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2017 DIGILAW 1202 (KAR)

Subhadrabai v. Antamma

2017-09-04

K.N.PHANEENDRA

body2017
JUDGMENT : 1. Heard the learned counsel for the appellants. 2. For the purpose of easy understanding and convenience, ranks of the parties as per their ranks before the trial Court is retained. 3. The plaintiffs by name Smt. Antamma and others have filed a suit for declaration and for permanent injunction against the defendants in respect of the suit schedule property which is a land bearing sy.no.94/A measuring 12-acres 11-guntas situated at village Mustapur, Tq. Humnabad, Dist. Bidar. 4. The plaintiffs claim is that the husband of the plaintiff no.1 by name late Mallayya and husband of defendant no.1 by name Sangayya are full blood brothers to each other. There are five brothers to husband of plaintiff no.1 and defendant no.1 by name Shivamurthayya, Sharnayya, Somanath, Sudhakar and Kashinath. All of them have divided their family properties and residing separately. The suit schedule property was purchased by the husband of the plaintiff no.1 situated at village Mustapur, Tq.Humnabad, Dist.Bidar. The suit land is self acquired property of the husband of the plaintiff no.1 purchased through registered sale deed dated 12.4.1977 from its previous owner by name Gundappa S/o Siddappa Biradar and others., The husband of the plaintiff no.1 had been in possession and enjoyment of the said suit land till his death who died on 04.03.2001 leaving behind the plaintiffs as his legal heirs. It is contended that the defendants have no right, title, interest or possession over the property but in collusion with the revenue authorities, after the death of husband of plaintiff no.1, they got mutated the name of Sangayya in the revenue records. Being aggrieved by the same, the plaintiffs have filed the suit for declaration and injunction. 5. It is the defendants’ case as could be seen from the written statement that, the defendants admitted the relationship between the plaintiffs and defendants but they denied that, the property is the exclusive self acquired property of the husband of the plaintiff no.1. It is their contention that the husband of the defendant no.1 by name Sangayya was having lot of love and affection towards his brother Mallayya i.e., husband of the plaintiff no.1 had purchased the suit schedule property in the name of the husband of the plaintiff no.1 as the said Sangayya was a Government servant. It is their contention that the husband of the defendant no.1 by name Sangayya was having lot of love and affection towards his brother Mallayya i.e., husband of the plaintiff no.1 had purchased the suit schedule property in the name of the husband of the plaintiff no.1 as the said Sangayya was a Government servant. It is the contention of the defendants that nominally the said property was purchased in the name of Mallayya as Benami by providing purchase money by the said Sangayya. Therefore, it is the property of Sangayya actually and not the property of the husband of the plaintiff no.1. The name of said Mallayya even though entered in ROR in respect of the suit land from 1977, but he held the property as a trustee for himself and on behalf of family members. Therefore, on death of Mallayya, the property was mutated in the name of Sangayya. Therefore, the plaintiffs are not entitled for any declaration and injunction against the defendants, therefore the defendants prayed to dismiss the suit. 6. On the above said rival contentions of the parties, the trial Court has framed the following :- ISSUES 1. Whether the plaintiffs prove that, the suit land is self acquired property of late Mallayya Madpathi ? 2. Whether the plaintiffs further prove that they are joint owners and possessors of the suit land as alleged ? 3. Whether the plaintiffs further prove that, the alleged interference of the defendants over the suit land ? 4. Whether the plaintiffs have got no cause of action to file the present suit as alleged ? 5. Whether the plaintiffs have got no cause of action to file the present suit as alleged ? 6. Whether the valuation made by the plaintiffs over the suit is incorrect and Court fee paid over the same is insufficient as alleged ? 7. Whether the defendants prove that the transaction of purchase of the suit land in the name of deceased Mallayya was nominal and Benami one as alleged ? 8. What order or decree ? 7. The plaintiff no.1 examined herself as P.W.1 and one more witness as P.W.2 and got marked 20-documents as Ex.P-1 to Ex.P-20. The defendants never entered into the witness box nor produced any documentary evidence. 8. Virtually suit went ex-parte though the defendants appeared and filed their written statement. 8. What order or decree ? 7. The plaintiff no.1 examined herself as P.W.1 and one more witness as P.W.2 and got marked 20-documents as Ex.P-1 to Ex.P-20. The defendants never entered into the witness box nor produced any documentary evidence. 8. Virtually suit went ex-parte though the defendants appeared and filed their written statement. The written statement has not been translated into evidence. On the basis of the evidence adduced, the trial Court has answered Issue Nos.1 to 3 in the Affirmative, Issue Nos.4 to 7 in the Negative and consequently decreed the suit of the plaintiffs declaring that the plaintiffs are the joint owners in possession of the property, and granted consequential injunction against the defendants as prayed for. 9. The trial Court has appreciated the oral and documentary evidence on record. In fact, Ex.P-1 to Ex.P-13 are the revenue records and Ex.P-14 is the mutation register extract etc., Ex.P-19 is the registered sale deed and Ex.P-19(a) is translated version (Urdu language) of the sale deed. The trial Court has observed that these documents produced by the plaintiffs in respect of the suit property shows that the husband of the plaintiff no. 1, purchased the suit property and had been in continuos possession till his death. 10. In order to controvert the evidence of the plaintiffs’ pleadings, the defendants have not produced any material to show that actually husband of defendant no.1 had paid the purchase money to purchase the suit schedule property in the name of husband of the plaintiff no.1. It is not the case of the defendants that husband of the plaintiff no.1 was a minor at that particular point of time. It is not stated whether all the brothers were divided or not. On the other hand, plaintiffs pleading is that all the brothers were divided and they were residing separately and thereafter in the year 1977 the property was purchased by the husband of the plaintiff no.1. This evidence and pleading of the plaintiffs has not been demolished by the defendants in any manner. 11. The defendants being aggrieved by the judgment and decree and appreciation of the facts by the trial Court, have preferred an appeal before the Additional District Judge Bidar, in R.A.No.44/2012. This evidence and pleading of the plaintiffs has not been demolished by the defendants in any manner. 11. The defendants being aggrieved by the judgment and decree and appreciation of the facts by the trial Court, have preferred an appeal before the Additional District Judge Bidar, in R.A.No.44/2012. The first appellate Court also on considering the pleadings of the parties and the evidence adduced and as well as the findings given by the trial Court coupled with the grounds of appeal has framed the following points for consideration. POINTS FOR CONSIDERATION 1. Whether the appellants prove that, findings of the trial Judge that plaintiffs no.1 to 3 are the absolute owners in lawful possession of the suit property, they are entitle for the relief of declaration with the consequential relief of injunction is not correct ? 2. Whether appellants prove that the trial Court ought to have been accorded them an opportunity to establish that Mallayya was the ostensible owner and name lender, suit property had purchased at this name though the entire consideration had passed by Sangayya ? 3. Whether the appellants prove that they are entitle to take the defence of the Benami transaction that the suit property had purchased in the name of Mallayya though the consideration had passed by his brother Sangayya ? 4. Whether the appellants prove that the impugned judgment and decree are arbitrary and capricious and perverse therefore interference of this Court is very essential ? 5. What order ? 12. The first Appellate Court has also in detail re-assessed the evidence on record, meticulously dealt with all the documents produced by the plaintiffs and came to the conclusion that the trial Court has not committed any error in decreeing the suit. Consequently, the Appellate Court also confirmed the judgment and decree passed by the trial Court and thereby dismissed the appeal. 13. On careful perusal of the appreciation of evidence of both the courts, in my opinion, when the defendants have pleaded a specific case of purchase of property Benami in the name of the husband of the plaintiff no.1, the burden lies on the defendants to show that the purchase money for the sale deed has been given by the husband of the defendant no.1. Otherwise, the presumption under the Registration Act benefits the plaintiffs with reference to recital in the sale deed that the sale consideration was paid by the husband of the plaintiff no.1. In order to rebut this presumption, heavy burden was cast upon the defendants which has not been discharged. Under the above said circumstances, in my opinion, there is absolutely no substantial question of law arises for consideration of this Court. Factual appreciation of a case by the First Appellate Court and the trial Court shall not be interfered unless there arises any substantial question of law. Hence, I proceed to pass the following :- ORDER The appeal is dismissed at the admission stage itself holding that no substantial question of law arises for consideration. As no notice has been ordered to be issued to the respondents, no order as to costs.