A.K. Basappa vs A.K. Marappa and Others

Ravi V. Malimath, J.—The case of the plaintiff is that he is the son of Nalkunda Rangappa who was the common ancestor of the plaintiffs and defendants. He had two sons by name Rangappa and Halappa and four daughters. The said Topanna and his two sons Rangappa and Halappa constituted the joint family. The first son Rangappa got two sons by name Gullappa and Siddappa and a daughter. The second son Halappa had four sons namely, Topappa, Marappa, Hanumanthappa and Rangappa. The first son Topappa was no more and he has a son by name Nagendrappa, who is defendant No. 4 in the suit. The other three sons of Halappa are plaintiffs in this suit. The branch of Rangappa, son of Topappa has two sons by name Gullappa and Siddappa are no more now. The first defendant is the son of Gullappa and defendant No. 2 and 3 are sons of Siddappa. Upto 1959, the said Rangappa son of Topanna and his two sons and the defendant No. 1 to 3 and Halappa, son of Topanna and his four sons were in the joint family.

They had landed properties in survey No. 148, measuring 5 acres, 2 guntas, survey No. 134 measuring 5 acre, 1 gunta, survey No. 88/5, measuring 2 acre, 30 guntas, survey No. 88/6 measuring 3 acre, 21 guntas and survey No. 110/3 measuring 2 acre, 25 guntas namely, the suit schedule property of this suit at Madikere. After the death of the original propositus, Topanna, the joint family was headed by Rangappa, S/o. Topanna. The land in survey No. 143, was granted under darkastu in the name of Gullappa S/o. Rangappa. Survey No. 134 was granted in the name of Halappa. The land in survey No. 110/3 was in the name of Rangappa S/o.Topanna. This land was taken to sarakari phada for arrears of land revenue. In 1953, a nominal sale deed was executed in favour of Gowdra Halappa, but the possession remained with the joint family till 1959. During 1957-58, the arrears of land revenue was made good to the Government by the joint family and the khatha was restored to Rangappa S/o. Topanna. Thereafter there was an oral partition in the joint family of Rangappa and Halappa the sons of Topanna during 1959. In the said partition, the lands in survey No. 148, 88/5 was taken to the share of Rangappa and his sons and survey No. 88/6 and 134 was taken to the share of Halappa and his sons. In survey No. 110/3, the eastern half 1 acre, 12 1/2 guntas, was taken to the share of Halappa and western half 1 acre, 12 1/2 guntas was taken to the share of Rangappa. The shares continued in possession of the respective shareholders and was succeeded by their legal heirs. The revenue entries have been continued in the name of Rangappa, with respect to Survey No. 110/3, without the knowledge of the plaintiff. Hence, the instant suit was filed for declaration and permanent injunction against the defendants.

On service of summons, the defendants entered appearance and denied the suit averments. Based on the pleadings, the trial court framed the following issues for consideration:

"i. Whether the plaintiff prove that they and defendant No. 4 are joint owners of the suit land?

ii. Whether they further prove their possession over the suit land?

iii. Whether they prove the actual interference caused by defendants?

iv. What order or decree?"

The plaintiff was examined as PW-1 and marked 5 documents. The defendant was examined as DW-1 and marked 30 documents. All the issues were held in the negative. The suit was dismissed. Aggrieved by the same, the plaintiffs preferred an appeal. The appeal was allowed, the judgment and decree of the trial court was set-aside. The suit of the plaintiffs was partly decreed. The relief of declaration claim was dismissed. The relief of permanent injunction was granted. The defendants were restrained from interfering with the possession and enjoyment of the plaintiffs over the suit schedule property. Aggrieved by the same, the defendants have filed the present appeal.

The learned counsel for the appellant contends that the first appellate court committed an error in misreading the material and evidence on record. That the defendant has not admitted with regard to the possession of the plaintiffs in the suit schedule property. The trial court committed an error in misreading the evidence.

On hearing the learned counsel, I''am of the considered view that there is no merit in this appeal. The defendant No. 1 was examined as DW-1. During the course of cross-examination he admitted that the plaintiffs are in possession and enjoyment of the suit schedule property. In O.S. No. 112/2008, he has given evidence to the effect that he is in possession of eastern half portion of the suit schedule property and the plaintiffs are in possession of western half portion of the suit schedule property. The appellate court was of the view that the admission of the defendant with regard to their respective possession of the suit schedule property is sufficient to decree the suit for declaration. That admittedly, survey No. 110/3, totally measures 2 acres, 25 guntas. The suit schedule property herein is 1 acres, 12 1/2 guntas on the eastern side. When DW-1 has categorically admitted that the plaintiff is in possession of the eastern half portion of the survey number, nothing else remains for consideration. Hence the suit was decreed for injunction.

So far as the declaration of title is concerned, the trial court having rejected the title, the same was upheld by the first appellate court. There was no appeal by the plaintiff thereafter. For the reasons stated and in view of the admitted possession of the plaintiff in the suit schedule property, the appellate court has rightly reversed the findings of the trial court.

I do not find any error committed by the first appellate court. The reasonings assigned by the trial court are based on the evidence of the defendants. The entire case of the plaintiff revolves around facts and no substantial question of law arises for consideration. Consequently, the appeal being devoid of merit is dismissed.