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Venkatappa and ors. Vs. Hanumanthappa - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 360 of 1949-50
Judge
Reported inAIR1953Kant152; AIR1953Mys152; ILR1953KAR295
ActsCode of Civil Procedure (CPC), 1908 - Sections 11
AppellantVenkatappa and ors.
RespondentHanumanthappa
Appellant AdvocateKomanur Shamanna, Adv.
Respondent AdvocateKrishnamurthy, Adv.
Excerpt:
.....the land tribunal has to consider the application for grant of occupancy rights to the petitioner as he was holding the land as a tenant prior to and as on 1.3.1974. - shamanna, on their behalf contended that as they were not parties to the earlier proceedings, those decisions should not be held to be binding on them and that the appellants should have perfect liberty to advance their independent right in obstructing possession of the property in the suit filed by defendant 2. in this suit defendants 2 to 6 have asserted a similar right as put forward by defendant l in the previous proceedings that they hold the rights of permanent tenancy from the time of their ancestors. it is a well established principle of law that a decree obtained without collusion or fraud against a person..........the possession of his sons, they were brought on record as defendants 2 to 6.prior to the present suit ramiah (defendant 1) had filed a suit of his own against the plaintiff in o. s. 280/45-46 for cancellation of the decree in o. 8. 505/33-34 on the ground that the decree in the former suit was obtained by fraud; the said suit was dismissed, later venkatappa, his son (defendant 2) has filed another suit against the plaintiff for establishing his rights to a share in the property on the ground that his family possessed rights of permanent tenancy, and that suit was also dismissed. on a consideration of all the previous proceedings and the evidence adduced, the trial court decreed the suit for possession against all the defendants. on appeal, the learned subordinate judge modified the.....
Judgment:

1. The facts relevant to the consideration of the dispute in this appeal are briefly these: The schedule lands in the Khayamgutta Madihala village, Kolar belonged to the vritti of one Lakshmana Sastry, who had mortgaged it to one Kempanna. Lakshmana Sastry filed a suit ior redemption against Kempanna in O. S. No. 246 of 1917-18 and obtained, a decree. The plaintiff, the assignee of the decree sued out execution and obtained symbolical possession of the property as one Ramiah (defendant 1) in the present suit set up 'kadim' or permanent tenancy rights in the land under Lakshmana Sastry. The plaintiff then filed a suit, O. S. No. 505/33-34 for declaration that Ramiah is a common tenant and for share of the produce, by way of mesne profits. The Court granted a decree negativing the right of permanent tenancy pleaded by Ramiah. Three subsequent suits (O. S. No. 335/40-41, O. S. 471/41-42 and O. S. No. 212/45-46) filed by the plaintiff against Ramiah for the recovery of the share of produce were decreed. The present suit was filed originally against Ramiah for ejectment and on his plea that the suit lands were in the possession of his sons, they were brought on record as defendants 2 to 6.

Prior to the present suit Ramiah (defendant 1) had filed a suit of his own against the plaintiff in O. S. 280/45-46 for cancellation of the decree in O. 8. 505/33-34 on the ground that the decree in the former suit was obtained by fraud; the said suit was dismissed, later Venkatappa, his son (defendant 2) has filed another suit against the plaintiff for establishing his rights to a share in the property on the ground that his family possessed rights of permanent tenancy, and that suit was also dismissed. On a consideration of all the previous proceedings and the evidence adduced, the trial Court decreed the suit for possession against all the defendants. On appeal, the learned Subordinate Judge modified the decision by setting aside the decree against defendants 2 to 6 as they were said to be not the tenants of the plaintiff. The defendants 2 to 6 have preferred this second appeal; and the plaintiff has also filed cross-objections.

2. The decision under this appeal is in favour of the appellants; they are aggrieved by the rinding of the Courts that proceedings in O. S. 505/33-34 are binding and operate as res judicata to their defence. Mr. Shamanna, on their behalf contended that as they were not parties to the earlier proceedings, those decisions should not be held to be binding on them and that the appellants should have perfect liberty to advance their independent right in obstructing possession of the property in the suit filed by defendant 2. In this suit defendants 2 to 6 have asserted a similar right as put forward by defendant l in the previous proceedings that they hold the rights of permanent tenancy from the time of their ancestors. They have not shown any independent right. Defendant I has been finally declared to be a common tenant without any right of permanent tenancy and the similar right put forward by defendant 2 has also been negatived; the other minor members of the joint family have now raised the same plea. Each member of the joint family cannot be allowed to agitate the same point over again and keep the rightful owner indefinitely out of possession on highly technical pleas which if allowed would surely carry the law to absurdity. It is a well established principle of law that a decree obtained without collusion or fraud against a person representing the estate must be binding on his heirs and a manager of the joint family effectively represents the interest of other family members and the decree obtained against him binds the entire family members.

3. In the present suit, it has been concluded bythe decision in O. S. No. 280 of 45-46 that thedecree for possession passed in O, S. No, 505 of33-34 was not obtained by fraud. There is no reason to doubt that defendant 1 the father of defendants 2 to 6 was the manager of the Jointfamily at the time when the decision in O. S. No.505/33-34 was passed. The Courts below are rightin holding that the principles laid down in -- '39Mvs H C R 875 (A)' and -- 'Lingangowda Dod-Basangowda v. Basangowda-Bistangowda applied to the circumstances ofthe present case. The possession claimed by theappellants has no independent, existence and isonly attributable to the possession of defendant 1and as members of the family of defendant 1 theyderive the claim through and from him. Theappellants are therefore bound by the decreeagainst defendant 1 in O. S. No. 505 of 33-34 and cannot resist possession of the property. Theother point urged about the sufficiency of noticeneeds no serious consideration as defendant 1 isfound to have denied the title of the plaintiff ina previous case (O. S. No. 212 of 45-46). In anyview of the case, the defendants must fail. Thisappeal is dismissed: the decision of the learnedSubordinate Judge is set aside and the cross-objection allowed restoring the judgment and decreeof the trial Judge, parties to bear their own costsin this Court.

4. Appeal dismissed.


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