Gowdappa vs Mallinathguda
2022 Latest Caselaw 3806 Kant

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         IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

      DATED THIS THE 7TH DAY OF MARCH, 2022

                           BEFORE

      THE HON'BLE MR.JUSTICE ASHOK S. KINAGI

             RSA No.2673/2006 (DEC/INJ)

BETWEEN:
Goudappa S/o Khandappa Mudigouder,
Age about 45 years, Occ: Agriculture,
R/o Sagar Village, Tq: Shahapur,
Now residing at Hayyal 'K',
Dist. Gulbarga-585 102.
                                                        ...Appellant
(By Deepak V.Barad, Advocate)

AND

1.    Mallinathgouda S/o Gurangouda,
      Age: Major, Occ: Lecturer,
      R/o Sagar, Tq: Shahapur,
      Dist. Gulbarga.
      Presently working as a Lecturer in S.B.College,
      Gulbarga-585 102.
2.    Chandrakant S/o gurangouda,
      Age: Major, Occ: Agriculture and Service,
      R/o Sagar, Tq: Shahapur,
      Dist: Gulbarga-585 102.
                                                  .....Respondents
(By Sri Shivanand Patil, Advocate)

     This RSA filed U/s 100 of the Code of Civil Procedure,
praying to set aside the judgment and decree dated 22.07.2006
passed by the Civil Judge (Sr.Divn.) at Shahapur in RA
132/2004 and consequently confirming the judgment and
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decree dated 05.09.2000 passed by the Civil Judge (Jr.Divn.) at
Shahapur in O.S.No.132/98.

       This appeal coming on for hearing, this day, the Court
delivered the following:-


                        JUDGMENT

This appeal is filed challenging the judgment and

decree dated 22.07.2006 passed in R.A.No.132/2004

by the Civil Jude (Sr.Dn) Shahapur, confirming the

judgment and decree dated 05.09.2000, passed in

O.S.No.132/1998 by the Civil Judge (Jr.Dn) Shahapur.

2. For the sake of convenience, parties are

referred to as per their ranking before the Trial Court.

Appellant is the plaintiff and respondents are the

defendants 1 and 2 before the Trial Court.

3. Facts giving rise to the filing of the appeal

briefly stated are as under:

Plaintiff filed a suit for declaration of ownership

and possession in respect of land measuring 12 acres

8 guntas in Sy.No.577/5 of Sagar Village, Tq.

Shahapur and also sought for permanent injunction by

restraining the defendants from interfering with the

plaintiff's lawful possession over the land in any

manner and for rectification of revenue records of suit

land in the name of plaintiff by deleting the names of

defendants. It is the case of plaintiff that he is the

owner in possession of land in Sy.No.577/5 measuring

12 acres 8 guntas and the said property is the

ancestral property of the plaintiff. The defendants are

no way concerned to the suit land in any manner at

any point of time. But the plaintiff had given the suit

land to the defendants for half share crop basis for

cultivating the suit land for 15 years. It is contended

that plaintiff's ancestor were the absolute owner and

in lawful possession of suit land. Now the plaintiff is

the absolute owner and in lawful possession of the suit

property. The defendants No.1 and 2 entered their

names in the record of rights, without the knowledge

and notice of the plaintiff and entries of record of

rights are having no value in the eyes of law and there

is no valid transfer of title. Defendants colluded with

the revenue authorities, mutated the suit land without

any legal basis. The defendants on the basis of wrong

entries in the ROR extracts, are trying to interfere

with the possession of the suit land and trying to

dispossess the plaintiff from the suit land. Hence

cause of action arose for the plaintiff to file a suit for

declaration and injunction.

3.1. Defendants filed written statement

contending that they are concerned only to the extent

of 6 acres 6 guntas of suit land towards eastern side

of the suit property and further contended that the

property was the ancestral property of the plaintiff's

family. It is contended that since the time of their

father, plaintiff was the owner and thereafter

defendants are the owners and possessors of 6 acres

6 guntas of land on account of purchase made by the

father of defendants few years prior to the year 1962.

The mutation extract of the year 1962 is evident of

this aspect. Further since 1962, in the ROR, either the

name of father of defendants nor the name of

defendants is appearing. It is alleged that defendants

were cultivating the suit property for a period of 15

years to the date of plaint on half share crop basis,

which has been clearly mentioned by the plaintiff.

Further, the plaintiff could have mentioned in which

year he took the possession of the land. It is

contended that the defendants are in peaceful

possession and enjoyment of the suit land to the

extent of 6 acres 6 guntas and name of the

defendants are entered in the revenue records by

valid mutation and it is contended that the suit filed

by the plaintiff is barred by limitation. Hence prayed

to dismiss the suit.

3.2. The Trial Court, on the basis of pleadings of

parties, framed the following issues and additional

issue:

1. Whether the plaintiff proves that he is in lawful owner of the land R.S.No.577/5 to the extent of 12 acres 8 guntas?

2. Whether he further proves that he is in lawful possession of the suit land to the extent of 12 acres 8 guntas from the time of his ancestors?

3. Whether the defendants prove that they are in continuous and uninterrupted possession of the suit property for more than statutory period and they have thus acquired ownership over the suit property by way of adverse possession?

4. Whether the plaintiff proves the alleged interference and dispossession by the defendants?

5. Whether the plaintiff is entitled to the relief of declaration and injunction?

6. What decree or order?

Addl Issue No.1:

Whether the defendants proves that plaintiff has sold 6 acres 6 guntas of suit survey number towards Eastern side for Rs.1,000/- to their father prior to 1962?

3.3. Plaintiff in order to prove his case, examined

himself as PW-1 and got marked Ex.P1 to P3. On the

other hand, defendants examined their GPA holder as

DW-1 and examined two witnesses as DWs.2 and 3

and got marked Ex.D1 to D20. The Trial Court, after

recording evidence and considering the material on

record, held that the plaintiff has proved that he is the

lawful owner of the land R.S.No.577/5 to the extent of

6 acres 2 guntas and further held that he is in lawful

possession of the suit land to the extent of 12 acres 8

guntas from the time of his ancestors and further held

that the defendants have failed to prove that they are

in continuous and uninterrupted possession of the suit

property for more than statutory period and they have

thus acquired ownership over the suit property by way

of adverse possession. It is further held that plaintiff

has proved the alleged interference and dispossession

by the defendants in respect of 6 acres 2 guntas and

subsequently decreed the suit in part and declared

that the plaintiff is the owner of suit property to the

extent of 12 acres 8 guntas and possessor of suit

property to the extent of 6 acres 2 guntas and

defendants are restrained from interfering into the

peaceful possession and enjoyment of the suit

property to the extent of 6 acres 2 guntas and the

plaintiff is at liberty to seek possession of the land to

the extent of 6 acres 6 guntas from the defendants,

under due process of law.

3.4. Aggrieved by the judgment and decree

passed by the trial Court, the defendants preferred an

appeal in R.A.No.132/2004. The First Appellate Court

framed the following points for consideration:

1. Whether appellants/defendant proves that the judgment and decree under appeal and findings of the trial Court are erroneous perverse and capricious and liable to be interfered with?

2. Whether the plaintiff/respondent proves that, the judgment and decree under appeal deserves to be maintained?

3. What order?

3.5. The First Appellate Court, after re-

appreciation of the evidence on record held that the

defendants have proved that the judgment and decree

under appeal and findings recorded by the trial Court

are erroneous, perverse, capricious and liable to be

interfered with and allowed the appeal and

consequently dismissed the suit filed by the plaintiff.

Hence the plaintiff has filed the instant appeal.

4. Heard learned counsel for the appellant and

learned counsel for defendants.

5. This Court admitted the appeal on the

following substantial questions of law;

     a)    Whether the lower appellate Court
           was      justified        in   reversing   the
           judgment and decree of the trial
           Court?
     b)    Whether the lower appellate Court

was justified in holding that the suit of the plaintiff is barred by limitation?

6. Learned counsel for the appellant-plaintiff

submits that the appellate Court has committed an

error in dismissing the entire suit when the defendants

have admitted the ownership of the plaintiff over the

suit property. The appellate Court ought to have

decreed the suit in part to an extent of 6 acres 2

guntas. He further submits that the plaintiff has

restricted his claim to an extent of 6 acres 2 guntas

and defendants are in legal possession of remaining

portion of the suit schedule property to the said extent

and the appellate Court has committed an error in

dismissing the appeal solely on that ground that suit

filed by the plaintiff is barred by limitation. He submits

that the appellate Court has committed an error in

dismissing the entire suit. Hence, prayed to allow the

appeal.

7. Per contra, learned counsel for the

respondents submits his no objection for decreeing

the suit in respect of 6 acres 2 guntas as the

defendants are in possession of the land to the extent

of 6 acres 6 guntas under the sale deed since from the

year 1962 and the said fact has not been disputed.

He submits that on the strength of the sale in favour

of defendants, name of defendants is entered in the

revenue records and since 1962 the defendants are in

possession of the property of portion of suit to an

extent of 6 acres 6 guntas. Hence, prayed to dismiss

the petition.

8. Perused the records and considered the

submissions made by learned counsel for the parties.

9. From perusal of the records, the

defendants have clearly admitted that plaintiff is the

owner of suit land bearing R.S.No.577/5 to the extent

of 12 acres 8 guntas. In view of admission of

defendant, the trial Court was justified in answering

issue No.1 in affirmative. Further it is the case of the

defendants that they have purchased the property,

but no documentary evidence has been produced to

show that the said property has been purchased by

them. However, learned counsel for the plaintiff

submits that plaintiff restrict his claim to an extent of

6 acres 2 guntas. The appellate Court has allowed the

appeal solely on the ground that the suit filed by the

plaintiff is barred by limitation and also the defendants

have established that they are in possession of the

suit property as the owners by way of adverse

possession since from 1962 without any interruption

from the plaintiff. The defendants themselves have

admitted in the written statement and also in the

evidence of DWs.1 and 2 that they are in possession

of the suit property to the extent of 6 acres 6 guntas

and they are not in possession of the remaining extent

of land.

10. The appellate Court without considering the

evidence and also admission of defendants in the

written statement, has committed an error in allowing

the appeal and dismissed the suit of the plaintiff. The

appellate Court ought to have confirmed the judgment

passed by the trial Court in part, on the contrary has

dismissed the entire suit. The appellate Court has

committed an error in reversing the judgment and

decree passed by the trial Court. In view of the above

discussion, the substantial question of law No.1 is

answered in favour of the plaintiff.

11. It is the case of the plaintiff that he is the

owner of the entire extent of land, whereas it is the

case of the defendants that defendants have

purchased an extent of 6 acres 6 guntas in the year

1962 and name of the defendants is appearing in the

record of rights since from 1962 to that extent. Now

the plaintiff has confined his suit only to the extent of

6 acres 2 guntas and the defendants have also not

claimed any right, title or interest over the said

portion of land i.e., 6 acres 2 guntas towards western

side. In view of the same, the defendants have also

not denied the title of the plaintiff to the said extent.

Hence, the suit filed by the plaintiff is within time. In

view of the above discussions, the substantial

question of law No.2 is answered in favour of plaintiff

holding that the suit filed by the plaintiff is within

time.

12. In view of the above discussions, the

appeal is allowed in part. The judgment and decree

dated 22.07.2006 passed in R.A.No.132/2004 by the

Civil Judge (Sr.Dn) Shahapur, is set aside.

The suit of the plaintiff is decreed in part. The

plaintiff is declared as the owner to the extent of 6

acres 2 guntas towards western side and the

defendants are hereby restrained from interfering with

the plaintiff's peaceful possession and enjoyment of

the suit property to an extent of 6 acres 2 guntas

towards western side.

Sd/-

JUDGE

msr