Mahalingappa and Others vs Shivagangamma and Others

Aravind Kumar, J.—Unsuccessful plaintiffs have filed this second appeal questioning the legality of Judgment and decree dated 06.07.2013 passed by Senior Civil Judge and JMFC, Tiptur in R.A. 139/2007 whereunder Judgment and decree passed by trial court dated 26.10.2007 in O.S.88/2006 dismissing the suit of plaintiffs which was for declaration of title by virtue of adverse possession and consequential relief of perpetual injunction having been rejected, came to be affirmed.

I have heard the arguments of Sri. M. Vinaya Keerthy, learned counsel appearing for appellants. Perused the Judgment and decree of the courts below.

It is the contention of Sri. M. Vinay Keerthy, learned counsel for appellants that subsequent to partition between plaintiffs and defendants on 30.08.1956 out of 6 acres 35 guntas in Sy. No. 2 of Hogavanaghatta Village, 5 acres 15 guntas was allotted to the share of Sri. Basavanna, 1st defendant and his mother Smt. Nanjamma and remaining 1 acre 20 guntas belonging to late Sri. Nanjamari, father of first appellant and husband of 2nd appellant since date of said partition but they have been in possession and enjoyment to an extent of 2 acres in the said survey number and as such plaintiffs had perfected their title to suit schedule property by adverse possession. He also submits that if for any reason this court were to come to a conclusion that plaintiffs not entitled to first relief, on the basis of revenue records plaintiffs would be entitled for relief of permanent injunction inasmuch as revenue records clearly depict plaintiffs are in possession and enjoyment of 2 acres in Sy. No. 2 and this material evidence having been ignored by the courts below though available on record has resulted in miscarriage in the administration of justice and as such there being erroneous appreciation of evidence it would give rise for this court to formulate substantial question of law as formulated in the appeal memorandum and as such he prays for formulating the same by admitting the appeal.

Having heard the learned advocate appearing for the appellants and on perusal of Judgment and decree passed by trial court, appellate court, as also copy of plaint made available by learned counsel for appellants during course of hearing it would emerge that there is no dispute to the fact that plaintiffs were allotted 1 acre 20 guntas in Sy. No. 2 of Hogavanaghatta Village under partition deed dated 30.08.1956, Exhibit D-1. Plaintiffs claim that they have continued to be in possession of additional extent of land measuring 20 guntas of land in same survey number as indicated in the plaint schedule. Plaintiffs also contended that they have perfected their title to suit schedule property by adverse possession. As rightly pointed out by courts below plaintiffs at one breadth contended that they have perfected their title to suit schedule property by adverse possession and at the same time they have also contended that title to suit schedule property vested with them. In other words they have denied the title of the defendant. In this background trial court has rightly held that though application filed by plaintiffs namely I.A.7 for amendment of pleadings was allowed, averments made in the plaint is silent and with regard to plaintiffs admitting the ownership of defendant No. 1 and his mother over the suit schedule property. Subsequent to amendment of the pleadings plaintiffs have admitted that property allotted to the share of 1st defendant and his mother under the partition deed dated 30.08.1956 was 5 acres 15 guntas. However, pleadings of plaintiffs prior to amendment does not indicate or explain as to why 20 guntas of property which is now claimed by plaintiffs was not included in the partition. As such it was held by trial court that a person claiming adverse possession and seeking relief has to necessarily admit the ownership of the defendant or of the person against whom such relief is claimed. Said finding which came to be re-appreciated in the background of evidence by the appellate court did not find favour and rightly so. There is no material irregularity that has occasioned in appreciation of evidence by the courts below. Even otherwise the Hon''ble Apex Court in the case of Gurudwara Sahib Vs. Gram Panchayat Village Sirthala and Another, has held that suit for declaration of ownership of land on the basis of adverse possession cannot be sought for by a plaintiff. It has been held by the Hon''ble Apex Court as under:

"9. However, we also find from the reading of the judgment of the High Court that the High Court has refused the injunction observing that the appellant was not entitled to the same as it is the Gram Panchayat which is the owner of the property in dispute and as the appellant is in possession without any right, it has no right to seek injunction against the Gram Panchayat. This finding is totally perverse and, in fact, unnecessary. In the first instance, there was no occasion or reason for the appellant''s counsel to seek this prayer in the second appeal. As pointed out above, the relief of injunction had already been granted by the Civil Court and this portion of the decree had not been challenged by the respondents. Decree to this extent in favour of the appellant had attained finality. The First Appellate Court also specifically recorded this fact and observed that by not challenging the judgment and decree passed by the learned Civil Judge, the respondents accepted that the appellant was in adverse possession of the land since 13.4.1952. We, thus, clarify that observations of the High Court that the appellant is not entitled to injunction, were unnecessary and beyond the scope of the appeal."

Though Sri. M. Vinay Keerthy, learned counsel for appellants contended that plaintiffs would be entitled for alternate relief namely relief of perpetual injunction on the basis of revenue entries found in Exhibits P-2 to P-14 which was rebutted by defendants and said records indicating that plaintiffs being in possession of the property indicated in Partition Deed Exhibit D-1 i.e., 1 acre 20 guntas only has rejected claim of plaintiffs. Said contention is also erroneous inasmuch as Exhibits P-2 to P-14 relied upon by plaintiffs has been discussed by trial court at paragraph 12 and held that Column No. 12 does not indicate the name of the plaintiffs as being in exclusive possession and enjoyment of suit schedule property. It has also been found by trial court that RTC extracts for the year 1977-78 upto 1981-82 Exhibit P-2 in Column No. 9 the names of plaintiffs, defendant No. 1 and his mother Smt. Nanjamma has been entered into. It has also been found by trial court that there is no separate entry of extent either in Column No. 9 or in Column No. 12 in the names of plaintiffs or defendant No. 1. It has been discussed as under by trial court with regard to entries found in Exhibits P-2 to P-14:

"12. The documentary evidence on the basis of which plaintiff claim possession over schedule property are Ex. P. 2 to P. 14 RTC extracts. Ex. P. 2 is pertaining to the year 1977-78 upto 1981-82 and col. No. 9 of the document stands jointly in the name of plaintiffs, defendant No. 1 and his mother Nanjamma. As per the document extent is mentioned as 6 acre 35 guntas. There is no separate entry of extent either in col. No. 9 or col. No. 12 in the name of the plaintiffs or defendant No. 1. Ex. P.3 to P.9 are the extracts pertaining to 1982-83 to 2000-01 and in Col. No. 12 name of plaintiff No. 2 is entered as cultivator and extent of the property is mentioned as 2.00 acres and four acres 35 guntas in the name of 1st defendant. As per Ex. P.10 to P. 14 in col.no.9 name of the 2nd plaintiff is disappeared and extent measuring one acre 25 guntas stands jointly in the name of plaintiff No. 1 and defendant No. 1. In the aforesaid document there is no reference regarding plaintiffs as the cultivators in col. No. 12. Ex. P.19 is the patta book issued by the village Accountant on 22.03.2005 a few months prior to the institution of the suit and no much importance can be attached to the said document. It is pertinent to note plaintiffs have not produced copy of the mutation register extract. If the said document would have produced it will be useful to ascertain on the basis of which name of the plaintiff No. 2 was entered in Ex. P.3 to P. 12 col. No. 12 of RTC extracts. There is no evidence to ascertain whether the name of plaintiff No. 2 was entered in col. No. 12 of the RTC due to any error or mistake committed by revenue officials. In the absence we can hold subsequent to Ex. D.1 document parties to the partition are in possession of the property as per the registered partition deed. It is pertinent to note even after entering into of registered partition deed as per Ex. D.1 mutation and RTC was not entered as per the document. As per section 128 of Karnataka Land Revenue Act it is the duty of revenue authority to make necessary change in the mutation as per the registered document. Even in Ex. P. 3 to P. 12 the extent of the property is mentioned is not in accordance with registered partition deed even in the name of 1st defendant and his mother Nanjamma. Hence, evidence on record shows that mutation was not entered as per Ex. D.1 registered deed. The decision relied on by the plaintiffs reported in Ambika Prasad Thakur case (referred supra) is not applicable because in Ex. P. 3 to P. 12 extent of property is mutated not according to registered deed. The RTC extract shows it is apparent on account of mistake revenue officials wrong extent continued in the name of plaintiff No. 2 and 1st defendant".

In the light of the said finding of fact arrived at by the trial court which came to be re-appreciated by appellate court and found same being in consonance with both oral and documentary evidence tendered by parties it has rightly declined to interfere with the said finding of fact.

For these myriad reasons indicated hereinabove this court is of the considered view that findings recorded by courts below are finding of facts and there is no error committed by courts below in appreciating evidence tendered by parties giving scope for entertaining this second appeal. Appeal lacks merits and it is hereby dismissed.

In view of appeal having been dismissed, I.A. 1/2013 for Temporary injunction does not survive for consideration and stands dismissed.