25. Further, it is held that to apply these principles, the defendants had to establish that the plaintiffs have been excluded from the joint possession of the suit land twelve years prior to filing of the suit. Whereas, to prove such facts, D.Ws. 1 and 2 have deposed that from the year 1980, Huchchirappa was in possession of the suit land and after his death, his wife and children are in possession. These statements have been denied by the plaintiffs in the cross-examination. Exclusive possession has been claimed on the basis of allotment of suit land to the share of Huchchirappa. It was held that the defendants have failed to establish the partition and allotment of suit land to the share of Huchchirappa, as there was no convincing evidence to show that the plaintiffs were excluded from the joint possession of the suit land after 1980. Only because the plaintiffs are residing in their matrimonial house, it cannot be held that they were excluded from possession. Thus, the learned trial judge on appreciation of the oral and documentary evidence on record has held that the defendants have failed to establish that the plaintiffs have been excluded from the joint possession of the suit land. As such, the suit of the plaintiffs is not barred under Article 110 of the Limitation Act.
IN THE HIGH COURT OF KARNATAKA (DHARWAD BENCH)
Regular First Appeal No. 100108 of 2016 [PAR/POS]
Decided On: 09.01.2017
Durgavva and Ors.
Vs.
Annapoornavva and Ors.
Hon'ble Judges/Coram:
Ravi V. Malimath and K. Somashekar, JJ.
1. The appellants, who were the plaintiffs in O.S. No. 17 of 2014 on the file of the Senior Civil Judge and JMFC, Ron, have filed this appeal challenging the judgment and decree passed by the Court below insofar as it relates to the shares awarded to the plaintiffs-appellants and have sought for awarding 1/8th share to each plaintiffs-appellants, that is, total half share to the plaintiffs jointly in all the suit properties.
2. Though the matter is listed for admission, the same is heard on merits with the consent of learned counsel for the appellants.
3. The rank of the parties shall be maintained as they were referred to before the Court below.
4. The factual matrix of the case are as under:
That one Sri Mukappa Yallappa Nidagundi had four sons and four daughters by name (1) Doddayallappa, (2) Huchchirappa, (3) Sannayallappa, (4) Shivamurteppa (defendant No. 24), (5) Durgavva (plaintiff No. 1), (6) Mahadevi (plaintiff No. 3), (7) Sannadurgavva (plaintiff No. 4) and (8) Sundrawa. Smt. Sundravva is no more and plaintiff No. 2 is her grand-daughter. As per the genealogy furnished by the plaintiffs in paragraph No. 3 of the plaint, defendant Nos. 1 to 7 are the children of Sri Doddayallappa and his wife Smt. Durgawa; defendant Nos. 9 to 10 and 14 to 19 are the children and defendant No. 8 is the wife of Sri Huchchirappa; defendant No. 11 is the wife and defendant Nos. 12 to 13 are the children of Sri Prakash who is the deceased son of Sri Huchchirappa; defendant No. 20 is the wife and defendant Nos. 21 to 23 are the children of Sri Sannayallappa.
It is contended by the plaintiffs that the suit land bearing Sy. No. 76/7 measuring 2 acres 10 guntas situated at Unachageri village was tenanted land. That the land was granted to Sri Mukappa along with the land bearing Sy. No. 302/1. Sri Mukappa got converted both lands into old tenure through the Deputy Commissioner, Dharwad, on 04th September 1972. Accordingly, his name was entered in the RTC. Sri Mukappa died on 31st January 1982. After his death, even though all the four sons and four daughters inherited the said land, only the name of the sons of Sri Mukappa was entered with the consent of daughters of Sri Mukappa. The plaintiffs have alleged that though Sri Huchchirappa got his name entered in the revenue records in respect of the said land on the basis of varadi, Sri Huchchirappa had not acquired any right, title and interest in the land through such varadi. After the death of Sri Huchchirappa, the names of his sons came to be entered. Even though the names of children of Sri Huchchirappa came to be entered in the RTC, the suit land continued to be the joint family property of all the sons and daughters of Sri Mukappa. Accordingly, it is contended that the plaintiffs and defendants are in joint possession of the suit land.
The plaintiffs further contended that remaining properties shown in 'B' schedule are also Hindu joint family properties of themselves and the defendants. That they have got share in all the schedule properties. Since, the defendants refused to give their share, the plaintiffs were constrained to file the suit.
5. Subsequent to the service of summons, defendant Nos. 9, 10 and 15 to 19 appeared through their counsel and the remaining defendants did not appear. Therefore, the remaining defendants were placed ex-parte'. The defendant No. 8 died during the pendency of the suit and her legal representatives namely defendant Nos. 9 and 10 were already on record. The defendant No. 9, who was the only contesting defendant in the suit, filed his written statement.
6. Defendant No. 9 in his written statement contended that the suit land bearing Sy. No. 76/7 was the self-acquired property of Sri Mukappa. In the year 1980, Sri Mukappa gave the suit land bearing Sy. No. 76/7 to Sri Huchchirappa under a family partition in the presence of elders. Accordingly, the name of Sri Huchchirappa came to be entered in the revenue records in respect of the suit land. Sri Huchchirappa was cultivating the land from 1980 till his death. After his death, his children continued the possession and they are enjoying the suit land as absolute owner. The children of Sri Huchchirappa are in possession of the suit land openly, continuously and without any obstruction by the plaintiffs and other defendants for more than twelve years and therefore, they have perfected their title over the suit land by way of adverse possession. The defendant No. 9 has pleaded that the plaintiffs have not included the land bearing Sy. No. 302/1 in the present suit and therefore, the suit is not maintainable. It is his contention that earlier, the plaintiffs had filed another suit for partition which was not prosecuted and therefore, the present suit is not maintainable. Hence, he prayed for dismissal of the suit.
7. On the basis of the pleadings of the parties, the trial court framed the following issues:
(i) 'Whether the defendant No. 9 proves that suit land was self-acquired property of Mukappa and it was given to Huchchirappa legally?(ii) Whether the defendant No. 9 further proves that LRs of Huchchirappa have become owners of suit land by way of adverse possession?(iii) Does he prove that suit land is bad for non-inclusion of land Sy. No. 302/1?(iv) Does he prove that this Court has no pecuniary jurisdiction to try suit?(v) Whether plaintiffs are entitled for share in schedule properties?"
8. In order to prove their case, the plaintiff No. 1 examined herself as P.W. 1 and got marked the documents at Exs.P-1 to 9. On the other hand, the defendant No. 9 examined himself as D.W. 1 apart from examining another witness as D.W. 2 and got marked the document at Ex. D-1 to establish his defence, in support of their case with respect to the suit schedule properties depicted therein. Other parties did not adduce any oral or documentary evidence.
9. On hearing learned counsels and scrutinising the documents on record, the trial court, by its judgment and decree dated 11th January 2016, while answering all the issues in the affirmative, partly decreed the suit, holding that the plaintiffs are entitled for partition and separate possession of 9/216th share each in schedule 'A' and 'B' properties; the defendant Nos. 1 to 7 are having joint 45/216th share in the schedule properties; the defendant Nos. 9 to 19 are having joint 45/216th share in the schedule properties; defendant Nos. 20 to 23 are having joint 45/216th share in the schedule properties and defendant No. 24 is having 45/216th share in the schedule properties. That partition of 'A' schedule properties was ordered to be effected under Section 54 of the Code of Civil Procedure, 1908 and partition of 'B' schedule properties was ordered to be effected through the Court Commissioner.
10. Aggrieved by the said judgment and decree, the plaintiffs have filed the present regular first appeal, seeking to allot 1/8th share to each plaintiffs, that is, total half share to the plaintiffs/appellants jointly in all the suit schedule properties.
11. Heard the learned counsel for the appellants.
12. The learned counsel appearing for the appellants-plaintiffs submits that the impugned judgment and decree is contrary to the law and evidence on record. That the evidence adduced by the parties is not properly appreciated by the trial court and has not properly allotted the shares to the plaintiffs. That the trial court should have held that the daughters of Mukappa are entitled in law for equal shares treating them as equal to sons. That the trial court should have awarded half share to the plaintiffs 1 to 4 jointly in all the suit properties. As such, he contends that the trial court should have accepted their plea for giving retrospective effect of Hindu Succession (Amendment) Act, 2005. Hence, he prays for allowing the appeal by setting aside the judgment and decree insofar as it relates to the shares awarded to plaintiffs and that the plaintiffs be allotted half share in all the suit properties.
13. Having heard the learned counsel for the appellants and carefully gone through the impugned judgment and decree as well as the material on record, the following point arises for consideration in this appeal:
"Whether the impugned judgment and decree dated 11th January 2016 passed in OS No. 17 of 2014 by the learned Senior Civil Judge is justified under law?"
14. Ex. P-1 is the Record of right; Exs. P-2 to 5 are the mutation extracts; Ex. P-6 is the Death Certificate and Exs. P-7 to 9 are the House Assessment extracts of Schedule 'B' properties and the document at Ex. D-1 is the certificate issued by the Sub-Registrar.
15. The parties have admitted the genealogy furnished by the plaintiffs in paragraph No. 3 of the plaint. The genealogy furnished by the plaintiffs clearly shows that Sri Mukappa Yallappa Nidagundi was the propositus and he had four sons and four daughters (as stated supra). Except Shivamurteppa, Durgawa, Mahadevi and Sannadurgawa, all the sons and daughter of Mukappa are no more. It is admitted by the parties that defendant Nos. 1 to 7 are the heirs representing the branch of Doddayallappa, defendant Nos. 08 to 19 are the heirs who are representing the branch of Huchchirappa and defendant Nos. 20 to 23 are representing the branch of Sannayallappa. It is also admitted that the plaintiff Nos. 1, 3 and 4 are the daughters of Sri Mukappa and plaintiff No. 2 is the great-grand daughter of Mukappa. It is admitted that Sundrawa is the another daughter of Mukappa.
16. Further, the plaintiffs have described the properties in dispute in Schedule 'A' and Schedule 'B'. The schedule 'B' consists of house properties bearing TMC Nos. 174, 191 and 194. The plaintiffs have pleaded that these properties are the Hindu undivided family properties of themselves and the defendants. This statement has not been denied by the defendant No. 9 in his written statement. Even there is no plea taken by the defendant No. 9 in respect of 'B' schedule properties. Therefore, there is no dispute between the parties to the suit to the fact that schedule 'B' properties are the Hindu undivided family properties of the plaintiffs and the defendants. The plaintiffs have produced the municipal extracts of schedule 'B' house properties at Exs. P-7 to 9. TMC No. 174 is standing in the name of Durgawa, TMC No. 191 is standing in the name of Sannayallappa and TMC No. 194 is standing in the name of Huchchirappa. Therefore, it is very much clear that TMC Nos. 191 and 194 are standing in the name of sons of Mukappa and TMC No. 174 is standing in the name of wife of predeceased son of Mukappa. P.W. 1 has stated that these properties are the joint family properties and such statement has not been denied by the defendants. Therefore, these records also indicate that all the 'B' schedule properties are still the joint family properties of plaintiffs and defendants and all of them are in joint possession.
17. The real dispute is in respect of land bearing Sy. No. 76/7 measuring 2 acres 10 guntas situated at Unachageri village described in schedule 'A'. Even in respect of this land, both parties have admitted that the land was re-granted in the name of Mukappa during his lifetime. Defendant No. 9 claimed that Mukappa, during his lifetime, had given this land to his son Huchchirappa under family partition. In view of this specific plea taken by the defendant No. 9, the burden is on the defendant No. 9 to prove that Huchchirappa legally acquired the ownership over the suit land bearing Sy. No. 76/7 so as to exclude the other heirs of Mukappa from inheriting the suit land.
18. It is relevant to state that the defendant No. 9 has relied upon the oral evidence of himself and D.W. 2 in order to establish this fact. D.Ws. 1 and 2 have stated that Mukappa in the year 1980 had given the suit land to Huchchirappa towards his share and accordingly, mutation entry had been certified. It is further stated by D.Ws. 1 and 2 that Huchchirappa enjoyed the suit land as absolute owner till his death and thereafter, his children are enjoying the suit land without any obstruction by the plaintiffs and other defendants. It is relevant to state that the plaintiffs have produced mutation No. 2429 at Ex. P-3 dated 10th March 1983 to show that after the death of Mukappa and on the consent of his daughters, it was ordered to enter the names of four sons of Mukappa in the revenue records of Sy. No. 302/1. Ex. P-4 is the mutation No. 2252 dated 28th October 1980 which shows that Mukappa given the suit land bearing Sy. No. 76/7 towards the share of his son Huchchirappa by giving consent varadi. On the basis of this varadi, the name of Huchchirappa came to be entered in the RTC in the year 1980 and it was continued till his death. Ex. P-5 is the mutation No. H-12 dated 02nd August 2003, which shows that after the death of Huchchirappa, the name of his wife and sons came to be entered in the revenue records in respect of the suit land. So, it is very much clear that the defendant No. 9 is claiming exclusive title over the suit land on the basis of the mutation as at Ex. P-4. But, this mutation is disputed by the plaintiffs. Therefore, the matter that fell for consideration is as to whether the Huchchirappa acquired the absolute ownership over the suit land under Ex. P-4.
19. Admittedly, Mukappa had four sons and four daughters and all of them were alive in the year 1980 when mutation at Ex. P-4 was certified. Further, parties have admitted that Mukappa had another land bearing Sy. No. 302/1. Mukappa was having schedule 'B' properties, which are houses and vacant sites. The mutation at Ex. P-4 would not speak which are the properties allotted to the shares of other sons of Mukappa. There is no deed of partition. Even the defendant No. 9 has not produced varadi said to have been given by Mukappa to the certification of mutation at Ex. P-4. This evidence which had been placed by the plaintiffs has also been considered by the trial court.
20. Further, the defendant No. 1 has admitted in his evidence that he was born after the death of Mukappa. Therefore, he is not competent witness under which agreement the suit land was given to Huchchirappa exclusively. So also, D.W. 2 was a minor at the time of certification of Ex. P-4. Therefore, even D.W. 2 is not a competent witness to speak about the allotment of suit land to the share of Huchchirappa in the partition. Defendant No. 9 has not produced any documentary evidence or any clinching evidence to prove the fact of partition in the year 1980 and allotment of suit land to the share of Huchchirappa. Therefore, it was held that defendant No. 9 has failed to prove that his father acquired absolute ownership and possession over the suit land.
21. The possession of one of the co-owner is the possession of the other co-owner under the law. In this view of the matter, the plea of adverse possession taken by the defendant No. 9 is not maintainable under law. Even the oral and documentary evidence do not show the exclusive possession of heirs of Huchchirappa over the suit land. This issue has also been noticed by the learned trial Judge keeping in view the evidence adduced by the plaintiffs and defendants and answered the issue Nos. 1 and 2, which are the core issues, in the negative by assigning reasons.
22. It is relevant to state that what is the legal share of the plaintiffs has been worked out by effecting notional partition provided under the proviso to Section 6 of the unamended Hindu Succession Act, 1956. As already stated, Mukappa died in the year 1982. Further, mutation at Ex. P-3 dated 10th March 1983 indicates that Adivevva was alive as on the date of death of Mukappa and Mukappa predeceased Adivevva. Therefore, as on the date of death of Mukappa, under notional partition, Mukappa, his wife/Adivevva and his four sons would get 1/6th share in the schedule properties. The 1/6th share of Mukappa has to be allotted to his wife, four daughters and four sons equally. Therefore, Adivevva, four sons and four daughters would get 1/54th share in the schedule properties in the share of Mukappa. Therefore, the share of Adivevva and four sons is 1/6th + 1/54th = 10/54 each.
23. Adivevva died intestate and she was having 1/6th + 1/54th = 10/54th share at the time of her death. Such share has been again devolved upon her four sons and four daughters equally. Therefore, each son and each daughter of Adivevva gets 5/216th share in the share of Adivevva. Therefore, the share of each of the daughter of Mukappa is 1/54th + 5/216th share = 9/216th share in the schedule properties. Each of the plaintiffs are held to be entitled for 9/216th share in the schedule properties.
24. The learned counsel for the defendant Nos. 9, 10, 15 to 19 by placing the reliance on the decision in the case of Shantappa and others versus Channabasavaiah and others reported in MANU/KA/0010/2009 : ILR 2009 Karnataka 154, it is argued that the plaintiffs were excluded from the possession of suit schedule land in the year 1980 till date and therefore, the suit of the plaintiffs is barred under Article 110 of the Limitation Act. As held by this Court, if the suit, by a person excluded from a joint family property to enforce a right to share, is filed after twelve years, then the suit is not maintainable under Article110 of the Limitation Act.
25. Further, it is held that to apply these principles, the defendants had to establish that the plaintiffs have been excluded from the joint possession of the suit land twelve years prior to filing of the suit. Whereas, to prove such facts, D.Ws. 1 and 2 have deposed that from the year 1980, Huchchirappa was in possession of the suit land and after his death, his wife and children are in possession. These statements have been denied by the plaintiffs in the cross-examination. Exclusive possession has been claimed on the basis of allotment of suit land to the share of Huchchirappa. It was held that the defendants have failed to establish the partition and allotment of suit land to the share of Huchchirappa, as there was no convincing evidence to show that the plaintiffs were excluded from the joint possession of the suit land after 1980. Only because the plaintiffs are residing in their matrimonial house, it cannot be held that they were excluded from possession. Thus, the learned trial judge on appreciation of the oral and documentary evidence on record has held that the defendants have failed to establish that the plaintiffs have been excluded from the joint possession of the suit land. As such, the suit of the plaintiffs is not barred under Article 110 of the Limitation Act.
26. Thus, the learned Senior Civil Judge, Ron, on proper appreciation of the evidence and scrutinising the documents on record, by the impugned judgment and decree dated 11th January 2016, partly decreed the suit holding that the plaintiffs are entitled for partition and separate possession of 9/216th share each in schedule 'A' and 'B' properties; the defendant Nos. 1 to 7 are having joint 45/216th share in the schedule properties; the defendant Nos. 9 to 19 are having joint 45/216th share in the schedule properties; defendant Nos. 20 to 23 are having joint 45/216th share in the schedule properties and defendant No. 24 is having 45/216th share in the schedule properties. The partition in 'A' schedule was ordered to be effected under Section 54 of the Code of Civil Procedure, 1908 and partition in 'B' schedule was ordered to be effected through the Court Commissioner.
27. In view of the above said reasoning, the learned Senior Civil Judge, Ron, who has analyzed the evidence of the plaintiffs and the defendants as well as the documents produced by them, in the proper perspective, has decreed the suit partly.
28. Keeping in view all the contentions of the learned counsel for the appellants, we are of the considered view that the judgment and decree passed by the learned Senior Civil Judge and JMFC, Ron, does not call for any interference in this appeal. Accordingly, we answer the point formulated by us.
29. In view of the above, we pass the following order:
ORDER(I) The appeal filed under Section 96 read with Order XLI Rule 1 of the Code of Civil Procedure, 1908 is hereby dismissed;(II) Consequently, the judgment and decree dated 11th January 2016, passed by the learned Senior Civil Judge and JMFC, Ron, in OS No. 17 of 2014 is hereby confirmed.
No costs.
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