MADDUVEERANAIKA AND ORS. Vs. NANJUNDAOH AND ORS.

JUDGEMENT

(1.) This is Defendants Second Appeal under Sec. 100 of the Code of Civil Procedure from the Judgment and Decree dated 7th July, 1984 in R.A. No. 241 of 1980 arising out of Judgment and Decree dated 31.10.1977 delivered by the First Addl. Munsiff, Bangalore City in Regular Suit No. 1061/57, whereby the lower Appellate Court had dismissed the plaintiffs appeal and Defendants cross-objections and affirmed the Judgment and decree of the trial Court, dismissing the plaintiffs claim in the suit for declaration, and, issuing a direction in the nature of injunction to the effect that the plaintiffs possession shall not be disturbed except in accordance with law. In the Second Appeal, the plaintiff has also filed cross-objections challenging the decree whereby the two Courts below have dismissed the plaintiffs claim for relief of declaration that the plaintiff is the owner of the property and that sale deed in question Ex. D.3 is not binding on the plaintiff. The facts of the case are as under :

(2.) The Plaintiff alleged that the property described in the schedule belongs to the plaintiff and that he has been in possession and enjoyment thereof by actual residence in certain portion thereof as well as through the tenants. Who to whom certain portions have been let-out and they were occupying the same. The plaintiffs case is that the Plaintiff had inherited the property from his father as Plaintiffs share. He got the same after the partition of the property in dispute amongstons of his father Veerappa and according to him the partition took place after death of his father. The plaintiffs further case is that the plaintiff is the son of third wife of Veerappa namely Smt. Lakkamma and Defendant No. 7 was the 2nd wifes son of Veerappa. The plaintiff further alleged that defendants 1 to 6 in the suit though they were related to the plaintiff, they had no right and claim over the suit property. The plaintiff alleged that the Defendant No 7 also had no right and claim in the suit property. The Plaintiff in para 3 of the plaint alleged that partition as per the Deed of Partition took place during the minority of the plaintiff. He has further alleged that under the deed of partition under which the property in the suit allotted to his share, Lakkamma the mother and natural guardian of the plaintiff, had no right to alienate the property in dispute for any purpose. The plaintiff further alleged that since after the partition in 1946, he has been in undisturbed possession and Sufficient of the property in dispute. The plaintiff alleged that during his plaintiffs minority the Defendant No. 7 in collusion with the plaintiffs mother Lakkamma who was illiterate and ignorant, and at the fraudulent inducement of one Doddaveeranaika, has got some fraudulent document executed purporting to transfer suit property from plaintiff to said Doddaveeranaika who according to the plaintiff had already died at the time when the suit was filed., the plaintiff alleged that Defendants 1. 2, 4, 5, and 6 were sons DoddaveeranaiKa. The plaintiff alleged that he does not admit that in:, mother late Lakkamma has executed any document Deed of transfer of suit property in favour of Defendant No. 7 or Dodddaveeranaika or any one else. It was said in the plaint that the document which purports to be the sale deed or Transfer Deed, was brought into existence by collusion, and false practiced by Defendant No. 7 with the help of Doddaveeranaika on the plaintiffs ignorant mother. The plain- tiff further asserted such a Dakala is without consideration and void and neither 7th Defendant nor Doddaveeranaika has derived any right thereunder. The plaintiff further alleged that his mother was incompetent to dispose of the plaintiffs property during his minority, and alienation by her even if true is void and not binding on plaintiff as there was no legal [ necessity for making such alienation as well. The plaintiff further alleged that the Defendants to 6 started claiming rights in the property and that they would execute the sale deed in favour of some other persons and would also dis-possess the plaintiff and they started mis-chievous activities in order to interfere with the plaintiffs possession and enjoyment to the property in suit. The plaintiff further alleged that the defendants have 'been denying the plaintiffs title asserting that they are in possession. The plaintiff further alleged that the cause of action arose for the first time within a fortnight prior to the date of filing suit where the Defendants denied the plaintiffs title and threatened to interfere with the plaintiff's possession. In para 7 of the plaint, the plaintiff alleged "that the plaintiff was born on 21.8.1944. the suit is filed within 3 years after his attaining majority. The plaintiff claims the relief of declaration that he is the owner in actual possession of the suit property and that alienation effected by the plaintiffs mother during the minority of the plaintiff was not binding on the plaintiff. Alternatively the plaintiff also claimed a decree for declaration or cancellation of the Deed of Sale dated 11.11.48 executed by the plaintiffs mother as void and that it does not affect the plaintiffs right. The plaintiff also claimed injunction directing the Defendants not to interfere with the plaintiffs possession over the suit property. The suit was contested by the Defendants who filed the written statement.

(3.) The Defendants denied the plaintiffs title and possession and alleged that the allegations made in para 2 of the plaint to the effect that the plaintiff is the owner of the schedule property and is in .possession and enjoyment thereof, are absolutely false. They denied the plaintiff had any title in the suit property. It was further alleged in para 3 of the written statement that as on the date of presentation of the plaint, the age of the plaintiff was more than 24 years and not 21 years and as such, it was alleged that the suit was not within limitation and was barred by limitation. The Defendants asserted that the defendants to 6 and their father have always in possession of the proper and prior to their purchase, the original defendant No. 7 namely Hanumanthappa was in uninterrupted possession of the suit property by virtue of he sale deed dated 11.11.1948 executed by the mother as the guardian of the plaintiff and other minor members of the family. It was asserted that the sale deed executed by Smt. Lakkamma, the mother of the plaintiff who had executed a deed in favour of the 7th defendant on account of family and legal necessities and otherwise for the proper purpose and benefit of the family. The Defendants further alleged that in the sale deed dated 11.11.48, the age of the plaintiff has been mentioned as 8 years. The first defendant claimed to be the absolute owner of the suit property. It has also been alleged that on 12.4.65, the plaintiff made transfer of. certain suit property on the east and described property sold under the said sale deed as a portion falling in plaintiffs share and has described those properties belonging to defendant No. 7 and himself. The Defendants also took the plea of estoppel by acquiescence. In para 5 of the written statement, it was further alleged that the plaintiff was in good terms with the defendants and on his request, the Defendants permitted the plaintiff to be in occupation of small portion of the premises since he had no other portion to live. The Defendants further alleged that the plaintiff with mala fide motives, issued notice to the tenants in occupation threatening them to evict them. The Defendants asserted that the plaintiff had not cause of action to file the suit and that suit was liable to be dismissed. In, the additional written statement filed by Defendant No. 6, it was asserted that the suit for cancellation or setting aside the sale deed dated 11.11.1948 executed by the plaintiffs mother in favour of 7th Defendant was clearly barred by limitation. The plea was taken that the suit for setting aside the sale deed was not maintainable. The Defendants to 5 adopted the written statement filed by Defendant No. 6.