LAXMAPPA BHIMAPPA HULSGERI Vs. HANAMAPPA SHETTEPPA KORWAR

JUDGEMENT

(1.) A suit was filed by the first respondent for declaration that he and third respondent-Fakirawwa are the owners of the suit land and for possession from the original appellant (Laxmappa) and for other incidental reliefs. He had impleaded his father as second defendant in the suit and his mother as third defendant. It is claimed that his father was a spent thrift; that since he and his younger brother did not want to continue to be joint and on receiving a sum of Rupees One thousand relinquished his interest in the joint family property by executing a registered deed dated 26-4-1960; that thereafter he and his younger brother became owners in possession of the said properties; that about 4 or 5 years later his younger brother died and in terms of the Hindu Succession Act their mother succeeded to his share; that thus she said properties came under his and his mothers ownership and possession; when the matter stood thus even though his father had relinquished his rights over the plaint schedule land, he executed a registered sale deed on 16-4-1963 in favour of the appellant and put him in possession of the same; he claimed that the said sale in favour of appellant is not binding on him and his mother.

(2.) The appellant denied the execution of the relinquishment deed dated 26-4-1960 and contended that as the father of the first respondent had incurred debts and for discharge of the same borrowed from the appellant a sum of Rs. 2000 and created a mortgage in 1950 in his favour in respect of entire land in R.S. No. 15/A measuring 11 acres 16 guntas. Again the father of 1st respondent borrowed Rs. 3000/- and executed an advance leased deed (Agavu Lavani) in favour of respondent for a period of 60 years and executed a registered deed on 26-8-1952 in respect of entire acre of 11 acres 16 guntas of land. His name is included in revenue records as tenant in ME 1014 and has been in possession thereof since then. During the subsistence of that lease the father of the first respondent again approached the appellant for money for family necessity and to discharge his prior debts and took a sum of Rs. 1000/- and executed a registered sale deed dated 26-4-1960 in respect of an extent of 5 acres 30 guntas on the northern side in that land after obtaining the requisite permission from the jurisdictional Tahsildar; that thus the appellant became the absolute owner of that portion of 5 acres 30 guntas; that the mother of the first respondent was also in need of money for family necessity and for discharging the debt due by her husband borrowed a loan of Rs. 2000/- from him and executed a registered sale deed in that behalf on 16-12-1960 acting as the guardian of the first respondent and his younger brother who were minors at that time; that from that date onwards he became the absolute owner also and has been in possession of the same; that the father of the first respondent, who was again in need of money, executed a registered sale deed in favour of the appellant for a sum of Rs. 1000/- on 16-4-1983 in respect of certain lands after obtaining permission of the Tahsildar and thus the said two sale deeds dated 16-12-1960 and 16-4-1963 were legally valid and binding on defendants 2 and 3 and the plaintiff. In this manner, the appellant claimed that he became the absolute owner of the entire extent of 11 acres 16 guntas both as a tenant and subsequently as a full owner thereof and continued to be in possession of the said land as a tenant. He also raised certain contentions regarding limitation and that he had perfected his title by adverse possession over the land. He also alternatively contended that if the deed of transfer dated 16th April, 1963 is invalid, his tenancy rights were not affected and from 1-3-1974 the tenanted land vested in Government and that, therefore, the plaintiff is not entitled to seek the relief of possession from him. He also contended that the relinquishment deed referred to in the plaint was not a genuine one and did not affect his rights; that the plaintiff and defendants Nos. 2 and 3 had continued to be the members of a joint family and that the second defendant was its manager.

(3.) On this basis several issues were raised by the trial Court. Two issues are with reference to claims regarding tenancy and they are :