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2013 DIGILAW 676 (KAR)

MANIKAPPA v. KALLAPPA

2013-06-12

RAM MOHAN REDDY

body2013
JUDGMENT RAM MOHAN REDDY, J.-The first defendant in OS No. 187/1995 aggrieved by the Judgment and Decree dated 19.1.2010 of the I Addl. Civil Judge (Jr. Dn.) Bidar declaring the plaintiff to be the owner of land in Sy. No. 58/2 measuring 3 acres 20 guntas and perpetual injunction against the first respondent by Judgment and Decree dated 19.1.2010 preferred RA No. 127/2010 before the Prl. District and Sessions Judge Bidar, which when was dismissed, by Judgment and Decree dated 16.10.2012 has presented this second appeal. 2. First respondent instituted OS No. 187/1995 to declare him as the absolute owner of suit schedule immovable property bearing agricultural land measuring 3 acres 20 guntas in Sy. No. 58/2, bounded on East: by land of Manik; West: by land of one Bhagwan and defendants; North: by land of Laxman and; South: by land of Maruti Master, situated at Bagdal village Tq. & Dist. Bidar, and for a perpetual injunction against the defendants from interfering and obstructing plaintiff's peaceful possession of the said land arraigning the Appellant as the first defendant and respondent No. 2 to 9 as defendants 2, 3(a), 3(b), 4(a), 4(b), defendant No. 5, 6 and 7. According to the plaintiff 12 acres 13 guntas of land in Sy. No. 58 was Madad Mash Inam Land belonging to one Ismail Shah Inamdar from out of which 3 acres & 20 guntas was granted jointly in favour of the plaintiff and one Sharan by an order of the Deputy Commissioner under The Inam Abolition Act. Plaintiff is said to have secured a conveyance from the said Sharanu in respect of his portion of the property, i.e., 1 acre & 30 guntas from out of 3 acres 20 guntas, under a registered sale deed dated 7.5.1995. It is the assertion of the plaintiff that one Kallappa S/o Mallappa was granted occupancy rights over 6 acres and 20 guntas in Sy. No. 58 and 2 acres 8 guntas in favour of one Veerappa S/o Kallappa. That Kallappa, it is said, divided 6 acres 20 guntas amongst his brothers and nephews whence 3 acre 25 guntas fell to the share of Veerappa and Gundappa son of Mallappa and 3 acres and 15 guntas in favour of Kallappa S/o Mallappa, Narsappa, Manik, Maruti and Tukaram. It is the specific assertion of the plaintiff that 6 acres and 30 guntas was mutated in the names aforestated. It is the specific assertion of the plaintiff that 6 acres and 30 guntas was mutated in the names aforestated. While the first defendant's father was granted 2 acres & 8 guntas of land, it is alleged that the Village Officers wrongly recorded the extent as 3 acres 3 guntas in the record of rights and the defendants with mala fide intention prolonged the survey and phodi of their respective portions. It is the further allegation of the plaintiff that defendants dismantled the boundary marks and interfered with the plaintiff's possession on 10.9.1995, whence the defendants refused to have phodi of their respective shares, effected. 3. Defendants 2, 4 to 7 filed their written statement inter alia admitting the plaint averments and that they had no objection for holding survey and phodi of the respective portions of each party. 4. The first defendant, on notice, filed written statement denying the plaint averments. According to the first defendant the order of the Special Deputy Commissioner Gulbarga granting the lands under the Inam Abolition Act was not based upon actual survey but on an approximation and that the father of the first defendant was in actual possession of an extent of 3 acres and 3 guntas though the grant is over an extent of 2 acres 28 guntas. First defendant asserted that in a survey the land in his possession was demarcated during the year 1990 and found to be an extent of 3 acres & 3 guntas where afterwards Form No. 10 was issued by the ADLR Bidar. 5. The trial Court, in the premise of pleadings of parties framed three issues, recorded the oral testimony of PWs 1 and 2 and marked Exh.P1 to Exh.P10 while for the defendant, recorded the testimony of DW1 and two other witnesses DWs.2 and 3 and marked Exh.D1 to Exh.D31. The trial Court having regard to the pleadings of the parties the material on record and the evidence both oral and documentary returned a finding in the affirmative over issue No. 1 and, partly in the affirmative over issue No. 2. The trial Court having regard to the pleadings of the parties the material on record and the evidence both oral and documentary returned a finding in the affirmative over issue No. 1 and, partly in the affirmative over issue No. 2. The trial Court observed that Exh.P1 the order of the Special Deputy Commissioner exercising jurisdiction under Sec. 11 of the Hyderabad Inam Abolition Act 1959, granted 3 acres and 20 guntas of land in favour of plaintiff and one Sharanu; 6 acres 20 guntas in favour of Kallya s/o Mallya and; 2acres 8 guntas in favour of Veerappa S/o Kallappa. Defendants 2 to 7 admitted that 3 acres 20 guntas of land was granted in the joint names of plaintiff and one Sharanu and 2 acres 8 guntas in favour of father of the first defendant. It is the first defendant, according to the trial Court who denied the extent of land granted since there was no exact measurement but was based on approximation and that the father of the first defendant was in possession of 3 acres 3 guntas. It is in the backdrop of the said fact and the evidence of the plaintiff PW1 that the trial Court examined the contents of Exh.P1 the grant order which stated that on a verification of the Pahani for the year 1958-1959 and affidavits of the total holdings of the applicants that the grants were made in favour of the said applicants. That the trial Court observed that 3 acres 20 guntas of land was granted jointly in favour of the plaintiff and one Sharnu and there being no dispute that Sharanu executed a sale deed dated 7.5.1975 conveying anextent of 1 acre 30 guntas from out of 3 acres 20 guntas in favour of the plaintiff declined to accept the plea of first defendant that Sharanu had no power to execute the sale deed. That deed of the year 1975 being a 30 year old document, it is noticed had presumptive value under Sec. 90 of the Indian Evidence Act. The revenue record more particularly the record of right Exh.P4 disclosed the measurement of the land of the plaintiff as 3 acres 20 guntas in Sy. No. 58/2, while the record of right Exh.P5 standing in the name of the first defendant disclosed 3 acres 3 guntas. The revenue record more particularly the record of right Exh.P4 disclosed the measurement of the land of the plaintiff as 3 acres 20 guntas in Sy. No. 58/2, while the record of right Exh.P5 standing in the name of the first defendant disclosed 3 acres 3 guntas. The certified copy of Form No. 10 Exh.P9 indicated that an area 1.42 hectares of land in Sy. No. 58 is entered in the name of the plaintiff and the equivalent of 1.42 hectares is 3 acres 30 guntas is not seriously challenged. In Exh.P10 the record of rights for the year 1985-1986 the trial Court observed that there is rounding of 1.42 hectares and it is mentioned as 3 acres 20 guntas. DW1 in his testimony stated that he had no knowledge of the fact of occupancy right to an extent of 2 acres 8 guntas was granted to his father. Therefore the trial Court declined to accept the version of DW1 that the extent of land granted by the Special Deputy Commissioner was on an approximation. DW2 said to be a witness who has been cultivating land of the first defendant, states that he has not seen defendants 2 to 7 and that it was the 1st defendant who told him that 3 acres 3 guntas was granted and that is how he came to know about the measurement. In that view of the matter the trial Court decline to accept the evidence of DW2, as credible, to support the case of the first defendant that 3 acres 3 guntas was in fact cultivated by DW2. As regards DW3 the son of late Syed Ismail Quadri, admitted in cross examination that he has neither knowledge over an extent of 3 acres 20 guntas land granted to one Sharanu nor the extent of land granted to the defendants. DW3, it is stated, deposed that plaintiff may be in possession of 2.5 acres or 3.00 acres of land. The trial Court declined to accept the evidence of PW3 since unable to speak over the correct extent of lands in the possession of the plaintiff and the defendants. The trial Court in the circumstances declined to accept the entries in the revenue records over extent of lands in the possession of the parties. In other words, that first defendant was in possession of 3 acres and 3 guntas in Sy. No. 58/A. 6. The trial Court in the circumstances declined to accept the entries in the revenue records over extent of lands in the possession of the parties. In other words, that first defendant was in possession of 3 acres and 3 guntas in Sy. No. 58/A. 6. The lower Appellate Court having reappreciated the evidence both oral and documentary concurred with the reasons, findings and conclusion of the trial Court and regard being had to the admission of DW1 in cross examination that he did neither know how much of land was given to his father nor whether his father had got the lands measured during his life time, concluded that the Judgment and Decree of the trial Court did not call for interference. In addition lower Appellate Court rejected the submission of the Appellants that the suit instituted on 30.1.1995 was beyond the period of limitation, since such a plea was not advanced in the written statement. 7. Although Sri Ameet Kumar Deshpande learned counsel for the Appellant would make a painstaking effort to submit that the question of limitation for filing the suit was required to be considered by the trial Court, cannot be accepted since such a plea was neither advanced in the written statement of the 1st defendant nor proved before the trial Court. 8. In the result, since no substantial question of law arises for decision making, this appeal is accordingly dismissed.