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2015 DIGILAW 1213 (KAR)

Murthaiah v. M. Yeshodhamma

2015-10-30

RAVI MALIMATH

body2015
JUDGMENT : Ravi Malimath, J. The case of the plaintiff is that the suit schedule property originally belonged to her mother-in-law Thimmamma. The property was given to the said Thimmamma by the Government under the temporary Saguvali Chit, which was granted to her somewhere in the year 1959. Ever since then, she was in possession of the property. Thereafter, she bequeathed the property by executing a registered Will dated 11.06.1990 in favour of the plaintiff. Thimmamma died on 04.05.1994. 2. On her death, the plaintiff became the absolute owner of the suit schedule property. The property measures 3 acres, 36 guntas. That prior to the filing of the suit, the defendant having no right over the said property dispossessed the plaintiff to an extent of 1 acre and continued to be in possession. Hence, the instant suit was filed seeking for a declaration that she is the absolute owner of the plaint 'A' schedule property, measuring 3 acre, 36 guntas and possession of 'B' schedule property, which is part of 'A' schedule to extent of 1 acre. 3. On service of suit summons, the defendant entered appearance. He denied the plaint averments. He contended that Thimmamma could not have bequeathed the entire extent of 3 acre, 36 guntas to the plaintiff. That the property was sold to the defendant under a registered sale deed 14.02.1968, to an extent of 1 acre. That the possession was delivered on receiving the consideration. Ever since then, the defendant's father was in possession and enjoyment of the same. After his death, the defendant is in possession of the same. They have been in possession of 'B' schedule property to an extent of 1 acre, to the knowledge of the plaintiff, as well as Thimmamma. The defendant also set-up a plea of adverse possession. 4. Based on the contention, the trial court framed the following issues: "1. Whether the plaintiff proves that she has acquired right over 'A' schedule property by way of Will Dated 11.6.1990? 2. Whether the plaintiff proves that the defendant illegally encroached 1 acre of land towards Western side. 3. Whether the plaintiff is entitled for possession of 'B' schedule land? 4. Whether the defendant proves that he purchased the property from the deceased Thimmamma? 5. Whether the defendant proves that the alternative plea of adverse possession? 6. Whether the plaintiffs is entitled for relief claimed? 7. 3. Whether the plaintiff is entitled for possession of 'B' schedule land? 4. Whether the defendant proves that he purchased the property from the deceased Thimmamma? 5. Whether the defendant proves that the alternative plea of adverse possession? 6. Whether the plaintiffs is entitled for relief claimed? 7. What Order or Decree?" 5. Issue Nos. 1, 2, 3, 5 and 6 were held in the negative. Issue No. 4 was held in the affirmative. The plaintiff examined herself as PW-1, other than PWs-2 to 6 and marked 14 documents. The defendant was examined as DW-1, other than DWs-2 to 4 and marked 12 documents. 6. The suit was dismissed. Aggrieved by the same, the plaintiff preferred an appeal. The appellate court allowed the appeal and set-aside the judgment and decree of the trial court and declared that the plaintiff is the absolute owner of the plaint 'A' schedule property. The defendant was restrained of perpetual injunction from interfering with the plaintiff's possession. 7. Aggrieved by the same, the defendant has filed RSA 469/2008 and the plaintiff has filed Cross-Objection No. 22/2008. By the order dated 06.06.2008, the appeal was admitted to consider the following substantial question of law: "Whether the lower appellate court could have decreed the suit of the plaintiff in its entirety despite recording a finding that Smt. Thimmamma did not have the right to bequeath 'B' schedule property under the Will of the plaintiff?" 8. Sri. S. N. Bhat, learned counsel for the appellant contends that the trial court recorded a finding that Thimmamma could not have bequeathed the entire extent of 3 acre, 36 guntas in favour of the plaintiff for having executed a sale deed in favour of the defendant in the year 1968. At the most, Thimmamma could have bequeathed the property to an extent of 2 acres, 36 guntas. Therefore, the decretal of the suit to the entire extent is erroneous. Hence, he pleads that the appeal be allowed. 9. It is further contended that the first appellate court accepted the findings of the trial court. The first appellate court did not find any fault in the appreciation of the evidence or the reasons assigned by the trial court. However, it goes on to hold that there is merit in the arguments of the plaintiff, that the defendant is not concerned with the plaint 'A' schedule property. The first appellate court did not find any fault in the appreciation of the evidence or the reasons assigned by the trial court. However, it goes on to hold that there is merit in the arguments of the plaintiff, that the defendant is not concerned with the plaint 'A' schedule property. That there is material to show that the defendant is trying to interfere with the possession of the plaintiff. 10. The plea of the cross-objector before this Court is to the contrary. That the Will having been executed to the entire extent of 3 acres, 36 guntas, there is no error that calls for any interference. 11. Both the courts below have held that Thimmamma could not have bequeathed the entire extent of 3 acres, 36 guntas namely, plaint 'A' schedule property in favour of the plaintiff. The appellate court having confirmed the findings of the trial court on this issue, could not have decreed the suit. On accepting the reasoning of the trial court, the appellate court committed an error in passing the impugned judgment and decree. 12. A registered sale deed was executed on 14.02.1968 in favour of the defendant to an extent of 1 acre. Ever since then, the defendant is in possession of the same. Thimmamma as well as the plaintiff were aware of the sale deed and they were also aware of the fact that the defendant was put in possession of the said 1 acre, ever since the year 1968. There- , fore, to contend to the contrary cannot be accepted, since it is opposed to the evidence and material on record. 13. When Thimmamma had executed a registered sale deed, she had lost the right, title and interest so far as the said extent of land is concerned, namely, 1 acre. Having executing a sale deed, what remained was only 2 acres, 36 guntas. Therefore, it was that extent of land alone that could be bequeathed and nothing more than that. 14. A registered sale deed having been executed to an extent of 1 acre, at the most Thimmamma could have bequeathed the property to the plaintiff only to the extent of 2 acre, 36 guntas. The bequeathal to the entire extent of 3 acre 36 guntas is erroneous. The suit therefore requires to be decreed only to the extent of 2 acre, 36 guntas. The bequeathal to the entire extent of 3 acre 36 guntas is erroneous. The suit therefore requires to be decreed only to the extent of 2 acre, 36 guntas. Therefore, to that extent, the judgment and decree of both the courts below requires to be modified partly in favour of the plaintiff and partly in favour of the defendant. 15. Consequently, the substantial question of law is answered by holding that the first appellate court committed an error. That the judgment and decree of the first appellate court is perverse in decreeing the suit of the plaintiff oils entirety, despite recording a finding that Thimmamma did not have a right to bequeath B' schedule property. 16. Consequently, the appeal is partly allowed. The judgment and decree of the trial court and the first appellate court is modified ad the suit of the plaintiff is partly decreed to in extent of 2 acre, 36 guntas out of 3 acre, 16 guntas as mentioned in plaint 'A' schedule property. The relief of possession of 'B' schedule property is rejected. The defendant is restrained from interfering in the peaceful possession of the plaintiff's land to an extent of 2 jacre, 36 guntas. 17. The appeal and cross-appeal are disposed off accordingly. Appeal partly allowed.