Point of Law: Granting of declaration is discretionary and court should not grant declaration more particularly when there is alienation of a joint family ancestral property.

JUDGMENT :

SACHIN SHANKAR MAGADUM, J.

1. The captioned first appeal is filed by the defendant No. 1 questioning the judgment and decree of the Court of first instance wherein plaintiff’s suit is decreed declaring the plaintiff as absolute owner of the suit schedule property. Consequently, defendant No. 1 is directed to handover possession of the suit schedule property. The trial Court has also ordered for separate enquiry for mesne profits.

2. For the sake of brevity, the parties are referred to as per their rank before the Court below.

3. The original plaintiff namely Rachappa @ Rachaiah who is the father of defendant No. 2 instituted suit seeking relief of declaration of title and possession of the suit schedule property. The original plaintiff contended that defendant No. 2 is the son and suit item No. 1 bearing Sy. No. 56/1 measuring 50 guntas was purchased by plaintiff under registered sale deed dated 08.06.1957. Therefore, plaintiff claimed that item No. 1 is his self acquired property. Plaintiff further pleaded that defendant No. 2 who is the son managed to get his name mutated to the revenue records in 1987-88 and based on mutation, his son i.e. defendant No. 2 sold item No. 2 in favour of defendant No. 1 under registered sale deed dated 24.03.1988. The original plaintiff claimed that there is no partition between himself and his son i.e. defendant No. 2 and further pleaded that his son taking undue advantage of his illiteracy has alienated item Nos.1 and 2 under registered sale deed dated 24.03.1988. The plaintiff also specifically pleaded that he was dispossessed by defendant No. 1 and hence, sought relief of declaration to declare sale deed dated 24.03.1988 executed by defendant No. 2 in favour of defendant No. 1 as an invalid document and not binding on plaintiff.

4. On receipt of summons, defendant No. 1 contested the proceedings and filed written statement. Defendant No. 2 failed to contest the proceedings and was placed ex-parte. The defendant No. 1 stoutly denied the claim of original plaintiff Rachappa that item No. 1 was self acquisition of original plaintiff. Admitting the relationship of original plaintiff and defendant No. 2, defendant No. 1 claimed that plaintiff had no independent earning and therefore, he purchased item No. 1 by utilizing joint family funds. Defendant No. 1 on the contrary claimed that plaintiff had agreed to sell his lands under agreement to sell dated 13.05.1987 and had received part consideration and it was only after due deliberation between deceased plaintiff and defendant No. 2, the extent in Sy. No. 57/2 was altered and thereafter defendant No. 2 on authorization from deceased plaintiff has sold two items under registered sale deed dated 24.03.1988. The defendant No. 1 further claimed that pursuant to alienation, he got his name mutated to the revenue records and the same is never challenged by the plaintiff. The defendant No. 1 further contended that execution of sale deed by defendant No. 2 and its registration was never disputed by the deceased plaintiff. The defendant No. 1 further contended that plaintiff and defendant No. 2 having alienated the property for valuable sale consideration cannot seek possession from defendant No. 1 who has acquired valid right and title. Defendant No. 1 also specifically pleaded that suit is barred by limitation and a plea of adverse possession was also set up by plaintiff. On these set of defence, defendant No. 1 sought for dismissal of the suit.

5. The plaintiffs and defendant No. 1 to substantiate their respective claim led oral and documentary evidence.

6. The trial Court based on rival pleadings, formulated the following issues:

“(1) Whether plaintiff proves that suit schedule property item No. 1 is his self acquired property and item No. 2 is joint family property?

(2) Whether plaintiff proves that the sale deed executed by 2nd defendant in favour of 1st defendant on 24.03.1988 is not binding?

(3) Whether defendant No. 1 proves that suit is barre