Jyotiba Vaiju Ghevade vs Rudrappa Appayya Muddennavar

A.V. Chandrashekara, J.—Plaintiffs of an original suit bearing O.S. No. 631 of 1988 which was pending on the file of the then Court of Principal Munsiff, Belgaum, are before this Court challenging the judgment and decree passed in O.S. No. 631 of 1988 and affirmed in R.A. No. 446 of 2004. Respondents herein are the defendants in the said suit. Plaintiff 1-Jyotiba died during the pendency of the suit and his legal representatives were brought on record. The suit filed for the relief of possession of the schedule property measuring 1 acre 18 guntas in Sy. No. 118/2 of Agasagi Village, Taluk Belgaum, came to be dismissed by a considered judgment and decree dated 14-1-2000. Against the said judgment and decree a regular appeal was filed u/s 96 of Civil Procedure Code, 1908 before the Court of VI Additional District Judge, Belgaum, in R.A. No. 446 of 2004. The said appeal has been dismissed by confirming the judgment and decree of the Trial Court vide considered judgment dated 16-11-2009. It is this judgment and decree which is called in question on various grounds as set out in the appeal memo filed u/s 100 of CPC.

Learned Counsel for the appellants has submitted his arguments. Perused the entire original records and the impugned judgment.

The case of the plaintiffs is that they are the owners of the land measuring 4 acres 25 1/2 guntas in Sy. No. 118/2 of Agasgi Village, Belgaum Taluk, and that the defendant has illegally encroached the portion of the land measuring 1 acre 18 guntas as he is the neighbouring landowner in Sy. No. 118/1 towards the south of Sy. No. 118/2. The plaintiffs are stated to have purchased this 4 acres 25 1/2 guntas in Sy. No. 118 from its original owner for a consideration of Rs. 7,000/- in the year 1970 though a registered sale deed. According to the plaintiffs, portion of the land purchased in Sy. No. 118 is renumbered as Sy. No. 118/2 and that is the land held by the plaintiffs and the land purchased by the defendant is numbered as Sy. No. 118/1 and that they are adjacent to each other. The names of the plaintiffs are stated to have been entered in the revenue records on the basic of the sale deed.

The defendant is stated to be a very strong man and he is stated to have encroached portion of the land in Sy. No. 118/2 belonging to the plaintiffs and the extent is 1 acre 18 guntas. Southern portion of the land in Sy. No. 118/2 measuring 1 acre 18 guntas is stated to have been encroached by the defendant. Inspite of several demands, he did not return the encroached portion and hence, he had filed a suit.

The defendant chose to file a detailed written statement denying all the material averments inclusive of the acquisition of title by the plaintiffs to an extent of 4 acres 25 1/2 guntas in Sy. No. 118 and sub-division of the same as Sy. No. 118/2. It is the case of the defendant that the plaintiffs do not have title to the land in question and the question of encroachment does not arise. The suit is stated to be not maintainable, since the Tahsildar has power u/s 142 of the Karnataka Land Revenue Act, 1964 to evict the encroachers and to deliver possession u/s 61. Hence, the Civil Court has no jurisdiction, is the averment.

Alternative plea of adverse possession is also set up by the defendant holding that he has been in possession of the schedule property for over a period of 12 years openly and adversely to the interest of the original owner. Hence, he has prayed for dismissal of the suit.

On the basis of the above pleadings, the following issues came to be framed:

Whether plaintiffs prove that defendant has encroached upon their land, as contended in plaint?

Whether plaintiffs further prove that they are entitled to the possession of said encroached area?

Whether defendant proves that he has become owner of suit property by adverse possession?

Whether suit is barred by limitation?

What decree or order?

Additional Issue No. 1:

Whether the defendants proves Civil Court has no jurisdiction to decide the suit as contended in para 16B of the written statement?

Additional Issue No. 2:

Whether the defendant proves the vendor of the plaintiffs had no title to sell 4 acres 25 1/2 guntas of land as contended in para 16A of written statement?

Additional Issue No. 3:

Whether the plaintiff proves that he is the owner of 4 acres 25 1/2 guntas of land - R.S. No. 118/1?

Additional Issue No. 4:

Whether the defendant proves that he has got title over the land 5 acres 27 guntas in Sy. Nos. 118/2 and 118/3?

The deceased plaintiff-Jyotiba is examined as P.W. 1 and two witnesses have been examined on their behalf. Defendant is examined as D.W. 1 and twelve exhibits have been got marked on behalf of the plaintiffs and eight exhibits have been got marked on behalf of the defendant.

Issues 1, 2 and 4 and additional issues 1 and 3 have been held in the negative and additional issues 2 and 4 have been held in the affirmative. Ultimately the suit came to be dismissed by a considered judgment dated 14-1-2000, as against which, an appeal came to be filed in R.A. No. 59 of 2000 before the Court of Civil Judge (Senior Division), Belgaum. This was withdrawn and transferred to the Court of VI Additional District Judge, Belgaum and numbered as R.A. No. 446 of 2004. Several grounds had been urged before the First Appellate Court. After hearing the arguments and analysing the materials placed on record, the appeal has been dismissed by confirming the judgment and decree of the Trial Court.

Several grounds have been urged in this appeal memo challenging the concurrent findings. Several questions of law have been proposed in the appeal memo to consider them as substantial questions of law and to admit the case. Perusal the entire records.

Suit bearing O.S. No. 631 of 1988 had been decreed as prayed for on 8-7-1994 against which an appeal had been filed before the Court of Principal Civil Judge, Belgaum, in R.A. No. 107 of 1994. Appeal was allowed and the matter was remitted to the Trial Court for consideration of the matter afresh with a direction to appoint Assistant Director of Land Records, Belgaum, as Commissioner and to submit a report. Against the said order, second appeal had been filed in MSA No. 50 of 1996 by the defendant the said second appeal was partly allowed permitting the defendant to lead additional evidence. Hence, matter was taken afresh by the Court of I Additional Civil Judge (Junior Division), Belgaum. After remand, the suit is dismissed.

Till the year 1946, Sy. No. 118 had not been subjected to any hissa survey. The total extent was 9 acres 11 guntas. Ex. D. 9 is the uttar extract of Sy. No. 118. It is of the year 1946 and it discloses that it had been sub-divided as Sy. Nos. 118/1, 118/2 and 118/3. Originally land in question belonged to Bhoj family. Defendant chose to purchase 1/3rd share in all these three sub-numbers i.e., Sy. Nos. 118/1, 118/2 and 118/3 along with other survey numbers through a registered sale deed, the copy of which is marked as Ex. D. 14. This is dated 22-11-1947. The purchase of 1/3rd land in all these three survey along with other survey numbers is not seriously disputed by the plaintiffs. Plaintiffs have also purchased land through a sale deed, the copy of which is marked as Ex. P. 1, dated 6-2-1970. The English version of the said sale deed dated 6-2-1970 is also marked. As could be seen from the contents of the translated copy of Ex. P. 1, the plaintiffs chose to purchase half share in Sy. Nos. 118 and 121/3. As already discussed Sy. No. 118 measured 9 acres 11 guntas earlier and 1 acre 22 guntas in Sy. No. 121/3 was also purchased. Half of the total extent in Sy. No. 118 would be 4 acres 25 guntas. Therefore, the plaintiffs have relied upon Ex. P. 1 to contend that they are the owners of land in Sy. No. 118/2 which measures 4 acres and 25 1/2 guntas. It is ununderstandable as to why Sy. No. 118 is mentioned in Ex. P. 1 instead of mentioning the exact hissa number of Sy. No. 118. Even otherwise, the boundaries mentioned in Ex. P. 1 are the boundaries of the whole extent of land in Sy. Nos. 118 and 121/3 measuring in all 11.06 acres. It is very difficult to make out a clear case of identity on the basis of Ex. P. 1 which discloses the boundaries of the whole extent of 11.06 acres. Unless the extent so purchased by the plaintiffs is indicated with clear and unequivocal boundaries, it cannot be said that he has become absolute owner of Sy. No. 118/2.

Even otherwise, the revenue records indicating the name of the defendant in all these Sy. Nos. 118/1, 118/2 and 118/3 have been meticulously looked into by the Trial Court as well as by the First Appellate Court.

Ex. D. 14 would disclose that as early as in the year 1947, the father of defendant had purchased lands in Sy. Nos. 118/1, 118/2 and 118/3 to an extent of 1/3rd share from Shantaveerappa and other members of Bhoj family and they were to put into possession. Way back in the year 1946 itself, land in Sy. No. 118 had been subjected to hissa survey. Therefore, Exs. D. 9 and D. 14 falsify the case of the plaintiffs that in the year 1970 the land was subjected to hissa survey after the plaintiffs purchased the property. In fact, no material is placed on record by the plaintiffs to establish that they were put into possession of 4 acres 25 1/2 guntas when the property was sold to them in the year 1970 by their vendors. The very title of the vendors of the plaintiffs appears to be doubtful, more particularly, in the light of non-mentioning of the boundaries in Ex. P. 1. On the other hand, the name of the defendant was entered in the year 1952 and they were in force till 1986. Even otherwise, it is not the case of the plaintiffs that when their father purchased the property in the year 1970, the land in Sy. No. 118 was got surveyed and was put into possession. What is averred is that there was a private survey in regard to fixation of boundaries, after the sale deed was executed in favour of the father of the plaintiffs in the year 1970. Even otherwise, plaint is silent as to the date on which he was dispossessed from this portion of the land so as to call the defendant as an encroacher. Even otherwise, plaintiffs have not sought the relief of declaration, which should be the basis for the relief of possession. When the very title of the plaintiffs is doubtful, Section 34 of the Specific Relief Act, 1963 cannot be pressed into service more particularly, for the relief of possession.

What is argued by the learned Counsel for the appellants is that, the defendant has admitted the title of the plaintiffs by raising the plea of adverse possession. The defendant can raise alternative or inconsistent plea. In the light of inability of the plaintiffs to prove the title of so-called encroached portion of the property in Survey No. 118, which is considered to be a part and parcel of land in Survey No. 18/2 and in the light of continuous revenue entries being found in the name of defendant and his father, the Trial Court as well as the First Appellate Court have given credence to the revenue entries and have applied the presumption available u/s 114 of the Indian Evidence Act, 1872 read with Section 133 of Karnataka Land Revenue Act, 1964.

It is in this regard, the decision in Ambika Prasad Thakur and Others Vs. Maharaj Kumar Kamal Singh and Others, is relevant. A presumption can be drawn u/s 114 of the Indian Evidence Act provided there are continuous entries depicting the name of a particular person in the revenue record. The theory of forward and backward in regard to such entries can be applied, even if there are stray entries depicting the names of persons than the one connected with the case.

Taking all these into consideration, viewed from any angle, both the Courts have adopted a right approach to the real State of affairs. The evidence placed on record has been tested on the touchstone of intrinsic probabilities. The questions of law proposed in the appeal memo are not at all substantial questions of law within the purview of Section 100 of Civil Procedure Code, 1908. Even otherwise, no substantial question of law arises for consideration before this Court. Hence, the appeal is liable to be dismissed as unfit for admission. There is no scope for interfering with the well-considered findings on facts.

ORDER

Appeal is dismissed as unfit for admission by upholding the judgments of the Trial Court and the First Appellate Court. There is no order as to costs.