Gangappa and Others vs Basappa and Shivappa

A.V. Chandrashekara, J.—The present appeal is filed u/s 100 of CPC challenging the concurrent findings of the trial Court in an original suit bearing O.S. 10/2007, which was pending on the file of Civil Judge, (Jr. Dn.) and JMFC Laxmeshwar and confirmation of the same by the Addl. Civil Judge (Sr. Dn.), Gadag sitting at Laxmeshwar in R.A. 51/2008. Plaintiffs are before this Court as they are aggrieved by the dismissal of the suit filed for declaration of title and permanent injunction in respect of 16.18 acres of land in Sy. No. 27/2 of Shyabala Village. The said extent has been described with boundaries on all sides in the schedule appended to the plaint. The said suit has been dismissed vide considered judgment dated 16.6.2008. Against the said judgment, plaintiffs chose to file an appeal u/s 96 of CPC in R.A. 51/2008. The said appeal is also been dismissed by confirming the judgment and decree of the trial Court, vide considered judgment dated 5.10.2009. It is these concurrent findings which are called in question on various grounds as set out in the appeal memo.

Respondents herein are defendants before the trial Court. Parties will be referred to as per their ranking before the trial Court.

The case of the plaintiffs, as put forth before the trial Court, is that the land in Sy. No. 27 measures 29.22 acres. And it was the ancestral property of their father and father of defendants. According to them, Hanumappa and Sangappa had entered into a partition in the year 1944 and suit property measuring 16.18 acres fell to the share of Hanumappa and 13.04 acres fell to the share of Sangappa. Since, then parties have been in possession of the shares of the land that fell to their share. According to the plaintiffs, the father of defendants has colluded with the revenue officials for getting his name mutated in ME No. 276 and 447 and these entries have been passed behind their back.

The defendants have filed detailed written statement denying the averments in so far it relates to partition in the year 1944 and 16.18 acres falling to the share of plaintiffs and 13.04 acres falling to the share of Sangappa. It is their case that one person by name Mallappa was the propositus and Basamma was his wife. They had 3 sons namely Ningappa, Sangappa and Hanamantappa. According to them partition took place between them. In that partition 12.31 acres had fallen to the share of plaintiffs and 12.31 acres had fallen to the share of their father and remaining 4 acres was given to Basamma as maintenance. After the death of Basamma, Sangappa and Hanamanthappa equally divided 4 acres of land and as such the defendants'' father was in possession of 14.31 acres and father of plaintiffs was in possession of 14.31 acres. With these pleadings, they had prayed for dismissal of the suit.

On the basis of the above pleadings following issues had been framed:

a) Whether the plaintiffs prove that they are the absolute owners of the suit property?

b) Whether the plaintiffs prove that they are in peaceful possession and enjoyment of the suit property as on the date of the filing of the suit?

c) Whether the plaintiffs prove the interference caused by the defendants as alleged in the plaint?

d) Whether the plaintiffs are entitled for the relief of declaration as prayed in the suit?

e) Whether the plaintiffs are entitled for the relief of perpetual injunction as prayed in the suit?

f) Whether the plaintiffs are entitled for the suit claim?

g) What order or decree?

On behalf of the plaintiffs, plaintiff No. 2 is examined as PW-1 and in all 18 exhibits have been marked. On behalf of the defendants, defendant No. 2 has been examined as DW-1 and two other witnesses have been examined and as many as 4 exhibits have been marked.

After hearing the learned Counsel for the parties, the learned Judge of the trial Court has dismissed the suit by a considered judgment dated 16.6.2008. Against the said judgment, regular appeal was filed u/s 96 of CPC in R.A. 51/2008. Several grounds had been urged in the appeal memo filed u/s 96 of CPC. On hearing the arguments, the regular appeal is also dismissed by a considered judgment dated 5.10.2009. These concurrent findings are called in question on various grounds as set out in the appeal memo.

The learned Counsel for the appellants has submitted the arguments in regard to the admission.

As could be seen from the records, revenue records have been suitably amended consequent upon the survey conducted by the survey authorities. PW-1 himself has admitted in his cross-examination about the partition that took place between Basamma and her 3 sons. He has admitted the sketch furnished by the defendants along with their written statement. He has further admitted about Durasthi work done by survey authorities consequent upon mutation entry bearing ME No. 276. He has admitted that one portion is demarcated to an extent of 13.4 acres and another is demarcated as 14.31 acres. PW-1 has admitted that demarcation work done by survey authorities by means of Durasthi work is not been challenged. Survey No. 27 has been sub divided into Sy. No. 27/1 and 27/2. The present extent is 14.31 acres each. This would probabilise the theory that 4 acres of land was allotted to Basamma towards maintenance and same was divided equally between the father of the plaintiffs and father of the defendants and as such, they became the owners to an extent of 14.31 acres each. Paragraph 13 of the judgment of the First Appellate Court refers to admissions culled out from the mouth of PW-1. It would disclose that PW-1 was in possession in respect of 14.31 acres only.

According to PW-1 the extent is lesser than which had fallen to the share of his father. PW-1 wants 2.13 acres to be given to him. He has admitted that extent shown in the survey records namely Uttare is lesser one. PW-1 has feigned ignorance about the partition that took place in the year 1944. This is in contradiction to the plaint averments. He did not make any effort to know as to any partition took place prior to 1944 and that the lands were allotted in the said partition Ex.D-5 and 3 are certified copies of Gram Namune No. 12 which depict the enjoyment of 14.31 acres each in Sy. No. 27/1 and 2 of Shyabala Village. Ex.D-1, the certified copy of the RTC of Sy. No. 27/2 discloses the extent as 14.31 acres. Plaintiffs have not been able to discharge the initial burden cast upon to show that a partition took place in the year 1944 and in the said partition their father was allotted 16.18 acres and that they have been in possession of the same. Overwhelming documentary evidence is placed on record to prove that plaintiff and defendants had been in possession of 14.31 acres each in Sy. No. 27 and necessary survey records. corrections have been made in the revenue records and survey records. Taking into consideration the totality of the case, the trial Court and the First Appellate Court have assessed the evidence on the basis of broad preponderance of probabilities and have come to a proper conclusion. There is no perversity or illegality in the approach adopted by the trial Court or the First Appellate Court. There is no reason to interfere with the cogent and convincing reasons assigned to concur with the factual findings of the trial Court. Hence, there is no merit in the appeal and is liable to be dismissed as unfit for admission.

ORDER

The appeal filed u/s 100 of CPC is dismissed as unfit for admission by confirming the judgments of trial Court as well as First Appellate Court. There is no order as to costs.