CHOWDAPPA Vs. CHOWDAPPA

JUDGEMENT

(1.) THIS revision under Section 115 of the Code of Civil Procedure is directed against the order of the Civil Judge (Junior Division), Chitta-pur, Gulbarga District dated 29-5-1999 in Execution Petition No. 45 of 1993 on an application by judgment-debtors-1 to 5 under Section 9 read with Sections 47 and 151 of the Code of Civil Procedure. The respondents are the decree-holders and as well the other judgment-debtors. The decree-holders sued out the execution of the decree in O. S. No. 111 of 1963 on the file of the Principal Civil Judge (Senior Division)Gulbarga, in Execution Petition No. 22 of 1981 in the same Court. But subsequently and as the pecuniary jurisdiction of the Civil Judge (Junior division) was enlarged, the execution was transferred to the Court of the Civil Judge (Junior Division), Chittapur and numbered as Ex. 49 of 1993.

(2.) IN view of the age and the nature of the litigation, it would be necessary to state the facts in detail. Certain Papayya Kalal and Antaiah Kalal, residents of Chittapur Taluk in Gulbarga District were brothers. Plaintiffs are the children and widow of the said Papayya kalal and Antaiah Kalal. One Gopikishan was a resident of Hyderabad. Defendants 2 to 4 are his sons. It is stated that Papayya and Antaiah who were Excise Contractors for some time had borrowed certain amount, i. e. , a sum of Rs. 1,00,000/- from Gopikishan and did not repay. Therefore, deceased Gopikishan brought a suit before Sadar Adalath, gulbarga and an award was made in about the year 1937 or so, the judgment-debtors were permitted to pay the suit claim in yearly instalments of Rs. 5,000/ -. It would appear the two brothers or their legal representatives paid four instalments regularly but thereafter they did not pay and they were incapable of paying any amount. By that time, it appears, Gopikishan died. Therefore, in about 1346 Fazli, the two brothers parted with the possession of the lands in dispute situated at Chittapur numbering 13 items and put them in possession of defendants 2 to 4 with an agreement that they should cultivate those lands for a period of 20 years, appropriate the income towards the discharge of the debt in entirety and put back the brothers in possession of the property in the year 1960. It is stated that the defendants 2 to 4 failed to comply with the said terms and conditions and in fact colluded with the first defendant and all of them continued to be in possession of the said land and in about the year 1954-55, got the Khatha also changed in their names. Therefore, the plaintiffs - the legal representatives of the two brothers approached the authority for cancellation of the entries made in the record of Rights and later in the year 1963 filed Civil Suit O. S. No. 111 of 1963 in the Court of Sub-Judge, Gulbarga for a direction to delete the names of the defendants in the Khatha and for instructing the Deputy commissioner, Gulbarga District and the other Revenue Authorities to continue the names of the plaintiffs in the Record of Rights.

(3.) THE defendants-1 to 4 resisted the suit by filing a common written statement, denied the averments in the plaint. However, they admitted the money transaction between Gopikishan and Papayya and his brother and also conceded the decree. However, they contended that during 1346 Fazli, they forcibly occupied the suit lands by dispossessing the previous owners Papayya and Antaiah and since then they continue to be in possession of the property. Further they contended that they have entered into an agreement to sell the property in favour of the first defendant and several others and as part performance of the contract, they have put the intending purchasers in possession of the property receiving the total consideration. They also contended that the suit in the present form is not maintainable and the Civil Court has no jurisdiction to entertain the suit and the Civil Court lacked jurisdiction. During the pendency of the suit and in the month of February 1967, the plaintiffs moved for amendment and sought for relief of declaration and for possession of the properties. This was opposed but the Court permitted the amendment. Issues were framed, parties adduced evidence. The Trial Court after considering both the oral and documentary evidence and after hearing the parties, by judgment dated 12-7-1973 decreed the suit.