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2011 DIGILAW 1097 (KAR)

Siddappa v. Halasiddappa

2011-11-15

K.N.KESHAVANARAYANA

body2011
JUDGMENT K.N. KESHAVANARAYANA, J.—This Regular Second Appeal by the defendant in O.S. No. 225/98 on the file of Civil Judge (Sr. Dn.) and Additional CJM, Arasikere is directed against the concurrent judgments and decree of the Courts below decreeing the suit of the respondents/plaintiffs for declaration of title and for permanent injunction. 2. The subject matter of the suit is land bearing Survey No. 35/5C measuring 1 acre 4 guntas situated at Bisalehalli village. The original plaintiff Halasiddappa son of Kempegowda and his two sons Revanna and Maheshwarappa filed the suit before the trial Court for declaration of their title to the suit schedule property and also for permanent injunction against the appellant/defendant inter alia contending that they are the absolute owners of the suit schedule property which was purchased by the first plaintiff and they are in peaceful possession and enjoyment of the same and that the defendant being the owner of the adjacent land bearing Survey No. 35/6 is trying to interfere with their peaceful possession and enjoyment of the suit schedule property and also has created cloud over their title to the suit schedule property. During the pendency of the suit the first plaintiff died and his legal representatives were brought on record. 3. The defendant contested the suit inter alia contending that the land bearing Survey No. 35/5C is not in existence at all and that the plaintiffs by fabricating the document are trying to make a claim over a non existent land. It was his further defence that his grand father Mallaiah purchased the land bearing Survey No. 35/6 measuring 6 acres 4 guntas from its owner and his father sold 1 acre of land to one Basavaraju and continued to remain in possession of remaining land measuring 5 acre 4 guntas and the plaintiffs on the basis of the fabricated document are trying to lay claim over the land bearing Survey No. 35/6. Therefore, he sought for dismissal of the suit. 4. The parties led oral evidence before the trial Court and produced documentary evidence. The trial Court on appreciation of the oral and documentary evidence held that the plaintiffs have proved their title and that they are in lawful possession of the suit schedule property. The trial Court decreed the suit. Therefore, he sought for dismissal of the suit. 4. The parties led oral evidence before the trial Court and produced documentary evidence. The trial Court on appreciation of the oral and documentary evidence held that the plaintiffs have proved their title and that they are in lawful possession of the suit schedule property. The trial Court decreed the suit. The appeal filed by the appellant/defendant before the Lower Appellate Court, came to be dismissed affirming the judgment and decree passed by the trial Court, It Is against these concurrent judgments of the Courts below, the appellant defendant has presented this second appeal. 5. I have heard the learned Counsel appearing for file appellant and perused the judgments under appeal. 6. The learned Counsel for the appellant vehemently contended that, the judgment of the Courts below are perverse and contrary to the evidence on record. It is his further submission that, though the plaintiffs have not placed any acceptable evidence to establish the existence of land bearing Sy. No. 35/5C and their ownership over such property, the Courts below have erroneously granted the decree in favour of the plaintiffs, declaring them as owners of non-existing land bearing Sy. No. 35/5C, therefore, the judgments are perverse as such they are liable to be set aside. According to learned Counsel for the appellant, the appeal involves substantial question of law and deserves to be admitted for consideration of such substantial question of law. 7. After hearing learned Counsel for the appellant and on perusal of the judgments of the Courts below, I am of the considered opinion that there is no substance in the contentions raised by the learned Counsel and the appeal does not involve any question of law much less the substantial question of law. 8. As noticed supra, the simple ease of the plaintiffs was that, they are the absolute owners in possession of the suit schedule property bearing Sy. No. 35/5C and the defendant being the owner of the adjacent land bearing Sy. No. 35/6 is trying to interfere with their peaceful possession and enjoyment. However, the defence of the appellant was that, there was no land bearing Sy. No. 35/5C adjacent to his land. There is no dispute that the appellant-defendant is the owner of the land bearing Sy. No. 35/6. With regard to the existence of the land bearing Sy. No. 35/6 is trying to interfere with their peaceful possession and enjoyment. However, the defence of the appellant was that, there was no land bearing Sy. No. 35/5C adjacent to his land. There is no dispute that the appellant-defendant is the owner of the land bearing Sy. No. 35/6. With regard to the existence of the land bearing Sy. No. 35/5C, the trial Court as well as the lower appellate Court have relied on the evidence of D.W. 2, who was the revenue surveyor examined on behalf of the defendant. In the cross-examination of D.W. 2, he has admitted that the land bearing Sy. No. 35 has been divided and re-numbered as 35A to 35/D. He has further admitted that Sy. No. 35/5C measuring 1 acre 4 gontas stands in the name of Siddegowda s/o Ningegowda. It is further elicited from his evidence that. a. sketch has been prepared while dividing the land bearing Sy. No. 35 and in the said sketch, the land bearing Sy. No. 35/5C is shown to the north of the land bearing Sy. No. 35/6. There venue records namely the RTC extract produced as per Exs. P1 to P3 refers to the land bearing Sy. No. 35/5C measuring 1. acre 4 guntas. Ex. P4 is the tax paid receipt in respect of the Sy. No. 35/5C, while Ex. P5 is the mutation register extract in respect of Sy. No. 35/5C. The contents of other revenue records like the index of lands, records of rights etc., would demonstrably indicate the existence of the land bearing Sy. No. 35/5C. The defendant has produced the sale deed under which his grand father purchased the property and is marked Ex. D1. The lower appellate Court in Its judgment has extracted the description of the property conveyed under the said sale deed Ex. D1 dated 2.10.1936. The said sale deed was executed by one Siddegowda s/o Jogamna in favour of Mallaiah s/o Siddegowda, grand father of the defendant. The land sold therein was Sy. No. 35. The vendor under the said sale deed namely Siddegowda s/o Joganna, as per the recitals found therein, was the owner of Sy. No. 35 to the extent of 6 acres, out of which, he sold an extent of 5 acres 4 guntas under the said sale deed in favour of Mallaiah. The northern boundary mentioned in. No. 35. The vendor under the said sale deed namely Siddegowda s/o Joganna, as per the recitals found therein, was the owner of Sy. No. 35 to the extent of 6 acres, out of which, he sold an extent of 5 acres 4 guntas under the said sale deed in favour of Mallaiah. The northern boundary mentioned in. the said sale deed for the property conveyed thereunder was the land of Poonam Chand in the same Sy. No. 35. From this, it is manifestly clear that Sy. No. 35 measured larger extent and it was owned by different persons in different extents and there was no sub-division of the said survey number. 9. However, from the very recital in Ex. D1, it is clear that, to the north of the property purchased by the grand father of the defendant, the land owned by Poonam land in the same survey number was located. Ex. P13 is the sale deed under which the 1st plaintiff purchased the land in Sy. No. 35 from Poonam Chand. In Ex. P.13, the southern boundary mentioned is the land of Mallalah, grand father of the defendant. In this back ground, if the answer elicited in the cross-examination of D.W. 2 Is considered, it is manifestly clear that Sy. No. 35 subsequently was re-numbered into different sub numbers and Sy. No. 35/5C stood in the name of the plaintiffs to the extent of 1. acre 4 guntas. Both the Courts below on consideration of the contents of the documents of title relied upon by both the plaintiffs and the defendant have come to the conclusion that the land bearing Sy. No. 35/5C is in existence to the north of the land owned by the defendant in Sy. No. 35/6 and that the plaintiffs are in lawful possession and enjoyment of the said land. The Courts below have also recorded a finding that the defendant is trying to interfere with the plaintiffs’ possession. The very defence put forth by the defendant indicates the interference caused by defendant with the possession of the suit schedule property by the plaintiffs. Having regard to nature of the evidence placed on record, the findings recorded by the Courts below is purely based on facts and appreciation of evidence. 10. The very defence put forth by the defendant indicates the interference caused by defendant with the possession of the suit schedule property by the plaintiffs. Having regard to nature of the evidence placed on record, the findings recorded by the Courts below is purely based on facts and appreciation of evidence. 10. This Court sitting in second appeal cannot reappreciate the facts and evidence to record a different finding, The lower appellate Court based on facts and on perusal of the evidence on record has recorded a finding that the plaintiffs have proved that they are the owners in possession of the suit schedule property. In view of the above, no question of law much less substantial question of law is involved In this appeal. 11. In this view of the matter, the appeal lacks merit and is rejected.