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2008 DIGILAW 783 (KAR)

Mahadevamma v. Javaramma Gundamma Dead By L. Rs.

2008-12-17

K.RAMANNA

body2008
JUDGMENT ( 1. ) THE appellant/defendant has come up with this appeal challenging the judgment and decree passed by the I Additional city Civil Judge, Bangalore in O.S. No. 3634/1984 dated 25. 7. 2092 decreeing the suit of the plaintiffs for partition, possession and mesne profits. ( 2. ) FOR the sake of convenience, the parties will be referred to by their rankings before the Trial Court. The brief facts of the case are that the plaintiffs have filed the suit against the defendant for partition of their 7/8th share in the suit schedule property bearing No. 2 (New No. 27), I Main Road, Kalabhairavaswamy temple Street, Mysore Road, Bangalore and also sought for mesne profits. The case of the plaintiffs is that first plaintiff is the wife and plaintiffs 2 to 7 are the children of late B. Andanappa @ Buddu; that the said B. Andanappa died on 14. 5. 1973 as a member of Hindu joint family leaving behind the plaintiffs and one Smt. Madamma his mother and Smt. Gowramma - his sister; that the said Gowramma died on 14. 3. 1975, that smt. Madamma is also no more, thus the plaintiffs have succeeded to the entire estate left behind by late B. Andanappa. That the suit schedule property is a portion of property purchased under a registered sale deed dated 18. 5. 1962 and it belongs to the joint family of B. Andanappa and his children. The property measured 15' x 45' out of which 71/2each was given to one Chennappa and another extent of 71/2' each was given to one narayana. The remaining extent is the suit schedule property. That the suit schedule property is in occupation of tenants and the first plaintiff was collecting the rents previously. The defendant is in occupation of major portion of suit schedule property and a small portion is let out to tenant and now the defendant is collecting rent. The defendant is the daughter of elder sister of late B. Andanappa and she is married to one Puttamadaiah and lived with him for some time and later, left him and came to Bangalore during 1972. She came and pleaded for temporary accommodation. Accordingly, late B. Andanappa permitted her to live temporarily in a portion of suit schedule premises. The defendant is the daughter of elder sister of late B. Andanappa and she is married to one Puttamadaiah and lived with him for some time and later, left him and came to Bangalore during 1972. She came and pleaded for temporary accommodation. Accordingly, late B. Andanappa permitted her to live temporarily in a portion of suit schedule premises. Thereafter defendant went on pleading time to vacate the schedule premises on the pretext that she had been trying for alternate accommodation. In the meanwhile, B. Andanappa died on 14.5.1973; thereafter plaintiffs demanded defendant to vacate the suit schedule property and to handover vacant possession which was in her occupation. But defendant pleaded sometime, however, during 1974 she refused to vacate the premises by denying the title of the plaintiff. Therefore, the plaintiffs got issued the legal notice dated 4.12.1974 to the defendant to vacate and deliver possession of the premises in her occupation. The notice sent by RPAD returned. The notice sent under certificate of posting was duly served. Inspite of that, defendant failed to comply with the demands made in the notice nor sent any reply. Hence, they filed a suit O.S. 95 of 1975 which was later renumbered as 966 of 1980 seeking for the relief of declaration, possession and mesne profits against the defendant. However, ultimately, the said suit came to be dismissed with an observation that the plaintiffs can seek for partition of suit schedule property and obtain possession with respect to their share. The contentions of defendant No. 1 in the said are negatived. Hence, the plaintiffs have filed the suit before the Trial Court seeking for the aforesaid reliefs. ( 3. ) ON appearance before the Trial Court, the defendant filed written statement and contested the suit on similar line of contentions as taken by her in O.S. No. 966 of 1980. It is her case that she is the wife of late B. Andanappa, S/o. Boraiah; that the said Boraiah had 3 sons by name byrappa, Hutchappa who are the elder brothers of B. Andanappa; that boraiah acquired site bearing khaneshmari No. 68 and subsequent to his death, B. Andanappa got share in the said property under registered partition deed dated 9. 9. 1959. 9. 1959. This property was inherited by Madamma -Mother of B. Andanappa and under a gift deed dated 16.5.1973 executed by the said Madamma she was put in possession of the same, which the plaintiffs are claiming to be the suit property. The status of plaintiffs as wife and children of late B. Andanappa is denied by the defendant; it is contended that plaintiff No. 1 is a Christian and there cannot be valid marriage between the first plaintiff and B. Andanappa. The sale deed dated 18.5.1962, identity of suit schedule property, its boundaries and further, the identity of B. Andanappa as shown in the said sale deed were all disputed by the defendant. It is contended that B. Andanappa is not the first son of Byrappa but he is the third son of Boraiah; that Andanappa under whom the plaintiffs are claiming right is different than the andanappa who is the husband of defendant; that in view of the partition deed dated 9.9.1959 and the gift deed dated 16.8.1973, sale deed dated 18.5.1962 under which the plaintiffs are claiming right over the suit property. That the suit property was a vacant site previously and after executing gift deed in her favour, she put up construction over the same. That she and earlier her predecessors have been in exclusive possession and enjoyment of the suit property adverse to the interest of any other person for the last 20 years, as such, she has perfected her title to the suit property. That she is in enjoyment of the suit property in her own right. The case of the plaintiff is totally denied by the defendant and it is contended that the suit is barred by limitation. However, filing of O.S. No. 966 of 1980 by the plaintiffs and one Gowramma for declaration and possession, etc., in respect of suit property is admitted by defendant. Hence, it is sought for dismissal of the suit. ( 4. ) ON the basis of pleadings available on record, the Trial Court framed in all, 7 issues. The plaintiff No. 1 examined herself as PW 1 and got marked the documents - Exs. P1 to P10 in support of their case. On the other hand, defendant examined herself as DW1 and also examined one chinnappa as DW2 and documents Exs. D1 and D2 came to be marked. The plaintiff No. 1 examined herself as PW 1 and got marked the documents - Exs. P1 to P10 in support of their case. On the other hand, defendant examined herself as DW1 and also examined one chinnappa as DW2 and documents Exs. D1 and D2 came to be marked. The Trial Court after considering the material evidence placed before it, decreed the suit of the plaintiffs, holding that they are entitled to 7/8th share in the suit schedule property and are also entitled to possession. Further, it was directed to hold enquiry into mesne profits under Order 20, rule 12 of CPC. Being aggrieved by the said judgment and decree, defendant has preferred this appeal. According to defendant, Trial Court erred in decreeing the suit of the plaintiffs; that there was no joint family of late B. Andanappa and the plaintiffs. The Court below erred in relying on sale deed dated 18. 5. 1962 which was not proved in accordance with law. Further, the entire judgment and decree passed by the Trial Court basing on the judgment and decree passed in O.S. No. 95 of 1975 holding that the same: has attained finality, is erroneous. It is contended that since the said suit came to be dismissed which was in her favour, she has not challenged the findings recorded in the said suit and the said findings cannot be take, as having attained finality and the principles of res judicata are not applicable; that the finding recorded by the Trial Court with regard to the marriage of respondent No. 1 with late B. Andanappa is incorrect. The Trial Court erred in casting burden on the appellant/defendant to prove certain issues which was unwarranted to the facts and circumstances of the case and the same has resulted in miscarriage of justice. That the Trial Court failed to frame proper issues with regard to limitation and adverse possession of defendant. That the Court below erred in not believing the evidence of DWs. 1 and 2. It is further contended that Trial Court ought to have recorded its independent finding instead of relying on the judgment and decree passed in O.S. No. 966 of 1980 and hence it is prayed to allow the appeal setting aside the judgment and decree passed by the Trial Court. ( 5. ) HEARD the arguments of both the parties and perused the records. ( 6. ( 5. ) HEARD the arguments of both the parties and perused the records. ( 6. ) THE point that arises for my consideration is whether the judgment and decree passed by the Trial Court is incorrect and illegal; if so, what orders? Admittedly, the suit schedule property is the house property bearing no. 2 (New No, 27) which belonged to B. Andanappa alias Buddu who died on 14.5.1973. According to plaintiffs, they are the wife and children of late B. Andanappa. 'on the other hand, the contention of the defendant is that she is the daughter of elder sister of late B. Andanappa and she had married him and she is the legally' wedded wife of B. Andanappa and had begotten a child by name Lingamma. Further, according to plaintiffs, the suit schedule property is acquired by late B. Andanappa under a registered sale deed dated 18. 5. 1962 and had alienated some of its portion. On the other hand, according to defendant, suit schedule property had fallen to the share of late B. Andanappa in a family partition that took place during 1959. That after, the death of late B. Andanappa, his mother- late Madamma had executed gift deed dated 16. 8. 1973 in her favour, as such, she along with her daughter have become the owners of suit schedule property. ( 7. ) OF course, the defendant has disputed the identity of late B. Andanappa as different from the one under whom the plaintiffs have claiming right, However, from the materials, it is apparent that in the earlier suit proceedings in O.S. 966 of 1980, which is between the same parties and where a similar contention was taken by both the parties, the defendant has admitted that both the parties to the suit are claiming under one and the same person i.e., late B. Andanappa to whom the plaintiff No. 1 and defendant claims to have married. However, it is disputed that the marriage between plaintiff No. 1 and late B. Andanappa is not valid since plaintiff No. 1 belongs to Christian Community. Further, the identity of suit schedule property and its boundaries as described in the sate deed relied upon by the plaintiffs and the partition deed and the gift deed relied on by the defendant is also disputed. Further, the identity of suit schedule property and its boundaries as described in the sate deed relied upon by the plaintiffs and the partition deed and the gift deed relied on by the defendant is also disputed. However, the records reveals that both the parties are claiming right over one and the same property, but only the property number is described/shown differently. It is further not in disputed that at present, defendant is in occupation of major portion of the suit property and had let out a portion to tenant and collecting rents and also paying taxes to the authorities in respect of the suit property. However, according to the plaintiffs, defendant was put in possession of suit schedule property by late B. Andanappa for a temporary period, since she left her marital house and came to live with the family of plaintiffs. But the defendant claims to be possession of the suit schedule property and she is residing therein on her own right, on the basis of gift deed executed by her mother-in-law Smt. Madamma. Though it is claimed by the defendant that she herself put up construction on the suit property, the Trial Court rightly not believed the same in view of the specific averment in the gift deed relied on by the defendant herself, that the property was gifted to defendant along with the construction and the defendant had carried out only renovation work. ( 8. ) THUS, it is settled between the parties that the suit schedule property is in possession of defendant and both of the parties to suit are claiming right over the same under different title. Further, the title of late B. Andanappa over the suit property is also admitted. Thus, the point to be considered to answer the dispute between the parties is as to whether who actually is entitled to succeed to the property left behind by late B. Andanappa? In this regard, to prove the marriage of plaintiff No. 1 with the late B. Andanappa, she examined herself before Trial Court as PW 1 and deposed to the effect that she is the wife of late B. Andanappa. However, she failed to answer before Court as to in which year and how many years back her marriage with B. Andanappa took place. No other independent witness has been examined before the Trial Court to prove their marriage. However, she failed to answer before Court as to in which year and how many years back her marriage with B. Andanappa took place. No other independent witness has been examined before the Trial Court to prove their marriage. She failed to answer who are all the persons present at the time of their marriage. However, she relied on Ex. P. 9 - Marriage Registration Certificate, but the same has been disputed by the defendant and contended that the name - Chowramma mentioned in the said certificate is not the plaintiff no. 1 and that the same is related to some other person. The explanation offered by PW 1 is that the same is a typographical error. However, she had not taken any, step to correct the same. On the other hand, the defendant also examined herself as DW 1 to prove her marriage with late b. Andanappa. However, she also failed to disclose correct facts before the court. The Trial Court considering the age of the defendant declined to believe her marriage with late B. Andanappa and relying on the evidence of PWs 1 and 2 who were examined by the plaintiff No. 1 in support of her suit in O.S. No. 966 of 1980 and the judgment and decree passed therein, had come to the conclusion that plaintiff No. 1 is the legally wedded wife of late B, Andanappa. Further, the Trial Court relying on the said judgment, had come to the conclusion that plaintiffs are entitled to 7/8th share in the suit schedule property, holding that the said judgment has attained finality, since the appellant has been not filed any appeal challenging the said judgment and decree. ( 9. ) IN this regard, the Counsel for the appellant has relied on the judgment reported in Debi Dayal Vs. Annu Singh, AIR (30) 1943 Oudh 231, wherein it is held thus: "the principle of constructive res judicata applies only to a case in which the party against whom it is sought to apply was unsuccessful in the previous suit or proceeding. It cannot be applied against a person who in the previous suit or proceeding had been successful. " In the case of Katragadda China Anjaneyulu and Another Vs. It cannot be applied against a person who in the previous suit or proceeding had been successful. " In the case of Katragadda China Anjaneyulu and Another Vs. Katragadda China Ramayya and Others, AIR 1965 Andhra Pradesh 177, it is held thus: "plea of resjudicata - not raised by pleadings or in the issues- plea held could not be raised in appeal for the first time. . . . . . . . . To invoke the doctrine of resjudicata, the ingredients contemplated by Section 11 should be satisfied. The Court has to see whether the elements that constitute res judicata are present in a given case, which means an investigation into the facts hearing upon the several aspects, contemplated by that section. It is not a pure question of law which could be debated at any stage. " In the case of Charan Dass Vs. M/s. Thakur Dass Mast Ram, AIR 1973 Himachal Pradesh 22, it is held thus: "civil P. C. (1908) Section 11.-Constructive res judicata -principle not applicable against party successful in previous suit. The principle of constructive res judicata applies only to a case in which the party against whom it is sought to apply was unsuccessful in the previous suit, or proceedings. It cannot be applied against a person who in the previous suit or proceeding had been successful. "civil P. C. (1908) Section 11.- Res judicata - plea can be waived. Plea of res judicata can be waived by a party. The plea is decidedly dependent upon proof or disproof of many facts. If a party chooses not to plead such facts, it can be stated to have waived the plea. " ( 10. ) IN view of the law laid down in the aforesaid judgments, I found some force in the arguments advanced by Counsel for the appellant that, since the said decree in O.S. No. 966 of 1980 has been passed in favour of the defendant, she has not challenged the said judgment though there were some findings recorded against the defendant. Of course, the defendant had failed to prove all her claims before the Trial Court and has failed in her attempts, but the same should not be the ground to decree the suit of the plaintiffs. Of course, the defendant had failed to prove all her claims before the Trial Court and has failed in her attempts, but the same should not be the ground to decree the suit of the plaintiffs. It is well-settled law that the plaintiffs who have approached the Court should succeed in their suit on the strength of their own case and they cannot be benefited by the latches on the part of the defendant's case. However, in the instant case, the plaintiffs case is also of full of contradictions and omissions, there is no convincing material evidence placed on record by them to decree their suit. The plaintiffs have not challenged the validity of gift deed executed by the mother of late B. Andanappa in favour of defendant, further they are not paying tax to the authorities in respect of the suit property, there is no proper explanation given by them as to if really the defendant was temporarily accommodated by late B. Andanappa to live in a portion of the suit property, why, how and on what rights she is collecting rents from the tenants. The plaintiffs have failed to disprove the partition deed and gift deed relied on by the defendant and have further failed to explain what made the deceased B. Andanappa to get the sale deed in respect of the suit property, where in fact the same had fallen to his share in the family partition, this question has been left unanswered by the Trial Court. The plaintiffs have failed to prove the execution of sale deed/ex. P. 1. Further while recording finding as to the shares of the parties the Trial Court wholly prejudiced by the judgment in O.S. No. 966 of 1980. The Trial Court decreed the suit of the plaintiffs solely relying on the findings rendered by the court in O.S. No. 966 of 1980 by wrongly assuming and presuming things which is incorrect, illegal and cannot be sustained. ( 11. ) IN view of the law laid down in the decisions referred supra, the law of res judicata cannot be made applicable to a party succeeding in the suit. In the facts and circumstances of the case, the parties are only estopped from taking divergent contentions than what they have taken in the earlier suit proceedings. ( 11. ) IN view of the law laid down in the decisions referred supra, the law of res judicata cannot be made applicable to a party succeeding in the suit. In the facts and circumstances of the case, the parties are only estopped from taking divergent contentions than what they have taken in the earlier suit proceedings. In our country, since most of the people are from rural background and are economically/and socially backward and since' most of the people will not be known of cosequences of certain facts that took place in the Courts of law, people may not ordinarily challenge the findings recorded against them if ultimately they succeed in the suit. As such, in the instant case, merely because defendant failed to challenge the findings recorded in judgment and decree passed in O.S. No. 966 of 1980, the same may not be termed as having attained finality. ( 12. ) IN view of the law laid down by the Full Bench of Andhra Pradesh reported in AIR 1965 AP 177 referred supra, since the doctrine of res judicata involves both question of fact and law and the same cannot be decided solely on the basis of arguments of the parties and facts and circumstances involving elements to constitute res judicata are present in a case or not is to be decided on facts of the case. The Trial Court ought to have framed a specific issue in this regard before coming into the conclusion that findings recorded in O.S. No. 966 of 1980 operates as res judicata. Absence of framing the said issue has prejudiced the Trial Court to decree suit of the plaintiffs without properly considering the case of defendant, which is incorrect and the same cannot be sustained. Considering the facts and circumstances of the case, I am of the opinion that the dispute between the parties should only be decided after considering all the objections raised by the defendant and after giving an opportunity to both the parties to substantiate their claims, by framing proper and specific issues in respect of their claims. For the foregoing reasons, the appeal is allowed in part. The judgment and decree passed by the Trial Court is hereby set aside. For the foregoing reasons, the appeal is allowed in part. The judgment and decree passed by the Trial Court is hereby set aside. The matter is remanded back to the Trial Court to dispose of the same, after framing necessary issue in respect of applicability or not of doctrine of res judicata, etc., and after giving sufficient opportunity to both parties to adduce additional evidence, on all issues, if any, on merits, in accordance with law, without prejudicing or influencing from any observations made in this order. ( 13. ) CONSIDERING the fact that the suit is of the year 1984, the Trial court is directed to dispose of the suit on or before 20. 4. 2009. Both the parties are directed to appear before Trial Court on 5.1.2009. No order as to costs.