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2011 DIGILAW 1027 (KAR)

Parwatewa Virupaxayya Hiremath v. Nagayya

2011-10-20

B.V.NAGARATHNA

body2011
JUDGMENT B.V. NAGARATHNA, J.—This second appeal is filed by the defendants in O.S. No. 1018/1989, assailing the judgment and decree passed in RA No. 212/2003 (Old R.A. No. 143/1999), by the Prl. District Judge, Dharwad dated 16.3.2006, decreeing the suit of the plaintiff by setting aside the judgment and decree dated 3.8.1999, passed by the Prl. Civil Judge (Jr.Dn.) Dharwad in OS. No. 1018/1989. 2. For the sake of convenience, parties shall be referred to in terms of their status before the trial Court. 3. The plaintiff filed, a suit, for declaration that he was the exclusive owner of the suit property and consequently, for relief of injunction, restraining defendants from obstructing his peaceful and enjoyment of suit schedule property and alternatively, sought for possession of the suit schedule property. 4. According to the plaintiff, Sy. No. 56/1, measuring 4 acres 20 gunta and Sy. No. 57/1, measuring 13 acres 22 guntas, situated at Hindasgeri village and Sy. No. 39/1-2B, measuring 8 acres and Sy. No. 39/1-2C. measuring 8 acres at Benachi village are the exclusive properties of plaintiff and his brothers. The plaintiff stated that he has two brothers and his mother who are enjoying the suit properties after his father died in the year 1957. The suit properties were purchased by the plaintiffs father out of his own income and efforts by registered sale deed on 21.5.1934 for consideration of Rs. 300/- that the suit, properties are the self-acquired properties of plaintiffs father. After the death, of plaintiffs father, defendant No. 1 was cultivating the suit properties on behalf of plaintiff and his minor brothers. After attaining majority, the plaintiff started cultivating of the suit lands alongwith his brothers. Defendant No. 1, being uncle of plaintiff was residing independently at Kogilgeri village. But he started asserting that he is also having 2½ share in the suit properties, whereas he has no right, title and interest over the suit properties. Moreover, the defendants were bent upon taking forcible possession of eastern ½ portion of the suit properties by dispossessing the plaintiff. Therefore, possession of the suit property by the defendants is illegal and unauthorized. Plaintiff has, however, stated that lands at Hindasageri village were purchased by his father and thereafter, the lands at Benachi village were purchased in the year 1949. Therefore, possession of the suit property by the defendants is illegal and unauthorized. Plaintiff has, however, stated that lands at Hindasageri village were purchased by his father and thereafter, the lands at Benachi village were purchased in the year 1949. After the death of the plaintiffs father, Siddayya the uncle of plaintiff got his name entered in the suit properties at Benachi village and created false documents, though he had no right, title and interest over the suit properties and that the defendants herein were asserting their claim over ½ share in the lands at Hindasageri village. Therefore, the plaintiff sought relief of declaration that, he is the exclusive owner of the suit, property and injunction and alternatively for possession. 5. On receipt of the suit, summons and notice from the trail Court, defendant Nos. 1 to 3 appeared through their counsel and filed their written statement. Thereafter, defendant No. 4 was impleaded. Defendant No. 4 was impleaded but since he refused to receive summons and he was placed ex parte. Written statement filed by defendant No. 1, was adopted by defendant Nos. 2 and 3. According to defendant Nos. 1 to 3, the suit schedule properties are not self-acquired properties of plaintiffs father. Though plaintiffs father was in possession and enjoyment of same, the plaintiff alone is not the heir of Irayya. Irayya had three sons and a wife, who have not been impleaded to the suit. 6. That Irayya, defendant No. 1-Virupaxayya and Siddayya are brothers and they constituted a joint family. The suit schedule properties are joint family properties, as they were purchased out of joint family funds and Irayya died in the year 1957 leaving behind three male children, who were minors. The lands were cultivated and managed by defendants. But in the year 1961 there was partition in between defendant No. 1 and his brother-Siddayya and wife of Irayya, in the presence of elders of the family. As per the said partition, the properties at. Benachi village fell to the share of Siddayya and he was in exclusive possession of the said property and the properties at Hindusgeri village were divided into two portions. Eastern half portion was given to the share of defendant No. 1 and western half-portion was given to the plaintiff and his brother and since then the plaintiff and defendant are separately cultivating the suit lands at Hindusgeri village. Eastern half portion was given to the share of defendant No. 1 and western half-portion was given to the plaintiff and his brother and since then the plaintiff and defendant are separately cultivating the suit lands at Hindusgeri village. The defendants denied that taking advantage of the young age of the plaintiffs and his brothers, the defendants got their name entered in the records of rights, They contended that plaintiff had initially filed O.S. No. 216/1977. The said suit was dismissed on 20.10.1980 and in that context, Court has held that defendants are having ½ share in the suit properties at Hindusgeri village. That O.S. No. 573/1988 was another suit filed by the plaintiff, which was also dismissed on 24.2.1990. The aforesaid judgments have not been challenged by the plaintiff. Hence, the present suit is not maintainable. They also stated that there is no cause of action for filing the suit and sought dismissal of the suit. 7. On the basis of the rival pleading, the trial Court framed the following issues and additional issue for consideration: (1) Does plaintiff prove that he is the owner having title in possession of the suit properties, as on the date of suit? (2) Does he further prove the alleged obstruction? (3) Whether the plaintiff is entitled for the reliefs sought for? (4) What, decree or order? Additional issue: Whether the defendants prove that suit property was the joint family property and in the partition the eastern ½ share has been allotted to their share? In support of his case plaintiff let in his evidence as P.W. 1 and produced 23 documents, which were marked as Exs.Pl to P23. The defendants let in the evidence of three witnesses and produced 20 documents, which were marked as Exs. D1 to D20. On the basis of the said evidence, the trial Court answered issue Nos. 1 to 3 in the negative and additional issue in the affirmative and dismissed the suit of the plaintiff with costs. 8. Being aggrieved by the said judgment and decree, the plaintiff filed RA No. 212/2003 (Old RA No. 143/1999) before the 1st appellate Court, wherein the following points were raised for determination: (1) Whether the suit schedule properties are the self-acquired properties of the father of the plaintiff Irayya or the joint family properties? 8. Being aggrieved by the said judgment and decree, the plaintiff filed RA No. 212/2003 (Old RA No. 143/1999) before the 1st appellate Court, wherein the following points were raised for determination: (1) Whether the suit schedule properties are the self-acquired properties of the father of the plaintiff Irayya or the joint family properties? (2) Whether there has been partition of the suit schedule properties among the heirs of Irayya and his brothers Virupaxayya and Siddayya in the year 1961 and separate enjoyment since then? (3) Whether the judgment, and decree under appeal call for any interference having regard to the findings in the earlier suits filed by the plaintiff? (4) What order? 9. After hearing the counsel, 1st appellate Court answered the said points in favour of the plaintiff and allowed the appeal by setting aside the judgment and decree dated 3.8.1999 passed by the trial Court and thereby decreed that the plaintiff and his brothers being the children of the deceased Irayya, are the exclusive owners of the suit schedule property and direction was issued to the defendant Nos. 1 to 4 to deliver possession of the suit schedule properties in favour of the plaintiff within three months from the said judgment, and decree. Being aggrieved by the said judgment, the defendants have preferred this second appeal. 10. I have heard the learned counsel for the appellant and counsel for the respondent. 11. It is contended on behalf of the appellants that the suit scheduled properties at Hidasgeri village was purchased in the year 1934 in the name of the father of the plaintiff. He died in the year 1957. The said properties were not purchased by the father of the plaintiff out of his own and independent funds. His mother i.e., plaintiffs grand-mother purchased the said property in the name of her son i.e., plaintiffs father who died in the year 1957. The plaintiff, defendants, plaintiffs mother and 1st defendant alongwith Siddayya entered into a partition in the year 1961 and under the said, partition, before the elders the properties at. His mother i.e., plaintiffs grand-mother purchased the said property in the name of her son i.e., plaintiffs father who died in the year 1957. The plaintiff, defendants, plaintiffs mother and 1st defendant alongwith Siddayya entered into a partition in the year 1961 and under the said, partition, before the elders the properties at. Benachi village fell to the share of Siddayya, As far as the properties at Hindusgeri village is concerned, the same was divided into two parts and one portion, was given to Irayya’s branch and the other portion was given to Virupaxayya branch, since they were doing cultivation of the suit properties, This fact has been admitted by the plaintiff in O.S. No. 216/1977 filed by him seeking injunction against the very defendants. The said suit was dismissed on 28.10.1980. Thereafter O.S. No. 573/1988 was filed by the plaintiff and the said suit was also dismissed on 24.2.1990. Now for the third time plaintiff has filed the suit seeking declaration and injunction and alternatively for possession. In view of the properties being the joint family properties and there being partition in the year 1961, the plaintiff is not entitled to maintain the present suit. He has also stated that the judgment and decree passed in the earlier suits having attained finality, present suit is not maintainable. He, therefore, submitted that substantial questions of law arise in this case calling for intervention of this Court. 12. Per contra, the counsel for the respondent has submitted that the 1st appellate Court has rightly appreciated the fact that the suit schedule properties were purchased in the name of the plaintiffs father in the year 1934 that the defendants had taken advantage of the young age of the plaintiff and his brothers and they started interfering with the properties of the plaintiff and his brothers. The 1st appellate Court has appreciated this aspect of the matter. First. Appellate Court has not accepted the fact that there was partition in the year 1961 and has rightly decreed the suit of the plaintiff, which finding would not call for any interference in this appeal. He, therefore, stated that the appeal is devoid of merits and the same has to be dismissed, 13. First. Appellate Court has not accepted the fact that there was partition in the year 1961 and has rightly decreed the suit of the plaintiff, which finding would not call for any interference in this appeal. He, therefore, stated that the appeal is devoid of merits and the same has to be dismissed, 13. Having heard the learned counsel on both the sides and on perusal of the materials on record the following substantial questions of law would arise for my consideration: (i) Whether the 1st appellate Court was right in failing to appreciate the fact that the suit schedule properties were the joint family properties and not exclusive properties of the father of the plaintiff? (ii) Whether the 1st appellate Court by ignoring the finding given in the earlier suit could have decreed the suit of the plaintiff? 14. From the materials on record the relationship between the parties are not in dispute, One Patrayya Hiremath had three sons namely Irayya, Virupaxappa, Siddaiah, Irayya had three sons, namely Nagayya, Patrayya, Veerabhadraiah and two daughters. Therefore, defendant No. 1 Virupaxayya and defendant No. 4-Siddayya are the maternal uncles of the plaintiff. It also not in dispute that the plaintiff has sought declaration and injunction and in the alternative possession by contending that he is exclusive owner of the suit schedule properties, on the basis of the sale deed dated 21.5.1934 under which the suit schedule properties dated 22.6.1949 were purchased in the name of the plaintiff’s father. On the basis of the sale deeds it is the claim of the plaintiff that on the death of the plaintiffs father in the year 1957, that the said properties had to be succeeded to by the plaintiff. 15. The plaintiff has not arrayed his brothers as parties to the suit. On the other hand, he is claiming exclusive ownership in respect of these properties. As against this, the contention of the defendants has been, that the suit schedule properties though purchased in the name of the father of the plaintiff were in fact, joint family properties, they were treated as joint family properties as on the date of purchase and the defendant Nos. 1 and 4 alongwith plaintiffs father were jointly cultivating the suit properties. 1 and 4 alongwith plaintiffs father were jointly cultivating the suit properties. It is because of the properties being joint family properties, there was a partition in the year 1961 after the death of the father of the plaintiff and the parties have been cultivating their respective shares subsequent to the said partition. In this context, it is relevant to note that the defendants have supported their case, that the properties are the joint family properties which were divided by partition In the year 1961 by placing reliance on the earlier orders passed in the suits filed by the plaintiff apart, from other evidence. 16. O.S. No. 216/1997 was filed by the plaintiff against some of the defendants herein. The said suit was a bare injunction suit in respect of the lands of Hindasgeri Village. In the said suit also, the defendants herein had contended that the suit schedule properties are the joint family properties and that the plaintiffs father died in the year 1957 and there was a partition in the year 1961 and the properties at Benachi Village was allotted to the share of Siddaiah and the properties of Hindusgeri Village were divided between the defendants and the plaintiffs branch. In the said suit, the trial Court recorded that the plaintiff herein who deposed as P.W. 1 had admitted in his cross-examination that his father had died in the year 1956 and since the year 1961, defendant No. 1 Virupakshaiah was cultivating half-share of the properties towards the eastern side of the suit schedule properties and the remaining half portion on the western side was being cultivated by P.W. 1 and his brothers and mother. On the basis of the said admission, the trial Court held that the plaintiff was not in lawful possession of the entire suit lands of Hindasgeri Village. The fact that. P.W. 1 had admitted that, defendant No. 1 was in actual possession and enjoyment of half share of the suit properties on the eastern side since the year 1981. and had been paying land revenue in respect of the said portion and that earlier also there were quarrels with regard to a mango tree and well and there was a compromise effected in the year 1969 would go to show that the plaintiff was not in exclusive possession of the entire suit lands alongwith his brothers. and had been paying land revenue in respect of the said portion and that earlier also there were quarrels with regard to a mango tree and well and there was a compromise effected in the year 1969 would go to show that the plaintiff was not in exclusive possession of the entire suit lands alongwith his brothers. Therefore, the trial Court, in the said suit held that the plaintiff had failed to prove that he was in exclusive possession of the entire suit land at Hindasgeri Village and accordingly, dismissed the said suit. Plaintiff did not choose to assail the said judgment and decree. 17. From the findings given in the said suit, it becomes clear that the trial Court has accepted the fact that the suit properties at. Hindasgeri Village were the joint family properties and also that there was division of the said property in the year 1961. Also since the year 1961, the plaintiff was not in exclusive possession of the entire extent of the lands, but only with regard to half portion. The findings in the said suit having attained finality, would imply that the suit schedule properties have been treated as joint family properties by the parties even though the properties might have been purchased in the name of the plaintiffs father. The fact that there was a partition of the said properties in the year 1981 has also been admitted by the plaintiff herein since he has stated that, since the year 1961, the plaintiff and his brothers and defendant No. 1 were cultivating the lands to an extent of half share each exclusively. Therefore, the substantial question of law Nos. 1 and 2 have to be answered in favour of the appellants by holding that the suit schedule properties are joint family properties and that there was a partition in the year 1961 between the plaintiff and his brother and mother on one hand and defendant Nos. l and 4 on the other hand. That takes me to the second substantial question of law with regard to the maintainability of the present suit. 18. As noted above, this suit is filed by the plaintiff seeking a declaration that he is the exclusive owner of the properties though he has admitted that the suit schedule properties were purchased in the name of his father. That takes me to the second substantial question of law with regard to the maintainability of the present suit. 18. As noted above, this suit is filed by the plaintiff seeking a declaration that he is the exclusive owner of the properties though he has admitted that the suit schedule properties were purchased in the name of his father. That apart, the plaintiff has not disclosed in his plaint the fact that he had filed O.S. No. 216/77 and O.S. No. 573/88 which were dismissed on 28.10.1980 and 24.2.1990, moreover, during the pendency of O.S. No. 573/88 which is once again a suit for bare injunction, the present suit has been filed seeking declaration, injunction and in the alternative possession. In fact, the present suit was not at all maintainable in view of the fact that the plaintiff has not sought for any declaration at an earliest point of time and secondly, the present suit has been filed during the pendency of O.S. No. 573/88 which is a suit for bare injunction cannot be lost sight of, That apart, the finding given by the trial Court in O.S. No. 216/77 (Ex. D5) and the finding in O.S. No. 573/88 operate as res judicata insofar as the present suit is concerned even though the relief sought by the plaintiff in the present suit is for declaration and injunction and in the alternative possession. The fact that such a declaration has not been sought at an earliest point of time and secondly the said declaration has been sought to the exclusion of his other brothers and thirdly, the non-disclosure of the filing of the earlier suits by the plaintiff are all factors which only go to show that the plaintiff has not approached the Court with clean hands. 19. The trial Court while taking note of the evidence on record has categorically held that the plaintiff did not have the title and was also not in exclusive possession of the suit schedule properties on the date of the suit while answering Issue Nos. 1 and 2. The finding of the trial Court on the said issues is in conformity with the finding given in O.S. No. 216/77 as per Ex. D5. Further, the trial Court has answered the other issues also against the plaintiffs having regard to the material evidence on record and accordingly, dismissed the suit. 1 and 2. The finding of the trial Court on the said issues is in conformity with the finding given in O.S. No. 216/77 as per Ex. D5. Further, the trial Court has answered the other issues also against the plaintiffs having regard to the material evidence on record and accordingly, dismissed the suit. However, the first appellate Court has ignored the finding which were given in the earlier round of litigation particularly O.S. No. 218/77 dismissed on 28.10,1980 which is a suit filed by the very same plaintiff in which, based on the admissions of the plaintiff, the trial Court dismissed the suit of the plaintiff by holding that there was a partition in the year 1961 and that the plaintiff was not in exclusive possession of the suit schedule properties. The finding in the said suit would operate as res judicata in the present suit. This aspect has not at all been considered by the first appellate Court. Though a reference is made to the earlier suit filed by the plaintiff for injunction, the first appellate Court has failed to appreciate the fact that the finding given in the said suit operate as res judicata in the present, suit. The first appellate Court, has also misconstrued the evidence of defendant No. 1. In fact, the first appellate Court has been carried away by the fact, that, when the partition took place between the plaintiffs and his brothers and mother on the one hand and the defendant Nos. 1 and 4 the paternal, uncles of the plaintiff on the other hand, the latter had an oblique motive in denying the properties to the plaintiff and his brothers by taking advantage of their tender age. The first appellate Court has also failed to note that the plaintiff could not have sought a declaration that, he was the exclusive owner of the suit schedule properties, though in the operative portion of the judgment a declaration is given with regard to the suit schedule properties not only in. respect of the plaintiff, but his brothers also, though they are not the parties to the suit. 20. The basis for holding that the suit schedule properties were the self-acquired properties of the plaintiffs father Iraiah is solely on the fact that the name of the plaintiffs father were shown in the sale deeds Ex. P1 and D2. respect of the plaintiff, but his brothers also, though they are not the parties to the suit. 20. The basis for holding that the suit schedule properties were the self-acquired properties of the plaintiffs father Iraiah is solely on the fact that the name of the plaintiffs father were shown in the sale deeds Ex. P1 and D2. That would not imply that the plaintiffs father was the sole owner of the said properties. Such a finding would be contrary to the fact that the suit schedule properties were jointly enjoyed by the brothers of the plaintiffs father and also their mother and the said properties were treated as the joint family properties though the said properties were purchased in the name of plaintiffs father by the plaintiffs grand-mother. The plaintiff has failed to show that the defendants never cultivated the suit lands. Therefore, the first appellate Court was not right in decreeing the suit of the plaintiff by ignoring the judgment and decree passed in O.S. No. 216/77 and O.S. No. 573/88. Therefore, the third substantial question of law is also answered in favour of the appellants, 21. In the result, the appeal is allowed, Judgment and decree of the first appellate Court is set aside. Judgment and decree of the trial Court is upheld and the suit of the plaintiff is dismissed. Parties to bear their own costs.