Fakirappa vs Ramappa and Others

B. Veerappa, J.—This is an unsuccessful plaintiffs regular second appeal against the judgment and decree dated 25.02.2012 made in R.A. No. 304/2011 on the file of the Presiding Officer, Fast Track Court and Additional M.A.C.T., Saundatti, confirming the judgment and decree dated 22.09.2011 made in O.S. No. 35/2009 on the file of the Principal Senior Civil Judge, Saundatti, dismissing the suit for declaration and permanent injunction in respect of the suit properties.

The appellant - plaintiff filed the suit contending that Sy. No. 94 measuring 16 acres 14 guntas originally belongs to Ramappa of Bandarahalli Village, Saundatti Taluk and after his death, the said Sy. No. 94 was divided into five pot hissas namely 94/1, 94/2, 94/3, 94/4 and 94/5.

94/1 measuring 1 acre 11 guntas, 94/5 measuring 4 acres 23 guntas allotted to the plaintiff and other hissas bearing No. 94/2 and 94/4 measuring 1 acre 23 guntas and 3 acres and 21 guntas respectively were allotted to the defendants. Another hissa bearing No. 94/3 allotted to another son by name Adiveppa. The plaintiff and his sons were cultivating suit schedule properties more than 40 to 45 years. Accordingly, the mutual partition in their revenue entries was made in pot hissas. After their mutual partition, the plaintiff and defendants and the land Survey Officers, Saundatti have made hissa according to form Nos. 4 and 11 and the said Survey Authorities prepared a map in Sy. No. 94. The suit property No. 94 were made totally five hissas. The plaintiff and defendants were cultivating the suit properties, according to the appellant mutual partition by metes and boundaries and according to PT sheet also.

It is further contended that the defendants also cultivating Sy. Nos. 94/2 and 94/4 measuring 1 acre 23 guntas and 3 acres 21 guntas respectively. Further the plaintiffs brother and uncle of defendant Nos. 1 to 4 by name Adiveppa also cultivating the share separately. After preparing PT sheet, form Nos. 4 and 11, M.E. No. 12 have certified on 20.10.2003 and same has been effected. It is further case of the plaintiff that in the year 1999, the plaintiff dug a bore-well and got irrigated the suit land. Since the said bore-well did not yield sufficient water, again another bore-well was dug up in the year 2006 by investing huge amount of Rs. 2,00,000/- and improved the suit and he has also constructed a farm house by spending a sum of Rs. 1,00,000/-. Recently the defendants got created M.E. No. 1612 of Bhandarhalli Village in respect of suit properties and other properties and are interfering with the peaceful possession and enjoyment of the properties by the plaintiff on the strength of alleged mutation entry. The lands allotted to the plaintiff in the family partition were kharab lands and not fertile lands. Therefore, some excess land was allotted to the plaintiff The plaintiff is in actual possession, use and enjoyment of the property bearing Sy. No. 94/5 measuring 4 acres 23 guntas and Sy. No. 94/1 measuring 1 acre 11 guntas, in total measuring 5 acres 34 guntas since 40 to 45 years and the alleged M.E. No. 1612 is not binding on the plaintiff and therefore, he sought for cancellation of the same and in the year 2006 the defendants started obstructing the use and enjoyment of the suit schedule properties by the plaintiff and as such, he was forced to file a suit for the relief of permanent injunction in O.S. No. 45/2006 which came to be dismissed on 12.06.2009. Again the defendants started to obstruct the peaceful possession and enjoyment of the suit schedule properties. Therefore, the plaintiff has filed R.A. No. 4/2009 and same was pending and subsequently it was dismissed etc. Therefore, he filed the suit for declaration and consequential relief of permanent injunction.

The defendants filed written statement along with counter claim under order 8 Rule 6A of the Code of Civil Procedure. 4th defendant filed written statement. The other defendant adopted the same. The defendants while admitting the fact that property bearing Sy. No. 94 measuring 16 acres 14 guntas originally belonged to propositus - Ramappa and it is also admitted that after death of Ramappa, five hissas were created in the said property and defendants denied that the plaintiff is in possession and enjoyment of the suit schedule properties for more than 40 to 45 years. The defendants also admitted that earlier plaintiff filed O.S. No. 45/2006 came to be dismissed holding that the plaintiff failed to prove his possession enjoyment of suit property to an extent of 5 acres 34 guntas and the said suit came to be dismissed on merits and the appeal filed by the plaintiff in RA. No. 4/2009 also dismissed and further contended that after death of original propositus - Ramappa there was a difference between children and Ramappa and therefore, there was apsat watni between the three brothers and in the said apsat watni, defendants got 5 acres 10 guntas and plaintiff got 5 acres 16 guntas and another son Adiveppa got 5 acres 16 guntas. Accordingly, all three persons filed joint wardi before the Tahasildar, Saundatti for entering their names. Accordingly, M.E. No. 1612 was granted on 26.02.1992. As per apsat watni all the three persons are in possession and enjoyment of their respective shares. All the three persons jointly filed an application before the A.D.L.R. Bailhongal and requested the said authority to enter their names to the respective portions as per M.E. No. 1612 and measured suit survey number to effect pot hissas. Accordingly, Surveyor measured and prepared the P.T. sheet and effected form Nos. 4 and 11 at the instigation of the plaintiff, instead of showing 5 acres 34 guntas to the plaintiff, 5 acres 4 guntas to the defendants and 5 acres 16 guntas to Adiveppa. On the basis of the said report, a false M.E. No. 12/2003-04 was created by the plaintiff in collusion with the Surveyor. The defendants preferred an appeal before the J.D.L.R., Belgaum in APL. SR. No. 157/2003-04 against the plaintiff and one Adiveppa. The plaintiff was represented the matter through his counsel. After enquiry, the J.D.L.R., Belgaum allowed the appeal and set aside the Form Nos. 4 and 11 prepared by the Surveyor. Further direction was also issued to A.D.L.R., Bailhongal to measure the Sy. No. 94 in terms of M.E. No. 1612 and to prepare the P.T. sheet. The plaintiff has not chosen to challenge the said order of the J.D.L.R., Belgaum and it was reached finality. According to the defendants, plaintiff is not in possession and enjoyment of property to an extent of 5 acres 34 guntas, as held in O.S. No. 45/2006 that the plaintiff is not in possession and enjoyment of property to an extent of 5 acres 34 guntas and he is in possession of only to an extent of 5 acres 16 guntas. Therefore, the defendants sought for declaration declaring them as the absolute owners to an extent of 5 acres 20 guntas in Sy. No. 94 and sought for dismissal of the suit.

Based on the pleadings, the Trial Court framed the following issues:

"1. Whether the plaintiff proves that he is the absolute owner in possession of the suit property?

Whether the plaintiff proves that the defendants are obstructing his peaceful possession and enjoyment of the suit property?

Whether the defendant No. 4 proves that he is the owner in possession of property measuring 5A. 20Gs. in Sy. No. 94 of Bandarahalli village.

Whether the defendant No. 4 proves that the plaintiff is causing obstruction to his peaceful possession and enjoyment of 5A. 20Gs. in Sy. No. 94 of Bandarahalli village?

Whether the plaintiff is entitled for the relief claimed in the above suit?

Whether the defendant No. 4 is entitled for the relief claimed in the counter-claim?

What order or decree?"

The plaintiff examined power of attorney holder as P.W. 1 and other witness as P.W. 2 and marked documents Ex. P-1 to P-26. 4th defendant examined himself as D.W. 1 and witness as D.W. 2 and marked the documents Ex. D-1 to D-25.

Considering the entire material on record, the Trial Court recorded a finding that plaintiff failed to prove that he is the absolute owner in possession of the suit property and the defendants are obstructing his peaceful possession and enjoyment of the suit schedule properties and also held that 4th defendant proved that he is the owner and in possession of 5 acres 20 guntas in Sy. No. 94 of Bandarahalli Village and also proved that the plaintiff is causing obstruction to his peaceful possession and enjoyment of 5 acres 20 guntas and ultimately held that the plaintiff is not entitled for any relief and defendant No. 4 is entitled the relief claimed in the counter claim. Accordingly, the suit came to be dismissed and the counter claim filed by the defendants as owners of 5 acres 20 gutnas in Sy. No. 94 of Bandarahalli Village was decreed. Against the said judgment and decree, the plaintiff filed appeal in R.A. No. 304/2011 before the Fast Track Court, Saundatti, who after hearing both the parties by the impugned judgment and decree dated 25.02.2012 dismissed the appeal. Against the said judgment and decree of the Courts below, the present regular second appeal is filed.

I have heard the learned counsel for the parties to the lis.

Shri Rajendra R. Patil, learned counsel for the appellant has contended that both the Courts below failed to notice that Exs. P-2 and P-3, form Nos. 4 and 11 and Exs. P-9 and P-10, RTCs clearly indicates that the plaintiff is the owner of the suit property. The said material documents have not been considered by both the Courts below. Therefore, learned counsel for the appellant sought to set aside the judgment and decree of the Courts below.

Per contra, Smt. Shaila S. Bellikatti, learned counsel for the respondents sought to justify the impugned judgment and decree of the Trial Court and contended that the alleged entry Exs. P-9 and P-10 has been set aside by the J.D.L.R., Belgaum as per Ex. D-11. Therefore, the plaintiff failed to prove his possession and the Courts below rightly dismissed the suit and this Court cannot interfere with the above regular second appeal. Therefore, she sought to dismiss the above regular second appeal.

I have given my anxious consideration to the arguments advanced by the learned counsel for the parties to the lis and perused the entire material on record.

The main grievance of the appellant is that he is in possession, enjoyment of the suit schedule property totally measuring 5 acres 34 guntas on the basis of Exs. P-2, P-3, P-9 and P-10. It is not in dispute that Exs. P-9 and P-10 discloses 5 acres 34 guntas showing the name of the plaintiff and it is also not in dispute that the said RTC entries was subject matter of appeal before the J.D.L.R., Belgaum in appeal APL. SR No. 157/2003-04, who after hearing both the parties by the order dated 07.03.2005 has allowed the appeal, as per Ex. D-11. The said order is final and conclusive. Admittedly, the plaintiff has not challenged the said order. Moreover, the plaintiff has not challenged the M.E. No. 1612. It was made as per division of apsat watni, that is final and conclusive.

In view of the admitted facts, the Trial Court recorded a finding that P.W. 1 not only admitted in his pleadings and evidence, is consistently admitting diary No. 1612 which was certified in the year 1992 and subsequent to watni submitted by his father and his brothers and in fact he has admitted in the cross-examination as under:

The plaintiff also admitted that there was a mutual partition in the year 1992 and a diary No. 1612 was effected on the basis of the waradi submitted by the parties. For the first time learned counsel for the plaintiff taken a stand that there was a public road in the property of the plaintiff and therefore, the property was allotted to in favour of the plaintiff to an extent of 5 acres 34 guntas. According to the plaintiff, M.E. No. 1612 was created by the defendants. In one breathe plaintiff admits M.E. No. 1612 between the brothers and his father and in another breathe, he states that the said diary is created. Even in the cross-examination of D.W. 2, similar suggestions could be seen. It is suggested to D.W. 2 also that there is a public road in the property of the plaintiff measuring 30 feet. The said suggestion was denied specifically by D.W. 2 and the said defence was taken by the plaintiff There is no pleading to that effect either in the plaint or in the examination-in-chief. Therefore, the contention of the plaintiff that there exists public road and therefore, he was given more property to the plaintiff to make believe the Court and the same cannot be accepted. Ex. D-1 is the RR extracts in respect of the property in question, wherein 16 acres 14 guntas of land standing in the name joint names of Laxmappa, Fakkirappa and Adiveppa to an extent of 5 acre 20 guntas, 5 acres 16 guntas and 5 acre 16 guntas respectively. The said document is of the year 1993-94. The said allotment of the property was on the basis of M.E. No. 1612. Ex. D-2 and D-3 are the khata extracts in respect of the property bearing No. 73/1B/2. Exs. D-4 to D-8 are some of the tax paid receipts. Ex. D-5 is the letter addressed to the Deputy Director of Land Record, Bailhongal. To measure the property bearing No. 94 and allotting 5 acres 20 guntas in the name of defendants. Ex. D-10 is another RTC in respect of 94 which was standing in the name of plaintiff and defendants jointly. Ex. D-11 material documents on which much reliance was placed by the learned counsel for the defendant which is an order passed by the Deputy Director of Land Records on 07.03.2005, wherein the appeal filed by the defendants challenged the Form Nos. 4 and 11 prepared by the Assistant Director of Land Record, Bailhongal on 20.10.2003, to which an extent of 5 acres 34 guntas allotted in favour of the plaintiff and same was set aside by the Joint Director of Land Records, Belgaum. Admittedly, in the present case, the plaintiff has not challenged the order of Joint Director of Land Records on 07.03.2005 and it was reached finality. The claim of the plaintiff over suit property 5 acres 34 guntas is on the strength of alleged hissa Form Nos. 4 and 11. The said forms have already been set aside by the Joint Director of Land Records, Belgaum. Therefore, the parties are entitled for share allotted to through mutual partition in the year 1992. Ex. D-12 certified copy of the consent agreement between the parties agreeing to get their shares in terms of M.E. No. 1612. It is also pertinent to mention that Ex. D-24 a certified copy of the judgment and decree in O.S. No. 45/2006. The said suit was filed by the plaintiff against the defendants for injunction restraining the defendants in respect of property bearing Sy. No. 94/1 measuring 1 acre 11 guntas and Sy. No. 94/5 measuring 4 acres 23 guntas totally 5 acres 23 guntas. The said suit came to be dismissed on 12.06.2009 holding that the plaintiff is not in possession to an extent of 5 acres 34 guntas. Against the said judgment and decree, the plaintiff also filed R.A. No. 14/2009, as per Ex. D-25 the said appeal came to be dismissed as not pressed on 04.08.2010. In view of the admitted facts, the Trial Court dismissed the suit and allowed the counter claim filed by the defendants holding that they are owners of 5 acres 20 guntas of Sy. No. 94.

The lower Appellate Court on re-appreciating the entire oral and documentary evidence has concurred that the finding of fact recorded by the Trial Court and held that the plaintiff has not filed any appeal against the order passed by the J.D.L.R., Belgaum which is final and conclusive and plaintiff failed to prove that he is the owner in possession of 5 acres 34 guntas of land. Apart from that while in the suit O.S. No. 45/2006 the Trial Court held that the plaintiff is not in possession of 5 acres 34 guntas. Therefore, the appellate Court dismissed the appeal.

The main reliance placed by the learned counsel for the appellant is on the basis of Exs. P-2 and P-3, form Nos. 4 and 11 and Exs. P-9 and P-10. Admittedly, said entries have been set aside by the J.D.L.R., Belgaum on 07.03.2005 as per Ex. D-11. Admittedly, the said order is final and conclusive and apart from the said finding, in the earlier suit filed by the plaintiff in O.S. No. 45/2006, wherein the Trial Court held that the plaintiff failed to prove his possession in respect of 5 acres 34 guntas and suit in O.S. No. 45/2006 came to be dismissed on 12.06.2009 and it was confirmed in R.A. No. 4/2009 on 08.04.2000 and admittedly, the plaintiff has not challenged the apsat watni in M.E. No. 1612 dated 26.02.1992.

In view of these admitted facts, plaintiff failed to prove his title and possession in respect of suit properties as on the date of the suit, as rightly recorded by the Courts below. The finding of fact recorded by both the Courts below is on cogent legal evidence on record and same is in accordance with law. Appellant has not made out any substantial question of law in the present appeal. Accordingly, the regular second appeal is dismissed.