NEELAGANGAWA Vs. NINGANA GOWDA

JUDGEMENT

(1.) these two appeals i.e. second appeal No. 535 of 1985 which arises out of suit No. 67 of 1977 filed by the plaintiff-appellant and second appeal No. 12 of 1986 which arises out of suit No. 20 of 1977 (filed by defendant 1 relate to one and the same property in dispute namely house t.m.c. No. 1579 situate in village ron district, dharwad). These two appeals involve common question of law and fact so these appeals are being disposed of by common judgment.

(2.) these two appeal No. R.s.a. No. 535 of 1985 and r.s.a.no. 12 of 1986 have been filed by the plaintiff-appellant in suit No. 67 of 1977 who is defendant in suit No. 20 of 1977 challenging the judgment and decree dated 4th of january, 1985 by Sri N.S. Sangolli, civil judge, gadag in civil appeal nos. 21 of 1980 and 22 of 1980 which the first appeals had been filed by the ningana gowda neelappa gowda karigoudar who has been the plaintiff in suit No. 20 of 1977 and defendant in suit No. 67 of 1977 whereby the learned lower appellate court allowed the two regular appeals and set aside the common judgment and decree dated 18-2-1980 delivered by the munsiff, ron decreeing the claim of the plaintiff-appellant in o.s. No. 67 of 1977 and dismissing the claim of the present respondent in his o.s. No. 20 of 1977. The lower appellate court thus after having set aside the judgment and decree of the trial court dated 18-2-1980 passed in O.S. No. 67 of 1977 and o.s. No. 20 of 1977, allowed the claim of the present defendant-respondent in suit No. 20 of 1977 and rejected and dismissed the claim of the present plaintiff-appellant in suit No. 67 of 1977. It may be mentioned that as per narration of the facts, the case of the plaintiff pleaded in suit No. 67 of 1977 was the defence case in suit No. 20 of 1977 while the case of the plaintiff in suit No. 20 of 1977 has been the defence case in r.s. No. 67 of 1977. The present plaintiff-appellant neelagangawa filed suit No. 67 of 1977 for decree for declaration and for permanent injunction restraining the defendant in suit No. 67 of 1977 namely the present respondent who was plaintiff in suit No. 20 of 1977 from interfering with the possession of the present plaintiff-appellant over the property in suit. In suit No. 67 of 1977, the plaintiff claimed that the plaintiff-appellant had been the owner of the property in suit by virtue of the sale deed with respect to the said property having been executed in her favour by one susheelabai mugali for a sum of Rs. 2,000/-. It is contended that by sale deed dated 23-11-1970 which is a registered document wherein she became the owner. The present plaintiff-appellant namely neelagangawa claims that she, on the basis of the above mentioned sale deed, has always been in possession and enjoyment of the suit property as owner thereof. Since the date of transaction dated 23-11-1970. It was further alleged by plaintiff-appellant that defendant who is her brother has been residing separately permanently at jigalur in ron taluk that he had no concern with the suit property.

(3.) in the plaint of suit No. 67 of 1977, it has been asserted that on 4-11-1974 the plaintiff-appellant, for a sum of Rs. 2,000/- executed a nominal and hallow registered sale deed in favour of her mother mallawa but she i.e. plaintiff remained in actual possession of the suit property all along and the sale deed dated 4-11-1974 according to the plaintiff was executed for security for loans advanced by her mother and it was never intended to be acted upon by either herself or by her mother. The plaintiff further alleged that till 18-7-1976 the properties subject-matter in dispute always remained in the name of the plaintiff-appellant in town municipal records. Plaintiffs' further case has been that, as the sale deed dated 4-11-1974 was a nominal one, her mother mallawa did not get any ownership of the property and the deed was not acted upon. The plaintiff further alleged that defendant after 17-8-1976 got a fraudulent gift deed dated 11-10-1976 executed in his favour in respect of suit property from the mother of the plaintiff as well as the defendant. The plaintiffs case has been that defendant never came in possession of the suit property on the basis of the gift deed. Plaintiff has further alleged that plaintiff had repaid the loan which had been advanced by her mother Smt. Mallawa during her lifetime. It has also been alleged in the plaint that defendant-respondent got name recorded in the municipal council records. Plaintiff alleges that defendant-respondent ninganagowda filed a suit for permanent injunction bearing No. O.s. No. 20 of 1977 and he obtained interim injunction Order when he was actually not in possession of the property against the plaintiff on the basis of that injunction. So the need for filing r.a. No. 67 of 1977 did arise and the plaintiff so filed for declaration that plaintiff-appellant is owner and that the suit sale deed dated 4-11-1974 executed by her in favour of her mother mallavva was sham and nominal transaction was not intended to be acted upon and plaintiff-appellant prayed as well for decree for permanent injunction.