N.V. GURUMURTHY REDDY Vs. SANJEEVAMMA

JUDGEMENT

(1.) THIS regular second appeal is preferred by the appellant -defendant No.6 being aggrieved by the judgment and decree dated 16.12.2006 passed by the Fast Track Court No II, Bangalore Rural District, Bangalore in R.A.No.6/2000 upholding the judgment and decree dated 18.12.1999 passed by the Court of the II Addl. Civil Judge (Sr.Dn.), Bangalore Rural District, Bangalore in O.S.No. 187/1991.

(2.) THE brief facts leading to the case are, respondent Nos. 1 and 2 herein were the plaintiffs before the trial Court. They have filed the suit against the defendants for the relief of declaration that the sale deed dated 4.9.1991 executed by defendants 3 to 5 in favour of the 6th defendant as null and void and does not confer any valid right, title and interest in favour of 6th defendant and also for declaration that the entries made in the pahani for the year 1990 -91 in respect of the schedule property in favour of defendants 3, 4 and 5 is illegal and for consequential relief of permanent injunction to restrain the defendants 3 to 6 from interfering with the plaintiffs peaceful possession and enjoyment of the schedule property . Originally, the suit was filed by one Obaiaiah and after his death, his legal representatives, respondents 1 and 2 in this appeal, were brought on record. The plaintiff -Obalaiah and defendants 1 and 2 are the brothers and they are the sons of Jate Vandaiah. Plaintiffs father late Vandaiah had two brothers namely Kempaiah and Mallaiah. Plaintiffs father Vandaiah and his uncles Kempaiah and Mallaiah are the sons of one Mallaiah and that Mallaiah iiad a brother by name Papaiah. Their father's name was Obaiaiah. Thus Obaiaiah is the great grandfather of the plaintiff and the geneology is described in the sheet annexed to the plaint. Plaintiffs junior grandfather Papaiah had only one son Chikkamallaiah @ Kantappa and his wife is Seebamma. Chikkamallaiah and Seebamma gave birth to two sons Papaiah and Ramachandra. Plaintiffs father Vandaiah. Kempaiah and Mallaiah being the brothers along with Chikkamallaiah constituted a Hindu Joint Family. Since 30 years, as per the family arrangement, they were enjoying the property in equal extents distinctly and separately from each other. One such property was the land bearing Sy.No.30/2 situate at Balegaranahalli village measuring 4 acres 35 guntas which was divided between three sons of late Mallaiah namely, Vandaiah, Kempaiah and Mallaiah and they together took 2/3rd share of it and son of Papaiah i.e., Chikkamallaiah @ Kanthappa took 1 / 3rd share in the said survey number. Thus, 1 acre 11 guntas in the said survey number fell to the share of Chikkamallaiah and ins. wife Seebamma in the family arrangement and remaining 3 acres 24 guntas was divided between Vandaiah, Kempaiah and Mallaiah. Plaintiffs father got 37 guntas of land in Sy.No.30/2 and similarly, his uncles Kempaiah and Malliah got 36 guntas ea.ch in Sy.No.30/2. Mallaiah, his junior uncle had no issues, he and his wife Muniyamma @ Chikkathayamma sola their shares in other survey numbers and in Sy,No.30/2 relinquished their entire rights by means of a registered release deed dated 18.7.1962. Thus, plaintiff became absolute owner in possession and enjoyment of 36 guntas of land and in actual possession and enjoyment of schedule property, raising crops thereon. Pahani and record of rights show his name as owner as well as cultivator Defendants 3, 4 and 5 have no right whatsoever in the said land. They however succeeded to the share of Kempaiah measuring 36 guntas of land in Sy.No.30/2. Defendants 3 to 5 have sold their father Kempaiah's share of 36 guntas in Sy.No.30/2 in favour of 6th defendant under a registered sale deed 18.7.1970. At the time of executing the sale deed, defendants 3 to 5 have described their land with boundaries. Said boundaries are misleading and have been described so as to include the property of the plaintiffs father  Vandaiah over which not only the plaintiff as well as defendants 1 and 2 have right and the same has been in their joint possession and enjoyment. Description of the boundaries in the sale deed is wrong. Thus, children of late Kempaiah i.e., defendants 3, 4 and 5 with illegal desire and in order to knock off the property of the plaintiff and his brothers defendants 1 and 2 included their property while describing the property in the sale deed dated 18.7.1990. Hence, 6th defendant does not get any right, title and interest beyond 36 guntas. Defendants 3 to 6 in collusion with village accountant, by manipulation, have got altered the entries in the pahani and included the names of defendants 3 to 5 for the year 1991 and taking advantage of the entries in the pahani which was got included by illegal means, defendants 3 to 5 have sold the schedule property, falsely representing that they are the owners of the same, in favour of 6th defendant on 4.9.1991. Neither defendants 3 to 5 had any right, title or interest in the said land nor they were in possession of the same. Hence, the suit. 

(3.) DEFENDANT No.6 filed his written statement contending that the averments made in para Nos.2 and 3 of the plaint are within his knowledge. He has denied the averments in para No.4 of the plaint and further denied that the plaintiffs' father Vandaiah, his uncle Kempaiah constituted a Hindu Joint Family since about 30 years ago. As per the family arrangements, they are enjoying the family properties in equal extents distinctly and separately from each other. It is also denied one such property is the land in Sy. No.30/2 of Balegarna Halli measuring 4 acres 35 guntas which is divided into three portions. Three sons of late Mallaiah together took 2/3rd share of it and son of Papaiah i.e., Ohickmallaiah took 1 /3rd share out of Sy. NO.30/2. Further the said three sons of Mallaiah got divided their shares and they are in enjoyment of 36 '/a or 37 guntas in the said survey number. The sketch produced by the plaintiffs is only a rough sketch prepared by them to suit their whims and fancies and it has no relevance to the fact and it has no evidentiary values. The averments in para Nos.5 and 6 of the plaint are also denied. The registered release deed dated 18,7.1962 under which the plaintiff claim a right to the suit schedule property has no resemble to the suit schedule property. Defendant Nos.3 to 5 were in possession and enjoyment of the suit schedule property including the entire survey number from their grandfather's time. The plaintiff has no locus standi to institute a suit. Regarding para Nos.7 to 9 of the plaint, it is true that under the registered sale dated 18.7.1990, defendant Nos.3 to 5 have sold 0.36 guntas out of Sy No.30/2 in favour of defendant No.6. After the purchase of the same, revenue records have been changed into the Dame of defendant No.6 and he is in possession and enjoyment of the same without interference from anybody including the plaintiff and defendant Nos. 1 and 2. The said sale deed is also not challenged by them. Hence, it is a legal and valid transaction. Under the registered sale deed dated