SUSHILABAI Vs. OMPRAKASH S/O APPARAO

JUDGEMENT

(1.) Though there is delay of 563 delays in filing the appeal, I have nevertheless heard learned counsel for the appellant.

(2.) The appellants are plaintiff Nos.1 and 2 and respondent is the defendant in O.S.No.148/1992. That suit was filed by the plaintiffs seeking the relief of declaration that plaintiff No.1 is the exclusive owner and in possession of suit land bearing Sy.No.129/1A, measuring 03 acres 22 guntas, situated at Kabeerabadwadi Village, Humnabad Taluk, on the basis of a gift which is said to have been made by plaintiff No.2 in favour of plaintiff No.1. A further declaration is sought to the effect that the decree passed in O.S.No.7/88, dated 25.01.1988, by the Munsiff Court, Humnabad, is not binding on the plaintiffs. That the defendants be restrained from interfering with plaintiffs peaceful possession on the said land and in the alternative declare that the plaintiffs have perfected their right of ownership, title and possession by way of adverse possession. The said suit was dismissed by judgment and decree dated 27.10.2005, by the Addl. Civil Judge (Jr.Dn.), Humnabad. Being aggrieved by the dismissal of suit, the plaintiffs preferred R.A.No.52/2005 (new No.58/2011), before the Senior Civil Judge at Humnabad. By judgment and decree dated 07.03.2013, the appeal has been dismissed by confirming the judgment and decree of the trial Court. Being aggrieved by the judgments of the Courts below, this second appeal has been preferred by the plaintiffs.

(3.) According to the plaintiffs, plaintiff No.1 is the daughter of plaintiff No.2, the defendant is a minor under the care and custody of his mother, Smt. Padmavati W/o. late Apparao. During the pendency of the suit, the defendant Omprakash, became a major. The suit land was previously owned and possessed by plaintiff No.2. In the year 1973-74, plaintiff No.2 was not looked after properly by her late son Apparao and other family members. So she started residing in the house of her daughter plaintiff No.1 at Hyderabad. Some gold ornaments were in the custody of plaintiff No.2. In the year 1976, the said ornaments were sold and she purchased the suit land from one Sangappa S/o. Veerbhadrappa Mashetty, under a registered sale deed dated 16.11.1976, for valuable consideration of Rs.7,000.00. Thus, plaintiff No.2, became owner and in possession of the said land. But she entrusted the agricultural operation of the said land to plaintiff No.1, on account of her old age and ailments. For the reason that plaintiff No.1 was providing all assistance to plaintiff No.2 and out of love and affection, plaintiff No.1 orally gifted the suit land on the day after Ugadi in 1978, in favour of her daughter, plaintiff No.1 and delivered actual and physical possession of the same. According to plaintiffs, since then, plaintiff No.1 has remained in actual and physical possession of the said land and she has become the absolute owner by way of adverse possession also. After the oral gift made by plaintiff No.2, in favour of plaintiff No.1, the parents of defendant who were at that time residing at Kabeerabad village, questioned the plaintiffs. The plaintiffs replied that the parents of the defendant had no right to question about the said land, as the suit land was exclusively owned and in possession of plaintiff No.1. That whenever, plaintiff No.1 visited the village for the purpose of looking after agricultural affairs of the suit land, she informed about the oral gift in her favour, but the Revenue Authorities did not take that aspect into consideration. Therefore, the name of plaintiff No.1, was not entered in the revenue records. That the deceased father of defendant and his mother had an evil eye on the suit property. They wanted to grab the suit land by one or other illegal methods, in order to achieve their ill design, they filed suit O.S.No.7/1988 before the Munsiff Court, against plaintiff No.2 the grand mother of defendant. After filing of the written statement in the said suit, there was a fraud played and a decree was obtained, that decree is void ab initio and not binding on the plaintiffs is the averment of the plaintiffs. The existence of the decree came to the knowledge of the plaintiffs, only after service of summons in the present suit. So, the plaintiffs asked the defendant to admit their claim over the suit property and consent for setting aside the decree passed in O.S.No.7/1988, but the defendant refused to do so. Hence, the suit was filed by the plaintiffs. During the pendency of the suit, plaintiff No.2 died and Advocate for the plaintiffs filed a memo stating that plaintiff No.1 was the only legal representative and was on record.