IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH BEFORE THE HON BLE MR. JUSTICE A.V.CHANDRASHEKARA RSA NO.5663 OF 2010(PAR)

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1 1 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 03 RD DAY OF APRIL 2014 BEFORE THE HON BLE MR. JUSTICE A.V.CHANDRASHEKARA BETWEEN: RSA NO.5663 OF 2010(PAR) 1. NARAYAN S/O ISHWAR HEGDE AGE: 62 YEARS, OCC: AGRICULTURE, R/O: STHITHIGAR SALKOD VILLAGE, TQ: HONAVAR DIST:UTTAR KANNADA. 2. VISHNU S/O ISHWAR HEGDE AGE: 59 YEARS, OCC: AGRICULTURE, R/O: STHITHIGAR SALKOD VILLAGE, TQ: HONAVAR DIST:UTTAR KANNADA. 3. RAMCHANDRA S/O ISHWAR HEGDE AGE: 47 YEARS, OCC: AGRICULTURE, R/O: STHITHIGAR SALKOD VILLAGE, TQ: HONAVAR DIST:UTTAR KANNADA. (BY SRI SACHIN S MAGADUM, ADV.)... APPELLANTS

2 2 AND 1. SHRIDHAR S/O KRISHNA HEGDE AGE: 58 YEARS, OCC: ADVOCATE & RYOT, R/O: SALKOD VILLAGE PAIKI STHITHINAGAR, TQ: HONAVAR , DIST:UTTAR KANNADA. 2. ISHWAR S/O VENKATRAMAN HEGDE AGE: 87 YEARS, OCC: RYOT, R/O: SALKOD VILLAGE PAIKI STHITHIGAR, TQ: HONAVAR , DIST:UTTAR KANNADA. (BY SRI B D HEGDE, DODMANE, ADV FOR R1,R2)... RESPONDENTS THIS APPEAL IS FILED U/S.100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED PASSED IN R.A.NO.385/2001 ON THE FILE OF THE SENIOR CIVIL JUDGE, HONAVAR, DISMISSING THE APPEAL, FILED AGAINST THE JUDGMENT DATED AND THE DECREE PASSED IN O.S.NO.115/1996 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN.) HONAVAR, PARTLY DECREEING THE SUIT FILED FOR DECLARATION, INJUNCTION AND PARTITION. THIS APPEAL COMING ON FOR ADMISSON THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT Concurrent findings are called in question before this Court under Section 100 of CPC by the defendant against whom a suit filed for the relief of declaration of title and

3 3 permanent injunction in O.S.No.115/1996 has been decreed. The said judgment and decree has been upheld by the learned Senior Civil Judge, Honavar, in R.A.No.385/2001 vide considered judgment dated Respondents herein are the legal representatives of deceased Smt.Shankari. The defendant also died during the pendency of the appeal and legal representatives have been brought on record. Parties will be referred to as plaintiff and defendant as per their ranking given in the trial Court. 3. Plaintiff Shankari, is the wife of the one Rama Hegde. According to her, the property in question belonged to her father-in-law and the same had been inherited by her husband. After the death of her husband she is stated to be in lawful possession and enjoyment of the suit schedule property as described in the schedule appended to the plaint. When the defendant Ishwar Narayan Hegde, attempted to deny her title and tried to interfere with her possession, she

4 4 had to file a suit seeking the reliefs of declaration, title and permanent injunction. 4. Defendant resisted the suit on various grounds. According to the defendant, entire land in Sy.No.77/2 was purchased by him from the plaintiff s father-in-law through registered sale deed dated According to him, suit schedule property is a part and parcel of the property purchased by him through registered sale deed dated and therefore the suit is not maintainable either in law or on facts. According to him, suit is stated to be barred by time. On the basis of the above pleadings, following issues came to be framed. i) Whether the plaintiff proves that she is the absolute owner in possession and enjoyment of in R.S.No.77/2 shown as petitioner u v w x y z zl p shown in the hand sketch appended to the plaint as alleged?

5 5 ii) If so, whether the plaintiff proves the alleged interference by the defendant into the peaceful possession and enjoyment of the said property? iii) Whether the defendant proves that suit of the plaintiff is barred by law of limitation? iv) Whether the defendant further proves that this court has no pecuniary jurisdiction to try this suit as contended in his w.s.? v) Whether the court fee paid on plaint is correct? vi) Whether the plaintiff is entitled for declaratory decree so prayed? vii) Whether the plaintiff is entitled for injunction so prayed? viii) What order or decree? 5. On behalf of the plaintiff, Mr.Venkataraman Ishwar Hegde is examined as P.W.1 and 31 exhibits have been got marked on her behalf. Two witnesses have been examined on behalf of the defendant and one exhibit has been got marked

6 6 as Ex.D1, which is the Power of Attorney executed by the defendant in favour of one Vishnu. Ultimately, issues 1 and 2 and 5 to 7 have been answered in the affirmative and the remaining issues in the negative. Accordingly, suit came to be decreed. 6. Appeal filed under Section 96 of CPC has been dismissed after contest. The learned counsel for the appellant has submitted his arguments in regard to the admission of the matter in question. Several questions of law have been proposed in the appeal memo to be considered as substantial questions of law. 7. The main defence of the deceased defendant is that he has purchased the entire land from the father-in-law of the plaintiff and he is in possession of the entire land in Sy.No.77/2 and the suit schedule property is a part and parcel of the land so purchased by him on vide Ex.P21. A reference is made in paragraph 38 of the judgment of the trial Court about the boundaries and the extent of land

7 7 sold in favour of the defendant. The extent sold under Ex.P21 is 2 acres 21 guntas. The said land sold in favour of the defendant is bounded on the East by Halla and on the three sides, the boundary stones. Therefore, it is argued that the entire land in Sy.No.77/2 has been purchased by him. Though extent mentioned in Ex.P21, appears to be lesser than the actual extent, boundary should prevail over survey number is the contention of the defendant. He has relied upon the decision reported in ILR 1988 KAR 554 in the case of Narasimha Shastry vs Mangesha Devaru, to contend that boundaries prevail over extent and therefore, the suit schedule property is a part and parcel of the property purchased by him. 8. P.W.1 has admitted that a Halla is running in Sy.No.77/2 and to the south of the said Halla, defendant has cultivated the land. It is also forthcoming that, to the north of the said Halla, defendant has already converted the land into a wet land. But he has denied the suggestion put to him that

8 8 to the northern portion has been converted into a wet land and it is now converted into a garden land. 9. P.W.1 has admitted that defendant has put up a fence around the land in Sy.No.77/2. Therefore, it is argued that the entire land in Sy.No.77/2 is in the possession of the defendant. But the plaintiff and the defendant originally belonged to the same family and there was a division in According to P.W.1, lesser extent is mentioned in the sale deed executed in his favour. If really the extent had been mentioned lesser than the extent actually sold to him, he should have got the revenue records rectified to that effect. He has not taken any steps in this regard. He has admitted to that effect in his evidence as found in page No.7 of his deposition. He has feigned ignorance as to the total extent of land held by the family in He does not know anything about the total extent of land in Sy.No.77/2. He has feigned ignorance about the boundaries of 20 guntas of land allegedly held by his father in Sy.No.77/2. The defendant should have

9 9 got a Commissioner appointed to get the entire extent of land in Sy.No.77/2 measured with reference to the boundaries in the sale deed marked as Ex.P21. Mere assertion that boundaries prevail over survey number or extent would be insufficient. He has feigned ignorance about the extent of land held by his father to the south of the said Halla. He does not know when survey was conducted in respect of this land; but he has specifically admitted that his father had not objected to the survey done earlier. 10. As rightly pointed out by the trial Court, for the first time defendant had taken up a specific stand that the extent mentioned in the sale deed executed in favour of his father is lesser than the actual extent, that too when the suit was filed. Admittedly, a suit had been filed in O.S.No.616/1886 and it was compromised by filing a compromise memo. Thereafter, there was a partition deed. This documentary evidence produced by the plaintiff goes to show that the plaintiff

10 10 inherited the property held by the father-in-law after his demise in the year Another argument advanced on behalf of the appellant is that, suit is barred by time. According to the learned counsel for the appellant, suit should have been filed within three years from the date of obtaining RTC records. Mere entry in the revenue records adverse to the interest of the owner will not be sufficient. The actual threat of infringement alone gives rise to file a suit as contemplated under Article 58 of the Limitation Act. At one breadth the defendant sets up the plea that he is the owner of the entire land in Sy.No.77/2 and in another breadth takes up the plea of adverse possession. They are mutually descruitive pleas description more particularly when the parties are the members erstwhile joint family. Taking all this into consideration, the trial Court has held that the plaintiff is the absolute owner in possession of the schedule property and that the defendant has failed to prove that he is in possession

11 11 of the entire extent of land in Sy.No.77/2. The trial Court has assessed the evidence on the basis of broad preponderance of probabilities. It has come to the conclusion that the case of the plaintiff is more probable than that of the defendant. 12. The first appellate Court, being the final Court of facts, has also reassessed the entire evidence in the right perspective. It has given cogent and convincing reasons as to how the judgment of the trial Court will have to be upheld. The first appellate Court has formed proper points for consideration based on the grounds raised before it. Anyhow, in Ex.P21, there is only a reference that Sy.No.77 has been subdivided into Sy.No.77/1 and 77/2. The first appellate Court has adverted to the various decisions cited before it and has considered the same. The undisputed fact is that the total extent of Sy.No.77/2 was 4 acres 20 gunta inclusive of 5 gunta kharab land. Out of the said property, plaintiff s father-in-law sold 2 acre 23 guntas in favour of the father of the defendant as per Ex.P guntas of land already with

12 12 the defendant. Therefore, the remaining extent of property measuring 1 acre 17 guntas is with the plaintiff and therefore, the plaintiff has sought the reliefs of declaration and permanent injunction. Mere adverse entry in the revenue records will not take away the right that a party has. Any amount of oral evidence sought to be adduced on behalf of the defendant to vary the terms of the sale deed with reference to the extent will not be of much importance and this has been taken note of by the trial Court as well as the first appellate Court. 13. The questions of law framed are not substantial questions of law within the meaning of Section 100 of CPC and no questions of law arise for consideration by this Court. There is no scope for interfering with the well considered finding on facts relating to the ownership and possession of the plaintiff in respect of 1 acre 17 guntas. These findings are well considered findings given after assessing the same on the

13 13 broad preponderance of probabilities. Hence, the appeal is liable to be dismissed as unfit for admission. ORDER The appeal is dismissed as unfit for admission by upholding the judgments of the trial Court as well as the first appellate Court. There is no order as to costs. JT/MBS/- Sd/- JUDGE.