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Karnataka High Court · body

2014 DIGILAW 880 (KAR)

N. v. Gurumurthy Reddy VS Sanjeevamma

2014-10-10

R.B.BUDIHAL

body2014
Judgment : 1. This regular second appeal is preferred by the appellant-defendant No.6 being aggrieved by the judgment and decree dated 16.12.2006 passed by the Fast Track Court No II, Bangalore Rural District, Bangalore in R.A.No.6/2000 upholding the judgment and decree dated 18.12.1999 passed by the Court of the II Addl. Civil Judge (Sr.Dn.), Bangalore Rural District, Bangalore in O.S.No. 187/1991. 2. The brief facts leading to the case are, respondent Nos. 1 and 2 herein were the plaintiffs before the trial Court. They have filed the suit against the defendants for the relief of declaration that the sale deed dated 4.9.1991 executed by defendants 3 to 5 in favour of the 6th defendant as null and void and does not confer any valid right, title and interest in favour of 6th defendant and also for declaration that the entries made in the pahani for the year 1990-91 in respect of the schedule property in favour of defendants 3, 4 and 5 is illegal and for consequential relief of permanent injunction to restrain the defendants 3 to 6 from interfering with the plaintiffs peaceful possession and enjoyment of the schedule property . Originally, the suit was filed by one Obaiaiah and after his death, his legal representatives, respondents 1 and 2 in this appeal, were brought on record. The plaintiff-Obalaiah and defendants 1 and 2 are the brothers and they are the sons of Jate Vandaiah. Plaintiffs father late Vandaiah had two brothers namely Kempaiah and Mallaiah. Plaintiffs father Vandaiah and his uncles Kempaiah and Mallaiah are the sons of one Mallaiah and that Mallaiah iiad a brother by name Papaiah. Their father's name was Obaiaiah. Thus Obaiaiah is the great grandfather of the plaintiff and the geneology is described in the sheet annexed to the plaint. Plaintiffs junior grandfather Papaiah had only one son Chikkamallaiah @ Kantappa and his wife is Seebamma. Chikkamallaiah and Seebamma gave birth to two sons Papaiah and Ramachandra. Plaintiffs father Vandaiah. Kempaiah and Mallaiah being the brothers along with Chikkamallaiah constituted a Hindu Joint Family. Since 30 years, as per the family arrangement, they were enjoying the property in equal extents distinctly and separately from each other. Chikkamallaiah and Seebamma gave birth to two sons Papaiah and Ramachandra. Plaintiffs father Vandaiah. Kempaiah and Mallaiah being the brothers along with Chikkamallaiah constituted a Hindu Joint Family. Since 30 years, as per the family arrangement, they were enjoying the property in equal extents distinctly and separately from each other. One such property was the land bearing Sy.No.30/2 situate at Balegaranahalli village measuring 4 acres 35 guntas which was divided between three sons of late Mallaiah namely, Vandaiah, Kempaiah and Mallaiah and they together took 2/3rd share of it and son of Papaiah i.e., Chikkamallaiah @ Kanthappa took 1 / 3rd share in the said survey number. Thus, 1 acre 11 guntas in the said survey number fell to the share of Chikkamallaiah and ins. wife Seebamma in the family arrangement and remaining 3 acres 24 guntas was divided between Vandaiah, Kempaiah and Mallaiah. Plaintiffs father got 37 guntas of land in Sy.No.30/2 and similarly, his uncles Kempaiah and Malliah got 36 guntas ea.ch in Sy.No.30/2. Mallaiah, his junior uncle had no issues, he and his wife Muniyamma @ Chikkathayamma sola their shares in other survey numbers and in Sy,No.30/2 relinquished their entire rights by means of a registered release deed dated 18.7.1962. Thus, plaintiff became absolute owner in possession and enjoyment of 36 guntas of land and in actual possession and enjoyment of schedule property, raising crops thereon. Pahani and record of rights show his name as owner as well as cultivator Defendants 3, 4 and 5 have no right whatsoever in the said land. They however succeeded to the share of Kempaiah measuring 36 guntas of land in Sy.No.30/2. Defendants 3 to 5 have sold their father Kempaiah's share of 36 guntas in Sy.No.30/2 in favour of 6th defendant under a registered sale deed 18.7.1970. At the time of executing the sale deed, defendants 3 to 5 have described their land with boundaries. Said boundaries are misleading and have been described so as to include the property of the plaintiffs father Vandaiah over which not only the plaintiff as well as defendants 1 and 2 have right and the same has been in their joint possession and enjoyment. Description of the boundaries in the sale deed is wrong. Said boundaries are misleading and have been described so as to include the property of the plaintiffs father Vandaiah over which not only the plaintiff as well as defendants 1 and 2 have right and the same has been in their joint possession and enjoyment. Description of the boundaries in the sale deed is wrong. Thus, children of late Kempaiah i.e., defendants 3, 4 and 5 with illegal desire and in order to knock off the property of the plaintiff and his brothers defendants 1 and 2 included their property while describing the property in the sale deed dated 18.7.1990. Hence, 6th defendant does not get any right, title and interest beyond 36 guntas. Defendants 3 to 6 in collusion with village accountant, by manipulation, have got altered the entries in the pahani and included the names of defendants 3 to 5 for the year 1991 and taking advantage of the entries in the pahani which was got included by illegal means, defendants 3 to 5 have sold the schedule property, falsely representing that they are the owners of the same, in favour of 6th defendant on 4.9.1991. Neither defendants 3 to 5 had any right, title or interest in the said land nor they were in possession of the same. Hence, the suit. 3. Defendant No.6 filed his written statement contending that the averments made in para Nos.2 and 3 of the plaint are within his knowledge. He has denied the averments in para No.4 of the plaint and further denied that the plaintiffs' father Vandaiah, his uncle Kempaiah constituted a Hindu Joint Family since about 30 years ago. As per the family arrangements, they are enjoying the family properties in equal extents distinctly and separately from each other. It is also denied one such property is the land in Sy. No.30/2 of Balegarna Halli measuring 4 acres 35 guntas which is divided into three portions. Three sons of late Mallaiah together took 2/3rd share of it and son of Papaiah i.e., Ohickmallaiah took 1 /3rd share out of Sy. NO.30/2. Further the said three sons of Mallaiah got divided their shares and they are in enjoyment of 36 /a or 37 guntas in the said survey number. Three sons of late Mallaiah together took 2/3rd share of it and son of Papaiah i.e., Ohickmallaiah took 1 /3rd share out of Sy. NO.30/2. Further the said three sons of Mallaiah got divided their shares and they are in enjoyment of 36 /a or 37 guntas in the said survey number. The sketch produced by the plaintiffs is only a rough sketch prepared by them to suit their whims and fancies and it has no relevance to the fact and it has no evidentiary values. The averments in para Nos.5 and 6 of the plaint are also denied. The registered release deed dated 18,7.1962 under which the plaintiff claim a right to the suit schedule property has no resemble to the suit schedule property. Defendant Nos.3 to 5 were in possession and enjoyment of the suit schedule property including the entire survey number from their grandfather's time. The plaintiff has no locus standi to institute a suit. Regarding para Nos.7 to 9 of the plaint, it is true that under the registered sale dated 18.7.1990, defendant Nos.3 to 5 have sold 0.36 guntas out of Sy No.30/2 in favour of defendant No.6. After the purchase of the same, revenue records have been changed into the Dame of defendant No.6 and he is in possession and enjoyment of the same without interference from anybody including the plaintiff and defendant Nos. 1 and 2. The said sale deed is also not challenged by them. Hence, it is a legal and valid transaction. Under the registered sale deed dated 4.9.1991, defendant Nos.3 to 5 have jointly sold the remaining portion of the same in Sy. No.30/2 measuring 1 acre 4 guntas in favour of defendant No.6 and Sri. N.G. Krishna Reddy. After the sale, the revenue records were also changed to the name of defendant No.6 and N.G. Krishna Reddy. They are in possession and enjoyment of the property. N.G. Krishna Reddy one of the joint purchasers is a proper and necessary party to the proceedings. Hence, the suit is bad for non joinder of necessary parties. Neither the plaintiff nor defendant Nos. 1 and 2 have any right title or interest nor they are in possession and enjoyment of the suit schedule property and it is a collusive suit by plaintiff and defendant Nos. 1 and 2 to harass defendant NO 6 and defendant Nos. 3 to 5. Neither the plaintiff nor defendant Nos. 1 and 2 have any right title or interest nor they are in possession and enjoyment of the suit schedule property and it is a collusive suit by plaintiff and defendant Nos. 1 and 2 to harass defendant NO 6 and defendant Nos. 3 to 5. There is no cause of Action. Hence, sought to dismiss the suit. 4. On the basis of the pleadings of the parties, the trial court framed the following issues: 1. Whether the plaintiff proves that plaint schedule property was his ancestors joint family property? 2. Whether the plaintiff proves that he got 37 guntas of land in sy.No.30/2 of Balegaranahalli through his father? 3. Whether the plaintiff proves that he got 36 guntas of land in Sy.No.30/2 by release deed dated 18.7.1962 executed in his favour by his junior uncle Mallaiah and his wife Muniyamma? 4. Whether the plaintiff proves that the Defendants-3 to 5 have sold the plaint schedule property in favour of d-6 by registered sale deed dated 4.9.1991 falsely representing that they are the owner of plaint schedule property? 5. Whether the plaintiff proves that the sale deed dated 4.9.91 executed by D3 to d5 in favour of D6 is null and void and does not confer any right, title or interest in favour of the 6th defendant? 6. Whether the plaintiff proves that the entries made in pahani for the year 1990-91 pertaining to plaint schedule property is illegal? 7. Whether the plaintiff proves that he is entitled to permanent injunction restraining D3 to 6 from interfering with the plaint schedule property? 8. Whether the D3 to 6 prove that the suit is bad for non joinder of N.G. Krishna Reddy as a party? 9. What order or decree? 5. After considering the merits of the case, the trial Court decreed the suit and declared that the sale deed dated 4.9.1991 executed by defendant Nos.3 to 5 is void to the extent of D-6 and it does not in any way affects the rights of plaintiff in the schedule property. 9. What order or decree? 5. After considering the merits of the case, the trial Court decreed the suit and declared that the sale deed dated 4.9.1991 executed by defendant Nos.3 to 5 is void to the extent of D-6 and it does not in any way affects the rights of plaintiff in the schedule property. The trial Court has also declared that the entries made in the pahani for the year 1991 in respect of schedule property in favour of defendant Nos.3 to 5 and consequent entries made in the name of defendant No.6 are not binding on the plaintiff and they do not affect his rights in the schedule property. The Trial Court has also observed that the plaintiffs are entitled for relief of permanent injunction and defendant Nos.3 to 6 were restrained from causing interference to the plaintiffs' possession and enjoyment of the schedule property. 6. Aggrieved by the judgment and decree passed by the trial court, defendant No.6 preferred an appeal in R.A. No.6/2000 before the First Appellate Court challenging the legality and correctness of the said judgment and decree. The first appellate Court after considering the merits of the appeal, ultimately dismissed the appeal by judgment and decree dated 16.12.2006. Being aggrieved by the said judgment and decree of the first appellate court, the present appeal has been preferred. 7. While admitting the RSA, this Court has framed the following substantial question of law: "Whether the Courts below justified in decreeing the suit of the plaintiff on the basis of the release deed dated 18.7.1962 ? " 8. Heard the arguments of the learned counsel appearing for appellant-defendant No.6. 9. Learned counsel has submitted that the land bearing Sy.No.30/2 is totally measuring 4 acres 35 guntas and the dispute is in respect of 36 guntas of land. The sale deed under which defendant No.6 has purchased the property is under Ex.D1, which is also produced by the plaintiffs as per Ex.P9. Learned counsel also submitted that as per the case of the plaintiffs, Mallaiah, the junior uncle of the plaintiff- Obalaiah was not having issues and hence, said Mallaiah and his wife have released their right in respect of 36 guntas of land in Sy.No.30/2 by executing release deed dated 18.7.1962. Learned counsel also submitted that as per the case of the plaintiffs, Mallaiah, the junior uncle of the plaintiff- Obalaiah was not having issues and hence, said Mallaiah and his wife have released their right in respect of 36 guntas of land in Sy.No.30/2 by executing release deed dated 18.7.1962. In this regard, it is submitted that in the said release deed, there is no specific reference about the immovable property and which immovable property is released and the boundaries of the said properties are also not mentioned. Hence, the very identity of the property is in dispute and it is not established by the plaintiffs by satisfactory material. When the identity of the property itself is not established, no declaratory decrees can be granted by the Courts. Plaintiffs have not produced any document to show that entire property is of Obalaiah, the great grandfather of the plaintiff. Hence, the plaintiffs have not at all proved their case that the property was firstly owned by Obalaiah and thereafter, the sons of Mallaiah namely, Vandaiah, Kempaiah and Mallaiah together have taken 2/3rd share and Chikkamallaiah, the son of Papaiah has taken 1 /3rd share in the said property. It is further submitted that even the plaintiffs have not placed any material either oral or documentary evidence to show that out of 2/3rd share, the father of the plaintiff Vandaiah then his uncles Kempaiah and Mallaiah each have taken to their share 36.5 or 37 guntas. Even in the absence of such material, the trial Court as well as the first appellate Court have accepted the case of the plaintiffs, which is perverse and capricious. It is further submitted that the property under Ex.D1 has been purchased by defendant No.6 along with one N.G.Krishnareddy on 4.9.1991, but the said N.G.Krishnareddy, the joint owner of the property purchased under Ex.D1 has not been made as a party, though there is a specific contention of defendant No.6 that suit is bad for non-joinder of necessary parties. In spite of such contentions raised and even though there is issue No.8 framed by the trial Court, both the Courts below have totally ignored this legal aspect and the trial Court has decreed the suit, which is confirmed by the first appellate Court and granted declaratory decrees which is against the mandatory provisions of law. In spite of such contentions raised and even though there is issue No.8 framed by the trial Court, both the Courts below have totally ignored this legal aspect and the trial Court has decreed the suit, which is confirmed by the first appellate Court and granted declaratory decrees which is against the mandatory provisions of law. It is further submitted that though it is contended by the plaintiff that there was a family partition, but the same has not been proved with satisfactory material. Even though there is no cogent and satisfactory oral or documentary evidence in respect of issue Nos.2 and 3, both the Courts have held those issues in favour of the plaintiffs. He has also submitted that Order 1 Rule 6 of CPC is also not considered by both the Courts below. The appellant has not admitted the correctness of the sketch Ex.P8 and the joint purchaser Krishna Reddy is still alive. Hence, it is submitted that the judgment arid decree of the Courts below are illegal and not sustainable in law and same may be set aside by allowing the appeal. 10. As against this, learned counsel appearing for respondents during the course of his arguments has submitted that there are two sale deeds executed by defendants 3 to 5 and sale of share of Chikkamallaiah is under challenge. There is no averment in the written statement of defendant No.6 regarding the averments made by the plaintiffs about relinquishment of share of Chikkamallaiah in favour of the plaintiffs. Regarding non-mentioning of survey number and the boundaries in the release deed, such contention was not raised before the Courts below and it is not permissible to raise such contention before this Court for the first time in the regular second appeal. The trial Court has accepted the case of the plaintiffs regarding the release deed that it relates to the suit schedule property, which finding is confirmed by the first appellate Court. It is further submitted that immediately after two months of execution of the sale deed suit has been filed. After the death of Krishna Reddy no application is filed by defendant No.6. The counsel for the appellant has not at all argued on the findings of the first appellate Court. It is further submitted that immediately after two months of execution of the sale deed suit has been filed. After the death of Krishna Reddy no application is filed by defendant No.6. The counsel for the appellant has not at all argued on the findings of the first appellate Court. There is concurrent finding of facts by the Courts below and the judgments and decrees passed by the Courts below are in accordance with law and in accordance with the oral and documentary evidence produced in the case. No illegality has been committed nor there is any perverse or capricious view taken by both the Courts below. Hence, it is submitted to dismiss the above appeal. 11. I have perused the averments made in the pleadings by both the parties before the trial Court, oral and documentary evidence adduced by both the sides, the judgment and decrees passed by both the courts below, so also I have perused the averments 111 the appeal memorandum and the grounds urged therein and the decisions relied upon by the learned Counsel on both sides which are referred above. 12. The plaintiffs have filed the suit seeking declaration that the sale deed dated 4.9.1991 executed by defendant Nos.3 to 6 in favour of defendant No.6 as null and void and does not confer any valid right, title or interest in favour of defendant No.6 and also for declaration that the entries made in pahani 1990-91 in respect of schedule property in favour of the defendant Nos.3 to 5 is illegal and consequential relief of permanent injunction to restrain the defendant from interfering with plaintiffs' peaceful possession and enjoyment of the schedule property. By filing the said suit, respondent Nos. 1 and 2 plaintiffs have challenged the sale deed dated 4.9.1991 said to have been executed by defendant No.3 to 5 in favour of appellant-defendant No.6. In the written statement, defendant No.6 took the specific contention that one of the joint purchasers i.e., Sri. N.J. Krishnareddy who is a proper and necessary party to these proceedings, is not made as a party by the plaintiffs. Hence, the suit is bad for non joinder of necessary party and, it is liable to be rejected on this ground alone. N.J. Krishnareddy who is a proper and necessary party to these proceedings, is not made as a party by the plaintiffs. Hence, the suit is bad for non joinder of necessary party and, it is liable to be rejected on this ground alone. On the basis of the said pleading, the trial court framed issue No.8 to the effect that whether defendant Nos.3 to 6 prove that suit is bad for non joinder of N.G. Krishna Reddy as a party. While recording the finding on the said issue, the trial Court has observed in para No.22 of the judgment that no doubt one N.G. Krishna Reddy is the joint purchaser but it is important to note that his name is not found in the RTC and it is only the name of defendant No.6 being continued since 1995-96. Hence, it cannot be said that it is bad for non impleading of N.G. Krishna Reddy. It is also observed by the trial Court that the relief can be granted against defendant No.6 even in the absence of N.G. Krishna Reddy. It is also observed by the trial Court that an order against the sale deed dated 4.9.1991 cannot be passed as null and void and accordingly, recorded the negative finding on issue NO.8. when even according to the plaintiffs respondent No.1 and 2, the document Ex.D.1 - sale deed dated 4.9.1991 is admittedly in favour of appellant -defendant No.6 and N.G. Krishna Reddy and when in the written statement, the contention has been raised that without impleading the joint purchaser N.G. Krishna Reddy, the suit is not maintainable, the trial court committed the serious error in decreeing the suit without impleading the said N.G. Krishna Reddy. The N.G. Krishna Reddy is a necessary and proper party to the suit. If the suit is only for bare injunction to restrain the appellant defendant No.6 on the ground that he alone has caused obstruction to the plaintiffs' possession and enjoyment of the suit schedule property in that case, the relief of permanent injunction could have been granted against defendant No.6. But in the suit, the relief claimed is the declaration that the sale deed dated 4.9.1991 is to be declared as null and void. If that is so, such a relief cannot be granted by the Court without impleading the parties who are the purchasers under the said document. But in the suit, the relief claimed is the declaration that the sale deed dated 4.9.1991 is to be declared as null and void. If that is so, such a relief cannot be granted by the Court without impleading the parties who are the purchasers under the said document. Perusing the pleadings of the parties and the evidence on both sides, it is not the case of both sides that when the suit was filed, the said N.G. Krishna Reddy was no more nor he was having legal representatives. On this point, the entire evidence is silent. 13. Even in the judgment while recording the findings on issue No.8, it is not the finding of the trial Court that the joint purchaser N.G.Krishnareddy is no more or there are no legal representatives. But on the contrary, it is the observation made by the trial Court while recording the finding on issue No.8 that though the sale deed is in the name of two purchasers i.e., defendant No.6 and one N.G.Krishnareddy, but looking to the RTC entries, they are only in the name of defendant No.6 and the suit can be proceeded with even in the absence of N.G.Krishnareddy. This view of the trial Court is incorrect, because, even if there is no entry of the name of N.G.Krishnareddy in the RTC extracts, but the sale deed Ex.D1 is a title deed, which confers title on the purchaser under the said deed and when the very sale deed dated 4.9.1991 is sought to be declared as null and void, it cannot be done behind the back of one of the joint purchaser without impleading him as a parry to the proceedings. Hence, the suit brought as against one of the joint purchaser is not maintainable. 14. Hence, the suit brought as against one of the joint purchaser is not maintainable. 14. I have also perused the decision relied upon by learned counsel for the respondents reported in AIR 1993 -SC 1587 in the case of Laxmishankar Harishankar Bhatt Vs, Yashram Vasta (dead) by L.Rs., wherein their lordships have laid down the preposition as under: "Civil Procedure Code (1908), 0.1, R.9- Dismissal for non-joinder of necessary parties-Suit for recovery of possession - Plaintiff-purchaser claiming to have acquired entire ownership of suit property-Plea by defendant-tenant that suit is liable to be dismissed for non-joinder of co-owners - No averments, however, in written statement as to who are other co-owners and what rights they claim -Suit cannot be dismissed for non-joinder on such vague plea. " 15. In the said decision, the Hon'ble Supreme Court has observed that there are no averments in the written statement as to who are the other co-owners and what rights they claim. Therefore, it is held that suit cannot be dismissed for non-joinder on such vague plea. But in the case on hand, in the written statement there is a specific pleading that Ex.D1 dated 4.9.1991 is in the name of defendant No.6 and also one K.G.Krishnareddy who are the joint purchasers under the said deed. Deed is also produced before the Court, tendered in evidence and marked as Ex.D1. When that is so, it cannot be said that there is no plea raised by defendant No.6 in his written statement or it is a vague plea. Therefore, the above decision relied upon by the learned counsel for the respondents is not applicable to the facts of the present case. 16. The trial Court while framing the issue and even thereafter, in view of issue No.8, ought to have given an opportunity to the plaintiffs to implead said N.G.Krishnareddy as necessary and proper party. Even after giving such opportunity, if the plaintiffs did not implead the said N.G.Krishnareddy in the suit as a necessary and proper party, the Court could have proceeded with in the matter. Therefore, only on the ground that N.G.Krishnareddy is not made as a party to the suit, the suit itself cannot be dismissed by the Court. it is necessary to give opportunity to the plaintiffs-respondents 1 and 2 to take steps in that connection. 17. Therefore, only on the ground that N.G.Krishnareddy is not made as a party to the suit, the suit itself cannot be dismissed by the Court. it is necessary to give opportunity to the plaintiffs-respondents 1 and 2 to take steps in that connection. 17. In view of my observations pertaining to issue No.8 framed in the suit, the question of considering other merits of the case does not arise at all. Hence, I am of the opinion that matter will have to be remanded to the trial Court by giving an opportunity to the respondents 1 and 2plaintiffs to implead N.G. Krishnareddy and then the trial Court has to decide the matter afresh. 18. Hence, appeal is allowed. The judgment and decree dated 18.12.1999 passed in O.S. No. 187/1991 on the file of II Addl. Civil Jude (Sr.Dn), Bangalore Rural District, Bangalore in allowing the suit and the judgment and decree dated 16.12.2006 passed in R.A.No.6/2000 on the file of Sessions Judge, Fast Track Court-II, Bangalore Rural District, Bangalore in confirming the said Judgment and decree of the trial Court are hereby set aside and matter is remanded to the trial Court for fresh disposal in accordance with law.