Karnataka High Court
Ramaiah vs Basappa on 16 February, 2024
Author: H.P. Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF FEBRUARY, 2024 R
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A. NO.1037/2006 (DEC)
BETWEEN:
RAMAIAH S/O BASAPPA
AGED ABOUT 62 YEARS,
WORKING IN POST OFFICE
OF LAKSHMIPURA,
R/AT HOLALKERE HOBLI
KANAKATTE HOBLI
ARSIKERE TALUK
HASSAN DISTRICT ... APPELLANT
(BY SRI B.ROOPESHA, ADVOCATE)
AND:
1. BASAPPA S/O KADAPPA
SINCE DEAD REP. BY LRS
1(a) RAJAMMA
W/O GANESHAPPA
DEVANOOR HOSURU VILLAGE
CHIKKADEVANOR POST
KADUR POST & TALUK
CHIKKAMAGALURU DISTRICT
1(b) KAMALAMMA
W/O LATE RAVI
R/AT BENNENAHALLI VILLAGE
GURUDHALLI POST, TIPUTER TALUK
TUMKUR DISTRICT
2
1(c) NAGARATHNA @ NAGAVENI
W/O ASHWATHAPPA
R/AT SALADIMMANAHALLI VILLAGE
BANAVARA POST
ARSIKERE TALUK
HASSAN DISTRICT
1(d) RATHNA
W/O MALLIKARJUNA @ MALLIKANNA
R/AT BITTENAHALLI VILLAGE
KANKATTE POST & HOBLI
ARSIKERE TALUK
HASSAN DISTRICT
1(e) JAYAMMA
W/O BASAPPA
R/AT KANKATTE VILLAGE
KANKATTE POST & HOBLI
BITTENAHALLI ROAD
ARSIKERE TALUK
HASSAN DISTRICT
1(f) HARISH K.B.
S/O BASAPPA
R/AT KANKATTE VILLAGE
KANKATTE POST & HOBLI
BITTENAHALLI ROAD
ARSIKERE TALUK
HASSAN DISTRICT
1(g) MAYAMMA
W/O GOWRISH
R/AT KANKATTE VILLAGE
KANKATTE POST & HOBLI
ARSIKERE TALUK
HASSAN DISTRICT
3
2. SRI C.V.MARULASIDDAPPA
S/O SRI VEERANNASHETTY
AGED ABOUT 57 YEARS
R/AT DODDAMETTIKURKE VILLAGE
KANAKATTE HOBLI
ARSIKERE TALUK
HASSAN DISTRICT. ... RESPONDENTS
(BY SRI A.V.GANGADHARAPPA, ADVOCATE FOR R1[a - g] & R2)
THIS R.S.A. IS FILED UNDER SECTION FILED U/S 100 OF
CPC AGAINST THE JUDGEMENT AND DECREE DT. 23.12.2005
PASSED IN R.A.NO.62/2002 ON THE FILE OF THE CIVIL JUDGE
(SR.DN.) ARASIKERE AND ETC.
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 23.01.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
This appeal is filed challenging the judgment and decree
dated 23.12.2005 passed in R.A.No.62/2002 by the Civil Judge
(Sr. Dn.), Arasikere.
2. The parties are referred to as per their original
rankings before the Trial Court to avoid confusion and for the
convenience of the Court.
3. The factual matrix of the case of the plaintiff in
O.S.No.169/1995 that the plaint schedule property bearing
Sy.No.19/7 to the extent of 2 acres 7 guntas is situated at
Kanakatte hobli of Holalkere village. The said property is
morefully described in the plaint as schedule property. It is
contended by the plaintiff that the said property originally
belongs to Julalingappa who is the husband of the plaintiff's
father's sister. The said Julalingappa and his wife Mallamma had
only one son by name Ningappa. The said Julalingappa,
Mallamma and their son Ningappa were residing together with
the plaintiff and his father during their lifetime. The suit
schedule property was enjoyed by him and his family members
during their lifetime. After his death, the plaintiff's father
Basappa became the lawful owner and was in possession and
enjoyment of the suit schedule property for a period of 41 years
to the knowledge of entire locality. The defendant had filed a suit
in O.S.No.261/1987 against the plaintiff alleging that he is in
possession and enjoyment of the suit schedule property by
means of sale deed dated 27.05.1974 having purchased from
one Kariyamma who is the wife of Ningappa. In the said suit, he
has filed an application under Order 39 Rule 1 and 2 and sought
for grant of temporary injunction and the same was granted in
favour of the defendant vide order dated 25.05.1987 and the
defendant has taken the possession of the suit schedule property
by force based on the interim order.
4. It is contended by the plaintiff that the defendant is
in illegal possession. It is further contended that the said
Kariyamma is a fictitious person and Malamma and Ningappa are
the persons who had succeeded after the death of Julalingappa.
After his death, Basappa and his son i.e., the plaintiff are in
possession and enjoyment of the suit schedule property being
lawful owners. Hence, the plaintiff is entitled for the relief of
declaration and possession. The suit filed by the defendant in
O.S.No.261/1987 was dismissed and against the said judgment
and decree, an appeal was preferred in R.A.No.75/1990 wherein
the First Appellate Court confirmed the order of the Trial Court
and against the judgment and decree of the First Appellate
Court, Regular Second Appeal was filed in R.S.A.No.996/1992
and the said RSA was also got dismissed. The plaintiff had
requested the defendant to hand over the possession of the suit
schedule property but he declined for the same. Hence, the suit
is filed for the relief of declaration and possession.
5. In pursuance of the suit summons, defendant
appeared and filed the written statement denying the averments
made in the plaint contending that the plaintiff and his father are
not the relatives of Julalingappa. The defendant also denied that
Basappa had a sister by name Mallamma. The plaintiff nor his
father had paid the kandayam in respect of the suit schedule
property. It is contended in the written statement that the said
Julalingappa had two wives by name Kariyamma and Mallamma
among whom the Kariyamma was the first wife. As Kariyamma
had no issues, she got married Mallamma to Julalingappa.
Through the second wife Mallamma, Julalingappa had a son by
name Ningappa who died unmarried. Among the family
members, Julalingappa predeceased his wife Mallamma wherein
Kariyamma was alive and the said Kariyamma was the aunt of
the defendant's father as she was alone, she was looked after by
the family of the defendant.
6. It is also the case of the defendant that said
Kariyamma sold the property in favour of the defendant by
means of registered sale deed dated 27.05.1974. On the very
same day, the possession of the suit schedule property was also
handed over in favour of the defendant, hence, he continued to
be in possession of the suit schedule property as the lawful
owner. The defendant also denied the possession of the suit
schedule property by the plaintiff for nearly 40 years and also
denied the averments that based on the temporary injunction,
possession was taken. It is also contended that in the earlier
suit in O.S.No.261/1987, the legality of the registered sale deed
dated 27.05.1974 was not considered and no ownership was
questioned as the said suit was only for bare injunction. It is
further contended that the defendant is in possession and
enjoyment of the suit schedule property and acquired the same
by means of a registered sale deed thus, the plaintiff cannot
seek any relief against the defendant.
7. Based on the pleadings of the parties, the Trial Court
has framed the following:
ISSUES
1. Whether the plaintiff proves that he is the
owner of the suit schedule properties?
2. Whether the plaintiff proves that in the
proceedings in O.S.No.261/1987 on the
basis temporary injunction he was
dispossessed?
3. Whether the plaintiff is entitled for the
possession of the suit schedule property?
4. Whether the plaintiff is entitled for the
mesne profits as prayed for?
5. Whether the plaintiff is entitled for the relief
sought for?
6. What order of decree?
8. In order to prove the case of the plaintiff, he himself
examined as PW1 and also examined one witness as PW2 and
got marked the documents at Ex.P1 to P32. On the other hand,
the defendant examined himself as DW1 and also examined two
witnesses as DW2 and DW3 and got marked the documents at
Ex.D1 to D6. The Trial Court having considered both oral and
documentary evidence placed on record answered Issue Nos.1 to
5 as affirmative in coming to the conclusion that the plaintiff is
the owner of the suit schedule property and the plaintiff was
dispossessed from the suit schedule property in view of the
temporary injunction granted in O.S.No.261/1987 and so also
comes to the conclusion that the plaintiff is entitled for the relief
of possession of the suit schedule property and mesne profits
and granted the relief as sought in the plaint. Being aggrieved
by the judgment and decree of the Trial Court, an appeal was
preferred in R.A.No.62/2002 before the First Appellate Court.
9. The First Appellate Court having reassessed both oral
and documentary evidence placed on record formulated the
points that whether the plaintiff proves that she is the owner of
the property, whether the plaintiff is entitled for the relief as
sought and whether the judgment and decree of the Trial Court
requires interference. The First Appellate Court having
reassessed the evidence available on record, answered Point
Nos.1 and 2 as negative and answered Point No.3 as affirmative
reversing the finding of the Trial Court and dismissed the suit of
the plaintiff. Being aggrieved by the divergent finding, the
present appeal is filed by the plaintiff questioning the judgment
and decree of the First Appellate Court.
10. The main contention of the counsel for the appellant
before this Court that the lower appellate Court was committed
an error in reversing the finding in not holding that the
defendant was estopped from denying the title of the plaintiff
and setting title even though his suit in O.S.No.261/1987 was
dismissed and the same has been confirmed in the appeal as
well as in the second appeal. The Trial Court passed detailed
judgment decreeing the suit of the plaintiff. Inspite of it, the
First Appellate Court committed an error in reversing the finding
since the defendant has already suffered an order of dismissal of
the suit filed by him. The First Appellate Court failed to see that
defendant has not established his title and possession to the suit
land since 1974 and in the earlier suit, already definite finding
was given that defendant had not proved the sale deed dated
27.05.1974 but the lower appellate Court failed to see that mere
possession of defendant during a short span of time, which was
only unauthorized and without a semblance of title, dispossessed
from the suit schedule property hence, the First Appellate Court
committed an error in reversing the finding of the Trial Court in
holding that plaintiff has failed to prove his title, even though the
title and possession of Julalingappa, his wife Mallamma and
Ningappa had been categorically admitted by the defendant,
which was subsequently inherited by the plaintiff's father and
himself. The First Appellate Court fails to consider the pleading
of the plaintiff that Julalingappa, his wife and their son Ningappa
and the plaintiff and his father were in joint possession of the
suit schedule property and after their death, the plaintiff and his
father were in joint possession of the suit schedule property and
they have inherited the property. The First Appellate Court
erred in relying on certain entries in revenue records in
preference to Ex.P12 which had been rebutted by reliable oral
and other evidence. The First Appellate Court reasons arrived on
Point No.3 at paragraph 17 of its judgment was unwarranted and
unjustified.
11. This Court while admitting the appeal, framed the
substantial question of law, which reads as follows:
Whether the lower appellate Court was
justified in holding that the plaintiff has failed
to establish his title of the property ignoring
the earlier proceedings initiated by the
defendant in which he was held not to have
title to the suit schedule property?
12. The counsel for the appellant in his argument would
vehemently contend that the property originally belongs to
Julalingappa is not in dispute. The plaintiff's father is the brother
of Malamma who is the wife of said Julalingappa is also not in
dispute. The learned counsel for the appellant would vehemently
contend that the defendant claims the title and possession based
on the sale deed dated 27.05.1974 alleging that the first wife of
Julalingappa i.e., Kariyamma sold the said property in his favour.
The counsel also would vehemently contend that the defendant,
earlier he had filed a suit in O.S.No.261/1987 and the same was
got dismissed and the said dismissal order was confirmed in the
regular appeal as well as in the second appeal. The counsel
would vehemently contend that the said finding of this Court has
attained its finality since the same has not been challenged by
filing an appeal. The counsel also would vehemently contend
that Section 15(d) of CPC attracts since the father of the plaintiff
is the brother of Mallamma and he inherited the property from
Mallamma who is the successor of her husband Julalingappa.
13. The counsel in support of his arguments relied upon
the judgment reported in AIR 1998 SC 1132 in the case of
TIRUMALA TIRUPATI DEVASTHANAMS vs K M
KRISHNAIAH. The counsel referring this judgment brought to
notice of this Court paragraph 10 of the said judgment with
regard to answering point No.1 held that we rejected the
contention of the learned counsel for the respondent-plaintiff and
hold that the TTD could rely on the judgment in O.S.No.51/37 as
evidence to prove its title in regard to the suit property, even
though the present plaintiff was not a party to that suit. The
counsel referring this judgment would vehemently contend that
when the defendant was unsuccessful throughout, cannot claim
any right.
14. The counsel also relied upon the judgment reported
in AIR 2001 RAJASTHAN 147 in the case of UDIT GOPAL
BERI AND OTHERS vs STATE and brought to notice of this
Court paragraph 7 wherein discussion was made with regard to
the principle of res-judicata is applicable since the Court has
given finding against the defendant in the earlier suit filed by
him and the same cannot be reopened in the present suit.
15. The counsel also relied upon the judgment reported
in AIR 2002 KERALA 133 in the case of RAMAN PILLAI
KRISHNA PILLAI AND OTHERS vs KUMARAN
PARAMESWARAN AND OTHERS and brought to notice of this
Court paragraph 7 wherein discussion was made with regard to
framing of substantial question of law governing admission and
also brought to notice of this Court paragraphs 41 and 42 and in
terms of Section 40 of the Evidence Act, are admissible for
between the plaintiff and the defendant recitals made in
judgment between predecessor of plaintiff and defendant
regarding rights to suit schedule property.
16. Per contra, the counsel for the respondent in his
argument, would vehemently contend that one Kariyamma who
claims to be the wife of Julalingappa executed the sale deed in
favour of the defendant in the year 1974. The counsel also
would vehemently contend that the sale deed is marked as Ex.P9
and the very recital of the document is clear with regard to
handing over the possession in favour of the defendant. The
counsel also would vehemently contend that PW2 who has been
examined in support of the plaintiff categorically admits that he
does not know anything about the property and also the
relationship. Hence, his evidence is not a material evidence.
The counsel would vehemently contend that PW1 denies the fact
of two wives. But the material clearly discloses that particularly
in the sale deed of the year 1974, there is a recital that
Kariyamma is the wife of said Julalingappa. The counsel also
would vehemently contend that in the plaint, details of death of
Julalingappa, Mallamma and his son is not given. The material
has not been placed to that effect. The counsel also brought to
notice of this Court paragraphs 3 and 4 of the plaint wherein
what the plaintiff has pleaded. Though contend that defendant
has dispossessed the plaintiff based on the interim order, no
complaint was given. The counsel also would vehemently
contend that according to the plaintiff he was dispossessed in
the year 1987, the suit was filed in the year 1995. The counsel
also would vehemently contend that earlier suit filed by the
defendant is only for permanent injunction and not for
declaration. The counsel also brought to notice of this Court that
cause of action arose in the year 1987 wherein it is stated that
he was illegally dispossessed the plaintiff. The counsel would
vehemently contend that Section 6 of the Specific Relief Act
applies and within six months suit ought to have been filed
seeking the relief of declaration and possession.
17. The counsel also brought to notice of this Court to
the prayer made in the plaint and contend that not sought any
relief of cancellation of sale deed. The counsel also would
vehemently contend that though the plaintiff relies upon the
revenue entries and the entry is not as successor but revenue
entries are made based on the earlier order of the Land Tribunal.
The counsel would vehemently contend that the same was
challenged in writ petition and this Court remanded the matter
and thereafter, the claim of the plaintiff was dismissed. The
counsel would vehemently contend that the plaintiff not claims
as owner but claims as tenant before the Land Tribunal and now
cannot contend that the plaintiff has inherited the property. The
dismissal of tenancy right has not been questioned and the same
has attained its finality.
18. The counsel would vehemently contend that the
defendant is in possession in terms of the sale deed of the year
1974 and also as on the date of suit, the plaintiff was not in
possession as on the date of suit. The plaintiff in an ingenious
method pleaded in the plaint that the plaintiff was dispossessed
based on the interim order obtained by the defendant in the
earlier suit. The dispossession has not been proved. But the Trial
Court committed an error in coming to the conclusion that the
plaintiff was dispossessed without any material evidence on
record. The counsel also would vehemently contend that if really
the plaintiff was dispossessed in terms of the earlier suit, he
would have pleaded in the written statement in the earlier suit.
But no such pleading was made. The First Appellate Court has
taken note of all these material available on record and reversed
the finding and the reasons given by the First Appellate Court is
well founded.
19. In reply to the arguments of the respondent counsel,
the counsel for the appellant would vehemently contend that the
plaintiff has inherited the property and hence, he becomes the
owner of the property and the Trial Court rightly granted the
relief of declaration and possession but the First Appellate Court
committed an error in reversing the finding of the Trial Court.
20. Having heard the learned counsel appearing for the
respective parties and also on perusal of the material available
on record and also considering the principles laid down in the
judgments referred supra by the counsel for the appellant, this
Court has to renalyse the material available on record in the light
of the substantial question of law framed by this Court.
21. Having perused the material available on record, it
discloses that the plaintiff and the defendant not disputes the
fact that the property which is morefully described in the
schedule of the plaint originally belongs to Julalingappa. It is the
claim of the plaintiff that the said Julalingappa married
Mallamma who is the sister of the plaintiff's father. Though
denied the said relationship by the defendant, it is emerged in
the evidence of the parties that the said Mallamma is the sister
of plaintiff's father. Though it is contended that the Mallamma is
not sister of the father of the plaintiff, the document which has
been produced by the plaintiff at Ex.P9, the sale deed executed
by one Kariyamma, in her sale deed it is declared that Mallamma
is the wife of said Julalingappa, but claims that Kariyamma is
also the wife of Julalingappa. It is also emerged in the evidence
that both Julalingappa and Mallamma had a son by name
Ningappa. There is no dispute to that effect. It is also not in
dispute that Julalingappa died earlier and his wife Mallamma also
passed away and afterwards, the son Ningappa also passed
away as bachelor.
22. Having perused the pleadings and evidence it is
emerged that Mallamma is the wife of Julalingappa. But
defendant's claim that Kariyamma is the first wife of Julalingappa
and through the Kariyamma, the Julalingappa was not having
any issues. Hence, the said Kariyamma got married Mallamma to
Julalingappa. The said contention of the defendant is in dispute.
When there is no dispute with regard to the fact that Mallamma
is the wife of Julalingappa, the only question is whether title has
been passed in favour of the defendant by executing a sale deed
by Kariyamma in the year 1974. No doubt, there is a registered
document of Ex.P9 in favour of the defendant through
Kariyamma. It is also not in dispute that defendant had filed
earlier suit in O.S.No.261/1987 and the said suit is for the relief
of permanent injunction and the same was dismissed. It is also
important to note that in the said suit, an issue is framed that
whether the plaintiff proves that he is the owner of the suit
schedule property. Even though the suit is filed for the relief of
permanent injunction, the said issue is framed. It is important to
note that the second issue framed in the said suit is whether the
plaintiff proves that he is in lawful possession of the suit
schedule property and third issue is whether the plaintiff proves
the alleged interference by the defendant. It is important to
note that though the suit is for the relief of permanent injunction
and issue is framed with regard to the ownership of the plaintiff
in the said suit and issue has not been recasted and the Trial
Court given the finding as negative while answering all the
issues against the defendant in respect of ownership and also
the lawful possession and interference. It is also not in dispute
that an appeal was filed against the judgment and decree passed
in O.S.No.261/1987 and the said decree in O.S.No.261/1987 is
marked as Ex.P1 in the present suit. The appeal filed against
the judgment and decree passed in O.S.No.261/1987 is
numbered as R.A.No.75/1990 and the judgment of the First
Appellate Court also marked as Ex.P3. The First Appellate Court
dismissed the said appeal confirming the judgment passed at
Ex.P1.
23. It is also not in dispute that second appeal was filed
against the concurrent finding of the Trial Court and the First
Appellate Court and the same is numbered as
R.S.A.No.996/1992 and the same was also got dismissed. While
dismissing the second appeal, this Court observed that the suit
was filed by the appellant for declaration and injunction and in
the alternative for possession of Sy.No.19/7, measuring 2 acres
7 guntas. Both the Courts have held concurrently that the
plaintiff has no title. The plaintiff has claimed title from one
Kariyamma. On the basis of the material available on record, this
Court held that both the Courts have held that Kariyamma is a
fictitious person and that Kariyamma had no title at all. On the
other hand, the Courts below have come to the conclusion that
the property belonged to one Julalingappa, the predecessor in
tile of the defendant. It is also observed that another point that
was canvassed by the learned counsel for the appellant is that in
an application filed in Form No.VII, before the Land Tribunal,
Arasikere, the defendant had admitted that the plaintiff was the
owner of the suit property. The Courts below have held that
there was no such admission. It is further observed that the
application was withdrawn by the defendant. Even assuming that
there was such an admission, alone cannot confer title on the
plaintiff. Having perused the order passed by this Court in the
second appeal it is clear that the defendant has not proved the
title and also the sale deed executed by one Kariyamma is a
fictitious person and that Kariaymma had no title at all.
24. The Trial Court, First Appellate Court as well as this
Court given definite finding with regard to the contention of the
defendant that the said sale deed of the defendant cannot be
relied upon since the very executant of the said sale deed is a
fictitious person. The defendant also claimed the title based on
the said sale deed and the same has not been accepted by any
of the Courts. The counsel for the respondent herein would
vehemently contend that suit is only for bare injunction. I have
already pointed out that an issue is framed with regard to the
ownership of the plaintiff in the said suit and the said issue has
not been recasted and a judicial adjudication was made with
regard to the contention of the defendant in the present suit is
concerned in the present suit. Hence, there is a force in the
contention of the counsel for the appellant that the principles of
res-judicata is applicable to the facts of the case on hand with
regard to the claim made by the defendant as he is the owner
based on the said sale deed has been negatived. Though the
suit is for bare injunction, title is also considered in the earlier
suit, regular appeal as well as in the second appeal and said
order has attained its finality in coming to the conclusion that
the vendor of the defendant in this suit is fictitious person.
25. Having perused the material available on record it
discloses that there is no dispute with regard to the fact that the
property was originally belongs to Julalingappa and also though
contend that his name is not Julalingappa, but throughout in the
evidence it is emerged that he is also called as Julalingappa and
the same is admitted by the defendant. But the counsel
contends that his name is not Julalingappa, but during the
course of cross-examination even suggestion was made by the
defendant counsel that original propositus name is Julalingappa
and hence, submission of counsel for defendant cannot be
accepted. The other contention that Mallamma is not the wife of
Julalingappa also cannot be accepted in view of the material
available on record, there is an admission. It is not in dispute
that the father of the plaintiff is the brother of said Mallamma
and though denied but admitted. It is the claim of the defendant
that the said Kariyamma is the first wife but in order to prove
the said fact, no material is placed before the Court.
26. DW1 and other two witnesses who have been
examined in support of the case of the defendant also have
admitted that they have not seen any document showing that
she is the wife of said Julalingappa. There is also no any
document to accept the contention of the defendant. I have
already pointed that regarding relationship of Kariyamma and
Julalingappa, a definite finding was given in the earlier suit in
O.S.No.261/1987 and also in the regular appeal and so also in
this Court in the second appeal comes to the conclusion that
both the Courts have given concurrent finding that said
Kariyamma is a fictitious person hence, the contention of the
defendant that he had derived title and he has been in
possession of the suit schedule property cannot be accepted.
27. It is also important to note that in O.S.No.261/1987,
the Trial Court comes to the conclusion that the defendant is not
in possession of the suit schedule property and the said finding is
affirmed in the regular appeal as well as in the second appeal.
Then, the defendant has to prove that how he came into
possession of the property. But the very claim of the plaintiff in
the present suit is that based on the interim injunction granted
in the earlier suit filed by the defendant in O.S.No.261/1987, he
was dispossessed. The defendant also not disputes the fact that
there was an interim order in his favour in O.S.No.261/1987. No
doubt, it is rightly pointed out by the counsel for the defendant
that no complaint was given and also not sought for any relief of
possession in the suit of the defendant which was filed earlier.
The counsel for the defendant also would vehemently contend
that when the plaintiff was dispossessed, Section 6 of the
Specific Relief Act attracts and in order to seek the relief of
possession, the suit ought to have been filed within six months.
28. It is also important to note that when the plaintiff
has filed the suit for the relief of declaration and possession, no
need to file again separate suit immediately after dispossession
since already defendant had filed the suit earlier for permanent
injunction as well as alternatively for possession within six
months as contended. But the question is, the suit was filed in
the year 1995, after disposal of other matters in all the Court.
The other contention that the plaintiff has not sought for the
relief of cancellation of sale deed and the said circumstances is
not warranted since very sale deed was relied upon in the earlier
suits and all the Courts comes to the conclusion that sale deed is
by a fictitious person and no validity can be attached to the
same. I have already pointed out that the said finding has
attained its finality. The very contention of the plaintiff is that
he succeeded to the property of said Mallamma and the said
Mallamma is his maternal aunt. It is also his case that
Mallamma, after the death of Julalingappa, was staying along
with the plaintiff. In order to prove the said factum, no
document is placed before the Court except producing tax paid
receipt in respect of the suit schedule property.
29. It is also not in dispute that the suit was filed on
20.07.1995 and when this Court, First Appellate Court and also
the Trial Court have given definite finding that the said
Kariyamma is a fictitious person and based on the said execution
of document of sale deed dated 27.05.1974, the defendant
cannot claim title as well as possession since the possession also
was not considered in the earlier suit and possession also not
proved. The very case of the plaintiff that he was dispossessed
in the year 1987. In order to prove the fact that the plaintiff
was dispossessed, in the evidence of PW1 he has reiterated the
same. The plaintiff also relied upon the document of earlier
orders passed in O.S.No.261/1987, R.A.No.75/1990 as well as
R.S.A.No.996/1992 that is judgment and decree at Ex.P1 to P6.
The plaintiff also claims that there is an entry in the pahani and
relies upon the documents at Ex.P13 and P14. I have already
pointed out that there is no dispute with regard to the fact that
the property belongs to Julalingappa.
30. It is also important to note that the plaintiff
categorically admitted that no testamentary document executed
in favour of his father or his favour and also there is no any sale
deed and no any settlement deed also in their favour. PW1
categorically admits that his father died in the year 1983. PW1
also categorically admits that he also made claim before the
Land Tribunal as tenant and records reveal that ultimately, no
land has been granted declaring that the plaintiff is the tenant.
PW1 denies the fact of the suggestion that Kariyamma was the
first wife of Julalingappa. It is also important to note that he
was working in the postal department from 1976. PW1 also
categorically admits that no document to show that he was
residing along with Julalingappa and his wife Mallamma. Though
relies upon the evidence of PW2, his evidence is only that
Mallamma was having a son and she is not the second wife of
Julalingappa. PW1 also admits that Mallamma died 40 to 50
years ago. He also says that Julalingappa was passed away 70
years ago but he claims that Ningappa passed away 30 years
ago. He also admits that for having performed the last rituals of
Ningappa by the father of the plaintiff, no invitation is printed. It
is suggested that suit schedule possession was taken 25 years
ago by the defendant and same was denied. PW2 claims that
possession was taken 4 to 5 years ago.
31. The other witness is DW1 and in his evidence he
admits the name of Julalingappa and Mallamma having a son by
name Ningappa through Julalingappa. But he claims that
Mallamma died earlier and also claims that both Mallamma and
Kariyamma were in possession. He claims the possession from
the date of sale deed. In the cross-examination, he admits the
earlier decree passed in O.S.No.261/1987 and banking upon the
reference made in the sale deed in Ex.P9 wherein it is stated
that Kariyamma is the wife of Julalingappa. It is categorically
admits that the details of Julalingappa's family is not mentioned
in the sale deed and also categorically admits that Kariyamma is
residing in Kanakatte but she used to visit Holalakere and also
categorically admits that he is not having any document to show
that Kariyamma was in possession of the property and his
witnesses also admits that no document to show that
Kariyamma was in possession. When such admission is given,
the question of handing over the possession in favour of the
defendant on the date of sale deed does not arise.
32. It is important to note that DW1 admits that he has
not produced any documents to show that Kariyamma is the wife
of Julalingappa. DW1 also categorically admits that plaintiff is
the resident of Holalakere along with his family from his
ancestors. Though he denies that the Mallamma is not the sister
of the father of the plaintiff but he admits that Mallamma was
given in marriage to Julalingappa and also admits her son
Ningappa. He also categorically admits that after the death of
Julalingappa, Mallamma and Ningappa, no katha was transferred
but he admits that in Ex.D6 name of the plaintiff's father and
also the son of Julalingappa i.e., Ningappa is found in the
document. When suggestion was made that after the death of
Julalingappa, his wife Mallamma and his son were residing in the
house of plaintiff and witness says that he is not aware of the
same and says that may be they were living together and this
admission is very clear that he has not specifically denied the
said suggestion. It is also suggested that after the death of
Mallamma and Ningappa, the plaintiff and his father were
cultivating the property and that suggestion also denied saying
that he is not aware of the same and not denied positively that
they are not cultivating the property. Having considered this
admission on the part of the DW1 wherein he has given an
admission that he has not produced any document to show that
Kariyamma was in possession of the suit schedule property, the
question of handing over the property in favour of the defendant
does not arise. The very admission of the DW1 that after the
death of Mallamma, Ningappa and Julalingappa, he is not aware
that whether the plaintiff is in possession or not and the said
answer supports the case of the plaintiff. He also admits that
when his name in the pahani striked out and he did not
challenge the same. He also admits that in the pahani, family is
cultivating. He admits that in Ex.D6, the name of Ningappa and
the name of father of plaintiff is shown. In Ex.D5 also the name
of Ningappa is found. The answer elicited that after the death of
Julalingappa, his wife and son Ningappa were staying in the
house of plaintiff, but says that not aware of it, but may be
residing. Even with regard to cultivation is concerned, he says
not aware of it.
33. No doubt, the defendant examined other two
witnesses i.e., DW2 and DW3 and their evidence is not
supported the case of the defendant instead of, it supports the
case of the plaintiff wherein they deposed that the plaintiff and
his father are residing at Holalakere and also they deposed that
they are not aware of the fact that how Kariyamma got the suit
schedule property. DW1 categorically admits that said
Kariyamma is the resident of Kanakatte and distance between
Kanakatte and Holalakatte is 8 km. DW1 also categorically
admits that he has not seen any document to show that
Kariaymma was in possession of the property. When such
admissions are given and also when specific pleading was made
that the plaintiff was dispossessed based on the strength of
temporary injunction granted in the suit in O.S.No.261/1987
filed by the defendant, it is clear that at no point of time,
defendant was in possession of the suit schedule property and
her vendor Kariyamma was also not in possession. But, now, he
claims that he is in possession. The contention of the plaintiff
supports his case having considered the admission of DW1.
Having perused the material available on record it discloses that
the plaintiff was dispossessed. Unless the defendant proves his
possession and the said possession is lawful, the claim of the
defendant cannot be accepted. Already in the earlier suit, all the
Courts have given definite finding that the defendant has not
proved the possession, thus, an inference can be drawn that the
plaintiff was in possession and he was dispossessed based on the
temporary injunction granted in the suit in O.S.No.261/1987.
The plaintiff also specifically pleaded in the written statement in
O.S.No.261/1987 that the plaintiff was dispossessed. Hence, the
contention that the defendant in the said suit that the plaintiff
has not pleaded that he was dispossessed cannot be accepted
when there is a specific pleading in this regard in the written
statement. The suit is also filed within 12 years of dispossession
i.e., immediately after disposal of earlier original suit, regular
appeal and second appeal. The factual material supports the
case of plaintiff.
34. Now, this Court would like to consider the question
of law since it is the claim of the plaintiff while seeking the relief
of declaration that the property devolves upon the plaintiff who
is the brother's son of mallamma and he was taken care of said
Mallamma and his son Ningappa during their lifetime. The
counsel for the appellant also contends that Section 15(d) of the
Hindu Succession Act, 1956 applies to the case on hand. Hence,
this Court would like to refer Section 15 of the Hindu Succession
Act, 1956 which reads as follows:
"15. General rules of succession in the case of
female Hindus. - (1) The property of a female
Hindu dying intestate shall devolve according to
the rules set out in section 16,--
(a) firstly, upon the sons and daughters
(including the children of any
predeceased son or daughter) and the
husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father;
and
(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in sub-
section (1),--
(a) any property inherited by a female Hindu
from her father or mother shall devolve,
in the absence of any son or daughter of
the deceased (including the children of
any pre-deceased son or daughter) not
upon the other heirs referred to in sub-
section (1) in the order specified therein,
but upon the heirs of the fathers; and
(b) any property inherited by a female Hindu
from her husband or from her father-in-
law shall devolve, in the absence of any
son or daughter of the deceased
(including the children of any
predeceased son or daughter) not upon
the other heirs referred to in sub-section
(1) in the order specified therein, but
upon the heirs of the husband."
35. Having considered the general rules of succession in
the case of female Hindus, this Court has to take note of the fact
that Julalingappa passed away leaving behind his wife as well as
son-Ningappa. It is also not in dispute that wife also passed
away and son Ningappa also passed away as bachelor. Hence,
this Court also would like to refer Section 8 of the Hindu
Succession Act, 1956 which is relevant for consideration to the
general rules of succession in the case of males. Section 8 of
the said Act reads as follows:
"8. General rules of succession in the case of
males.― The property of a male Hindu dying intestate
shall devolve according to the provisions of this Chapter:―
(a) firstly, upon the heirs, being the relatives
specified in class I of the Schedule;
(b) secondly, if there is no heir of class I, then
upon the heirs, being the relatives specified
in class II of the Schedule;
(c) thirdly, if there is no heir of any of the two
classes, then upon the agnates of the
deceased; and
(d) lastly, if there is no agnate, then upon the
cognates of the deceased."
36. Having read the Section 8 of the Hindu Succession
Act, it is clear that the property of a male Hindu dying intestate
shall devolve according to the provisions of this Chapter, firstly,
upon the heirs, being the relatives specified in class I of the
schedule; secondly, if there is no heir of class I, then upon the
heirs, being the relatives specified in class II of the Schedule.
37. Having read the provisions of Section 8 of the Hindu
Succession Act also this Court has to take note of the schedule
of the heirs in class I and class II. This Court having taken note
of class II, column No.9 of the schedule, it is clear that mother's
brother, mother's sister. Class II of the schedule and also the
general rules of succession with regard to Section 15 of the
Hindu Succession Act has to be read conjointly to consider the
case of the plaintiff.
38. Though the learned counsel for the appellant would
vehemently contend that Section 15(d) of the Hindu Succession
Act applies which is upon the heirs of the father and the women
as per general rules of succession. The fact that the plaintiff also
claiming declaration based upon the heirs of father that means
the Mallamma is the sister of plaintiff's father and the said fact is
not in dispute. It is also important to note that the property
succeeded by wife Mallamma and her son Ningappa from said
Julalingappa and the said fact is also not in dispute. The general
rules of succession in the case of female Hindus is very clear that
firstly, upon the sons and daughters (including the children of
any pre-deceased son or daughter) and the husband; secondly,
upon the heirs of the husband, but no heirs as stipulated in class
(a) of Section 15 and so also in respect of heirs of husband, no
legal heirs. Thirdly, upon the mother and father, but in the case
on hand, both of them also not alive; fourthly, upon the heirs of
the father, that is father of the plaintiff is the brother of
Mallamma. Hence, there is a force in the contention of the
counsel for the appellant/plaintiff that plaintiff being the legal
heir of class II of the brother of Mallamma, the property
devolves upon the appellant as per Section 15(d) of the general
rules of succession in the case of female Hindus of Hindu
Succession Act, 1956 which Mallamma succeeded.
39. I have already taken note of Section 8 of the Hindu
Succession Act in the case of male Hindu dies leaving without
any legal heirs in terms of class I. Admittedly, the said
Ningappa passed away as bachelor and this Court also discussed
in detail regarding no heirs as specified in class I of the schedule
having taken note of the general rules of succession in the case
of males. Admittedly, the said Ningappa died intestate and his
property shall devolve according to the provisions of this Chapter
and no legal heirs firstly upon the heirs as specified in class I of
the schedule and the Court has to look into Section 8(b) of the
said Act and secondly, if there is no heir of class I, then upon the
heirs, being the relatives specified in class II of the schedule.
This Court also taken note of the schedule in view of Section 8 of
the Act wherein mother's brother come under class II heir in
column No.IX and though explanation is that in this schedule,
references to a brother or sister do not include references to a
brother or sister by uterine blood. But here is a case that the
father of the plaintiff is the brother of Mallamma and he is a
direct brother and now the said Basappa (plaintiff's father) is
also no more and the property devolves upon the legal heir of
said Basappa that is the plaintiff herein.
40. Having taken note of the conjoint reading of Section
15 in respect of general rules of succession in the case of female
Hindus that is in respect of Mallamma as well as general rules of
succession in the case of males that is in respect of Ningapp, in
detail discussion is made and comes to the conclusion that the
suit schedule property devolves upon the plaintiff and the Court
can grant the relief of declaration in favour of the plaintiff as
sought in the suit.
41. This Court would like to rely upon the judgment of
the Apex Court reported in 1992 SUPP (3) SCC 108 in the case
of STATE OF PUNJAB vs BALWANT SINGH AND OTHERS
wherein the Apex Court discussed with regard to Section 29,
Escheat, operates only in the event of total absence of any heir
to the intestate. The Apex Court also discussed Section 15(1),
(2) and 14 and so also effect of sub-section (2) of Section 15 of
Hindu Succession Act, it intended only to change the order of
succession specified in sub-section (1) and not to eliminate other
categories of heirs set out in sub-section (1). Consequently, by
virtue of sub-section (2), property should first go to heirs of
father or husband as the case may be, female Hindu, inheriting
property from her husband, dying intestate after commencement
of the Act leaving behind no issue nor any heir from her
husband's side, but respondent (plaintiff) grandson of her
brother claiming succession to her property, held
respondent/plaintiff's claim sustainable as he falls under sub-
section (1)(e) of Section 15. In the case on hand also, I have
already pointed that the plaintiff is the son of brother of
Mallamma and in view of the principles laid down in the aforesaid
judgment, the plaintiff is entitled to become the owner of the
suit schedule property as per general rules of succession under
Section 15 of the Act. I have already discussed in respect of the
property of the son of Hindu male i.e., the son of Julalingappa
through Mallamma died intestate and as bachelor and when
there are no other legal heirs, the property devolves upon the
plaintiff as discussed. Hence, substantial questions of law is
answered accordingly.
42. In view of the discussions made above, I pass the
following:
ORDER
The appeal is allowed.
The impugned judgment and decree 23.12.2005 passed in
R.A.No.62/2002 is set aside and the judgment and decree dated
13.03.2002 passed in O.S.No.169/1995 is restored.
Sd/-
JUDGE
SN
