K. MALLIKARJUNA Vs. KATHI KRISHNAMMA

JUDGEMENT

(1.) The present Civil Miscellaneous Appeal is filed, under Order 43, Rule 1 read with Sec. 151 of Civil Procedure Code, 1908 [for short, "CPC"] assailing the Order, dtd. 6/9/2021 passed in I.A. No. 130 of 2020 in O.S. No. 13 of 2020, wherein, the application filed under Order 39, Rules 1 and 2 of CPC, seeking temporary injunction restraining the respondents/defendants from alienating the property, was dismissed.

(2.) The facts, in issue, are as under: a) The appellants, who are the plaintiffs, filed a suit for declaration of title in respect of the suit schedule land and to declare the Registered Sale Deeds, dtd. 18/5/1990, 30/5/1995 and 20/9/2005 executed by one K. Shivanna as null and void and for delivery of possession. b) The averments in the affidavit filed, in support of the petition, show that originally, one K. Thippanna died leaving his sons namely K. Ramachandrappa, K. Shivanna and K. Harischandrappa. The 1 and 2 plaintiffs are the sons of K. Ramachandrappa and the 1 plaintiff is the father-in-law of the 3 plaintiff and grand-father of plaintiffs 4 and 5. The 2 son of Thippanna i.e., K. Shivanna died four years back leaving behind four sons namely Bheemasena (died), Mallesh Goud (died), Thippanna (3 defendant) and Sreeramulu (died). The 3 son of K. Thippanna i.e., K. Harishchandrappa died leaving behind his son one K. Sreenivasulu. Bheemasena, who died about two years back, left behind his wife 4 defendant, three sons who are the defendants 5 to 7. Mallesh Goud, who also died in the year 2017, left behind his daughter 8 defendant. K. Sreeramulu, who died 10 years ago, left behind his wife-9 defendant and a son who is the 10 defendant. c) The land admeasuring Ac.2.77 cents in Survey No. 447 situated in Mandigiri was acquired by one K. Thippanna under a Partition Deed, dtd. 4/2/1937 amongst himself and his brother Sanappa's sons namely Narasappa and Hanumanthappa. In other words, in an oral partition, K. Ramachandrappa got Ac.2.77 cents in Survey No. 447 and other properties. Mutation was done and Ryot passbook was also issued. It is stated that K. Ramachandrappa borrowed a sum of Rs.700.00 from one Yale Halamma and Yale Gangamma and executed a registered simple mortgage deed in respect of the above petition schedule property. An endorsement, dtd. 15/4/1978 on the mortgage deed shows that Ramachandrappa cleared the mortgage debt and that Yale Parvathamma has executed cancellation of mortgage deed for having received the amount. Thereafter, it was again mortgaged as Ramachandrappa borrowed a sum of Rs.1500.00 from Neelakantappa, S/o. K. Hanumanthappa. After repaying the amount, the document is taken back. This is only to show Ramachandrappa was having right over the property. d) While things stood thus, on 18/11/1991, Ramachandrappa died leaving behind his two married sons K. Mallikarjuna, K. Ayyanna, one unmarried son K. Basavaraju and daughter-in-law K. Shankaramma who are the appellants/plaintiffs herein. It is said that due to expansion of Adoni town, cultivation could not be done in the said area and as such the plaintiffs 1 and 2 went to Bangalore in search of the livelihood. In the month of March, 2020, the appellants came to know that the husband of the 1 respondent and the father of the 3 respondent were clearing the bushes and trees and created a nominal document from K. Shivanna and his sons though K. Shivanna and his sons have no right and title over the property. e) It is said that these documents which are sought to be relied upon namely, the registered Sale Deeds, dtd. 18/5/1990 and 20/9/1995 are created for the purpose of this case. It is said that though these documents were executed prior to the demise of Ramachandrappa, but nothing was done to claim their right. The land was allowed to remain fallow for nearly 25 years and a claim now is sought to be made. Having regard to the steps taken by 1 and 2 respondents in approaching one Gopal, who is the Real Estate broker to find a buyer, the above suit was filed seeking relief as claimed therein.

(3.) A counter came to be filed, disputing the averments made in the affidavit filed by the appellants/plaintiffs. The respondents/defendants admit that in a family partition, "A" schedule property of Partition Deed, dtd. 4/2/1937 fell to the share of K. Thippanna which is admeasuring Ac.2.70 cents in Survey No. 447. Thippanna also got Ac.3.25 cents in Survey No. 554, and other lands. They deny the oral partition said to have taken place 50 years back, in between the sons of Tippanna and also issuance of Ryot Passbook in his name as it does not contain the seal of the office, which is evident from the contents of the Sale Deed, dtd. 27/12/1990. a) The counter also denies the fact of possession being with Ramachandrappa. It is said that the Mortgage Deeds will not cloth Ramachandrappa with absolute right and title over the lands. It is said that on 27/12/1990, Ramachandrappa and his sons have conveyed the suit land to Kathi Anjaneyulu, the husband of 1 respondent, by executing a Registered Sale Deed prescribing the boundaries. Hence, it is treated that the said property is that of Kathi Anjaneyulu. b) It is further stated in the counter that the Sale Deeds, dtd. 18/5/1990, 30/5/1995 and 20/9/1995 are all true and genuine and there is no collusion between any of the parties. It is said that the purchasers have constructed houses in the plots purchased by them in Survey No. 447 and they are residing there and that the 1 and 2 respondents being the sons have absolute right to alienate the same.