TUKARAM NINGAPPA SHINGE Vs. BASAVANT TUKARAM SHINGE

JUDGEMENT

(1.) DEFENDANTS of an original suit bearing O.S.No.163/1995, which was pending on the file of the Principal Civil Judge (Jr.Dn.) & JMFC, Chikodi are before this Court by filing an appeal under Section 100 of CPC. Suit filed against them by respondent No.1 -Sri.Basavant Tukaram Shinge for the relief of declaration that the defendants have no right, title or interest over the suit schedule property as described in the schedule 'A' and 'B' after adoption of Ningappa on 22.07.1939 and for permanent injunction has been decreed as prayed for. The said suit so filed by the respondent herein Sri.Basavant had been resisted by the defendants by filing a detailed written statement. Against the said judgment and decree an appeal came to be filed under Section 96 of CPC before the Court of Civil Judge (Sr.Dn.), Chikodi in R.A.No.8/2001. The said appeal has also been dismissed after contest. Hence, the concurrent findings are called in question before this Court by filing an appeal under Section 100 of CPC. Several substantial questions of law have been proposed in the appeal memo and on hearing the learned counsel for the appellants in regard to the admission and after perusing the records, my learned predecessor has pleased to frame the following substantial questions of law on 09.12.2010.

(2.) ENTIRE records of O.S.No.163/1995 and the appeal bearing R.A.No.8/2001 have been called for. The learned counsel for the appellants has submitted his arguments at length. The learned counsel for the respondent has supported the judgment of the trial Court as well as the first appellate Court.

(3.) THE learned counsel for the appellants has vehemently argued that the suit so filed was not maintainable, as the relief sought for was a negative relief. Hence, he has argued that the Court cannot grant a negative relief as sought for in the plaint, more particularly, when the plaintiff has not sought for any relief of declaration of title in himself. It is argued that the plaintiff has proceeded on the assumption that Ningappa Shinge was adopted on 22.07.1939 and the same has been admitted by the defendants. It is argued that when the very alleged adoption of Ningappa is emphatically denied, it was incumbent upon the trial Court to have framed a specific issue in regard to the proof and validity of the alleged adoption of Ningappa 1939. It is further argued that the suit is not maintainable for nonjoinder of necessary parties in the light of the non -impleading of Asha Wadkar, the daughter of deceased Shivubai and Anuradha, the grand daughter of Shivubai i.e., daughter of Ashok son of Shivubai. It is further argued that the Court fee paid valuing the suit for the purpose of court fee under Section 24(d) of the Karnataka Court Fees and Valuation Act. Hence, the court fee paid is incorrect and deficit. It is also further argued that the suit filed for the above reliefs is hopelessly barred by time and no issue is framed by the trial Court, as a result of which, great injustice has been caused. It is also argued that the trial Court had no pecuniary jurisdiction as the suit had been valued for more than Rs.50,000/ - at that point of time.