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Karnataka High Court
K.M.MUNIREDDY - Appellant
Versus
B.K.LAKSHMAIAH - Respondent
Decided On : 04-21-94
R.F.A. : 778 of 1987
Suit for declaration of title and injunction - Plaintiff's claim that regrant of land was for benefit of all members of joint family - Defendant's contention that regrant was in favor of third defendant alone and plaintiff gave up his claim after realizing untenability of his claim - Plaintiff's conduct for all these ten years and his acquiescence and delay - Held, plaintiff is estopped from asserting his rights by filing the present suit - Appeal allowed.
Fact of the Case:
Plaintiff filed a suit for declaration of title and injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the plaint schedule property. Plaintiff claimed that the regrant of land was for the benefit of all members of the joint family and they were all in possession. The trial court decreed the suit declaring that the plaintiff along with defendants 4 to 6 was the absolute owner of the 4/5th share in the plaint schedule property and restraining defendants 1 and 2 from interfering with the possession of the suit schedule property of the plaintiff and defendants 4 to 6 except in due course of law. Aggrieved by the decree made as above, defendants 1 and 2 preferred the present Appeal.
Finding of the Court:
The court found that the regrant was in favor of the third defendant alone and his father gave up his claim after realizing untenability of his claim as he had already alienated large portions of Survey No. 3 of Bommanahalli village and having regard to the conduct of Lakshmaiah as a Member of the Land tribunal in granting registration of occupancy rights under the Karnataka Land Reforms Act in favor of his son-Ganesh who was living admittedly with him as a member of joint family and that order being set-aside as illegal as detailed above and further after failure of the proceedings got initiated for resumption of land for alleged breach of terms of regrant and after long lapse of 10 years from the date of Exs. D. 11 and D. 12 having failed in all the efforts to some-how get back possession of the plaint schedule land, it is pointed out that the plaintiff has made himself bold to file the suit out of which the present appeal arises and having regard to his conduct for all these ten years and his acquiescence and delay he is estopped from asserting his rights by filing the present suit.
Issues: 1. Whether the plaintiff has a title to the suit property ? 2. Whether he was in possession of the plaint schedule property as asserted ? 3. Whether plaintiff's suit is barred by constructive res judicata as contended ? 4. Is plaintiff estopped from filing the present suit ? 5. Is the suit of the plaintiff hit by Section 34 of the Specific relief Act, 1963 ?
Ratio Decidendi: The court held that the plaintiff is estopped from asserting his rights by filing the present suit. The court observed that the plaintiff had been living jointly with his son Ganesh and other sons. He was an applicant for regrant along with his son Ganesh. He made a statement giving the consent for regrant in favor of Ganesh. Thereby he impliedly waived his right for regrant in his favor when his son opposed regrant in his favor on the ground that he had already alienated portions of survey No. 3 and other lands. Soon thereafter defendant-3 sought and obtained permission for alienation of the plaint schedule land regranted in his favor. Armed with permission at Ex. D. 9 Ganesh along with his other brothers through their Guardian-mother alienated plaint schedule land under Ex. D. 11 and purchasers therein sold the same to the appellants under Ex. D. 12. Ganesh thereafter made claim for registration of occupancy rights by filing Form No. 7 under the Karnataka Land reforms Act, 1961 to the Land Tribunal in which Plaintiff was one of the Members and in that capacity he was aware of granting occupancy rights in favor of Ganesh in respect of the suit land. The grant of occupancy right was challenged on the ground that plaintiff lakshmaiah the father was one of the Members of the Land Tribunal. This Court in Writ Petition No. 4430 of 1978 set-aside the grant of occupancy rights and remanded the matter and after remand the land Tribunal as per order at Ex. D. 19 dated 21-1-1982 rejected the claim of defendant-3 for occupancy rights. Plaintiff must be having knowledge of these transactions. He is aware that his son borrowed money; according to him under Ex. D. 11, but he does not chastise or question his son as to what made him to borrow the money by executing a sale deed which according to him was only a hypothecation deed. Conduct of plaintiff therefore in keeping quiet and overlooking all these transactions shows that he was a party to fraud and he and his son somehow wanted to get back possession of the plaint schedule land from the appellants.
Final Decision: Appeal allowed.
( 1 ) DEFENDANTS 1 and 2 in Original Suit No. 582 of 1982 are the appellants in this appeal, plaintiff in O. S. No,582 of 1982 is respondent no 1. Defendants 3 to 6 and 7 to 9 are respondents 2 to 8. Parties in this Appeal are referred to by their ranks in the trial Court.
( 2 ) PLAINTIFF - B. K. Lakshmaiah filed a Suit for declaration that he is absolute owner of the plaint schedule property and for permanent injunction restraining the defendants 1 and 2 from interfering with the peaceful possession and enjoyment of the plaint schedule property with costs and other reliefs as deemed fit.
( 3 ) THE schedule property is described as portion of Survey No. 3 of Bommmanahalli village, Bangalore South Taluk, measuring one acre twenty eight guntas with boundaries given in the schedule with standing crops of horse-gram etc.
( 4 ) THE plaint averments are that the plaintiff and defendants 3 to 6 form members of a joint Hindu family and they possessed joint family properties of which the plaint schedule property is one and they inherited these properties from the plaintiff's grand-father Bovigooga who is shown as Bingooba in taluk and revenue records and who was the original barawardar Thoti of Bommanahalli village and after him, his only son Kaverappa succeeded to the hereditary office of Thoti and also to the service inam lands and other properties which belonged to his father by Government grant and were under his cultivation. Kaverappa died in or about 1959. During his old age, he had attorned his son, the plaintiff to carry on the duties of the thoti and to look after and manage the family and its properties. The plaintiff and his family members became the owners of the Service Thoti Inam lands in survey No. 3 measuring 5 acres 4 guntas of which the suit property forms a portion. Under the Karnataka Village Offices abolition Act, the thoti inam lands were resumed to the Government and the plaintiff and his son - defendant-3 applied for the regrant. The assistant Commissioner enquired into the matter and by order dated 24-5-1972 granted to the plaintiff and third defendant remaining land in survey No. 3 measuring 1 acre 28 guntas after finding that 1 acre 27 guntas of land was sold by the plaintiff to Ramalingam and an extent of 100'x150' was sold to Ramarathnam by the plaintiff. The schedule land was in possession of the plaintiff and the members of the joint family. One of the conditions of the re-grant was that the land should not be alienated except for partition amongst the members ot the joint family. The plaint schedule land was in lawful possession and enjoyment of the plaintiff and members of his family. The third defendant for purposes of necessity, appears to have hypothecated the property to Chikkakaverappa. K. Muniyappa, C. Muniyappa and c. Krishnapa under a deed dated 23-10-1972. Though it is styled as a saledeed, no sale took place under it. The third defendant had no right to sell the property as the plaintiff was the head of the family possession of the plaint schedule land was not delivered and the same continued to remain with the plaintiff and his family members. Defendants 1 and 2 have obtained a so-called saledeed from chikkakaverappa, K. Muniyappa, C. Muniyappa and C. Krishnappa who are defendants 7 to 9. The said transaction does not create any right in defendants 1 and 2 and the same is fraudulent and void and against the public policy and is unenforceable. The plaintiff has been through-out in possession and enjoyment cf the plaint schedule property. The defendants 1 and 2 attempted to interfere with his possession and enjoyment of the plaint schedule property. They have no semblance of right and if the defendants were to trespass into the plaint- schedule property, he wpuld be put to irreparable loss and injury. Hence the suit, the cause of action for which arose when the defendants attempted to trespass into the suit property.
( 5 ) DEFENDANTS 1 and 2 filed their written statement contending t
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