K LAKSHMI DEVI Vs. K SUBRAMANYAM

JUDGEMENT

(1.) THIS regular first appeal is filed by the defendants 1 (a) to 1 (d) in O.S.215/1994 challenging the judgment and decree dated 13.12.2005 passed by the I Additional Civil Judge (Sr.Dn.), Bangalore Rural District, Bangalore, thereby decreeing the suit filed by the plaintiff - respondent No.1 herein declaring that the plaintiff is the absolute owner of the suit schedule property and granting consequential relief of permanent injunction against the appellants herein [defendants 1(a) to 1(d)] from interfering with the peaceful possession and enjoyment of the suit property by the plaintiff.

(2.) APPELLANT No. 1 is the husband of late Smt.K.Lakshmi Devi (deceased Defendant No.1). Appellant Nos.2 & 4 are her sons and appellant No.3 is her daughter. Suit O.S.No.215/1994 was filed by respondent No.1 herein against these appellants and the 2nd respondent C.M.Thayanna seeking relief of declaration of title and for a decree of permanent injunction. The plaintiff K.Subramanyam contended that the plaint 2nd schedule property belonged to the defendant - C.M.Thayanna; under a registered Sale Deed dated 31.10.1990, he sold the same to the plaintiff putting him in possession of the property for a sale consideration of Rs.1,90,000/ -. Since then, he was in lawful possession and enjoyment of the property. The defendants with their supporters came to the land with a view to plough the same. When questioned, they disclosed that deceased defendant Smt.K.Lakshmi Devi had obtained a decree for specific performance of sale and a Sale Deed in favour of the defendants was got executed through the Court on 28.10.1993. Thereafter, the plaintiff came to know that deceased Lakshmi Devi in collusion with the 2nd defendant had floated certain collusive legal proceedings and the 2nd defendant had encouraged the defendants to file the present suit apart from instigating his own sons to file another suit O.S.No.180/1992. He alleged that the Sale Deed executed in favour of defendants 1 (a) to 1 (d) was the result of such collusive legal proceedings and the defendants did not derive any title to the suit property under the said Sale Deed as the 2nd defendant had no title to convey it in favour of the defendants. He further contended that as the defendants had held out that Sale Deed was executed by the Court which cast a cloud on the plaintiff's title, he was constrained to file the suit.

(3.) DENYING the plaint averments. He also denied the alleged title and possession of deceased Lakshmi Devi. He urged that he was not served with any notice in O.S.No.186/1991. Upon verification, he found that the court summons issued to him in O.S.No.186/1991 was returned with a shara 'refused' which made the court at Nelamangala to place him exparte, but at no point of time, he had refused to receive any court summons. He alleged fraud against Lakshmi Devi to grab the valuable land in collusion with the process server. He also contended that he had filed a Miscellaneous Petition in No.2/1998 to set aside the exparte decree. He further alleged that he had obtained hand loan from the plaintiff and at his request, he had executed a document for the security of the loan. He also urged that the land in question was granted to his father by the Land Tribunal in the year 1982. There was a condition of non -alienation for a period of 15 years. Though the period of 15 years had not expired, the plaintiff had fraudulently obtained the Sale Deed from the 2nd defendant by misrepresentation. However, the possession of the land had not been delivered to the plaintiff. As the property was the ancestral property of the 2nd defendant, he had no absolute right to transfer the same, because his sons also had share in the property. He admitted the filing of suit O.S.No.180/1992 by his minor son through his 2nd mother Smt.Parvathamma against the defendant in O.S.No.180/1992. He claimed that his children were in possession and enjoyment of the suit property and at no point of time, either the plaintiff or the 1st defendant or for that matter defendants 1 (a) to 1 (d) were in possession of the suit property.