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2022 DIGILAW 144 (KAR)

K. T. Mahalingaiah v. K. V. Shanmukaiah

2022-02-04

N.S.SANJAY GOWDA

body2022
JUDGMENT 1. Sri K.V. Shanmukhaiah - the 1st respondent filed a suit, initially, seeking for declaration and permanent injunction. Subsequently, by way of an amendment he also sought for possession in respect of 'B' schedule property. 2. It was his case that one Voggodaiah had a son called Mallaiah and Mallaiah had three sons, namely, Rangaiah, Sannaiah and Voggaiah, who constituted a Hindu Joint Family, which possessed several properties including the suit property. It was stated that khatha in respect of suit property stood in the name of Mallaiah. 3. It was also stated that the second son of Mallaiah i.e. Sannaiah had died issueless and his wife had also passed away and as a consequence on the death of Mallaiah his remaining two sons i.e. Voggaiah and Rangaiah had divided their joint family properties several decades ago. It was also stated that the suit property along with other properties had fallen to the share of Voggaiah and he was in possession of the same. 4. It was stated that Voggaiah had four sons, namely, K.V. Shanmukhaiah (the plaintiff), Mallikarjunaiah, Mahalingaiah and Virupakshaiah who together constituted Hindu Joint Family. It was stated that the suit schedule property was allotted to the share of his father Voggaiah and after Voggaiah's death in the year 1997, the suit property devolved to the plaintiff and his three remaining brothers who were in joint possession. 5. It was stated that on the basis of a compromise decree passed in O.S. No.79/1986, the 3rd defendant K.T. Mahalingaiah claimed title to the property and sought for change of entries and he had also filed a suit for permanent injunction. It was stated that the Revenue Entries were changed in favour of the 3rd defendant and he had preferred an appeal to the Assistant Commissioner who however, dismissed the appeal. It was stated that the decree passed in O.S. No.79/1986 was of no consequence and the same did not bind the plaintiff. It was further stated that the State had acquired 1 acre 20 guntas of land out of 4 acres 20 guntas in Survey No.32/2 for the formation of Hemavathi Channel and an award was passed for an amount of Rs.85,511.00 and notice of the award had been issued to Mallaiah S/o. Voggodaiah, the grand father of the plaintiff. It was further stated that the State had acquired 1 acre 20 guntas of land out of 4 acres 20 guntas in Survey No.32/2 for the formation of Hemavathi Channel and an award was passed for an amount of Rs.85,511.00 and notice of the award had been issued to Mallaiah S/o. Voggodaiah, the grand father of the plaintiff. It was stated that the State had acquired 30 guntas of land in the suit schedule property on the southern side and there remained an extent of 1 acre 14 guntas, which was the suit schedule property. It was stated that the plaintiff had been dispossessed by the 3rd defendant during pendency of the suit and was in unauthorized possession. 6. It was also stated that on dismissal of the appeal by the Assistant Commissioner, the 3rd respondent had in fact approached defendant No.2 and staked a claim to receive compensation in respect of the acquisition and since attempts would be made to claim the compensation, the plaintiff was constrained to seek for declaration and for permanent injunction. 7. The State which was arrayed as defendant Nos.1 and 2 did not contest the suit. 8. The 3rd defendant i.e. appellant contested the suit by denying all plaint averments, except the proceeding initiated in O.S. No.79/1986 and revenue proceedings. It was stated that the order of the Assistant Commissioner by which the appeal of the plaintiff challenging the mutation in favour of the 3rd defendant had became final and therefore it was not open to the plaintiff to seek for declaration. Though he admitted that neither the plaintiff nor his father were parties in O.S. No.79/1986 he stated that they were not necessary parties as they had no title. He denied the assertion of the plaintiff that land that to an extent of 1 acre 20 guntas had been acquired and that an award has been passed in the name of Mallaiah. It was stated that the Special Land Acquisition Officer could have possibly passed an award without holding proper enquiry and therefore, that did not create any interest in the plaintiff. He also stated that he had sought for a reference under Ss. 18 and 30 of the Land Acquisition Act and there was a bar for filing of suit under Sec. 52 of Land Acquisition Act. 9. He also stated that he had sought for a reference under Ss. 18 and 30 of the Land Acquisition Act and there was a bar for filing of suit under Sec. 52 of Land Acquisition Act. 9. The 3rd respondent contended that he being the owner was in possession and enjoyment of 2 acres 4 guntas in Survey No.32/2 and had secured possession and also title from the previous owners by virtue of the compromise decree passed in O.S. No.79/1986. It was stated that neither the plaintiff nor his brothers had any right in respect of the said extent of 2 acres 4 guntas. He did admit that 30 guntas of land had been taken over for the formation of Hemavathi Channel and for this he was entitled for compensation. 10. An additional statement was also filed stating that the question of dispossession of plaintiff does not arise as he was never in possession. He denied the assertion that he was in unauthorized possession. 11. The Trial Court on consideration of the evidence adduced before it, came to the conclusion that Voggaiah had died intestate and the plaintiff had proved that he and his brothers were co-owners and they are in joint possession of the suit schedule property. The Trial Court also held that the plaintiff had proved that the decree passed in O.S. No.79/1986 was not binding on the plaintiff and that he was entitled to receive the compensation awarded by the Land Acquisition Officer. 12. Lastly, the Trial Court held that the plaintiff had proved that the 3rd defendant was in unauthorized possession over the suit property and the plaintiff was entitled to recovery of possession of the 'B' schedule property. 13. Accordingly the Trial Court decreed the suit and declared that the plaintiff and his brothers were the co-owners of the land bearing Survey No.32/2 measuring 4 acre 18 guntas (out of which 2 acres 4 guntas had been acquired by the State). The Trial Court also directed the 3rd defendant to deliver the possession to the plaintiff within a period of 3 months and on his failure, permitted the plaintiff to take necessary action under law for recovering the possession. It was also held that the plaintiff and his brothers were entitled to receive the compensation awarded in respect of the portion of the land which had been acquired. 14. It was also held that the plaintiff and his brothers were entitled to receive the compensation awarded in respect of the portion of the land which had been acquired. 14. Being aggrieved, the 3rd defendant preferred an appeal before the first Appellate Court. The first Appellate Court on re-appreciation of the evidence came to the conclusion that the findings recorded by the Trial Court could not have found fault with and the assessment of the evidence by the trial Court was proper and correct. It accordingly confirmed the decree of the trial Court and dismissed the appeal. 15. It is as against these concurring judgments, the present second appeal is filed. 16. Learned counsel for the appellant contended that plaintiff had acquired valid title over the suit property by virtue of a compromise decree that he had entered into with Rangaiah and Nagaiah in O.S. No.79/1986 who were the children of Rangaiah (the brother of Mallaiah). He submitted that the suit property was joint family property of Mallaiah (the grand father of the plaintiff), Rangaiah (father of his vendors) and Chikkalakkappa. He contended that the suit schedule property had fallen to the share of Rangaiah and after Rangaiah's death, his sons had entered into agreement to sell with the 3rd defendant on 11/2/1986 and this agreement to sell was the subject matter of O.S. No.79/1986 in which the parties had entered into the compromise and his vendors had conceded for a decree. 17. Learned counsel contended that appellant's vendors i.e., Rangaiah and Nagaiah had in fact mortgaged the suit property in favour of K.R. Rangaiah (who was the son of Rangaiah i.e., the first son of Mallaiah i.e. the grand father of the plaintiff). He submitted that this mortgage was redeemed by way of a registered instrument in 13/2/1986 as per Ex.D2 and this established that his vendors were the owners of the suit property and as consequence he was entitled to be in possession. 18. The claim of the plaintiff was that the suit property belong to Voggaiah. In order to establish this fact, revenue record were produced in which the name of Mallaiah i.e. grand father of the plaintiff had been entered. 19. 18. The claim of the plaintiff was that the suit property belong to Voggaiah. In order to establish this fact, revenue record were produced in which the name of Mallaiah i.e. grand father of the plaintiff had been entered. 19. The Trial Court as well as the Appellate Court on appreciation of the evidence has come to the conclusion that the suit property had devolved to the father of the plaintiff and thereafter to the plaintiff and his brothers. 20. It is to be stated here that the 3rd defendant claimed title on the basis of a compromise decree, which had been passed in the suit instituted by him for injunction. Admittedly, this compromise decree was not registered, as a result of which, there is no registered instrument conveying title of the suit in favour of the 3rd defendant. If 3rd defendant has no title over the suit property, then, obviously, he cannot stake a claim to retain possession in view of the settled principle that possession follows title. 21. O.S. No.79/1986 was admittedly a suit for permanent injunction. Even if the compromise was entered into in the said suit, obviously title would not stand conveyed to the 3rd defendant. Merely because the defendants therein conceded for a decree in favour of the plaintiff that would not tantamount to a transfer of the property in favour of the 3rd defendant. 22. The argument that Rangaiah and Nagaiah (his vendors) mortgaged the property in favour of one K.R. Rangaiah and the mortgage was redeemed by registered instrument and this established the fact that his vendor possessed title cannot be accepted. There was no material produced to show that at any point of time the name of Rangaiah and Mahaningaiah was entered into the revenue records. There is also no evidence to indicate that the name of the father of the 3rd defendant's vendors who was also named Rangaiah had been entered into revenue records. 23. An attempt was made by the learned counsel that there had been a partition between Mallaiah and Rangaiaha and Chikkalakkappa and the suit property had fallen to the share of Rangaiah under an oral partition. However, no oral or documentary evidence is forthcoming to establish that there was an oral partition in which the father of the 3rd defendant's vendor was allotted the suit property. However, no oral or documentary evidence is forthcoming to establish that there was an oral partition in which the father of the 3rd defendant's vendor was allotted the suit property. In short, there was absolutely no material to indicate that the vendors of the plaintiff possessed title over the suit property. 24. Both the Courts, in my view were absolutely justified in coming to the conclusion that the plaintiff had proved that the suit property was the property of the plaintiff and his brothers and as a consequence he was entitled for possession. There is no substantial question of law arises for consideration of the second appeal and it is accordingly dismissed.