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2020 DIGILAW 1332 (KAR)

Rayavva v. Sidramavva

2020-07-06

N.S.SANJAY GOWDA

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JUDGMENT N S Sanjay Gowda, J. - The defendant is in second appeal. 2. Sidramavva and Rayappa filed a suit for a declaration that they were the owners of property bearing No.29 situated at Kelur Village, Tq:Hungund, Dist: Bagalkot. 3. It was their case that the suit property belonged to Ningabasappa i.e. the husband and father of the plaintiffs and on his death they had succeeded to the suit property and had become its absolute owners. It was stated that the defendant, who was the sister-in-law of Ningabasappa, took undue advantage of her relationship and in collusion with the Gram Panchayat officers, got her name entered as the legal heir of Ningabasappa. On this fact coming to their notice, they contended that they were constrained to file the suit seeking for declaration. 4. The suit was contested by Rayavva, the sister-in-law of Ningabasappa. She admitted that the plaintiffs were the legal heirs of Ningabasappa, but, she denied the ownership of Ningabasappa over the suit property. She stated that Ningabasappa and her husband were brothers and their family had three properties which was divided in the presence of elders on 12.04.1978 and under this partition the suit property had been allotted to her husband, while property bearing No.28 was allotted to Ningabasappa, and property No.3 was allotted to another brother Ningappa. 5. She contended that in accordance with this division, their names had been entered in the revenue records and they were enjoying the properties allotted to them. It was stated that since the property had been allotted to her husband Fakirappa, after his demise, she had become the absolute owner and the plaintiffs had no right title, interest over the said suit properties. She stated that the plaintiffs had sold property bearing No.28 in favour of Padiyappa Aminappa Asangi, who was in possession of the said properties and the plaintiffs were actually residing at Aihole village and hence not entitled to any decree. 6. The Trial Court, on consideration of the evidence, took the view that the plaintiffs had not challenged the resolution passed by the Panchayat on 29.11.1990, by which, the name of the defendant had been entered and consequently they could not seek for a declaration. The Trial Court, accordingly, dismissed the suit. 7. The plaintiffs, being aggrieved, carried the matter in appeal. 8. The Trial Court, accordingly, dismissed the suit. 7. The plaintiffs, being aggrieved, carried the matter in appeal. 8. The Lower Appellate Court on re-appreciation of the entire evidence came to the conclusion that the defendant had got her name mutated, not on the basis of the partition setup by her, but by making a representation to the Panchayat that she was the legal heir of Ningabasappa. The Appellate Court found that since the defendant was admittedly not the legal heir of Ningabasappa and when she herself had admitted that the plaintiffs were the legal heirs of Ningabasappa, it was clear that they had succeeded to the suit property and the Panchayat officials ought not have entered her name as the owner. 9. The Lower Appellate Court also took note of her contention that the suit property had fallen to the share of her husband under a partition of the year 1998 and though she had setup such a plea, no document had however been produced to substantiate this contention and also had chosen not to make any counter claim. The Appellate Court, ultimately, held that since the defendant had herself claimed the suit property on the basis that she was the legal heir of Ningabasappa, the said claim was illegal, especially, when she herself admitted that the plaintiffs were indeed the legal heirs of Ningabasappa. The Appellate Court, accordingly, decreed the suit and declared that the plaintiffs were the owners of the suit property. The Appellate Court also held that order of Panchayat did not bind the plaintiffs. 10. It is against this judgment of the Appellate Court, decreeing the suit, the present appeal is filed. 11. Sri S.B.Hebballi, Learned counsel for the appellant contended that the Appellate Court had exceeded its jurisdiction in holding that the order of Panchayat did not bind the plaintiffs. According to him, the initial prayer made by the plaintiffs for a direction to the Panchayat to delete the name of the defendant, being given up before the Trial Court and the Appellate Court therefore could not have made an order to the effect that the order of the Panchayat did not bind the plaintiffs. 12. According to him, the initial prayer made by the plaintiffs for a direction to the Panchayat to delete the name of the defendant, being given up before the Trial Court and the Appellate Court therefore could not have made an order to the effect that the order of the Panchayat did not bind the plaintiffs. 12. According to him, since the plaintiff was entitled to seek for the further relief, apart from the declaration and since admittedly no such further relief was claimed, the proviso of Section 34 of the Specific Relief Act, would be attracted and the Appellate Court could not have granted a declaration. 13. In support of his contention, he relied upon the judgment of this Court in the case of U.Vijaya Kumar and Another Vs Smt. Malini V.Rao, in RFA No.813/2012 dated 30.05.2016 and the judgment rendered by this Court in the case of Bhimappa Shivappa Manoji Vs Shiddalingavva, (2011) 1 KCCR 738 . 14. I have considered the submission of the learned counsel and also perused the material on record. 15. As could be seen from the plaint, the plaintiffs laid a claim over the suit property on the premise that the suit property belonged to Ningabasappa and on his death, they being the wife and son, had succeeded to the same and thereby become the absolute owners. It was their case that the defendant, though not being the legal heir of Ningabasappa had sought for change of entry on the premise that she had the legal heir of Ningabasappa and Panchayat officials by colluding with her had a passed resolution and had entered her name and thereby considered as the owner of the suit property. 16. Thus, it is clear that the suit was principally filed because the defendant laid a claim over the suit property by claiming to be the legal heir of Ningabasappa. 17. The Lower Appellate Court, on consideration of the admitted plea of the defendant herself, that the plaintiffs were the legal heirs of Ningabasappa and she was only the sister-in-law of Ningabasappa could not lay a claim as owner of the suit property and the Panchayat officials had erred in accepting her claim. 17. The Lower Appellate Court, on consideration of the admitted plea of the defendant herself, that the plaintiffs were the legal heirs of Ningabasappa and she was only the sister-in-law of Ningabasappa could not lay a claim as owner of the suit property and the Panchayat officials had erred in accepting her claim. The Appellate Court found that by virtue of being the wife and son of Ningabasappa, the plaintiffs had succeeded to the property and they were therefore entitled to be declared as the owners of the suit property. 18. In my view, the decision rendered by the Appellate Court cannot be said to be illegal or arbitrary. 19. As far as the arguments of the learned counsel is concerned, that it was open for the plaintiffs to seek for further relief and since no further relief was sought for, the Appellate Court could not have granted a declaration, in my view, is unfounded. 20. The plaintiffs merely wanted a declaration that they had succeeded to the suit property on the death of Ningabasappa especially since a rival claim had been set up by the defendants. In the light of the admitted position that the plaintiffs were the only legal heirs of Ningabasappa, it was necessary for them only to seek a prayer for declaration that they had succeeded to the suit property and had thereby become its owners. In my view, in the light of the admission of the defendant that the plaintiffs were the legal heirs of Ningabasappa, the prayer of the plaintiffs for a declaration that they were the owners of the suit property could not have been denied. 21. The argument of the learned counsel stems from the fact that the plaintiffs had admitted their possession and they had to necessarily to seek for possession as a consequential relief. It is to be noticed that a defendant in a suit cannot dictate the relief that a plaintiff can and should claim. The defendant, though, setup a plea that the suit property was allotted to her husband and she was enjoying the property on that basis, failed to produce any document to either establish the alleged partition or possession. 22. I am therefore of the view that this argument of the learned counsel that the plaintiff had to seek for possession is not well founded. 23. 22. I am therefore of the view that this argument of the learned counsel that the plaintiff had to seek for possession is not well founded. 23. The reliance of the learned counsel that as per the decision of the Division Bench rendered in RFA No.813/2012, the plaintiff was required to seek for possession is also not well-founded. 24. In that case, the plaintiff while claiming a relief for declaration and for possession had not sought for cancellation of a sale deed executed by defendant Nos.1 and 2 and a question therefore arose in the suit as to whether it was necessary to seek cancellation of the instrument when a declaration is sought to the effect that it is not binding on the plaintiff. The decision rendered therein in the context of the facts mentioned therein are wholly in-applicable to the facts herein. 25. The reliance placed by the learned counsel of the decision of this Court in Bhimappa Shivappa Manoji Vs Shiddalingavva, (2011) 1 KCCR 738 , to the effect that the civil Court had no jurisdiction to order canceling of any entry is also in-applicable to the present case. 26. In the instant case, the Lower Appellate Court has merely declared that the plaintiffs had succeeded to the property and had become its absolute owners and since a mutation entry had been setup by the defendant on the basis that she had succeeded to the property, the Appellate Court has merely observed that the said resolution will not bind the plaintiffs. 27. There is no infirmity in the judgment rendered by the Apex Court and no question of law arising for consideration in this second appeal and the same is accordingly dismissed.