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2011 DIGILAW 130 (KAR)

Hanumanthappa v. Rangamma

2011-02-01

H.G.RAMESH

body2011
JUDGMENT HULUVADI G. RAMESH, J.—The appellants in these two appeals are aggrieved by the order of the Civil Judge (Sr. Dvn.) Challakere on 17th August, 2005 in RAs 250/2002 and 251/2002, OS 71/1994 was filed by the plaintiff- Hanumanthappa for a declaration and permanent injunction in respect of item Nos. l to 9 of the plaint schedule and for recovery of possession of suit schedule item No. 10 of the plaint schedule. OS 1758/1994 is filed by Rangappa for a declaration and for recovery of possession the suit schedule properties from defendants I and 2 and for mesne profits. 2. As per the plaint averments in OS 71/1994 filed by Hanumanthappa s/o Hanumanna born through one Puradamma, he and his younger brother one Kenchappa are members of the undivided family. His great grandfather, Doddahanumanthappa had three sons viz., Doddeerappa, Hotteppa and Erachikkappa. Plaintiff is the descendant of Hotteppa. All the properties of the joint family were divided about 70 to 80 years back amongst the three sons of Doddahanumanthappa. From the date of partition, the plaintiffs grandfather and later his father and thereafter, plaintiff is in possession and occupation of the property fallen to the share of his grandfather, i.e., Hotteppa. His grandfather died about 30 years back. After the death of his grandfather, his only son, i.e., Hanu manna who is the father of the plaintiff, was in possession and enjoyment of the properties and the katha was mutated. After the death of the father of the plaintiff, i.e., Hanumanna, his two sons-plaintiff and his younger brother, are said to be in continuous possession and enjoyment as absolute owners. Since the father of the plaintiff died soon after the death of his grandfather, i.e., Hotteppa and since the plaintiff and his brother were minors, Kenchajji w/o Hotteppa and grandmother of the plaintiff was looking after the affairs and katha was mutated in her name. Further, in respect of items 6 to 10 of the schedule properties, there was no phoding. According to the plaintiff, the brothers of his great grandfather viz., Sanneerappa, Sanakariyappa, Horakerappa and their legal heirs are in possession and enjoyment of their share of properties by mutating katha. Defendants 2 to 4 are the sons of Erachikkappa and Horckerappa. Further, in respect of items 6 to 10 of the schedule properties, there was no phoding. According to the plaintiff, the brothers of his great grandfather viz., Sanneerappa, Sanakariyappa, Horakerappa and their legal heirs are in possession and enjoyment of their share of properties by mutating katha. Defendants 2 to 4 are the sons of Erachikkappa and Horckerappa. It is stated, during her last days, the grandmother of the plaintiff was taken to the house of the 1st defendant and, defendants 2 to 4 who are the descendants of Erachikkappa and Horekerappa got executed a document in respect of the suit schedule properties. However, the plaintiff is in possession and enjoyment of the suit properties without any interruption. Alleging that defendants are making hectic efforts to interfere with the peaceful possession and enjoyment of the properties and also to harvest the standing crops, plaintiff filed a suit for declaration and ‘injunction and also contending that such a document got created by defendants 2 to 4 from. Kenchajji, grandmother of the plaintiff who was aged 95 years at that time, is a result of fraud and undue influence and it was not binding on the plaintiff. It was also contended, defendants 1 to 4 had no manner of right, title and possession over item No. 10 of the suit properties. Accordingly, he sought for a declaration and. for recovery of possession in respect of item No. 10 of the plaint schedule and, for a permanent injunction in respect, of items 1 to 9. 3. The matter was contested by defendants 1 to 4. While admitting the genealogy that Doddahanumanthappa is the great grandfather and had three sons by name Doddeerappa, Hotteppa and Erachikkppa and also admitting the partition amongst the sons of Doddahanumanthappa about 70 to 80 years back by way of an oral partition and the property which fell to the share of Hotteppa, what has been denied is that, plaintiff is not the grandson of Hotteppa. It is also denied that the suit schedule properties are the ancestral properties of both the plaintiff and his younger brother while admitting the relationship of the defendants as sons of Horakerappa an Erachikappa. According to the defendants, they are in peaceful possession and enjoyment of Item 10 of the plaint schedule. However, they have denied the fact that Kenchamma/ Kenchajji w/o Hotteppa was protecting the property during her lifetime. According to the defendants, they are in peaceful possession and enjoyment of Item 10 of the plaint schedule. However, they have denied the fact that Kenchamma/ Kenchajji w/o Hotteppa was protecting the property during her lifetime. According to them, the only daughter of Doddahaumanthappa, the propositus viz., Sannahan.umak.ka was married to Sannadyamajja and had no issues. She had adopted one Kenchappa s/o Urabagilu Kenchaiah during October 1918 under a registered adoption deed. The suit schedule items 1 to 5 were sold under a registered sale deed dated 28.7.1941 by the father of the plaintiff and his grandfather Hotteppa, in favour of husband of Sannahanumakka. After the death of Sannahanumakka. her adopted son Kenchappa @ Kenchaiah is in possession and enjoyment of the property as absolute owner. It isfurther staled, the father of the plaintiff was married to one Kenchamma, After her death, he married one Puradamma d/o Kare Eranna of Heggere Village. Puradamma was not a morally based woman, She never lived with the father of the plaintiff and lived as per own wish. Plaintiff is not born to Hanumanna s/o Hotteppa. As such, plaintiff has no claim. Since Puradamma has not carried out her marital obligation towards her husband Hanumanna. Hanumanna married another lady by name Hunumakka of Devarakotta Village and she died during pregnancy and, after her death. Hanumanna also died. 4. According to the defendants, since this Puradamma was living according to her washes and had no nexus with Hanumanna although she was married to him, Hanumantliappa the plaintiff is not born to Hanumanna. It is also stated, since both Hanumanna and his wife Hanumakka died, Kenchajji w/o Hotteppa and grandmother of the plaintiff was looked after and cared for by defendants 1 to 3. Being in the custody of defendants 1 to 3, Kenchajji during her last days, bequeathed the suit, schedule properties in their favour by a Will on 15.12.1983. It is also stated, since both Hanumanna and his wife Hanumakka died, Kenchajji w/o Hotteppa and grandmother of the plaintiff was looked after and cared for by defendants 1 to 3. Being in the custody of defendants 1 to 3, Kenchajji during her last days, bequeathed the suit, schedule properties in their favour by a Will on 15.12.1983. It is further stated, Kenchajji though was not having anyright to alienate the suit items 1 to 5, since she is alone, has executed the Will by which items 6-9 were executed in favour of the 1st defendant and item No. 10, which is a house property, was executed in favour of defendants 2 and 3 hems 1 to 5 were sold during the lifetime of the grandfather of the plaintiff to Sannadyamajja husband of Sannahanumakka and possession was handed over to Sannahanumakka and after her death, it has fallen to the share of the 1st defendant and he is in possession and enjoyment without any obstruction for more than the statutory period. Accordingly, it is stated that the 1st defendant has perfected his title by way of adverse possession in respect of items 1 to 5; defendants 2 and 3 are in possession of item No. 10 as absolute owner item Nos. 6 to 9 are bequeathed in favour of the 1st defendant as such, stating that plaintiff has no manner of right, title and possession, over the properties, the suit was contested. 5. In the suit filed by the 1st defendant in the other case for relief of declaration and recovery of possession, in OS 1758/1994 impleading the plaintiff Hanumamhappa as a defendant along with two others, according to this 1st defendant/plaintiff in OS 1758/1994. Hotteppa and Hanumanna sold the suit schedule items 1 to 5 under a registered sale deed on 28,7.194! for their legal necessities and for the benefit of the estate in Sy. Nos. 81/3, 82/1, 88/5, 88/8, 92/5, 92/8 and 161/3 of Sannikere Village in favour of Sannahanumakka, During her life time, she was in possession apart from the landed properties of Sannikere village and suit schedule items 1-5 of Heggere Village, The documents were standing in the name of Sannadyamajja husband of Sannahanumakka. Though the alleged sale deed was executed in the year 1941, the name of the plaintiff was entered in collusion with the revenue authorities in stead of in the name of Sannahanumakka. Though the alleged sale deed was executed in the year 1941, the name of the plaintiff was entered in collusion with the revenue authorities in stead of in the name of Sannahanumakka. The grandmother of the plaintiff died within a short period. After her death, during the minority of the plaintiff since the parents of the plaintiff and 3rd defendant were predeceased, katha of the Sanded properties in items 1 to 5 continued in the name of Kenchajji, wife of Hotteppa. Since Kenchajji was in the care and custody of defendants 3, 4 and 6 till her death in the year 1984, these landed properties continued in the name of Kenchajji. Though the katha was standing in the name of Kenchajji. in respect of items 1 to 5, Kenchajji was not having any manner of right or title since the registered sale deed was effected in the year 1941 itself. It is further stated, plaintiff in OS 1758/1994 continued in possession. The same has been contravened by the defendants in that suit denying the stand of the plaintiff in OS 1758/1994. 6. Based on the pleadings, the trial Court raised six issues in OS 71/1994 and six issues in OS 1758/1994. After trial, while decreeing the suit of the plaintiff in OS 71/1994, the trial Court dismissed the suit filed in OS 1758/1994 as against which, in the appeal preferred by the defendant in OS 71/1994, while reversing the finding of the trial Court, the appellate Court dismissed the suit of the plaintiff in OS 71/1994. Hence, these two appeals are preferred by the plaintiff in OS 71/1994. 7. At the time of admission, on 21.10.2005, the following substantial questions of law were framed: 1. Whether the lower appellate Court is justified in throwing the burden on the plaintiff in OS 71/1994 to establish the relationship with that of Hanumanna through Puradamma and whether such a burden thrown is contrary to Section 112 of the Indian Evidence Act? 2. Whether the lower appellate Court is justified in not considering the finding of the trial Court as to the perfecting of title to the suit properly by adverse possession by the plaintiff? 8. Heard the counsel representing the parties. 9. According to the appellants’ counsel, the defendants have disputed the relationship of the plaintiff staling that plaintiff is not born to Hanumanna through Puradamma and admittedly, relationship of Puradamma has not. 8. Heard the counsel representing the parties. 9. According to the appellants’ counsel, the defendants have disputed the relationship of the plaintiff staling that plaintiff is not born to Hanumanna through Puradamma and admittedly, relationship of Puradamma has not. ceased cither by way of divorce or judicial separation. As per Section 112 of the Evidence Act, as regards the relationship, i.e., out of wedlock Hanuinanthappa was born, there is a strong presumption of legitimacy of plaintiffs Hanunianthappa and Kenchappa. In the absence of proving contrary to the same, merely taking a stand that plaintiff is not born to Hanumanna cannot be accepted and the lower appellate Court has wrongly thrown the burden on the plaintiff which is erroneous. It is also submitted, in so far as item Nos. 1 to 5 properties are concerned, the plaintiffs continued in possession, title was perfected and the entries in the records also continued to be in the name of the grandmother of the plaintiffs. But, the lower appellate Court has disturbed the well considered order passed by the trial, Court in not considering the case of the plaintiffs as to their continued possession and enjoyment and the sale deed alleged to have been executed in the year 1941, is a sham one. 10. Learned counsel for the respondents submitted that the claim of adverse possession does not arise in the case on hand. This 1941 sale deed has been acted upon and the property was sold to Sannahanumakka by her brother and brother’s son as such, mere continuation of the entry in the name of Kenchajji, grandmother of the plaintiffs is of no consequence as the defendants are enjoying the properties. It is also his submission with respect to legitimacy of the plaintiff is concerned, except that it is a presumption, the said presumption is rebuitable. Accordingly, in support of his contention, he has relied upon the decision of the Apex Court in the case of Shyam Lal @ Kuldeep vs. Sanjeev Kumar and others, AIR 2009 SC 3115 . As regards claim of adverse possession, it is contended, as per Art. 64 and 65 of the Limitation Act, all necessary ingredients have to be proved rather, the plaintiffs have neither pleaded nor proved their adverse possession. In such circumstances, rightly the trial Court has decreed the suit filed by the defendant while rejecting the suit of the plaintiff. As regards claim of adverse possession, it is contended, as per Art. 64 and 65 of the Limitation Act, all necessary ingredients have to be proved rather, the plaintiffs have neither pleaded nor proved their adverse possession. In such circumstances, rightly the trial Court has decreed the suit filed by the defendant while rejecting the suit of the plaintiff. Accordingly, it is submitted, the substantial questions of law raised have to be held in favour of the defendants and, sought for dismissal of the appeals. 11. The genealogy produced in the case makes it clear that the plaintiff and his brother are said to be born to Hanumanna through Puradamma and Hanumakka. Hanumanna is the son of Hotteppa, one of the sons of Doddahanumanihappa. Sannahanumakka is the only daughter of Doddahanumanthappa. She was married to Sannadyamajja and since they did not have any issues, Kenchappa was adopted and his son Rangappa, the 1st defendant claims and represents the other defendants also, i.e., the sons of Horakerappa namely, Veranna, Chandranna, Hanumanthappa (defendants 2 to 4). Rangappa, the 1st defendant is the grandson of Sannahanumakka and defendants 2 to 4 are the grandsons of Erachikkapa who is none other than the brother of Hotteppa, who also claims adverse possession and also alienation of the property by Hotteppa and Hanumanthappa in favour of the husband of Sannahanu makka. The specific claim of the plaintiffs is, so far as alienation, of schedule items 1 to 5 during the year 1941 are concerned, it is only a sham transaction. Even otherwise, after the death of Hanumanna and Hotteppa, their grandmother Kenchajji was looking after the plaintiffs and continued to be in possession of the property and all documents in respect of schedule items 1 to 5 stood in the name of Kenchajji. It appears, the partition that has taken place amongst, the sons of Doddahanumanthappa is not in dispute. So also the relationship of Doddeerappa, Hotteppa and Erachikkappa also is not in dispute. Items 1 to 5 properties fallen to the share of Hotteppa according to the defendants, is said to have been sold in favour of Sannahanumakka, i.e., the sister of Hotteppa way back in the year 1941. But, the revenue records continued to he in the name of Kenchajji for several years. Items 1 to 5 properties fallen to the share of Hotteppa according to the defendants, is said to have been sold in favour of Sannahanumakka, i.e., the sister of Hotteppa way back in the year 1941. But, the revenue records continued to he in the name of Kenchajji for several years. Also according to the defendants, items 6 to 9 properties were bequeathed by Kenehajji while she was in the care and custody of defendants. According to the plaintiffs, the Will alleged to have been created by Kenchajji in favour of defendants 1 to 4 bequeathing the properties in items 6 to 9 and 10 is a sham transaction and not binding on the plaintiff as according to the plaintiff, during her old age, she was prevailed uponby the defendants to get the Will executed and she was an illiterate. The trial Court having noted that the suit, schedule properties are the joint family properties has held that plaintiff is able to prove the same. It has also held that plaintiff was able to prove that defendants 2 to 4 forcibly have taken possession of suit schedule item 10, i.e., house property. Further it has held that plaintiff is able to prove that the suit schedule properties were in exclusive possession and enjoyment of the plaintiff over which there is no obstruction at any time. In order to grant an injunction order, it has held that defendants are coming in the way of the plaintiff’s peaceful possession and enjoyment of the suit property prior to the date of filing of the suit. While throwing the burden on the defendants whether the Will alleged to have been executed by late Kenchajji on 15.12.1983 has been duly proved or not, the trial Court was of the view that the Will has not been duly executed and defendants failed to establish the same. So far as Issue 5-regarding items 1 to 5, whether after the sale deed said to have been executed on 28.7.1941 the adopted son of Sannahanuniakka, i.e., Kenchappa and after his death, the 1st defendant Rangappa is enjoying the properties or not to claim adverse possession, the trial Court: has opined that defendants have failed to establish that aspect of the sale deed and continuation of their possession of the property. Further it has held, in so far as item 10-house property is concerned, defendants 2 to 3 failed to establish that the Will has been executed in their favour and also, the defendants have failed to establish that items 6 to 9 have been executed in their favour. Ultimately, it has held that defendants have failed to prove due execution of the Will in their favour so as to claim entitlement in respect of items 6 to 9 are concerned which are said to have been disposed of by way of Will, as per the contention of the defendants. Thus, holding that the alleged sale deed by Hotteppa and Hanumanna who are the ancestors of the plaintiffs in favour of Sannahanumankka has not been duly executed and also holding that the plaintiffs continued to be in possession and enjoyment of the properties, the trial Court has decreed the suit so far as items 1 to 5 are concerned, so also holding that the Will has not been duly proved in respect of items 6 to 10 are concerned and accordingly held that the plaintiffs are entitled for an injunction and dismissed the claim of the defendants by virtue of the Will. 12. The lower appellate Court, disturbing the very factum of legitimacy of the plaintiff without having recourse to Section 112 of the Evidence Act, has opined that plaintiff has not proved that he is the legitimate son of Hanumanna through Puradamma. As per Section 112 of the Evidence Act, there is a strong presumption in favour of the plaintiff as long as the marital relationship between Hanumanna and Puradamma has not ceased. It appears, on the stray admission of the plaintiff that his mother never lived with her husband Hanumanna after litigation and also on. the ground that they lived at Heggere village and that Puradamma had left Hanumanna and later, this Hanumanna married Hanumakka. the lower appellate Court has come to such a conclusion. But. the fact remains that burden of proof is on the defendants to establish that plaintiff was not born to Hanumanna through Puradamma. Despite producing all documents by the plaintiffs to the effect of mentioning their names in the voters list referring to their father as Hanumanna, throwing the burden on the plaintiff as to legitimacy, the lower appellate Court has committed an error. Despite producing all documents by the plaintiffs to the effect of mentioning their names in the voters list referring to their father as Hanumanna, throwing the burden on the plaintiff as to legitimacy, the lower appellate Court has committed an error. So far as suit properties are concerned, of course as noted earlier, the alleged sale deed said to have been executed by Hotteppa and Hanumanna in favour of Sannahanumakka has not been acted upon and the revenue entries continued to be in the name of Kenchajji who was looking after the properties as such, items 1 to 5 properties continued to be in the name of the plaintiff even as per the revenue records. Further, the contention of the plaintiff that this sale deed executed has not been acted upon and it is only a sham transaction, has not been taken note of by the lower appellate Court, thereby, it fell in error. On the issue regarding due execution of the Will during December 1983 is concerned, what has been noted by the trial Court is, at the time of execution of the Will, Kenchajji was aged 95 years and defendants have prevailed upon her and got executed the Will and that the defendants failed to establish due execution of the Will. In the circumstances, the finding of the lower appellate Court disturbing the well considered order passed by the trial Court has to be set aside while upholding the judgment and decree passed by the trial Court. 13. Accordingly, the judgment and decree passed by the lower appellate Court in these two appeals are set aside while answering the substantial questions of law raised in favour of the appellants herein. Appeals are allowed. Parties to bear their own costs.