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2010 DIGILAW 1267 (KAR)

Rajamma v. Hanumakka since dead by her LR

2010-12-13

SUBHASH B.ADI

body2010
JUDGMENT Subhash B. Adi, J : This appeal is by the legal representatives of defendant No.1 and defendant No.2 against the Judgment in O.S. No. 1401/1980 date 9.9.2005 on the file of the XXIV Additional City Civil Judge, Bangalore city. 2. Parties are referred as per their ranking in the Trial Court. 3. The suit is one for declaration of title over the suit schedule 'c' property and for mandatory injunction directing the defendants to remove unauthorised construction on suit schedule 'c' property and for possession of the same with mesne profits and costs. 4. The case of the plaintiff is that, property bearing No. 109 (Old No.145) shown as ABCDEF in rough sketch produced alongwith the plaint and described as 'A' schedule property measuring 35 feet East-West and 44 feet North-South consisting of 6 Ankanas mud roof structure and vacant land, belonged to the plaintiffs great grand father Lakshmaiah. The said Lakshmaiah had two daughters viz., Yellamma and Muniramakka. After the death of Lakshmaiah, his daughters got divided the said property. 'A' schedule property fell to the share of Muniramakka and the house lying to its south fell to Yellamma's share. Muniramakka had a son by name Gali Hanumappa and a daughter by name Hanumakka. Yellamma had two sons viz., Sadappa and Krishnappa. After death of Muniramakka, her children Gali Hanumappa and Hanumakka inherited her properties and have been in possession of 'A' schedule property. Gali Hanumappa and borrowed money from Yellamma's sons viz., Sadappa and Krishnappa under simple mortgage deed dated 16.2.1920. The said Sadappa and Krishnappa filed O.S. No. 41/1940-41 on the file of II Munsiff, Bangalore for recovery of mortgage money and the said suit came to be decreed on 15.11.1941. The decretal amount was paid by Gali Hanumappa to defendants' father Sadappa and his brother Krishnappa. Muniramakka wanted to gift the 'A' schedule property to her daughter Hanumakka, but Muniramakka died before making the gift. However Gali Hanumappa executed registered gift deed dated 16.8.1954 in respect of 'A' schedule property. Hanumakka who was enjoying the said property as absolute owner by virtue of the said gift deed, sold the property in favour of one Gurumurthy Reddy under a registered sale deed with condition of repurchase. Subsequently, she re-purchased the said property from Gurumurthy Reddy under registered sale deed dated 26.5.1960. Hanumakka who was enjoying the said property as absolute owner by virtue of the said gift deed, sold the property in favour of one Gurumurthy Reddy under a registered sale deed with condition of repurchase. Subsequently, she re-purchased the said property from Gurumurthy Reddy under registered sale deed dated 26.5.1960. Defendant's father Sadappa filed O.S. No. 604/68 against plaintiffs mother Hanumakka for declaration of title, possession and damages in respect of the above property. After contest, the said suit came to be dismissed. Against which, an appeal was filed in R.A. No. 73/1971 and the same was also dismissed on 8.8.1973. On 2.12.1975 plaintiffs mother Hanumakka sold a portion of her property bearing No. 109 (old No. 145) of Koramangala measuring 35 feet East to West and 22 feet North to South demarcated as XBCDEY in the rough sketch produced alongwith the plaint in favour of the plaintiff and plaintiff was put in possession of the same. Hanumakka is residing in remaining portion of the property. Plaintiff obtained licence from Koramangala Village Panchayath to put up construction on the portion purchased by him, when the plaintiff had gone to Kasavanahalli in Bangalore taluk to bring back his mother, wife and children, the defendants had made an attempt to put up unauthorised construction on the southwestern corner of suit property in an area measuring 9½ feet East to West and 16½ feet North to South. On return, plaintiff protested against the same and also filed a complaint against the defendants before the Police. The defendants executed 'Muchhalika' i.e. undertaking that they will not put the construction. But the defendants high handedly completed the unauthorised construction during the plaintiffs absence. Hence the present suit came to be filed. 5. Defendants on service of summons, contested the suit by filing written statement, inter alia contending that under the mortgage deed dated 16.12.1920 Gali Hanumappa could not mortgage entire suit property in favour of Sadappa and Krishnappa. Present suit 'A' schedule property was the subject matter of O.S. No. 41/1940-41. As Gali Hanumappa was not the owner of the entire 'A' schedule property described in the plaint, Hanumakka did not derive any title over the suit property under the registered gift deed dated 16.8.1954 executed by Gali Hanumappa. The said gift deed dated 16.8.1954 and re-conveyance deed dated 26.5.1960 executed by Gurumurthy Reddy are make believe documents. As Gali Hanumappa was not the owner of the entire 'A' schedule property described in the plaint, Hanumakka did not derive any title over the suit property under the registered gift deed dated 16.8.1954 executed by Gali Hanumappa. The said gift deed dated 16.8.1954 and re-conveyance deed dated 26.5.1960 executed by Gurumurthy Reddy are make believe documents. Present 'A' schedule property was not the subject matter in O.S. No. 604/68 filed Sadappa, the defendant's father against Hanumakka, plaintiffs mother. Hanumakka had no right to execute the sale deed in favour of the plaintiff. She was not in possession of the suit property. The building licence issued by the Panchayath cannot confer any title on the plaintiff over suit property. By amendment to the written statement, the defendants also claimed that the suit is not maintainable in view of the provisions of Mysore (Personal and Miscellaneous) Inams Abolition Act, 1954 (in short referred as Act) as the plaintiff had not applied for grant of occupancy rights in respect of the suit property as such suit property stood vested in the State. Hence the plaintiff did not get any right over the suit schedule property. 6. During the pendency of the suit, the plaintiff died on 9.10.1978 leaving behind his wife, mother and 5 daughters. They were brought on record as legal representatives. The 1st defendant also died on 24.6.1986 and his legal representatives were also brought on record as per the order dated 27.7.1988. The 2nd defendant also died on 7.11. 2001 and his legal representatives were brought on record on 1.6.2005. 7. Based on the above pleadings, the Trial Court framed the following Issues: 1. Whether the plaintiff proves his title to the portion of premises No. 109 of Koramangala village and measuring 16½ x 9½ marked in plaint sketch? 2. Whether the plaintiff is entitled to mandatory injunction prayed for? 3. Whether the plaintiff is entitled to possession of plaint 'C' schedule property? 4. Whether the plaintiff is entitled to mense profits? 5. To what reliefs the plaintiff is entitled? 6. Whether the suit property was directly involved in the suit O.S. No. 604/68 and the trial of ownership of suit property is barred? 7. Whether the defendant proves that the right of plaintiff has been extinguished under the provisions of the Inams Abolition Act? 8. 5. To what reliefs the plaintiff is entitled? 6. Whether the suit property was directly involved in the suit O.S. No. 604/68 and the trial of ownership of suit property is barred? 7. Whether the defendant proves that the right of plaintiff has been extinguished under the provisions of the Inams Abolition Act? 8. Plaintiff's mother Hanumakka was examined as PW-1 and Ex.P1 to P36 were marked in her evidence. One S. Narayanaswamy and Ramachar were examined as DWs.1 and 2 and Ex. D1 to D6 were marked in their evidence. The Trial Court decreed the suit by Judgment dated 22.11.1999. Against the said Judgment and Decree, the defendants preferred RFA 381/2000. The said appeal was allowed and the matter was remanded. This Court had directed the Trial Court to give an opportunity to both the parties to find out whether the suit filed by the plaintiff is maintainable in view of the Judgment in the matter of Manikyam Vs. R. Thimmaiah reported in (1983) 1 KLJ 328 and dispose of the case on merits. 9. After remand, the Trial Court considered the case as regards the maintainability and also considered other issues and accordingly by the impugned Judgment, decreed the suit with costs declaring that plaintiff is the owner of the plaint 'C' schedule property. Defendants were directed to remove the illegal construction put up on the 'C' schedule property and directed the defendants to hand over the vacant possession of the same to the plaintiff within three months from the date of the judgment. It is against this Judgment and Decree, the defendants are in appeal. 10. Learned Counsel for the appellants submitted that the suit is not maintainable as the property was part of Jodi Inam and by virtue of the provisions of Mysore (Personal and Miscellaneous) Inams Abolition Act, 1954, the suit schedule property stood vested in the State free from all encumbrances. Since the predecessors-in-title of the plaintiff had not sought for registration of the occupancy rights, the suit by them without the registration of the occupancy rights is not maintainable. Since the predecessors-in-title of the plaintiff had not sought for registration of the occupancy rights, the suit by them without the registration of the occupancy rights is not maintainable. To support his contention, he relied on the provisions of Section-10 of the said Act and submitted that under Section-10 power is conferred on the Tribunal to examine the nature and history of all lands in occupancy of a kadim tenant, or a permanent tenant, a quasi permanent tenant, or the holder of a minor inam or an inamdar for registering them as an occupant under Sections 4, 5, 6, 7 and 9. He also relied on the provisions of Section 12 of the Act and submitted that every private building other than the buildings which vests under Sections 7 and 9, situated within the limits of an inam shall, with effect on and from the date of vesting, vest in the person who owned it immediately before that date, and any dispute relating thereto shall be decided by the Tribunal and such decision shall be final. Relying on these provisions, he further submitted that the building being the part of jodi inam and by virtue of the above provisions, the dispute as regards the claim to title in respect of such property could only be adjudicated by the Tribunal and not by the Civil Court. Civil Court jurisdiction is expressly ousted and as such the suit is barred by virtue of the provisions of the Act. He also submitted that the defendants claim that they are the mortgagees and issue of mortgage has not been decided by the Trial Court. The civil Court did not go into the merits of the case and also has not considered the judgment of this Court in the case of Manikyam Vs. R. Thimmaiah reported in (1983)1KLJ 328. The Civil Court cannot decide the title of the plaintiff fin respect of the Inam land and the Civil Court also ignoring the possession of the defendants has decreed the suit. 11. In the light of the submissions made by the learned Counsel for the appellants, the points that arise for consideration are: 1. Whether the suit is maintainable in view of the provisions of the Act? 2. Whether the Trial Court Judgment and Decree lacks from consideration on merits? 12. 11. In the light of the submissions made by the learned Counsel for the appellants, the points that arise for consideration are: 1. Whether the suit is maintainable in view of the provisions of the Act? 2. Whether the Trial Court Judgment and Decree lacks from consideration on merits? 12. Facts which are not in dispute are defendants 1 and 2 are sons of Sadappa and Sadappa is son of Yellamma, Gali Hanumappa and Hanumakka are brother and sister and are the children of Muniramakka. Muniramakka is the sister of Yellamma. Defendants are the descendants of Yellamma. Gali Hanumappa and Hanumakka are the descendants of Muniramakka. Muniramakka and Yellamma are sisters and children of Lakshmaiah, alleged inamdar. It s not in dispute that Sadappa and Krishnappa were mortgagees under a simple mortgage deed dated 16.2.1920 in respect of 'A' schedule property from Gali Hanumappa, as he had borrowed money from them. It is also not disputed by the defendants that the suit was filed by Sadappa and Krishnappa in O.S. No 41/1940-41 was decreed on 15.11.1941. Thereafter Gali Hanumappa executed a registered gift deed dated 16.8.1954 in respect of 'A' schedule property in favour of Hanumakka and she in turn had sold the property to one Gurumurthy Reddy and again re-purchased the same under a registered sale deed dated 26.5.1960. Before the Trial Court in the evidence of PW-1, he has produced Ex. P24 - the certified copy of the plaint in O.S. No. 604/68, which was filed by the defendants' father - Sadappa for declaration of title against Hanumakka. The said suit was dismissed and the certified copy of which is also produced as Ex. P17 Written statement filed in O.S. No. 604/1968 is also produced at Ex. P25. It is also not disputed that against the dismissal of the suit filed by Sadappa, an appeal was filed in R.A. No. 73/71 and the said appeal was also dismissed by Judgment and Decree dated 8.8.1973 as per Ex. P18. From these documents, it is clear that Sadappa, who claimed title in himself against Hanumakka has failed to prove his title to the suit property. The issue as to whether Hanumakka had proved her title has been answered in her favour by holding that Hanumakka is the owner of the suit schedule property and is in possession of the same. From these documents, it is clear that Sadappa, who claimed title in himself against Hanumakka has failed to prove his title to the suit property. The issue as to whether Hanumakka had proved her title has been answered in her favour by holding that Hanumakka is the owner of the suit schedule property and is in possession of the same. As on 8.8.1973 i.e., the date of Judgment in R.A. No. 73 of 971, the finding recorded by the competent Civil Court shows that Hanumakka was the owner in possession of the suit schedule 'A' property has become final. It is thereafter she sold the property in favour of her son, that is the deceased plaintiff under a registered sale deed dated 2.12.1975. 13. Fact that deceased defendants 1 and 2 are claiming through Sadappa is not in dispute. The father of the defendants having lost his suit for declaration, the said finding is binding on the defendants cannot be disputed. Though the defendants alleged that the suit schedule property in this suit was not the suit schedule property in the said suit, however Ex. P24 - certified copy of plaint in O.S. 604/68, Ex. P25 - certified copy of written statement in O.S. 604/68 and Ex. P17 - judgment and Decree in O.S. 604/68 clearly show that the suit schedule property was the subject matter of the said suit. When an issue as regards the title between the plaintiffs predecessor and the defendants' predecessor has been settled, it binds the successors-in-interest of the plaintiffs and the defendants. It is not the case of the defendants that they are claiming any independent right. Their claim is dependant on 1920 mortgage and 1920 mortgage has been redeemed and thereafter the suit was filed by the father of the defendants and the suit has been dismissed confirming the title of the mother of the plaintiff i.e., PW-1 and this is established by documentary evidence Ex. Ps24, 25, 17 and 18. No doubt the Trial Court has not elaborately discussed on these documents, but has recorded a finding as to the title of the plaintiff. The defendants have not, produced any material to show that they are in possession by virtue of any title or mortgage. Except claiming that they are in possession, they have not produced any other material. 14. No doubt the Trial Court has not elaborately discussed on these documents, but has recorded a finding as to the title of the plaintiff. The defendants have not, produced any material to show that they are in possession by virtue of any title or mortgage. Except claiming that they are in possession, they have not produced any other material. 14. It is the case of the plaintiff that in his absence, the defendants encroached upon property of the plaintiff and construed and he immediately filed a complaint and based on which, he also filed a suit. So this also shows that the encroachment made by the defendants was just before the suit. The Trial Court considering these materials has held that title of the plaintiff is well established by virtue of the earlier judgment and also by the evidence of PW-l. Even on reconsideration of these materials, I do not find that the plaintiff is the owner of the suit schedule property and entitle for possession. 15. The plaintiff has established the encroachment to the extent of 9½ feet x 16½ feet by filing a complaint - Ex. P31, endorsement by City Survey Department - Ex.P21, Enquiry Register Extract - Ex.P22, Extract of Field Sketch of suit property - Ex.P23, extract of assessment register Ex.P16, licence for construction - Ex.P15 and these documents go to show the possession of the defendants in respect of 'C' schedule property also. As against this, the defendants have produced leased deed (Will) and certified copy of the Mortgage Deed of 1920. Except these documents, no other documents are produced by the defendants. The mortgage of 1920 was the subject matter of the earlier suit in O.S. No. 41/1940-41. As such the plaintiff having proved the title to the suit schedule 'C' property and also having proved that the defendants have unauthorisedly put up construction, the plaintiff has established that he is entitled for mandatory injunction of removal of structure and also for possession. 16. In so far as maintainability of suit is concerned, it is necessary to refer to the provisions of the Act. Chapter-II of the Act deals with the vesting of inam land in the State and its consequences. Section-3 refers to the consequences of the vesting of an inam in the State. 16. In so far as maintainability of suit is concerned, it is necessary to refer to the provisions of the Act. Chapter-II of the Act deals with the vesting of inam land in the State and its consequences. Section-3 refers to the consequences of the vesting of an inam in the State. As per Clause (b) of sub-section (1) of Section 3 all rights, title and interest vesting in the inamdar including those in all communal lands, uncultivated lands, whether assessee or not, waster lands, pasture lands, forests, mines and minerals, quarries, rivers and streams, tanks and irrigation works, fisheries and ferries shall cease and be vested absolutely in the State of Karnataka, free from all encumbrances. As per Clause (c) of sub-section (1) of Section-3 the inamdar shall cease to have any interest in the inam other than the interests expressly saved by or under the provisions of the Act. Consequent of vesting, right is created in kadim tenant, permanent tenant, quasi permanent tenant to be registered as an occupant of the land. Sections 4, 5 and 6 relate to the grant of occupancy rights in respect of the land. 17. Section 7 refers to the vesting of lands and buildings in the holder of a minor inam to which the Act is applicable. Every holder of a minor inam to which the Act is applicable shall, with effect on and from the date of vesting, be entitled to be registered as an occupant of all lands which immediately before the date of vesting were included in his holding other than (i) communal lands, waste lands, gomal lands, forest lands, tank beds, mines, quarries, rivers, streams, tanks and irrigation works; (ii) lands in respect of which any person is entitled to be registered under Section 4 or 5; and (iii) lands upon which have been erected buildings owned by any person other than the holder of the minor inam. This provision confers right on the minor inamdar to be registered as an occupant. However no registration is required in respect of holding of the lands mentioned in Clauses (i) (ii) and (iii) which also include erected buildings owned by any person other than the holder of the minorinam. This provision confers right on the minor inamdar to be registered as an occupant. However no registration is required in respect of holding of the lands mentioned in Clauses (i) (ii) and (iii) which also include erected buildings owned by any person other than the holder of the minorinam. Insofar as building situated within the limits of minor in am (to which the Act is applicable) and which was owned immediately before the date of vesting by the holder of the minor inam, shall with effect on and from such date, vest in the holder of the minor inam. Section 7 protects the buildings from the veting. Similarly Section-9, protection is given to the erected buildings owned by any person other than the inamdar. Section 10 deals with determination of claims under Sections 4, 5, 6, 7, 8 and 9. Sections 4, 5, and 6 relate to permanent tenant, kadim tenant and quasi permanent tenant. Section 7 and 9 relate to the rights of the holder of a minor in am and of the inamdar whose inam has vested in the State. In view of the exclusion of the building for registration, Section-10 will not be applicable in respect of building owned by private persons prior to the coming into force of the Act. Section-12 also clearly mentions that every private building other than the buildings which vest under Sections 7 and 9, situated within the limits of an inam shall, with effect on and from the date of vesting, vest in the person who owned it immediately before that date. That means, the private buildings owned by the persons immediately before the Act came into force, it will vest with such person. The reading of Sections 7, 9, 10 and 12 abundantly make it clear that a building erected before coming into force of the Act would vest in a person who owned it or vest in the holder of the minor inam or inamdar as the case may be. The protection given under Sections 7, 9, 10 and 12 clearly emphasizes that the rights as far as buildings are concerned, they do not get extinguished consequence of abolish of the in am as they vest in the person or the inamdar as the case may be. The protection given under Sections 7, 9, 10 and 12 clearly emphasizes that the rights as far as buildings are concerned, they do not get extinguished consequence of abolish of the in am as they vest in the person or the inamdar as the case may be. If that is so, the consequence of vesting of in am in the State, will not affect the building erected on inam land. The Act has protected the building whether owned by private person or of the holder of minor inam or the inamdar. In view of this, the question as to whether the building is vested or not does not arise. The jurisdiction of the Tribunal is only in respect of the dispute relating as to whether the building other than the building referred under sections 7 and 8 situated within the limits of in am, and only such question as required under Section 12 of the Act required to be decided and other questions. However it is not the case of the defendant that the building in question other than the, building vested under Sections 7 and 9 or the dispute is in respect of vesting. 18. Defendants claim that the Civil Court has no jurisdiction. Section-9 of CPC excludes the jurisdiction of the Civil Court only in case if it is expressly or by implication is barred. It is not the case of the defendants that a claim of mortgage could be adjudicated by the Tribunal nor the title which is already vested in the plaintiff gets divested and requires to be re-determined once again. When no occupancy rights are required to be conferred on an owner of a building as on the date of vesting, the question of determination of his rights by the Tribunal also does not arise and it is to a rival claim by two persons in respect of such property to attract the provisions of Section-12 of the Act. As such from the reading of these provisions, in my view, the jurisdiction of the Civil Court in this case is not ousted. 19. As far as the decision of this Court in Manikyam's case is concerned, learned Single Judge of this Court relying on the decision reported in 1964(2) Mys.LJ 444 in a matter of Kempamma and another Vs. As such from the reading of these provisions, in my view, the jurisdiction of the Civil Court in this case is not ousted. 19. As far as the decision of this Court in Manikyam's case is concerned, learned Single Judge of this Court relying on the decision reported in 1964(2) Mys.LJ 444 in a matter of Kempamma and another Vs. S. Kempamma alias Kempaiah & others has held that the Civil Court is ousted to decide the question of land vested in the Government. Kempamma's case which is referred to and followed in Manikyam's case is a case dealing with the grant of occupancy rights in favour of permanent tenant under Section 5. Sections 4, 5 and 6 deal with grant of occupancy rights in favour kadim tenant, permanent tenant and quasi permanent tenant. All these provisions referred to grant of occupancy rights in respect of lands and not in respect of buildings. Though the 'land' is not defined under the provisions of the Act, but the 'land' is defined under the provisions of the Karnataka Land Revenue Act. The Division Bench was dealing with the vesting of the land and not vesting of the building. As such there was no such issue before the Division Bench in Kempamma's case. In view of the provisions of Sections 7 to 9, 10 and 12 and reading of the provisions of Sections 4, 5 and 6, clear distinction is drawn by the Legislature in regard to consequent of vesting, granting of occupancy rights and vesting of building erected by private persons. If that is so, when the provisions are very clear, I find the dispute of this nature and issue framed by the Trial Court do not involve any question which require to be determined by the Tribunal. On consideration of these provisions, I find that the jurisdiction of the Civil Court is not ousted to decide the issues involved in this case. Accordingly, I answer both the issues in favour of the plaintiffs and I find there is no merit in the contentions of the learned Counsel for the appellants. Accordingly, I pass the following order. 20. Appeal fails and same is dismissed. However no order as to costs in this appeal. Appeal dismissed.