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2015 DIGILAW 142 (KAR)

Chikka Halappa v. Erachikkanna

2015-02-02

RAVI MALIMATH

body2015
JUDGMENT :- 1. The case of the plaintiff is that agricultural land bearing survey No.40, of Shidlekona village, measuring 23 acres, 15 guntas, out of which 9 acres, 7 guntas originally belonged to Muthaiaha, the father of the first plaintiff, grand father of the second plaintiff, being his ancestral property. After his death, his sons, first plaintiff, Erappa and Kurichikkanna divided this land measuring 9 acres, 27 guntas in survey no.40, equally and accordingly each of them received 3 acres, 9 guntas. They continued to be in exclusive possession and enjoyment of their respective share. 2. Later on, the first son of Kurichikkanna died unmarried, his share allotted under the division devolved upon his brothers i.e., the first plaintiff Erachikkanna and Earappa. Accordingly, their share had increased to 4 acres, 33½ guntas each. Plaintiff No.1 continued to be in exclusive possession and enjoyment of the said extent of the land. Erachikkanna, the plaintiff no.1 had sold 3 acres, 9 guntas of land under a registered sale deed to one Erappa son of Erappa. Thereafter, the land in question was phoded in six different survey numbers as follows: (i). Sy.No.40/1 measuring 4A-09 guntas (ii). Sy.No.40/2 measuring 4A-24 guntas (iii). Sy.No.40/3 measuring 7A-27 guntas (iv). Sy.No.40/4 measuring 4A-38 guntas (v). Sy.No.40/5 measuring 1A-7 guntas (vi). Sy.No.40/6 measuring 0.38 guntas 3. As per the Durastu, the land measuring 4 acres, 33½ guntas of land owned and possessed by the plaintiffs has been renumbered or phoded as survey no.40/4 to an extent of 4 acres, 36 guntas. In this survey number the land measuring 3 acres, 9 guntas was sold under the sale deed dated 27.06.1963, by the plaintiff in favour of Erappa, as such, excluding the extent of 3 acres, for the remaining extent of 1 acre, 27 guntas excluding kharab of 9 guntas. 4. The dispute is regarding the entries in the year 1993-94, afresh mutation has been accepted in favour of the plaintiff in M.R.No.22/1993-94. That land measuring 1 acre, 27 guntas out of the total extent of 4 acres, 37 guntas of survey No.40/4 is in occupation, possession and enjoyment of the plaintiffs ever since 27.06.1963. The defendants are non-entity and are never in possession of the suit land. The defendants claimed to have purchased land measuring 3 acres, 9 guntas in survey No.40/4 on 11.06.1964 from one Sanneerappa and made an attempt to dispossess the plaintiff. The defendants are non-entity and are never in possession of the suit land. The defendants claimed to have purchased land measuring 3 acres, 9 guntas in survey No.40/4 on 11.06.1964 from one Sanneerappa and made an attempt to dispossess the plaintiff. The mutation entries came to be challenged which was accepted in favour of the plaintiff in respect of the suit schedule property. Since the defendants denied the title and possession of the plaintiff, the instant suit was filed. 5. On service of summons, the defendants entered appearance and filed the written statement denying the suit averments. It is his contention that the defendant's father purchased the land measuring 3 acres, 9 guntas of survey No.40/4, from Sanneerappa under a registered sale deed dated 11.06.1964. Accordingly, the mutation was entered. The plaintiffs are not in possession of the suit schedule property. The defendants are in possession of the said property. On the basis of the pleadings the trial court framed the following issues for consideration: i. Whether the plaintiffs prove that they are the absolute owners in possession and enjoyment over the suit schedule property? ii. Whether the defendant proves that he is in exclusive possession and enjoyment over entire extent of 4 acres, 36 guntas in suit schedule survey No.40/4? iii. Whether the defendant proves that suit is bad for non-joinder of necessary parties? iv. Whether the plaintiffs prove the alleged interference by the defendant? v. Whether the plaintiffs are entitled for the relief of declaration and permanent injunction? vi. What order or decree?" 6. In order to prove his case, the plaintiff no.2 was examined as PW-1 and 14 documents were marked and another witness was examined as PW-1. The defendant was examined as DW-1 and marked Exhibits-D1 to D9. Issue Nos.1, 4 ad 5 were held in affirmative and issue nos.2 and 3 were held in negative. 7. The suit of the plaintiff was decreed. Aggrieved by the same, the defendant preferred an appeal. The appeal was dismissed. Hence, the present second appeal. By an order dated 16.03.2012, the appeal was admitted to consider the following substantial question of law: "Whether the judgments of the courts below are perverse in misreading the material evidence on record with reference to prior partition?" 8. Learned counsels submit that the substantial question of law framed at the time of admission requires to be reframed. By an order dated 16.03.2012, the appeal was admitted to consider the following substantial question of law: "Whether the judgments of the courts below are perverse in misreading the material evidence on record with reference to prior partition?" 8. Learned counsels submit that the substantial question of law framed at the time of admission requires to be reframed. Hence, the substantial question of law is reframed as follows: "Whether the judgment and decree of both the courts below are erroneous in decreeing the suits of the plaintiff by misreading, Exhibit-D3, the sale deed executed on behalf of the defendants? 9. Heard the learned counsels on the reframed substantial question of law and examined the material on record. 10. The learned counsel for the appellants- defendants contends that the impugned orders of both the courts below are erroneous and are liable to be set-aside. That both the courts below committed an error in misreading Exhibit-D3. The extent of land shown in Exhibit-D3 is 3 acres, 9 guntas. Documents have been exhibited by the defendant himself. Further, he contends that by mistake the measurement has been wrongly shown as 1 acres 27 guntas. Hence, he pleads that the appeal be allowed. 11. The learned counsel for the respondent defends the impugned order. 12. The extent of land shown in Exhibit-D3 is 3 acres, 9 guntas. It was carved out 9 acres, 27 guntas, and on division with three brothers, each one received 3 acres, 9 gunta. Exhibit-D2 which is the sale deed shows it as 3 acres, 9 guntas. Though the defendant contends that he has purchased 1 acre, 27 guntas no entries have been effected to the same. Therefore, if he really purchased the same, he would have ensured that the entries reflected in the same. The primary contention is that the extent of land is wrongly shown in the sale deed. Therefore, what requires to be considered is the contention and not what is reflected in the sale deed. 13. I am of the considered view that such a contention cannot be accepted. The documents of title would be the sale deed. The sale deed reflects 3 acres, 9 guntas. If at all the appellant had any grievance with regard to the extent of the land, boundaries, or any other issues of a like nature, he has an appropriate remedy under Law to get the same rectified. The documents of title would be the sale deed. The sale deed reflects 3 acres, 9 guntas. If at all the appellant had any grievance with regard to the extent of the land, boundaries, or any other issues of a like nature, he has an appropriate remedy under Law to get the same rectified. He has not done so. He has chosen to accept Exhibit-D3. On having accepted Exhibit-D3, he cannot now orally contend that there is an error in the sale deed and that such an error has to be orally accepted and therefore, the documents should be considered based on the oral contention. I am of the considered view that the same is unacceptable. Further the contention is also not backed by the relevant records. Exhibit-D3 would reveal that the extent the land as 3 acres, 9 guntas. Oral submission with regard to correctness therefore cannot be accepted. 13. Furthermore, the defendant has admitted in the cross-examination that he has purchased the land from Sanneerappa on 11.06.1964, that the extent of land is 3 acres 9 guntas and that the said sale deed is correct. Hence, based on this evidence also the contention of the defendant cannot be accepted as it stands opposed to his very own evidence. 14. Looking into the documentary evidence, that were led by the plaintiff, would reveal that the plaintiffs were in absolute possession of 1 acres, 27 guntas and the defendant have not proved that they were in possession of 1 acre, 27 guntas of survey No.40/4. 15. Both courts have appreciated the material on record and I do not find any error committed. For the aforesaid reasons, the substantial question of law is answered by holding that there is no error committed by both the courts below in reading Exhibit-D3, the sale deed executed in favour of defendant no.3 to an extent of 3 acres 9 guntas. On answering the substantial question of law, the appeal is hereby dismissed.