Ningappa vs Irappa

S.N. Satyanarayana, J.—The defendant in O.S. No. 19/2006 on the file of I Addl. Civil Judge, Dharwad, has come up in this second appeal impugning the concurrent finding of both the Courts below in decreeing the suit of the plaintiff for the relief of declaration, injunction and possession.

Admittedly the plaintiff and the defendant are brothers. The suit property is the land bearing Sy. No. 83/2 of Kogilageri village in Dharwad taluk, measuring to an extent of 3 acres 16 guntas. The admitted facts leading to this second appeal are that the suit schedule land was purchased by the plaintiff under a registered sale deed dated 17.6.1985 from its erstwhile owner and thereafter the property stood in his name in the revenue records. In this proceedings both the plaintiff and the defendant are residents of Kumbarkoppa village of Dharwad taluk and district. Whereas the suit property is situated in Kogilageri village of Dharwad taluk, obviously a place which is quite far either for plaintiff or defendant to personally cultivate the same under their daily supervision. It is seen that the suit for declaration, injunction and possession is filed on 17.1.2006 contending that the defendant who is none other than the brother of plaintiff has got the suit land clandestinely entered in his name in revenue records and he is trying to set up title to the property adverse to the interest of the plaintiff.

In the said suit the defendant after having entered appearance tried to contend that the plaintiff is the karta of joint family in which he is a member and the suit property was the property of joint family which was acquired for the benefit of the plaintiff and as well as the defendant and in furtherance to that a wardi was given by the plaintiff on 15.9.1991 relinquishing his right in the suit property in favour of his brother the defendant, as such the defendant is in exclusive possession and cultivation of the suit property and he has been personally cultivating and enjoying the same. In the said suit the following issues were framed.

ISSUES

Whether the plaintiff proves that he is an absolute owner of the suit property?

Whether the plaintiff proves that he is in possession and enjoyment of the suit property?

Whether the defendant proves that partition took place between plaintiff and defendant in the year 1991 and the suit property is fallen to the share of the defendant?

Whether the Court fee paid is insufficient?

Whether the Court has no pecuniary jurisdiction to try this suit?

Whether the plaintiff is entitled for the relief of declaration as claimed?

Whether the plaintiff is entitled for'' the relief of permanent injunction as prayed?

What order or decree?

ADDITIONAL ISSUE

Whether the plaintiff is entitled for the relief of possession over the suit property?

In support of the issues framed, the plaintiff got examined him self as PW. 1 and also another witness by name Baburao as PW. 2. In the said proceeding he produced in all 37 documents which are marked as Exs. P.1 to P.37 to establish his title to the suit property. As against that the defendant got examined himself as DW. 1 and also adduced evidence of two other witnesses i.e., Madivalappa and Devendragouda as DWs. 2 and 3 and relied upon 11 documents which are marked as Exs. D.1 to D.11. Based on the pleadings, oral and documentary evidence available on record, the trial Court answered all the issues in favour of the plaintiff and decreed the suit with right to recover possession of the property from the defendant who had set up a plea that he is in possession of the property.

In the said suit while deciding the issues the trial Court categorically declined to admit the partition ''-said to have taken place between the plaintiff and the defendant in the year 1991 and also refused to believe the wardi said to have given by the plaintiff on 15.9.1991 relinquishing his right in the suit property in favour of his brother, the defendant in the original suit and confirmed the title of the plaintiff to the suit schedule property. Being aggrieved by the same the defendant preferred an appeal in R.A. No. 130/2013 on the file of III Addl. Senior Civil Judge and CJM, Dharwad, wherein the lower appellate Court on re-appreciation of the pleadings and evidence, framed the following points for consideration.

POINTS

Whether the respondent/plaintiff proves that he is the owner of the suit property?

Whether the appellant proves that the suit property is the joint family property purchased in the name of the respondent/plaintiff out of the joint family income and in the partition effected in the year 1991 the suit property fallen to his share and in view of vardi given by the plaintiff he became the owner of the suit property?

Whether the appellant proves that he has perfected title over the suit property by way of adverse possession?

Whether the appellant proves that the suit of the plaintiff is barred by limitation?

Whether the judgment and decree of the trial Court is calls for interference of this Court?

What order or decree?

The lower appellate Court answered all the points in favour of the plaintiff in the original suit and thereby dismissed the appeal of the defendant and confirmed the judgment and decree passed by the trial Court. As against the concurrent finding of both the Courts below the present second appeal is filed on the ground that there is an error on the part of both the Courts below in not appreciating the evidence available on record which would demonstrate the relinquishment of right of the plaintiff over the suit property by giving a wardi on 15.9.1991 and consequentially the proceedings which was taken place before the revenue authorities was well within the knowledge of the plaintiff and further contended that though the plaintiff was aware of all these aspects, he has not taken any steps to seek reversion of the entries till 2005 and it is only during January 2006 he has preferred the suit which is barred by limitation.

After hearing the learned counsel for the appellant and on going through the judgment rendered by both the Courts below this Court is of the opinion that the grounds urged in this appeal do not survive for consideration in as much as no substantial question of law arise for consideration in this second appeal, for the reason that the defendant/appellant has failed to establish the joint family between himself and his brother as claimed by him that was existing prior to filing of the suit; and that he failed to establish that there was a partition between himself and his brother in the year 1991; and further he has failed to establish that the wardi which is recorded by the authorities is the wardi which is given by his brother and he was aware of the said proceedings; and further he has also failed to establish that he is personally cultivating the land initially as a member of the joint family and thereafter by virtue of a wardi given by his brother with reference to partition between himself and his brother, it has fallen to his share.

In the light of all these, it is clearly seen that the defence which is taken by the appellant herein is frivolous and without basis, which is rightly appreciated by both the Courts below and accordingly the suit of the plaintiff is decreed and consequently the appeal filed by the defendant is dismissed.

In that view of the matter, this Court find no grounds are made out to admit this second appeal. Accordingly the same is dismissed.