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Judgment
S.N. Satyanarayana, J.—The plaintiff in O.S. No. 381/1991 has come up in this second appeal impugning the divergent finding rendered by the lower appellate Court.
The brief facts leading to this second appeal are that the suit in O.S. No. 381/1991 is filed seeking the relief of declaration and injunction. Declaration to the effect that the plaintiff and defendants 3 to 6 are the owners of suit schedule A property namely 1/7th share in Sy. No. 52/1 (part of Block No. 137) measuring 7 acres 38 guntas situated at Dhupdal village, Gokak taluk in Belagavi district and for other incidental reliefs.
The case of the plaintiff is that Sy. No. 52/1 along with Sy. No. 51/2 of Dhupdal village was clubbed together to form Block No. 137 pursuant to the effort of consolidating the fragments in various survey numbers to Block under the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (for short ''Consolidation Act'').
It is the case of the plaintiff that the consolidation scheme was implemented in Dhupdal village, while implementing the said scheme in Dhupdal village, land belonging to Shivagangavva in Sy. No. 51/2 was included to form part of Block No. 137 of Dhupdal village, as such Shivagangavva ceases to be the owner of Sy. No. 51/2, since the said land was included in Block No. 137. In that Block an extent of 1 acre 14 guntas was purchased by the plaintiff under registered sale deed dated 17.5.1974 from its erstwhile owner Sri Shankar Shivalingappa Hattarwad. Therefore any transaction that has taken place subsequently by Shivagangavva with reference to Sy. No. 51/2 of Dhupdal village is null and void in as much as defendants 1 and 2 are claiming title to an extent of 11 guntas in Sy. No. 51/2 of Dhupdal village pursuant to sale deeds executed in their favour by Badakundri who is said to have purchased Sy. No. 51/2 measuring to an extent of 22 guntas from Shivagangavva under registered sale deeds respectively dated 9.8.1988 and 19.1.1989.
The contesting defendants 1 and 2 who are purchasers of a portion of Sy. No. 51/2 from Badakundri under registered sale deeds dated 9.8.1988 and 19.1.1989 measuring to an extent of 22 guntas, denied the plaint averments regarding consolidation of lands in Dhupdal village pursuant to Consolidation Act referred to supra and also land bearing Sy. No. 51/2 ceasing to be the land of original owner Shivagangavva and becoming part of the land held by Shankar Shivalingappa Hattarwad pursuant to the Consolidation Act. They tried to demonstrate that though such claim is made by the plaintiff, there are no documents to the effect that pursuant to the said Act a scheme is formed and consolidation process is taken up and completed resulting in the predecessor of title to defendants 1 and 2, viz., Shivagangavva losing her title and as well as possession of Sy. No. 52/1 prior to executing sale deed dated 9.8.1988 in favour of Badakundri and in turn Badakundri conveying the said property in favour of defendants 1 and 2 in this proceedings.
In the original suit defendants 3 to 6 are none other than the members of the family of Jambukumar who purchased the suit schedule property along with the plaintiff. Therefore they were formal parties and they did not take any stand either to deny or accept the pleadings. In the said proceedings issues were framed, evidence was recorded, the trial Court proceeded to answer the issues in favour of plaintiff believing that the Consolidation Act has come into force. Consequently the predecessor of defendants 1 and 2 was divested of her title and possession to Sy. No. 51/2 measuring 22 guntas. The same has fallen into the Block which is assigned to the predecessor of plaintiff namely Shankar Shivalingappa Hattarwad and as such the predecessor of defendants 1 and 2 could not have sold 22 guntas of land in Sy. No. 51/2 in favour of Badakundri and in turn Badakundari could not have sold a portion of that to defendants 1 and 2.
In the said proceedings to come to such conclusion the trial Court believed the implementation of Consolidation Act based on Ex. P.7, P.22, and also the documents of survey department namely Exs. P.9 to P.12 and proceeded to allow the suit.
Being aggrieved by the judgment and decree dated 21.11.1998 passed in O.S. No. 381/1991, defendants 1 and 2 filed an appeal in R.A. No. 39/1998 on the file of Prl. Civil Judge (Sr. Dn.), Gokak, wherein the lower appellate Court on re-appreciation of pleadings, oral and documentary evidence available on record has come to the conclusion that prima facie there is an error committed by the trial Court in accepting that the Consolidation Act has come into force. That there has been consolidation of various fragments under different survey numbers into Block numbers. That the plaintiffs predecessor in title being confirmed with title and possession to Block No. 137 of Dhupdal village which include a portion of Sy. No. 51/2 belonging to Shivagangavva the predecessor in title to the property of defendants 1 and 2. The lower appellate Court disbelieved the documents relied upon by the plaintiff on the ground that the plaintiff has failed to establish implementation of the Act. Consequently consolidation of lands in survey numbers having taken place pursuant to consolidation scheme and set aside the judgment and decree passed by the Court below. Consequently the suit of the plaintiff in O.S. No. 381/1991 was dismissed. Being aggrieved by the same the plaintiff in the said suit has come up in this second appeal.
In this proceedings after notice was served to the respondents, the lower Court records from both the Courts below were secured. The appellant and respondents were heard extensively for admission. On going through the pleadings, oral and documentary evidence available on record, it is seen that the plaintiff has tried to establish consolidation of various survey numbers in Dhupdal village, based on Exs. P.22 and P.7. That Ex. P.22 is notice of possession said to have issued in the year 1960 and notification is of the year 1960. There is nothing on record to demonstrate consolidation of different fragments of lands under various survey numbers of Dhupdal village has taken place resulting in cluster of survey numbers being reconstructed as Blocks for rearranging the title and possession of various owners with reference to fragments of lands held by them in survey number.
The plaintiff has failed to demonstrate in general about the consolidation scheme framed under the Consolidation Act having come into force. He has specifically failed to demonstrate that 11 guntas of land in Sy. No. 51/2 of Dhupdal village earlier belonging to the predecessor in title to defendants 1 and 2 namely Shivagangavva is taken away from her for formation of Block No. 137 and in lieu of that she is given Sy. No. 52/1 of Shankar Shivalingappa Hattarwad in southern portion of said Sy. No. 52/1 and as such the possession of Sy. No. 51/2 measuring 11 guntas was with the predecessor of title to plaintiff namely Hattarwad who in turn has conveyed an extent of 1 acre 14 guntas which is 1/7th share of 7 acres 38 guntas in Sy. No. 52/1 of Dhupdal village.
One another interesting thing which the learned counsel appearing for the appellant failed to convince this Court is assuming for a moment consolidation scheme under the Consolidation Act has come into force in the year 1960 and consequently consolidation has taken place, re-arrangement of the extent of lands in the form of Block is given effect to in the year 1960, how the plaintiff''s predecessor in title and as well as the defendants 1 and 2''s predecessor in title are transacting in respect of lands held by each one of them in survey number which existed even prior to alleged implementation of the scheme under the Consolidation Act is not properly explained. He has failed to demonstrate the exact date on which 11 guntas of land in Sy. No. 51/2 belonging to Shivagangavva is taken from her and the date on which it is included in Block No. 137 and in lieu of same on which date an extent of 11 guntas was given to her in southern portion of Sy. No. 52/1 of Dhupdal village.
In the absence of crucial evidence to support the said pleading, this Court believe that the reversal of finding by lower appellate Court appears to be just and proper. In that view of the matter this Court feel no substantial question of law arises for consideration in as much as there are no document which are available on record to substantiate the alleged rearrangement of survey numbers pursuant to the alleged scheme of consolidation under the consolidation act. Accordingly this second appeal filed by the plaintiff in O.S. No. 381/1991 on the file of the Court of Prl. Civil Judge (Jr. Dn.), Gokak is hereby dismissed.