Kheruba vs Appa and Others

K.N. Phaneendra, J.—The unsuccessful plaintiff in O.S. No. 19/2011 on the file of II Addl. Civil Judge (Jr.Dn.) Bijapur, who also failed in his attempt to succeed in R.A. No. 95/2008 on the file of Prl. Senior Civil Judge, Bijapur has preferred this Regular Second Appeal.

I would like to retain the ranks of the parties as per their ranks before the trail Court.

The plaintiffs Kheruba and Jayappa are the sons of one Kondiba Mane filed a suit in O.S. No. 19/2001 as noted above against the defendants (respondents herein) for declaration and for injunction with respect to the land bearing survey No. 323 measuring 5 acres of Madabhavi village. It is specifically shown in the letters A, B, C & D in the hand sketch appended to the plaint. As per the exposition of facts narrated in the plaint, it is alleged that the plaintiffs who are the sons of one Kondiba S/o. Shivaba Mane of Bhuranapur village, defendant Nos. 1 & 2 are the brothers of said Kondiba and defendant Nos. 3 & 4 are the sons of another brother Revaji Mane of said Kondiba. The father of the plaintiffs and defendant Nos. 1 & 2 and also father of defendant Nos. 3 & 4 had 1/4 equal share in their ancestral joint family properties bearing survey No. 323 of Madabhavi village alongwith survey No. 160, 161, 164, 163 & 165 of Bhuranapur village. It is the specific case of the plaintiffs that there was a partition of joint family in the year 1973. In the said partition father of the plaintiffs acquired his share 5 acre of land in survey No. 323 of Madabhavi village, which is specifically shown as A, B, C & D in the plaint sketch. It is also alleged that the northern portion of survey No. 323 measuring 5 acres fallen to the share of father of defendant Nos. 3 & 4 and southern portion measuring 5 acres 17 guntas fallen to the share of defendant No. 1. The land bearing survey No. 323 was purchased by the father of the plaintiffs and his brother in the year 1964 from its previous owner one Sangappa S/o. Ramappa Talawar for a consideration of Rs. 4,000/-. It is admitted that the father of the plaintiffs died in the year 1975 after the alleged partition in the year 1973. Therefore it is contended that by virtue of the partition, plaintiffs have become absolute owners in possession and enjoyment of the suit schedule property.

The defendant No. 1 had claimed his right over the suit schedule property by filing written statement specifically contending that in the partition took place in the year 1973 totally 11 acres 27 guntas of land was fallen to the share of defendant No. 1 inspite of that, the plaintiffs denying the title of the defendants have started interfering with the possession of the defendant No. 1. The plaintiffs contends that the defendants have been interfering with his possession of A, B, C & D portion. On the other hand, defendant says that the plaintiffs are interfering with his possession to property fallen to his share. It is defendants case that defendant Nos. 2 & 3 were also allotted with 5 acres of land and according to defendant No. 1 the father of the plaintiffs has got shares in some other properties of the joint family in land bearing survey Nos. 160, 161, 163, 164 & 165 of Aliabad. Therefore allotting some other property at Aliabad, no portion is allotted in favour of the plaintiffs in land bearing survey No. 323. Therefore he filed a counter claim that he should be declared as owner of the suit schedule property, which is inclusive of 11 acres 27 guntas fallen to his share. The plaintiff in fact, filed the written statement to the counter claim of the defendant No. 1. Defendant Nos. 2 & 3 virtually sailed alongwith the plaintiffs.

The trial Court on the basis of the pleadings of the parties has framed the following Issues:

Issues

1) Whether plaintiffs prove that, the suit land measuring 5 acres in survey No. 323 of Madhabavi village fell to the share of their deceased father Kondiba under a partition in 1973?

2) Whether the plaintiffs prove that, they are in ownership and possession of suit land as the heirs of deceased Kondiba?

3) Whether the plaintiffs prove that, the defendants have interfered with their peaceful ownership and enjoyment of suit land?

4) Whether the 1st defendant proves that, the suit land in survey No. 323 measuring 11 acres 27 guntas fell to his share in the partition in 1973.

5) Whether the plaintiffs are entitled for relief of declaration and permanent injunction as prayed for?

6) Whether the defendant No. 1 is entitled for the relief claimed in counter claim?

7) What order or decree?

The plaintiff No. 1 in fact examined himself as P.W. 1 and got marked eleven documents as Ex. P. 1 to Ex. P. 11. Defendant No. 1(B) examined himself as D.W. 1. After appreciation of the oral and documentary evidence on record, the trial Court has answered Issue Nos. 1, 2, 3, & 5 in the negative and issue Nos. 4 & 6 in the affirmative and dismissed the suit of the plaintiffs and consequently decreed the counter claim of the defendants.

The above said Judgment was challenged before the Prl. Senior Civil Judge, Bijapur in Regular Appeal No. 95/2008, the first appellate Court after analysing the grounds urged before it framed three points for consideration which are as follows:-:

1) Whether the appellant/plaintiff-1 proves that findings of the Lower Court on Issue Nos. 1, 2 & 4 are erroneous and that Lower Court has not considered oral and documentary evidence of appellant?

2) Whether the appellant/plaintiff No. 1 proves that Judgment and decree of Lower Court needs any interference by this Court"?

3) What Order?

Holding the Points Nos. 1 & 2 in the negative, the appellate Court has also after re-appreciating the oral and documentary evidence on record, considering the admission on the part of P.W. 1 with regard to the previous partition, possession of the properties regarding entries in the mutation, found that the plaintiffs have not proved their case. Therefore the appellate Court also put its confirmation seal to the Judgment and decree passed by the trial Court. Consequently dismissing the appeal filed by the plaintiffs. Against that Judgment and decree of both the Courts the present Second Regular Appeal is preferred.

I have carefully perused the Judgment of the trial Court and the first appellate Court, both the Courts have appreciated the oral and documentary evidence and came to conclusion that both the contesting parties have admitted the partition took place in the family in the year 1973 and plaintiffs contention was that survey No. 323 (suit schedule property as a whole) was jointly purchased in the name of the deceased father of the plaintiffs and his brothers. Therefore the plaintiffs have got 1/4 share in the same. The said property was purchased as per Ex. D. 14 in the year 1964. Therefore he claimed that his father has got 1/4 share that was allotted to the plaintiffs. Admittedly the father of the plaintiffs died in the year 1975, by that time the partition was already taken place in the family. It is an admitted fact that the mutation was accepted on the basis of the portion amongst the members of the family and thereafter separate individual entries have been made in the revenue records. The documentary evidence, in my opinion in Civil suit normally forms the basis for granting the relief, unless those documents are shown to be concocted or not reliable, particularly revenue entries so far as the landed properties are concerned have got presumptive value unless they are rebutted by means of appropriate cogent and convincing oral evidence. In this background if the documents produced before the Court as appreciated by the trial Court and first appellate Court are seen, it is clear that the documents produced marked at Ex. P. 1 to Ex. P. 8 are the documents, record of rights and mutation entries pertaining to the properties fell to the share of the plaintiffs in the partition that took place in the year 1973. Though the learned counsel for the appellant tried to convince me that because the plaintiff was the owner of these properties and those documents were already in his name in the year 1973, formally the mutation was accepted pertaining to those properties in the name of the plaintiffs. Even such argument is accepted, the mutation entry recorded after 1973 in the name of the plaintiffs not only disclose those properties were allotted to the plaintiffs but it is specifically mentioned in the said documents that by virtue of the partition an area of 11 acres 27 guntas in survey No. 232 of Madabhavi village was mutated in the name of defendant No. 1 and an area measuring 5 acres each was mutated in the name of defendant Nos. 2 & 3 by virtue of the partition. It is also specifically mentioned in the said documents that the plaintiffs father was allotted his share in the land situate at Aliabad, therefore no share was given in survey No. 323 of Madabhavi village. It goes without saying that when the entries pertaining to the other properties allotted to the share of the plaintiff''s father was well within his knowledge, but at no stretch of imagination, it can be said that the entry in Ex. P. 10 with regard to the allotment of the share in favour of the first defendant and defendant Nos. 2 & 3 were not at all within the knowledge of the plaintiffs. When the plaintiff himself has produced the documents Ex. P. 1 to Ex. P. 11, which clearly establishes the case of the defendants with regard to the partition being taken place in the year 1973 and mutation has been accepted soon after the said partition. Therefore the entries in the record of rights should be shown to this Court, that they are illegal entries not based on any admissions of the parties.

Of course Ex. P. 9 is the document very strongly relied upon by the plaintiffs to show that in the year 2000-01 by virtue of inheritance mutation was accepted in the name of the plaintiffs. I am unable to understand as to how to the extent of 5 acres, the mutation can be accepted in the year 2000-01 showing that the property was allotted to the plaintiffs by virtue of inheritance, when such property was not allotted to the father of the plaintiffs in the earlier partition. Therefore it was shown to the Court below that these mutation entries recorded in the year 2000-01 which is prior to the filing of the suit or based on no materials with regard as to how those entries are made in the name of the plaintiffs. Therefore, the Trial Court has rightly held that those entries cannot be believed they are stray entries abruptly recorded just prior to the filing of the suit. Since 1973, at any point of time, it appears no effort has been made by the plaintiffs'' father during his lifetime or by the plaintiffs after the death of their father to challenge this Ex. P9, therefore, since 1973 upto 2000, those entries stood undisturbed, in my opinion, which have got presumptive value. If the mutation entries are changed without any basis and abruptly at a particular point of time, those entries cannot be believed, because they will not carry any presumptive value if they are shown to be made without any basis. The defendants have also produced several documents at Exs. D1 to D14, which clearly disclose right from 1973 after the partition, the properties which are allotted to the share of defendant No. 1 have been mutated into his name and he has been in possession and enjoyment of those properties. When the plaintiff has admitted the previous partition in the year 1973 and by virtue of the said partition the mutation entries have been accepted on which basis revenue entries have been made in the name of the defendant, that clearly goes to show that defendant actually established his counter claim with reference to 11 acres 27 guntas in Sy. No. 323. It is not the case of the plaintiffs that apart from this 11 acres 27 guntas and 5 acres each allotted to defendant Nos. 2 and 3, anything is remaining which was allotted to the plaintiff''s father so as to come to the conclusion that it is nobody''s property, therefore, the plaintiffs got entered his name in the year 2001-2002 into his name by virtue of his possession, that is not the case of the plaintiff at all. It is the case of the plaintiff that 5 acres allotted to the plaintiff falls within the property allotted to defendant Nos. 1 to 3. Therefore, he has to establish before the Court by means of cogent and convincing material that any portion of the land in Sy. No. 323 was allotted to his father.

Looking to the above said oral and the documentary evidence led by the parties, in my opinion, the appreciation of facts by the Trial Court and the first appellate Court is based on sound reasonings and on the factual matrix furnished by the parties to the suit. Therefore, I do not find any reasons to frame any substantial question of law in this case. The issues framed by the Trial Court as well as the points for consideration formulated by the first appellate Court do not disclose that any legal question has been raised either by the plaintiff or defendant so as to come to the conclusion that some legal infirmity is there in the judgments of the Trial Court and the first appellate Court. Under the above said circumstances, no substantial question of law arises for consideration of this Court. Hence, the appeal deserves to be dismissed.

Accordingly, the appeal is dismissed.