by the appellants. Hence, prays for dismissal
of the appeal.
32. Perused the materials, including the Trial Court
records.
33. In view of the rival contentions urged by learned
counsel for the parties, the point that would arise for my
consideration is:
30
"Whether the impugned common judgment and
decree passed by the Trial Court suffers from
perversity or illegality and calls for interference by
this Court?"
My answer to the above point is in the 'Negative' for the
following:
REASONS
34. It is the specific contention of the plaintiff that she
had purchased the suit property from Munivenkatappa under
the sale deed dated 14.06.1963 marked as Ex.P.3. It is stated
that Munivenkatappa is the brother of her husband
Chikkamuniyappa. They are the sons of Nasigiri Muniyappa.
They had another brother by name Venkataswamy. The
plaintiff is the wife of Chikkamuniyappa. While defendants are
the children of Munivenkatappa. The relationship between the
parties is not in dispute. It is also not in dispute that Nasigiri
Muniyapa had purchased 35 guntas of land under Ex.P.2
dated 06.12.1951. Admittedly, he partitioned the said
property by allotting 11 guntas of land to each of his sons,
that is Munivenkatappa, Chikkamuniyappa and
Venkataswamy. According to the plaintiff, she purchased this
11 guntas of land, which was allotted to Munivenkataswamy
under the sale deed and she also acquired 11 guntas of land
31
that was left behind by her husband Chikkamuniyappa and
thus, she in possession of 22 guntas of land.
35. Even though all other averments made by
plaintiffs are admitted, defendants categorically denied that
plaintiff had purchased suit property under sale deed dated
14.06.1963 from Munivektakappa. On the other hand, it is
contended that Munivenkatappa had approached
Chikkamuniyappa for hand loan of Rs.1,000/- and at that
time, Chikkamuniyappa taking advantage of illiteracy and
innocence of his brother - Munivenkatappa, got the sale deed
executed in the name of plaintiff. Therefore, the suit
OS.No.7851/1996 was filed seeking declaration that the sale
deed dated 14.06.1963 is null and void and not binding on the
plaintiff.
36. It is pertinent to note that Ex.P.21 is the copy of
the plaint in OS.No.254/1977, which was came to be
renumbered as OS.No.2309/80 filed by Munivenkatappa
against the plaintiff-Puttamma and two others seeking relief
of permanent injunction in respect of the very same suit
property i.e., 11 guntas of land, wherein, he has asserted
32
that he was in need of sum of Rs.1,000/- about 14 years
back. He approached his brother Chikkamuniyappa and as
security, executed the ostensible sale deed dated 14.06.1963
in favour of Puttamma. Inspite of that he was in possession of
the property. Ex.P.32 is the written statement filed by
Puttamma and other defendants in the said suit, denying the
contention taken by the plaintiff therein regarding execution
of sale deed as ostensible one. Ex.P.22 are the issues framed
in the said suit Ex.P.23 is the copy of the order sheet.
According to which, the suit OS.No.2309/1980 was came to
be dismissed for default on 18.06.1983. Therefore, it is clear
that even though during the life time of Munivenkatappa he
had made an attempt to get permanent injunction against the
plaintiff-Puttamma on the ground that sale deed in question is
as ostensible document, he has not chosen to prosecute the
said suit for the reasons best known to him.
37. ExD.3 is the records for rights for the year 1977-
78, according to which, each of the sons of Muniyappa got 11
guntas of land. As per Ex.Ps.3 to 5, the name of plaintiff-
Puttamma was mutated in the revenue records on the basis of
sale deed.
33
38. It is contended by the plaintiff that
Munivenkatappa had even filed Form No.7 in respect of suit
property claiming occupancy right. Ex.P.20 is the order dated
23.08.1977 in respect of the suit property in LRF No.3281/77-
78 between Munivenkatappa as the petitioner and Puttamma-
plaintiff as the respondent. A detailed order was came to be
passed by the land Tribunal where there is reference to the
statement given by Munivenkatappa referring to the suit
OS.No.254/1977 field by him against the plaintiff and the
contention taken in that regard by referring to the sale deed
dated 14.06.1963. He categorically stated that he had
executed said sale deed in favour of Puttamma-respondent,
who was also present before land Tribunal and asserted that
the petitioner-Munivenkatappa was not the tenant in respect
of suit property. But he had already sold the same in her
favour and she is in possession of the same. Considering the
statement of both the petitioner and respondent, land
Tribunal rejected Form No.7 filed by Munivenkatappa as per
order dated 23.08.1977. It is the contention of the plaintiff
that Munivenkatappa had not persuaded the said matter by
34
challenging the order of the land Tribunal. This fact is not
denied by the defendants.
39. A contention was raised that Form No.7 as per
Ex.P.19 was not filed by Munivenkatappa, but it was filed by
Chikkamuniyappa, the husband of the plaintiff. As per
Ex.P.19, this Form No.7 was filed on 14.04.1977. But
admittedly, Chikkamuniyappa died in the year 1975. Under
such circumstances, it cannot be accepted that he had filed
Form No.7 in the name of Munivenkatappa.
40. When Munivenkatappa himself filed the suit
OS.No.254/77 asserting that he had borrowed loan of
Rs.1,000/- from his brother Chikkamuniyappa and executed
sale deed dated 14.06.1963 ostensibly, the burden is on him
to substantiate the same. But he had not chosen to prosecute
the suit. The same was came to be dismissed for default.
Therefore, it is clear that Munivenkatappa was very much
aware of sale deed dated 14.06.1963 relied on by plaintiff.
Even though he had made an attempt to seek a decree for
permanent injunction against the plaintiff herein, had not
prosecuted the same but abandoned the suit to be dismissed
35
for default. Under such circumstances, the defendants who
are claiming right under their father Munivenkatappa, cannot
contend that the sale deed was never executed by his father
or that the same was not acted upon. On the basis of the
materials on record it could be safely concluded that
Munivenkatappa after executing the sale deed, had made an
attempt to claim the property back by filing Form No.7 and
also filing the suit for seeking permanent injunction on the
ground that he has executed the sale deed ostensibly. Thus it
is clear that Munivenkatappa had taken quite contradictory
stand during his life time about the suit property but was not
successful in establishing any of such stands.
41. Learned counsel for the appellant contended that
plaintiff has not chosen to step into witness box and therefore
adverse inference will be drawn against her. Ex.P.145 is the
medical certificate produced by the plaintiff issued by Deputy
Chief Medical Officer Bowring and Lady Curzon Hospital,
Bengaluru dated 17.08.2006, to certify that Puttamma-
plaintiff aged about 79 years was suffering from General
weakness with shivering of Upper limbs. There is no reason as
to why the said certificate is to be disbelieved. Admittedly,
36
plaintiff-Puttamma was aged about 79 to 80 years at the time
when evidence was recorded before the Trial Court. Under
such circumstances, no adverse inference could be drawn
against the plaintiff for not stepping into witness box.
42. It is pertinent to note that DW.1 is examined on
behalf of defendants who claims to be the member of the land
tribunal. But the order of the land tribunal produced as per
Ex.P.20 do not refer to the name of DW1 and there are no
other materials to substantiate his contention that he was the
member of the land Tribunal at the relevant point of time.
43. DW2 examined during 2006 by the defendants to
prove their contention was aged 46 years. Therefore, at the
time of the sale deed dated 14.06.1963 the witness must be
of 18 years of age. Therefore, no importance could be
attached to his evidence with regard to sale deed and other
facts deposed by him.
44. Even though an attempt was made to contend
that the LTM of late Munivenkatappa found in the sale deed-
EX.P.3 is different from his LTM found in the Form No.7-
Ex.P.19, no effort is made to probablise the same.
37
45. The other contention raised that the value of the
property purchased by Nasgir Muniyappa was `.5,000/-. But
Munivenkatappa selling it for `.1,000 after several year
creates doubt, also cannot be accepted for the simple reason
that the extent of the property purchased by Nasgir
Muniyappa was 35 guntas. Whereas Munivenkatappa sold
only 11 guntas under the sale deed.
46. In the light of these facts and circumstances and
the documents that are placed before the Court, the plaintiff
is successful is proving her contention that, Munivenkatappa
executed the sale deed dated 14.06.1963. The defence taken
by Munivenkatappa during his life time were inconsistent and
none of such defence were probabalised. Therefore, the suit
of the defendants in OS Nos.8269/95 and 7851/96 are liable
to be dismissed. When the plaintiff is successful in proving her
title on the basis of registered sale deed and possession on
the basis of revenue documents, she is entitled for declaration
of her title and also for permanent injunction.
47. I have gone through the impugned judgment and
decree passed by the trial Court. It has taken into
38
consideration the materials on record and arrived at a right
conclusion. I do not find any reason to interfere with the
same. Hence, I answer the above point in the negative and
proceed to pass the following:
ORDER
i. RFA No.378/2007, RFA No.1272/2007 and
RFA No.1273/2007 are dismissed with costs.
ii. The impugned common judgment and decree
dated 04.12.2006 passed in OS.No.8269/1995,
OS.No.7851/1996 and OS.No.2123/1997 is
confirmed.
Registry to send back the trial Court records along with
a copy of this judgment.
Sd/-
JUDGE
*bgn/BH
