Research › Search › Judgment

Karnataka High Court · body

2013 DIGILAW 647 (KAR)

REKHA v. HANAMANT BALAPPA GURAV

2013-06-07

B.MANOHAR

body2013
JUDGMENT B. MANOHAR, J.-Appellants are defendants 1 and 2 in O.S. No. 59/1993. Being aggrieved by the judgment and decree dated 18-12-1996 passed by the Civil Judge Gokak, decreeing the suit filed by the plaintiffs, the appellants have filed this appeal. 2. The facts of the case are as follows: Respondent Nos. 1 to 3 herein had filed a suit seeking for declaration declaring that the second defendant has not acquired any right, title and interest in respect of the suit property and the decree dated 28-3-1992 made in O.S. No. 76/1992 is not binding on the plaintiffs and also sought for permanent injunction restraining the defendants 1 and 2 from interfering with their peaceful possession and also for other reliefs. 3. In the plaint, it was contended that the father of the first plaintiff Balappa Govindappa Gurav and the deceased third defendant (4th respondent herein) are the brothers. The plaintiff No. 2 is the son of third defendant and third plaintiff is the daughter-in-law of the third defendant, wife of Ningappa Gurav. The plaintiffs and defendant No. 3 constituted Hindu undivided joint family and there was no partition of the joint family properties. On an application filed by the Balappa Govindappa Gurav and third defendant for grant of occupancy rights, the Land Tribunal, Raibag by its order dated 31-12-1981 granted occupancy rights jointly in favour of Balappa Govindappa Gurav and the third defendant in respect of land bearing Sy. No. 117/11 + 12/1 measuring 02 acres 04 guntas of land out of 04 acres 10 guntas, situated at Bada-Bykud village of Raibag Taluk. The joint family was cultivating the said land. The third defendant was aged about 75 years and his mental capacity was also affected due to his old-age and sickness. The defendants 1 and 2 are not at all related to third defendant. They induced the third defendant to transfer his undivided half share of the suit schedule property. Accordingly, the third defendant by means of unregistered relinquishment deed dated 26-6-1989 transferred his half share in favour of the second defendant for a consideration of Rs. 25,000/- in violation of conditions of the grant by the Land Tribunal and also without prior permission of the State Government. The case of plaintiffs is that they were cultivating the joint family property and third defendant has no power to transfer his half share by executing a relinquishment deed. 25,000/- in violation of conditions of the grant by the Land Tribunal and also without prior permission of the State Government. The case of plaintiffs is that they were cultivating the joint family property and third defendant has no power to transfer his half share by executing a relinquishment deed. The defendants 1 and 2 playing undue influence on the third defendant got the relinquishment deed in respect of his half share of the property though there is no partition of joint family properties. The second defendant represented by his mother the first defendant filed a suit in O.S. No. 76/ 1992, on the file of the Munsiff, Raibag against the third defendant seeking for declaration, declaring that he is in peaceful possession as a owner and restraining the third defendant from interfering with his peaceful possession. The said suit was decreed, in view of the compromise memo filed by the defendants 1 and 2 and the third defendant. On the basis of the said compromise petition, the said suit was decreed. However, the plaintiffs are not parties to the said suit and judgment and decree passed in the suit is not binding on them. The defendants 1 and 2, on the basis of the said collusive compromise decree in O.S. No. 76/1992 are trying to interfere with their possession and threatening to dispossess the plaintiffs. In view of that, the plaintiffs filed a suit seeking for declaration and injunction. 4. In pursuance to the notice issued by the Trial Court, the defendants 1 and 2 entered appearance and filed their written statement. They have denied the entire averments made in the plaint and contended that as per the relinquishment deed dated 26-06-1989, the third defendant relinquished his share in favour of the second defendant for a consideration of Rs. 25,000/-. Hence, the plaintiffs have no right or interest in respect of half share belonging to the third defendant. The Land Tribunal, by its order dated 31-12-1981 granted occupancy rights jointly in favour of the third defendant and his brother Balappa Govindappa Gurav. Whereas the third defendant relinquished eastern half portion share in favour of the second defendant. Further in O.S. No. 76/1992, the first defendant was declared as the owner of half share, hence, the plaintiffs have no right, title or interest in respect of the eastern half portion of the suit schedule property. Whereas the third defendant relinquished eastern half portion share in favour of the second defendant. Further in O.S. No. 76/1992, the first defendant was declared as the owner of half share, hence, the plaintiffs have no right, title or interest in respect of the eastern half portion of the suit schedule property. Further, in the additional written statement the defendants 1 and 2 contended that suit schedule property originally belonged to Gopal Hanamanta Gurav who is the grand-father of the second defendant. The said Gopal Hanamanta Gurav sold the suit schedule property to Balappa Govindappa Gurav and the third defendant as per the registered sale deed dated 3-9-1964. The order passed by the Land Tribunal granting occupancy rights in respect of the very same land in favour of Balappa Govindappa Gurav and the third defendant by its order dated 31-12-1981 is contrary to law. Apart from that the third defendant relinquished his right in respect of half share in favour of the second defendant after receiving the consideration of Rs. 25,000/-. The suit filed by the plaintiffs is barred by limitation and not maintainable and the relinquishment deed dated 26-6-1989 is not challenged. Hence, the plaintiffs have no right over the said property and sought for dismissal of the suit. 5. Though the third defendant entered appearance through his advocate, he has not chosen to file written statement. 6. On the basis of the pleadings of the parties, the Trial Court framed the following issues: 1. Whether the plaintiffs prove that the suit property is the joint family property consisting of plaintiffs and defendant No. 3.? 2. Whether the plaintiffs prove that the judgment and decree passed in O.S. No. 76/ 1992 are not binding on them? 3. Whether the plaintiffs prove that the 3 rd defendant was not competent to execute relinquishment deed in favour of the second defendant? 4. Whether the plaintiffs prove that the relinquishment deed dated 26-6-1989 was obtained by practicing un-due influence on the third defendant? 5. Whether the plaintiffs prove that they have been in lawful possession of the suit property? 6. Whether the second defendant proves that he acquired the suit property bona fide for valid consideration? 7. Whether the suit is bad for non-joinder of necessary parties? 8. Whether the second defendant proves that the compromise decree in O.S. No. 76/1992 is valid and binding on the parties? 9. 6. Whether the second defendant proves that he acquired the suit property bona fide for valid consideration? 7. Whether the suit is bad for non-joinder of necessary parties? 8. Whether the second defendant proves that the compromise decree in O.S. No. 76/1992 is valid and binding on the parties? 9. Whether the Court fee paid is adequate? 10. To what reliefs the plaintiffs are entitled? 7. On behalf of the plaintiffs, the first plaintiff got himself examined as P.W. 1 and got marked the documents as Ex.P1 to Ex.P4. Though sufficient time was granted to defendants 1 and 2 to cross-examine the plaintiffs, the defendants have not cross-examined the plaintiffs nor they have lead their evidence. Nobody was present on behalf of the defendants and also no argument was addressed on behalf of the defendants. 8. The Trial Court on considering the oral and documentary evidence let in by the plaintiffs, held issue Nos. 1 to 3 and 5 to 9 in the affirmative and issue No. 4 in the negative. Consequently, by its judgment and decree dated 18-11-1996 decreed the suit filed by the plaintiffs and declared that the suit schedule property is the joint family property of the plaintiffs and defendants 3 (a) and (b) and two brothers of the first plaintiff. The compromise decree passed in O.S. No. 76/1992 is not binding on the plaintiffs and restrained the defendants 1 and 2 by way of permanent injunction from interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiffs. Being aggrieved by the judgment and decree passed by the Trial Court, the defendants 1 and 2 have preferred this appeal. 9. Smt. Hemalekha, learned advocate appearing for Sri. G. Balakrishna Shastry for appellants, contended that the judgment and decree passed by the Trial Court is contrary to law and evidence on record. The reasoning is based on the surmises and conjunctions. The deceased Rangappa got half share in the suit schedule property on the basis of the order passed by the Land Tribunal and he can transfer his share to the 2nd appellant even though there is no partition in the suit schedule property. The Trial Court having held that the relinquishment deed dated 26-6-1989 was not obtained by practicing undue influence ought not to have decreed the suit filed by the plaintiffs. The Trial Court having held that the relinquishment deed dated 26-6-1989 was not obtained by practicing undue influence ought not to have decreed the suit filed by the plaintiffs. The entire approach made by the Trial Court is contrary to law. On the basis of the compromise decree made in O.S. No. 76/1992, names of the defendants are entered in the mutation register. The appellants are the bona fide purchasers by way of relinquishment deed and the entire sale consideration has been paid and sought for setting aside the judgment and decree by allowing this petition. 10. On the other hand, Sri. R.V. Burji, advocate appearing for respondent 1 to 3 and R4(a)and R4(b) argued in support of the judgment and decree passed by the Trial Court and contended that since there is no partition of the joint family properties, the third defendant cannot relinquish his right in favour of third parties. Further, there is a bar for transfer of rights when once it was granted under the Inam Abolition Act and sought for dismissal of the appeal confirming the judgment and decree passed by the Trial Court. 11. I have carefully considered the arguments addressed by the parties and perused the oral and documentary evidence adduced by the parties. 12. Having heard the learned counsel appearing for the parties, the only point that arise for consideration in this appeal is- Whether the appellants have made out a case to interfere with the judgment and decree passed by the Trial Court? 13. The suit schedule property is the joint family property of plaintiffs and defendant No. 3. The first plaintiff in his evidence has clearly reiterated the averments made in the plaint and contended that in the absence of partition of joint family properties, the third defendant cannot relinquish his share. Further, there is a bar for alienating the properties under the Inam Abolition Act. Hence, the third defendant cannot part with the joint family property. Apart from that he has not obtained the permission of the Deputy Commissioner to relinquish his share and the relinquishment deed is contrary to law. Further, the plaintiffs are not parties to O.S. No. 76/1992 and the judgment and decree in the said suit is not binding on the plaintiffs. Apart from that he has not obtained the permission of the Deputy Commissioner to relinquish his share and the relinquishment deed is contrary to law. Further, the plaintiffs are not parties to O.S. No. 76/1992 and the judgment and decree in the said suit is not binding on the plaintiffs. He got marked the order passed by the Land Tribunal as Ex.P1, Certified Extract of Record of Rights as Ex.P2, Certified Copy of the plaint in O.S. No. 76/1992 and a certified copy of the decree in O.S. No. 76/1992 marked as Ex.P3 and Ex.P4 respectively. The contesting defendants have not cross-examined nor contravened the evidence of plaintiffs. The records produced by the plaintiffs clearly disclose that on an application filed by the third defendant as well as his brother Balappa Govindappa Gurav, the Land Tribunal by its order dated 31-12-1981 granted occupancy rights jointly in favour of the third defendant and Balappa Govindappa Gurav in respect of 02 acres 04 guntas of land. Originally, the aforesaid land was Devadaya Inam property. Since the third defendant and his brother were cultivating the said land, they filed an application in Form No. 11. Accordingly, the Land Tribunal granted occupancy rights. The granted land cannot be alienated or parted to the third party. Admittedly, the suit schedule property is the joint family property of the plaintiffs and the third defendant. They were jointly cultivating the land. The third defendant cannot alienate or relinquish his unascertained share of the joint family property in view of the specific bar under the Inam Abolition Act. Further, the relinquishment deed is not a registered document under the Registration Act and unless the document is registered in accordance with the Registration Act, no value can to be attached to the said document. The defendants 1 and 2 have not produced any document to show that they have paid Rs. 25,000/- to the third defendant towards consideration of relinquishment deed. Further, in O.S. No. 76/1992 filed by the defendants 1 and 2 against the third defendant seeking for injunction, the plaintiffs and other members of the joint family were not parties. The said suit was ended in compromise. Since the plaintiffs were not parties to the said suit, any decree made in O.S. No. 76/1992 is not binding on the plaintiffs. The said suit was ended in compromise. Since the plaintiffs were not parties to the said suit, any decree made in O.S. No. 76/1992 is not binding on the plaintiffs. The records clearly disclose that the plaintiffs have been in possession and cultivating the said land as a joint family property. Hence, they are entitled for the protection of the Court. The Trial Court taking into consideration all these aspects of the matter held that suit schedule property is the joint family property of the plaintiffs and third defendant and the third defendant is not competent to execute the relinquishment deed in favour of the second defendant and the plaintiffs have been in lawful possession of the suit schedule property. I find there is no infirmity or irregularity in the said finding. No document has been produced in this appeal to show that the appellants are in possession of the said land and the relinquishment deed made is in accordance with law. Hence, the appellants are not entitled to any relief in this appeal. The judgment and decree passed by the Trial Court is in accordance with law. Accordingly, the appeal is dismissed confirming the judgment and decree passed by the Trial Court.