Madegowda vs Mirza Abdul Hafeez

Mrs. B.V. Nagarathna, J.—This second appeal is filed by defendant 1 in O.S. No. 99 of 1998, assailing judgment and decree passed in R.A. No. 51 of 2009 (R.A. No. 66 of 2003 old), dated 23-1-2010, passed by the Presiding Officer, Fast Track Court at Hunsur, by which the judgment and decree dated 25-2-2003, passed in O.S. No. 99 of 1998, by the Civil Judge (Junior Division) at Hunsur, has been affirmed.

For the sake of convenience, parties shall be referred to, in terms of their status before the Trial Court.

Respondent 2 herein is the plaintiff, who filed O.S. No. 99 of 1998, against defendants seeking a declaration that plaintiff is the absolute owner of the suit schedule property including 20 guntas of phot kharab land or in the alternative to declare him as the owner of the suit schedule land, to declare further that the revenue entries in R.R.5 and R.R.6 do not correspond or reflect the correct state of affairs and to direct the Revenue Authorities to make appropriate changes in the revenue records as per the judgment and decree and for permanent injunction to restrain defendants or anybody on their behalf from interfering or obstructing with the lawful possession and enjoyment of the plaintiff over the suit schedule land. The suit schedule land is measuring 2.37 acres in Sy. No. 7/1, situated at Mallinathapura, Hunsur Taluk, Mysore District, excluding 20 guntas of phot kharab land, more fully, described in the schedule.

According to the plaintiff, one B.L. Narasinga Rao owned Sy. No. 7, which was later sub-phoded as Sy. No. 7/1, totally measuring 2.17 acres, including 20 guntas of phot kharab land. The said phot kharab land is kallumanti, situated towards the western side of 2.37 acres. On account of legal necessity'', Sri B.L. Narasinga Rao sold the entire extent of land in favour of one Devarahatty Halegowda, the father of plaintiff, under a registered sale deed dated 20-10-1952, and put the plaintiffs father in possession of the same. After the said sale deed, it was assumed that the revenue entries would automatically be changed in the name of plaintiffs father in respect of the said land, but they were not changed in the name of the plaintiffs father in respect of the suit land. However, the plaintiff believed that khatha was in the name of his father, who continued to be in possession of the property as an absolute owner. About 15 to 16 years prior to filing of the suit, plaintiff''s father effected an oral partition and in that partition, the suit schedule land fell to the share of the plaintiff and thereafter, plaintiff continued to be in possession as an absolute owner and he had been cultivating the land raising ragi, huruli and cotton in the said land. When the matter stood thus, defendants who had no right, title or interest in respect of the suit land and who were also not in possession of the same, started interfering with the plaintiff''s possession. In the first week of July 1998, the defendant 2 came near the suit land and claimed that the suit land belonged to him and asked the plaintiff to quit and handover possession. On enquiry, it became known that the defendant 2 had purchased the suit land from one Madegowda, who had no right, title or interest over the suit land and on further enquiry, the plaintiff came to know that one Beeregowda had purchased an extent of 33 guntas in Sy. No. 7/6 from B.L. Narasinga Rao, under a registered sale deed dated 9-12-1954, but Beeregowda instead of getting khatha changed in respect of 33 guntas in Sy. No. 7/6, had managed to get the khatha changed in respect of 2.7 acres of land including 10 guntas of phot kharab in Sy. No. 7/IB. The said entries were made without intimation to the plaintiff. Plaintiff had obtained RTC copies for the years 1991-92 to 1994-95, wherein there was a recital that Sy. No. 7/1 A, measuring 2.30 acres in the name of Halegowda. It is the case of the plaintiff that he is in actual possession and enjoyment of the suit land as an absolute owner. Beeregowda, the purchaser of land in Sy. No. 7/6, measuring 33 guntas, was never in possession of the said land as he was unable to locate it. Therefore, defendant 2 claimed purchase of the schedule land even though he was not in possession of it. On account of interference by the defendants, the suit was filed seeking the aforesaid relief and consequential injunction against the defendants.

In response to the suit summons and Court notices, defendants appeared through their Counsel and filed their separate written statement. Defendant 1 denied the plaint averments and contended that he had sold the suit land on 1-4-1991 in favour of defendant 2, who was in possession and enjoyment of the same. That the plaintiff was never in possession of the suit schedule land. That the suit filed is barred by limitation. Hence, defendant 1 sought for dismissal of suit.

In his written statement, defendant 2 also denied the allegations made in the plaint and contended that, plaintiff had suppressed the true facts and had concealed facts in order to gain an undue advantage. Defendant 2 contended that he had purchased the suit land and was in enjoyment of the same. Moreover, defendant 2 was protected under the doctrine of adverse possession and therefore, he also sought dismissal of the suit.

On the basis of the rival pleadings, the Trial Court framed the following issues:

(i) Whether the plaintiff proves that he is the absolute owner of the suit schedule property''?

(ii) Whether the plaintiff proves that he is in lawful possession and enjoyment of the suit schedule property?

(iii) Whether the plaintiff proves that the revenue records viz., RR.5, RR.6 and RTCs are not correctly maintained by the Revenue Authorities and the same are to be rectified?

(iv) Whether the 2nd defendant proves that he has perfected his title to the suit schedule property by law of adverse possession?

(v) Whether the plaintiff proves the alleged interference?

(vi) To what decree or order?

In order to substantiate his case, plaintiff examined himself as P.W. 1 and two other witnesses as P.Ws. 2 and 3 and produced fourteen documents, which were marked as Exs. P. 1 to P. 14, while defendants examined two witnesses viz., D.Ws. 1 and 2 and have produced twenty-one documents, which were marked as Exs. D. 1 to D. 21.

On the basis of the evidence on record, the Trial Court answered Issues 1 to 3 and 5 in the affirmative, Issue 4 in the negative and decreed the suit, declaring that plaintiff was the absolute owner in possession of the suit land, including the phot kharab, towards western side up to the road. It was, further, declared that whatever the entries in RR5 and RR6, did not correspond or reflect the correct state of affairs. A direction was also issued to the Revenue Authorities to correct and make necessary'' entries in the name of the plaintiff as per the title deed. Consequentially, defendants, their agents and servants were permanently restrained from interfering with the plaintiff''s peaceful possession and enjoyment of the suit schedule property.

Being aggrieved by the judgment and decree of the Trial Court, dated 25-2-2003, each of the defendants filed separate appeals. Defendant 2 filed R.A. No. 55 of 2003, while defendant 1 filed R.A. No. 66 of 2003. Both the regular appeals were clubbed together and the First Appellate Court framed the following points for consideration:

(i) Whether the appellant has made out that the judgment and decree passed by the Trial Court is perverse, capricious and opposed to law, facts and circumstances of the case?

(ii) Whether the appellant has made that the judgment and decree of the Trial Court has to be interfered with?

(iii) What order?

It answered Point Nos. (i) and (ii) in the negative and dismissed both the appeals by confirming the judgment and decree of the Trial Court.

Being aggrieved by the judgment and decree passed by the First Appellate Court in R.A. No. 66 of 2003, defendant 1 has filed this regular second appeal.

I have heard learned Counsel for the appellant and learned Counsel for respondent 2 as well as perused the material on record.

It was contended on behalf of the appellant that, the Courts below were not right in granting the relief of declaration of title and consequential injunction against defendants. That defendant 1, who had purchased the suit schedule property from the common vendor namely B.L. Narasinga Rao under a registered sale deed dated 9-12-1954, was in possession of 1.00 acre of land, though the sale deed dated 9-12-1954, which stood in his name reflected only 33 guntas. He contended that, plaintiff, who had a sale deed dated 20-10-1952 in his favour, though had purchased 2.37 acres, was in fact in possession of only 2.30 acres and that the defendant 1 had, right from the date of purchase, was in possession of only 1.00 acre of land. Therefore, no relief of declaration of title could have been granted to plaintiff, as the plaintiff was never in possession of the suit schedule property in its full extent. He:, further, contended that the appellant herein had alienated the said extent of land in favour of the appellant/defendant 1 and that defendant 2. was never in possession of the said extent of land i.e., 1.00 acre of land and that the Trial Court as well as the First Appellate Court had lost sight of the fact that defendant 2 was, in fact, in possession of only 1.00 acre of land, as the same was sold by defendant 2 to defendant 1, under a registered sale deed dated 1-4-1991. He, therefore, contended that substantial questions of law would arise in this appeal, which would require admission of this matter for a detailed hearing.

Per contra, learned Counsel for respondent 2, while supporting the judgment of the Courts below, submitted that appellant has never purchased 1.00 acre of land from the common vendor B.L. Narasinga Rao. What was purchased by the appellant was only 33 guntas of land. He was in illegal possession of 7 guntas of land, which was actually purchased by the plaintiff under a registered sale deed dated 20-10-1952. Merely because the revenue entries in respect of that extent of land were in the name of defendant I, he did not have right, title or interest over the said extent of land. On account of illegal possession of 7 guntas of land by defendant 1, the same could not have, also been sold by defendants 1 and 2. He, therefore, contended that the Courts below were justified in granting the relief to the plaintiff and no substantial question of law would arise in the appeal. Hence, the appeal may be dismissed.

Having heard learned Counsel for the parties and on perusal of the material on record, it is noted that both plaintiff as well as defendant art'' purchasers of their respective portions from a common vendor, namely B.L. Narasinga Rao. It is noticed that under a registered sale deed dated 20-10-1952, the plaintiff had purchased 2.37 acres of land. Subsequently, defendant 1 had purchased 33 guntas of land on 9-12-1954. Merely because, in the revenue records, the extent of 1.00 acre of land was shown instead of 33 guntas, which was actually purchased by defendant 1, that would not confer any title to defendant 1 insofar as 1.00 acre of land is concerned. The plaintiff, therefore, filed a suit seeking declaration of title and injunction in respect of 2.37 acres of land, which was purchased by him under the sale deed dated 20-10-1952. When defendant 1 had purchased only 33 guntas of land from the common vendor B.L. Narasinga Rao on 9-12-1954, he could not have conveyed 1.00 acre of land to defendant 2 under subsequent sale made by him. Therefore, defendant 2 had not acquired any right, title or interest in respect of any extent of land beyond 33 guntas of land and more specifically to 7 guntas of land.

Having regard to these aspects of the matter, the Courts below have granted the relief sought by the plaintiff declaring that plaintiff was the absolute owner of the suit schedule property including phot kharab of 20 guntas and also declaring that the revenue entries standing in the name of defendant 1 were incorrect. A direction has rightly been given to the Revenue Authorities to rectify the revenue records insofar as the plaintiffs extent of land is concerned. Secondly, an injunction has been issued against the defendants from interfering with the lawful possession and enjoyment of the plaintiff as the defendants had illegally attempted to disturb plaintiffs possession of the said land on the basis of wrong revenue entries. It is also noted that defendant 2, who claims to have purchased 1.00 acre of land from defendant 1, has not filed any appeal assailing the judgment and decree of the First Appellate Court. On the other hand, defendant 1 had right, title or interest in respect of the land purchased by him under a registered sale deed dated 9-12-1954 i.e., 33 guntas only and as he has conveyed the same to defendant 2, has preferred this appeal though he has lost title in respect of the land measuring 33 guntas, which he had purchased.

I do not find any substantial question of law, which would arise in this appeal. I fence, the appeal is dismissed. Parties to bear their respective costs.

In view of dismissal of the appeal, Misc. Civil No. 19754 of 2010 also stands dismissed.