Rudrappa and Others vs Shiddappa and Others

S. Sujatha, J.

This is the defendants second appeal against the judgment and decree dated 1.4.2015 in R.A. No. 62/2012 on the file of II Addl. District and Sessions Judge, Haveri, sitting at Ranebennur.

For the purpose of convenience the status of the parties is referred to as per their ranking before the trial Court.

Brief facts of the case are that the plaintiff filed O.S. No. 10/2011 seeking for declaration that they are absolute owners of the suit properties and for consequential relief of permanent injunction against the defendants. The defendants resisted the suit. The trial Court after considering the pleadings and evidence partly decreed the suit declaring that the plaintiffs are the owners of the suit property. However, rejected the claim of injunction and further directed the defendants to deliver possession of the suit property to the plaintiffs within three months from the date of the judgment. The said judgment and decree was challenged by the defendants before the lower appellate Court. Cross objections were also filed by the plaintiffs against the judgment and decree passed by the trial Court. After re-appreciation of evidence and considering the material on record the lower appellate Court dismissed the appeal filed by the defendants and allowed the cross objections filed by the plaintiffs. Being aggrieved by the said judgment and decree passed by the lower appellate Court, the defendants are in this second appeal before this Court.

The learned counsel appearing for the defendants mainly contended that the suit property was in joint possession of the plaintiffs and defendants ancestors. The father of the plaintiffs and defendants had filed Form No. 7 being members of the undivided family and the lands granted by the Tribunal were jointly enjoyed by the plaintiffs and the defendants. It is further submitted that an oral partition was effected between the plaintiffs and the defendants in the year 1995, pursuant to which a wardi was filed in the year 1995 before the authorities and accordingly M.E. No. 621 was certified mutating the suit property in the name of defendants. The trial Court without appreciating the material evidence on record decreed the suit in part. The lower appellate Court further misconstrued the evidence available on record and ignoring the wardi and M.E. No. 621 i.e., the mutation order Exs. P.6 to 8 and Ex. P.13, dismissed the appeal and allowed the cross objections of the respondents.

On the other hand, learned counsel Sri Avinash Banakar appearing for respondent No. 3 submitted that Irappa and Ningappa the father of the plaintiffs and defendants, respectively, had partitioned their joint family properties in the year 1945 itself and were enjoying their share separately. Separate form No. 7 were filed by them seeking occupancy rights. Occupancy rights were granted by the Land Tribunal to the extent of 1 acre 32 guntas in favour of father of plaintiff No. 1 and to the extent of 1 acre 33 guntas in favour of father of defendant No. 1. At no point of time these two granted properties were enjoyed jointly by the fathers of the plaintiffs and defendants. On mis-representing the facts, the defendants were successful in obtaining M.E. No. 621 after giving a wardi to the village accountant which was challenged by the plaintiffs and the same was cancelled by the Deputy Commissioner, Haveri, as per order in Ex. P.12. The trial Court merely relying on the mutation entries had wrongly come to a conclusion that the plaintiffs were not in possession of the suit properties and denied the claim of injunction. This was properly appreciated by the lower appellate Court and allowed the cross objections filed by the plaintiffs dismissing the appeal filed by the defendants.

Considering the rival contentions of the parties and perusing the material on record it is evident that by virtue of Form No. 7 filed by Irappa and Ningappa, the father of the plaintiffs and defendants, respectively, the Land Tribunal has granted occupancy rights in favour of the plaintiffs father to the extent of 1 acres 32 guntas and to an extent of 1 acre 33 guntas in favour of father of defendants. It is also noticed that a partition was effected between the fathers of plaintiffs and defendants in the year 1945 which was acted upon by the parties, enjoying their shares separately. After granting of the occupancy rights by the Land Tribunal, the suit property was actually in the possession and enjoyment of plaintiffs father, after his demise, the names of plaintiffs are entered in M.E. No. 619, marked as Ex. P.20. The arguments advanced by the defendants that there was an oral partition between the plaintiffs and defendants in the year 1995 and accordingly a wardi was given to the village accountant to mutate the suit property in their names is not worthy of acceptance as there was no necessity to enter into any oral partition between the plaintiffs and defendants in view of the admitted partition between their fathers in the year 1945.

Much reliance is placed by the learned counsel for the appellants on M.E. No. 621, to contend that the Courts below have not appreciated the presumptive value of the mutation entries and the wardi especially M.E. No. 621 Exs. P.6 to 8 and P.13. It is true that mutation entry has a presumptive value unless it is rebutted. This mutation order, M.E. No. 621 was challenged by the plaintiffs and the same was cancelled by the Deputy Commissioner, Haveri, as per order in Ex. P.12, which clearly demonstrates that the order of M.E. No. 621 has no bearing to ascertain the right, title or possession of the parties to the suit. Another aspect which supports the claim of the plaintiffs is the ''B'' report of the jurisdictional police Ex. D.10, establishes that suit property was not in possession of defendant No. 1.

It is also noticed that the trial Court mainly relying on the mutation records has come to a conclusion that the plaintiff is not in possession of the suit property and accordingly directed the defendants to hand over possession within a period of three months from the date of the judgment and declined to grant injunction as prayed for which is prima facie contrary to the material evidence, Ex. P. 12. The plaintiffs have proved the right and possession over the suit property and on the contrary the defendants have miserably failed to establish their case.

For the foregoing reasons, I do not see any merit in the contentions raised by the defendants to interfere with the concurrent findings of the Courts below. No substantial question of law arises for consideration. Accordingly this appeal is dismissed.