(Prayer: Rsa Filed U/S. 100 Of Cpc Against The Judgement and Decree Dtd. 27.7.04 Passed In R.A.No.26/99 On The File Of The Civil Judge (Sr. Dn.), Gokak, Allowing The Appeal And Setting Aside The Judgement And Decree Dtd 6.3.99 Passed In Os.No. 196/90 On The File Of The Addl. Civil Judge (Jr. Dn.), Raibag.)
1. Respondents herein were defendants in an original suit bearing O.S. 196/1990, which was pending on the file of Addl. Civil Judge (Jr.Dn.), Raibag. Appellants were plaintiffs in the said suit. Parties will be referred to as plaintiffs and defendants as per their ranking before the trial Court.
2. Plaintiffs 1 and 2 were minors at the time of filing suit. One Yellappa is the father of plaintiff Nos. 1 and 2 and husband of plaintiff No.3. Suit schedule properties measuring 1.14 acres in Sy.No.l9/lA/lB/3 and 5 guntas in Sy.No. 19/1A/1B./4 of Khanagal Village, Raibag were the ancestral property of plaintiffs and Yellappa. The said Yellappa sold these properties in favour of three members belonging to the family of Jodatti through a registered sale deed in the year 1983 for a consideration of Rs. 15,000/-. Later on, the purchasers i.e., the members of the Jodatti family sold the same in favour of defendant Nos. 3 and 4 through a registered sale deed in the year December 1984.
3. According to plaintiffs, Yellappa had no legal necessity to alienate the property and there was no pressure on the estate of joint family to alienate the property in favour of members of the Jodatti family. According to the plaintiffs, they are in lawful possession of these properties and at no point of time, possession was handed over to Jodatti family, who are alleged to have sold the same to defendant Nos.3 and 4, who claim title strongly on the basis of the deed stated to have been executed by Jodatti family in their favour. Hence, they had sought for the relief of permanent injunction.
4. Defendants had filed detailed written statement denying all the material evidence. According to them, the properties in question were sold during the minority of plaintiff Nos. i and 2 for the benefit of the joint family. Therefore alienation made binds them. It is further pleaded that alienation made by the Jodatti family in favour of defendant Nos.3 and 4 is also valid and hence, they are in lawful possession. According to the defendants, suit is bad for non-joinder of necessary parties in the light of not making the members of the Jodatti family as parties to suit. It is further pleaded that suit is not maintainable without seeking relief of declaration to the effect that alienation so made in favour of the members of the Jodatti family and subsequent alienation do not bind the plaintiffs.
5. On the basis of the above pleadings following issues had been framed:
a) Whether plaintiffs proves that they are in actual possession and enjoyment of suit property in jointly since long up till now?
b) Whether he further proves that defendants are obstructing and disturbing the actual peaceful and exclusive and lawful possession enjoyment and wahiwat of the suit property by the plaintiffs?
c) What relief and decree?
6. On behalf of the plaintiffs, plaintiff No.3 is examined as PW-1 and in all 3 exhibits have been marked. On behalf of the defendants, Sudkaram Bhimappa Naik has been examined as DW-1 and 6 exhibits have been marked.
7. After hearing the learned Counsel for the parties, the learned Judge of the trial Court chose to dismiss the suit, as against, a regular appeal was filed under Section 96 of CPC in R.A.26/1999. Several grounds had been urged in the appeal filed under Section 96 of CPC. On hearing the arguments, the regular appeal is allowed in its entirety and the suit has been dismissed and relief of injunction is set aside. It is this divergent finding which is called in question on various grounds as set out in the appeal memo.
8. My learned predecessor has framed following substantial question of law for consideration :
"Whether the finding of the First Appellate Court reversing the judgment and decree passed by the trial Court is contrary to the materials on record and is perverse and arbitrary?"
9. The learned Counsel for the parties have submitted the arguments at length.
Reasons:
10. Evidence includes documentary evidence. Suit schedule properties are the ancestral properties cf Yellappa. Entries in revenue records relating to agriculturaj lands have significance and they have to be considered in the light of the testimony of the witnesses examined on behalf of the parties. The fact that the properties in question belonged to Yellappa, the father of plaintiff Nos. 1 and 2 and husband of plaintiff No.3 is not in dispute. Hence, they are the ancestral properties at the hands of plaintiff Nos. 1 and 2 also. It is true that alienation was made by Yellappa during the minority of plaintiff Nos. 1 and 2. If any alienation is made during the minority of a coparcener, he can challenge the same either during his minority represented by a guardian or after attaining majority. Only caveat is that such alienation will not bind the coparceners provided such alienation is made is for legal necessity. Burden is always on the alienee to prove that alienation so made by Kartha of the joint family was for legal necessity of the joint family or that there was pressure on the estate of the joint family. As argued by the learned Counsel for the respondents, no suit is filed challenging the said alienation by the plaintiffs till this day.
11. We do not know whether the properties both movable and immovable have been divided between plaintiff Nos. 1 and 2 and their father. But we will have to see whether records really disclose that possession was handed over to the purchaser i.e., members of the Jodatti family in whose favour alienation was made by Yellappa. Defendants, who claim to be in possession of the property rely upon Ex.P-3 the sale deed dated 29.9.1983 executed by Yellappa in favour of three persons of Jodatti family. This discloses that possession was handed over to the defendants on the said date. Subsequently, sale deed was executed b}r the members of the Jodatti family in favour of defendant Nos.3 and 4 in the year 1984 through a registered sale deed. Ex.D-2 the certified copy of the sale deed executed by the members of the Jodatti family in favour of defendant Nos.3 and 4. There is a reference about handing over the possession on the very same date. If the purchasers i.e., defendant Nos.3 and 4 were really in possession of the suit schedule property, their names would have found place both in cloumn-9 and 12 of RTC. Exs.P-1 and 2 are RTC of schedule lands. The name of Yellappa is found in column-9 of RTC Column-12(2) of RTC is earmarked for indicating the name of the person in possession. It is mentioned as Kuddhu (own). No explanation is forthcoming as to why the names of earlier purchasers or defendant Nos. 3 and 4 are not forthcoming either in column-9 or 12 of RTC. In a suit for injunction, revenue entries play a major role more particularly in the light of presumption ion available under Section 133 of the Karnataka Land Revenue Act.
12. It is argued by the learned Counsel for the respondents that it was the duty of the revenue authorities under Section 128 of Karnataka Land Revenue Act to incorporate the names of the purchasers, more particularly, when the alienation is made by means of registered conveyance deed. It is true that it is the duty of the revenue authorities to incorporate the names of the purchasers, if their names are found as purchasers in the registered sale deed. But no explanation is forthcoming as to why their names are not found in Column 12(2) of RTC, which is specifically earmarked for entering the names of persons who are in possession irrespective of the fact whether he is the kathedar or not.
13. DW-1 has specifically admitted that Yellappa. was the manager of the suit property and he was managing the suit schedule property and that he sold the same in favour of members of the Jodatti family. His evidence would also disclose that family of Yellappa was quite well of. If the family was quite well of, there was no necessity for the alienation of the suit schedule property. We cannot forget that alienation was made during the minority of plaintiff Nos. 1 and 2 and nothing is placed on record that Jodarti family was put into possession of the suit property, the moment sale deed was executed by Yellappa. The remedy available for the purchasers of property belonging to the joint family is to file a suit for partition and work out their remedies. Having not done so, the purchasers being strangers to plaintiff Nos. 1 and 2 and their father Yellappa, cannot contend to be in possession. Mere payment of land revenue would be insufficient to prove the possession of the property. Tax paid receipts have been got marked as Ex.D-3 to 6 bearing dates 17.3.1989, 25.5.1990, 17.3.1989 and 25.5.1990 respectively. Suit was filed in the year 1990 and therefore much credence cannot be attached to Ex.D-4 and 6 dated 25.5.1990 as suit was filed on 11.6.1990.
14. Though in a suit for injunction, we cannot decide the existence of the family necessity to alienate the joint family properties, this Court can definitely look into the materials produced before the trial Court as to whether they are sufficient to come to the conclusion that purchasers were put into possession by Yellappa and therefore, subsequent purchasers continued, to be in possession after having purchased the same from Jodatti family. In this regard, it can be said that oral and documentary evidence placed on behalf of the defendants is too feeble more particularly, in the light of entries found in the revenue records.
15. In this view of the matter, the First Appellate Court has not reassessed the matter in right perspective and has given much credence to the contents of the sale deed than other surrounding circumstances such as useful admissions culled out from the mouth of DW-1 and entries in the revenue records. In this regard, the judgment of the First Appellate Court is improper and incorrect. The judgment of the First Appellate Court is contrary to the material evidence placed on record.
16. The First Appellate Court has twofold duty while dealing with an appeal filed under Section 96 of CPC more particularly while upturning a well considered judgment. It has to assign cogent reasons as to what is the proper finding. This can be done only after proper re-appreciation of the entire evidence on record. While upturning the judgment of the trial Court, it has to clearly indicate as to where the trial Court has gone wrong.
17. As per the principles reiterated by the Hon'ble Supreme Court in Santosh Hazari, Vs. Purushottam Tiwari (dead} by Lrs reported in AIR 2001 SC 965, the First Appellate Court must come to close quarters and assign its own reasons, if it wants to upturn a well considered judgment of the trial Court. Apart from this, it has to assign cogent reasons as to how the trial Court has gone wrong. If that exercise is not done properly, the First Appellate Court cannot upturn the factual findings given by the trial Court.
18. In this view of the mater, the First Appellate Court has not done this exercise properly and is more persuaded by the contents of registered sale deed being executed by Yellappa in favour of members of the Jodatti family and inturn Jodatti family executing sale deed in favour of defendant Nos.3 and 4.
19. Viewed from any angle, the judgment of the First Appellate Court is opposed to law, facts and probabilities and reasons assigned do not have any logic or rationale more particularly while upturning the judgment of the trial Court. Hence, the substantial question of law is answered in the affirmative. Consequently, appeal is to be allowed.
ORDER
The appeal filed under Section 100 of CPC is allowed. The judgment and decree of the First Appellate Court is set aside.
The judgment of the trial Court passed in O.S.No. 196/1990 is restored.
Notwithstanding the allowing of this appeal, nothing comes in the way of defendant Nos.3 and 4, who are purchasers to work out their remedy in so far as share of Yellappa is concerned.
There is no order as to costs.