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2004 DIGILAW 385 (KAR)

Kempamma (Deceased) by L. Rs. v. M. Shivakumara

2004-06-22

V.GOPALA GOWDA

body2004
JUDGMENT V. Gopala Gowda, J.--This second appeal is filed by the legal representative of deceased Plaintiff in O.S. No. 3 of 1996 on the file of Civil Judge (Sr. Dn.), Tiptur, being aggrieved by the judgment and Decree dated 22.1.2004 in R.A. No. 19 of 2001 confirming judgment and Decree dated 20.6.2001 passed by the trial Court in the suit. 2. For the sake of brevity and convenience, the rank of the parties is referred to as in the original suit. 3. The suit was filed by the Plaintiff for declaration of her ownership and permanent injunction in respect of the suit schedule properties. The case of the Plaintiff is that suit Item No. 1 land was granted under darkhast to the first Defendant and Item No. 2 was granted to the 2nd Defendant. The Plaintiff's husband purchased these two properties and made them coconut garden. He bequeathed the properties in favour of 2nd and 4th sons under a Will dated 31.3.1982 with a condition that the properties shall devolve on them only after the death of Plaintiff and her husband. After the death of her husband, Plaintiff became the full owner and has been in possession and enjoyment of the properties. Since the 3rd Defendant is attempting to interfere with her possession alleging that he had taken some document from 1st Defendant, Plaintiff has filed the suit. The Defendants entered appearance and filed written statement. The sale of suit schedule properties by Defendants 1 and 2 in favour of Plaintiff's husband is denied. So also, the execution of Will dated 31.3.1982 by Plaintiff's husband is also denied. It is claimed that the 1st Defendant sold the suite Item No. 1 to the 3rd Defendant. On the basis of the pleadings, the trial Court framed issues and took-up the suit for trial. Parties adduced evidence and produced documents. Upon appreciation of the material brought on record, the trial Court partly decreed and partly dismissed the suit. It has held that Plaintiff is not the absolute owner but co-owner and joint possessor along with other Class-I heirs of her deceased husband till the termination of the grant in favour of Defendants 1 and 2 for breach of conditions of grant. Injunction was granted against Defendants 1 and 3. So far as suit Item No. 2 is concerned, decree is passed in terms of the compromise. Injunction was granted against Defendants 1 and 3. So far as suit Item No. 2 is concerned, decree is passed in terms of the compromise. Being aggrieved by the same, the Plaintiff filed R.A. No. 19 of 2001 and the 3rd Defendant filed R.A. No. 24 of 2001. The first Appellate Court dismissed both the appeals by its judgment dated 21.1.2004. The legal representative of deceased Plaintiff has filed this second appeal against the dismissal of R.A. No. 19 of 2001. 4. Plaintiff produced copies of sale deeds as Exs. P1 and P2 in proof of her husband purchasing the suit schedule properties. The 3rd Defendant who claimed that he purchased the suit Item No. 1 from the first Defendant, has admitted execution of sale deed by the 1st Defendant in favour of Plaintiff's husband. The trial Court found that the stand taken by the 3rd Defendant in the written statement is quite contrary to the evidence adduced by him as DW-1. Exs.P-4 to P-8 are the R.T.C extracts wherein the name of husband of the Plaintiff is entered for the years 1975-76 to 1990-91. Exs. P-9 to P-20 are the receipts for having paid land revenue by the husband of the Plaintiff. These documents amply proves purchase of the properties by the husband of the Plaintiff and his personal cultivation of the same. Even upon re-appreciation of the material on record, the first Appellate Court concurred with the findings of the trial Court. The judgment and decree of the Courts below are perfectly justified and there are no grounds to interfere with the same. The substantial question of law framed by this Court does not arise and the appeal is devoid of merit. 5. As regards the claim of acquisition of full ownership to the properties by the Plaintiff is concerned, the husband of the Plaintiff bequeathed the properties in favour of his two sons under a Will conferring life interest on the Plaintiff. Thus, only limited estate was conferred upon the Plaintiff. But, the Plaintiff claims to have acquired full estate after the death of her husband. Upon appreciation of various factors and circumstances, the trial Court categorically held that the Will Ex.P-22 cannot be legally enforceable. In view of Section 8 of the Hindu Succession Act, the trial Court held that Plaintiff is a co-owner along with her children. Hence, the trial Court moulded the relief. 6. Upon appreciation of various factors and circumstances, the trial Court categorically held that the Will Ex.P-22 cannot be legally enforceable. In view of Section 8 of the Hindu Succession Act, the trial Court held that Plaintiff is a co-owner along with her children. Hence, the trial Court moulded the relief. 6. The attempt of interference by Defendants pleaded by the Plaintiff is tested by the trial Court with reference to the denial of Plaintiff's ownership and possession of the suit schedule lands and rightly granted injunction restraining them from interfering with the possession and enjoyment of the Plaintiff. 7. Admittedly, the properties in question were granted by the Government under darkhast in favour of Defendants 1 and 2 with a condition not to alienate the same for a period of 15 years. Admittedly, the lands had been sold in favour of Plaintiff's husband within the non-alienation period. Thus, there is contravention of condition of grant. The trial Court, therefore, rightly granted liberty to the Government to terminate or cancel the grant of the lands. Since the husband of the Plaintiff purchased the lands during the non-alienation period, the Plaintiff cannot have any grievance against the liberty granted to the Government for cancelling the grants. 8. The first appellate Court re-appreciated the documentary and oral evidence on record and justified in agreeing with the findings and conclusions of the trial Court. No substantial question of law arise in this appeal and no ground is made-out to interfere with the concurrent findings of the Courts below. 9. The appeal stands dismissed.