IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE Mr. JUSTICE H.P. SANDESH R.F.A. No. 1676/2013 BETWEEN :
Smt. Sharadamma D/o. H.S. Shivappa Aged about 55 years R/a. D. No. 293/1 Ramanuja Road Ntsire – 570 004. … APPELLANT (By Sri. P.M. Siddamallappa, Adv.) AND :
1. Smt. Susheelamma W/o. H.P. Sadashivaiah Aged about 72 years R/a. D. No. 4798 Basaveshwara Road Rajendranagara Kesara Block – 570 023 Mysore.
2. Smt. Sundaramma W/o. late H.S. Shivappa Aged about 72 years R/a. D. No. 293/1 Ramanuja Road Mysore – 570 004.
3. Smt. Puttamma W/o. Kailasha Murthy Aged about 64 years R/a. D.No. 4798 Basaveshwara Road Rajendranagara Kesara Block – 570 023 Mysore.
4. Smt. Sarojamma W/o. Puttaswamy Aged about 67 years R/a. No. 10 Bhadragola Village Thithimathi Post Virajpet – 571 235 Kodagu Dist.
5. Sri. Nagarajappa S/o. late Puttabasappa Aged about 67 years R/a. D. No. 4798 Basveshwara Road Rajendranagara Kesara Block – 570 023 Mysore.
6. Sri. Somashekarappa S/o. late Puttabasappa Aged about 75 years R/a. No. 4 Working as Asst. Director N.E.S.D.G.S. & D.
Parliament Street New Delhi – 110 001.
7. Smt. Vijayamba W/o. Prem Chikkaveeraiah Aged about 65 years R/a. D. No. 69 1st Main Road Mahalakshmi layout Bangalore – 570 086.
8. Smt. Prema Kumari Aged about 62 years W/o. Jaya Dev D. No. 4798 Basaveshwara Road Rajendranagara Kesara Block – 570 023 Mysore.
9. Smt. Sushma Jain W/o. Rajendrakumar Jain Aged about 48 years No. 1383, Geetha Mandira Road Lashkar Mohalla – 571 603 Mysore.
10. Sri. Sanjaykumar Jain S/o. late Premachand Jain Aged about 45 years No. 1383, Geetha Mandira Road Lashkar Mohalla Mysore – 571 603. … RESPONDENTS (By Sri. N.R. Girisha, Adv., R-3 & R-10 R-4 is served and unrepresented Appeal against R-1, 2, 5 to 9 is dismissed v/o dated 22.04.2016) ---
This R.F.A. is filed under Section 96 of CPC passed in O.S. No. 895/2005 on the file of Prl. Judge, Court of Small Causes and Senior Civil Judge, Mysore, dismissing the suit for declaration, possession and mesne profits and etc.
This R.F.A. coming on for further arguments this day, the Court delivered the following;
J U D G M E N T This appeal is filed challenging the judgment and decree passed in O.S. No. 895/2005 on the file of Principal Judge, Small Causes and Additional Senior Civil Judge, Mysore questioning judgment dated 17.07.2013 in dismissing the suit filed by the plaintiff.
2. Parties are referred to their ranking before the trial Court.
3. The case of the plaintiff is that she is the absolute owner of the suit schedule properties and she has acquired some of them by gift, some of them by succession and also purchased some of the items with the help of her parents and her husband. Defendants, taking advantage of her innocence have obtained her signatures by misrepresenting that they were required for to look after and protect her interest. Now she has come to know that the defendants are claiming as absolute owners of suit schedule properties. She has no knowledge of any document having been executed in favor of the defendants and hence she was constrained to file the suit.
4. In response to the suit summons issued by the trial Court defendant Nos. 1, 3, 6, and 8 to 10 appeared through respective counsel. Defendant No. 2 has appeared in person and defendant Nos. 4, 5 and 7 in-spite of service of suit summons have not chosen to appear before the Court and they were placed ex-parte. Defendant Nos. 3 and 10 have filed the written statement.
5. Defendant No. 3 has filed written statement contending that originally the property belonged to one Puttabasappa – husband of original plaintiff. After the demise of Puttabaappa the name of his wife Basamma was entered in respect of suit properties. On 21.04.1969 original plaintiff Basamma had executed a sale deed in favor of her sons Kailashmurthy and H.P. Somashekarappa. By virtue of the said deed of settlement three items of properties land measuring 17 gunats in survey number 17/3 was allotted to the share of Kailashamurthy and item No. 1 house property was also allotted in favor of Kailashamurthy. Insofar as land bearing survey number 16/1 measuring 1 acre husband of defendant No. 3 has acquired right, title and interest by virtue of settlement deed. Hence, Defendant No. 3 and her family members are absolute owners of the said properties.
6. Defendant No. 10 has filed written statement contending that Nagarajappa and his wife derived the suit properties through the settlement dead dated 12.06.1069 executed by one Basamma - original plaintiff. Later said property was divided between defendant No. 9, husband of defendant No. 9 and defendant number 10. The said property was allotted to the share of defendant No. 10. Since then defendant No. 10 is the absolute owner and is in possession of the property.
7. During dependency of the suit original plaintiff passed away and her granddaughter was brought on record as plaintiff. Based on the pleadings the Court below has framed the following issues:
i. Whether plaintiff proves that she is absolute owner of in possession of the suit schedule properties?
ii. Whether defendant No.3 proves that the person representing plaintiff being her grand daughter has no right to continue present suit?
iii. Whether the plaintiff is entitled for relief of declaration as prayed?
iv. Whether plaintiff is entitled for mesne profits?
v. What order or decree?
8. Plaintiff in order to prove her case got herself examined as P.W.1 and also produced 25 documents which are marked as Ex.P.1 to P.25. On the other hand, the GPA holder of defendant No. 3 was examined as D.W.1 and Defendant No. 10 was examined as D.W.2. They have produced Ex.D.1 to D.32. The Court below after hearing the arguments and considering the material on record answered issue number 1 in negative and answered issue number 2 in affirmative holding that defendant No.
3 proves that person representing plaintiff being her grand daughter has no right to continue the present suit.
The Court below answered other issues in negative. Hence, present appeal is filed before this Court.
9. The main contention of appellant before this Court is that the findings of the trial Court is erroneous and not based on material on record and the same is highly capricious, illegal and bad in law. The Court below has committed an error in recording negative findings with regard to issue Nos. 1, 3 and 4, The trial Court failed to consider the evidence of P.W.1 and also Ex.P.1 to 25. Though the evidence of D.W.1 and D.W.2 has not been corroborated with substantial evidence, the Court has given much importance to evidence of D.W.1 and D.W.2. The Court below also failed to consider the Will dated 23.02.1996 which is marked as Ex.P.15 said to have been executed by Basamma – original plaintiff in favor of plaintiff and only made an observation that P.W.1 neither explained what happened to the original Will nor examined the scribe of the Will or the attesting witnesses to prove the same. Though the said Will is produced to substantiate that Basamma had better title than that of defendants, the trial Court misread the evidence and held that the plaintiff herself has claimed independent title on the suit schedule property and committed an error. The trial Court also committed an error in blindly accepting Ex.D.2 - settlement deed dated 21.04.1969 in the absence of cogent material evidence. Hence judgment of the trial Court is liable to be set aside.
10. Learned counsel appearing for the appellant - plaintiff vehemently contended that only defendant No. 3 and defendant No. 10 have contested the matter and other defendants have not contested the suit. In spite of specific defence taken in the written statement, the Court below has not framed any issue with regard to settlement deed. The Court below ought to have framed an issue with regard to settlement deed and the same has not been done. Hence the matter has to be considered afresh.
Therefore, the matter has to be remanded to the trial Court to frame a specific issue with regard to the settlement deed and also to give a definite finding with regard to the settlement deed.
11. The learned counsel further contended that the very approach of the trial Court that Will has not been proved is also erroneous. The Court below failed to take note of the fact that the settlement deed is only in respect of three items of the suit schedule property and not considered the material with regard to the other items of the property as totally 7 items of properties are the subject matter of the suit. There was no finding in respect of those items of properties and hence the matter has to be remanded to the trial Court for fresh consideration.
12. Per contra learned counsel appearing for the respondents/defendants contended that the original plaintiff died in the year 1999 and the present plaintiff is claiming right in respect of suit schedule property based on the Will of the year 1996 and the same has not been proved by examining the attesting witnesses and it mandates that the attesting witnesses have to be examined in order to prove the Will. The other contention of the respondents is that the very same Basamma executed the settlement deed on 21.04.1969 in terms of Ex.D.2 and also in terms of settlement deed Ex.D.25 executed on 12.06.1969. In order to substantiate the same the defendants have produced the documents and the Court below has considered the same and rightly appreciated the oral and documentary evidence and there are no grounds to set aside the judgment of the trial Court and prayed dismiss the appeal.
13. Having heard the arguments of the learned counsel for plaintiff and defendants and also keeping in view the contentions of the learned counsel for the parties the points that arise for consideration of this Court are;
i. Whether the Court below has committed an error in dismissing the suit without framing specific issue with regard to settlement deed and whether the same requires interference of this Court?
ii. Whether the Court below committed an error in not considering the case of plaintiff in respect of the suit schedule property and the settlement deed is only in respect of 3 items of the property and whether it requires interference of this Court?
iii. What order?
14. The case of the plaintiff is that she is the absolute owner of the property and defendants taking advantage of her innocence, it appears, have created some documents by obtaining her signature. She has not executed any documents in favour of the defendants and hence, to declare the plaintiff as absolute owner in respect of 7 items of suit schedule property. The defendants who appeared before the trail Court, that is, defendant Nos. 3 and 10 have filed written statement. Defendant No. 3 in the written statement contended that the original plaintiff died on 15.06.1999 and the present plaintiff is claiming that she is her legal representative and she cannot be treated has as her legal representative. She is only granddaughter of deceased original plaintiff. Whereas, defendant Nos.1 to 4 are the daughters and defendant Nos. 5 and 6 are the sons of deceased original plaintiff. In the presence of class-I legal heirs grand daughter cannot claim to be the legal representative of deceased plaintiff. It is also the case of defendant No. 3 that plaintiff has executed deed of settlement on 21.04.1969 in favor of her sons Kailashamurthy and H.P. Somashekarappa and by virtue of deed of settlement defendant No. 3 becomes the absolute owner.
15. Defendant No. 10 in the written statement has contended that he has purchased property, item number 2 from Nagarajappa and H.N. Vijayalakshmi through registered sale deed dated 13.09.1999. Said Nagarajappa and his wife originally derived the said property through registered settlement deed dated 12.06.1919 executed by Basamma – the original plaintiff herein. Defendant No. 10 after purchasing the property demolished the existing building and reconstructed a new building and from then defendant No. 10 is in absolute possession and enjoyment of the property. Defendant No. 10 also filed O.S. No. 475/2001 and decree was granted after contesting the matter. Hence the suit is liable to be dismissed.
16. Having considered the pleadings of the parties and also the issues framed by the trial Court, no doubt, the trial Court did not frame any issue with regard to the contentions of defendant Nos. 3 and 10 since both of them claimed title in respect of 3 items of suit schedule property that there was settlement deed dated 21.04.1969 and 12.09.1969 which are marked as Ex.D.2 and Ex.D.25. On perusal of the issues it is clear that the Court below framed issue No. 2 with regard to whether defendant No. 3 proves that person representing the plaintiff has no right to continue the present suit. The Court below answered issue No. 2 in affirmative. It has to be noted that plaintiff who is the grand daughter of original plaintiff claims that there was a Will in her favor executed in the year 1996 by the plaintiff. The executant died in the year 1999. The Will is also produced before the Court below. It has to be noted that when specific defence taken in the written statement contending that there was a settlement deed on behalf of defendant No. 3 and defendant No.10 purchased the property, the trial Court ought to have framed the specific issue as regards to the contention of the defendant Nos.3 and 10. The same has not been done. No doubt, if the parties understood the case and led evidence and contested the matter then the question of non framing the issue with regard to settlement deed is not fatal. But in the case on hand it has to be noted that plaintiff claims the right based on the Will and defendant Nos. 3 and 10 claim title based on the settlement deed Ex.D.2 and Ex.D.25 and the Court below while considering the material on record has observed that none of the attesting witnesses of the Will or the settlement deed have been examined before the Court. The plaintiff also has not proved the Will and defendants also who relied upon Ex.D.2 and Ex.D.25 did not examine any of the witnesses. It is pertinent to note that original plaintiff specifically pleaded that she has not executed any such document. According to defendant Nos. 3 and 10 original plaintiff has executed the settlement deed and when there is a dispute with regard to the execution of settlement deed the Court below taking note of this document or 30 years old document accepted the defence of the defendants. The Court below also failed to take note of the fact that settlement deed is only in respect of 3 items of suit schedule property and not in respect of 7 items of suit schedule properties and nothing is considered by the trial Court with regard to other items of suit schedule property.
17. On perusal of the plaint it is evident that the plaintiff claims the relief of declaration in respect of 7 items of suit schedule property and the trial Court did not discuss anything. On perusal of the judgment and decree of the trial Court it is clear that the same is not a reasoned order. The Court below taking note of the defence of defendant Nos. 3 and 10 proceeded to pass the judgment and not considered the issue involved between the parties in respect of all items of suit schedule property. Hence, I am of the opinion that the Court below has to frame specific issue with regard to the plea of defendant Nos. 3 and 10 with regard to settlement deed and also consider the other items of suit schedule properties which are the subject matter of the suit. Hence, the matter requires to be remanded for fresh consideration to consider all the issues involved between the parties and give definite finding to all the suit item properties.
18. In view of the above discussion, I pass the following;
O R D E R I. The appeal is allowed.
II. The impugned judgment and decree of the trial Court in O.S. No. 895/2005 dated 17.05.2013 passed by the Principal Judge, Small Causes and Additional Senior Civil Judge, Mysore is set aside.
III. The matter is remitted back to the trial Court to reconsider the matter afresh keeping in view the observations made by this court in the course of this order. The Court below is directed to give an opportunity to both parties to adduce additional evidence.
IV. The Court below is directed to dispose of the suit within a period of six months from the date of this order.
V. The parties are directed to appear before the Court on 09.12.2019 without expecting any notice from the Court.
VI. The parties are also directed to assist the trial Court to dispose of the matter within the stipulated time without seeking any unnecessary adjournments.
Office is directed to send the lower Court records forthwith to the lower Court along with this judgment.
LRS.
Sd/- JUDGE