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2017 DIGILAW 1112 (KAR)

Basavanagouda S/o Mallanagouda Police Patil v. Mallikarjungouda S/o Virupanagouda Police Patil

2017-08-03

ANAND BYRAREDDY, K.SOMASHEKAR

body2017
JUDGMENT : 1. Heard the learned counsel for the appellants and the learned counsel for the respondent. 2. The present appeal is filed by the defendants. The facts of the case are that the plaintiff has contended that the land bearing Sy.Nos.127, 128/P1, 128/P2, 128/2 and 129 of Munirabad village, Koppal taluk and district described in suit schedule A originally belonged to and was possessed by the plaintiff. That defendants 1 and 2 and the deceased husband of defendant No.3, were said to be brothers. The husband of defendant No.3-Shrishilagouda, is said to have died in the year 2010 and that the occupancy rights in respect of 3 acres 19 guntas were conferred on the brothers aforesaid by the Land Tribunal, Koppal. It is further claimed that although the occupancy were conferred to an extent of 3 acres 19 guntas, it was inadvertently, mutated by the revenue officials in respect of the entire land in Sy.No.128 in the name of the tenants. After noticing the same, it was said to have been corrected, rejecting the objections of defendants 1 to 3. This was said to have been challenged before this Court in its writ jurisdiction and the same was said to have been dismissed in the year 2009. 3. The said 3 lands are said to be adjacent to each other and it is alleged that during the pendency of the revenue proceedings, the defendants had started encroaching portions of the land towards north, east and south. The plaintiff was said to be protesting against such encroachment. Finally, the plaintiff applied for measurement of the lands with a view to ascertain the exact encroachment. The survey work, however, could not be held immediately and the measurements were finally carried out and a map was prepared, only in the year 2010. According to the survey report, the defendants were found to have encroached an area of 2 acres 16 guntas in Sy. No.129 and that the defendants were in illegal occupation of the entire land bearing Sy.Nos.127 and an area of 38 guntas in Sy. No.128/2. The defendants were thus said to be in illegal occupation of the land as described in Schedule B to the plaint. It is contended that the defendants have no right over the same and hence the suit. 4. No.128/2. The defendants were thus said to be in illegal occupation of the land as described in Schedule B to the plaint. It is contended that the defendants have no right over the same and hence the suit. 4. Upon service of summons, the defendants are said to have appeared through counsel and filed their written statement. It is contended that while denying the plaint averments, had contended that the lands were owned and possessed by one Laxmidevi wife of Virupakshagouda. The father of defendants 1 and 2, namely, Mallanagouda was the brother of Laxmidevi and after the death of Laxmidevi, the father of defendants 1 and 2 is said to have succeeded to the said land other than the tenanted lands, as Laxmidevi and Virupakshagouda died issueless. The plaintiff was a stranger to the family of Laxmidevi and Virupakshagouda and hence he had no right over the lands to claim title under Laxmidevi. It was urged that occupancy rights in respect of 3 acres 19 guntas having been conferred on the defendants, was admitted and also that they were in possession of 38 guntas of land in Sy. No.128/2. It was further asserted that the father of defendants 1 and 2 and father-in-law of defendant No.3, namely, Mallanagouda had been in possession of the land bearing Sy.No.128 to an extent of 4 acres 17 guntas as a tenant and the Land Tribunal, Koppal, had granted occupancy rights in favour of the brother of defendants 1 and 2, namely, Shivanagouda. Hence, the family of Mallanagouda became tenants to an extent of 4 acres 17 guntas. It was urged that the revenue authority without knowledge of the defendants, or the family members of Mallanagouda, had reduced the extent to 3 acres 19 guntas. Therefore, the Land Tribunal had mistakenly granted occupancy rights only to an extent of 3 acres 19 guntas and the record of rights also stood in respect of the said extent. 5. It was urged that the revenue authority without knowledge of the defendants, or the family members of Mallanagouda, had reduced the extent to 3 acres 19 guntas. Therefore, the Land Tribunal had mistakenly granted occupancy rights only to an extent of 3 acres 19 guntas and the record of rights also stood in respect of the said extent. 5. Further that about 30 years prior to the suit, there was an oral partition between the defendants and brother of defendant Nos.1 and 2 and at the said oral partition, the suit Sy.No.128 measuring 4 acres 17 guntas had fallen to the share of defendant Nos.1 and 2 and husband of defendant No.3 and the suit lands bearing Sy.Nos.127 and 129 had also fallen to the share of the defendants and they claim to be the owners. 6. Since the relationship of the plaintiff was denied under the written statement, he had sought to file a rejoinder and as per an adoption deed under which he claimed to have been adopted by Laxmidevi, the widow of Virupakshagouda, and it is in this background that the Court below had framed the following issues and additional issue: “Issues: 1.Whether the plaintiffs proves his title of ownership over the suit B schedule property? 2. Whether the plaintiff proves that the defendant No.1 to 6 are trespassers and are in illegal occupation in suit B schedule property? 3. Whether the defendant No.1 to 6 prove that the suit B schedule properties are fallen to their share in the oral partition and they are the owners in possession of the same? 4. Whether the plaintiff is entitled for the mesne profits as sought? 5. Whether the plaintiff is entitled for the possession of B schedule property? 6. To what decree or order? Additional Issue: 1. Whether the plaintiff proves that he is the adopted son of deceased Laxmidevi? The Court below had held the same in favour of the plaintiff and decreed the suit. It is that which is under challenge in the present proceedings. 7. The learned counsel for the appellants would contend that the adoption deed on the basis of which the plaintiff claims the property is a nullity in the eye of law, as apparently, it is ridden with infirmities and is invalid for the reason that admittedly it has been executed and registered in the residence of Laxmidevi. 7. The learned counsel for the appellants would contend that the adoption deed on the basis of which the plaintiff claims the property is a nullity in the eye of law, as apparently, it is ridden with infirmities and is invalid for the reason that admittedly it has been executed and registered in the residence of Laxmidevi. The Sub-Registrar involved has not assigned any reason as to why it was executed in the residence of Laxmidevi. In terms of Section 31 of the Registration Act, 1908, it was necessary for the Sub-Registrar to assign reasons as to why the deed was executed and registered at the residence of Laxmidevi. That the attesting witness who has been examined by commission, who was said to be 84 years old, who was said to be the advocate who had drafted and got the adoption deed registered, has candidly admitted that there is difference in the signatures of the executant, shown in the deed at two places. 8. Secondly, it is contended that the appellants are in lawful possession of 3 acres 19 guntas and the disputed area is 38 guntas. The error committed by the Land Tribunal in granting a lesser area whereas the tenancy was in respect of the entire extent including 38 guntas would require the appellants to file a suit for declaration and possession and in the absence of any established right over the property, the suit for mere possession was invalid and could not have been considered and that any correction to be made in the order of the Tribunal, it could be made only by the Tribunal in terms of Section 48 of the Karnataka Land Reforms Act, 1961, and it would not enable the plaintiff to lay claim over the land without such corrections being made. 9. Further, since the disputed extent of 38 guntas was tenanted land and it would vest with the State, by operation of law. Therefore, the suit was bad for non-joinder in not having made the State as a party to the suit. In this vein, the learned counsel would seek that the judgment of the Court below be set aside. 10. Further, since the disputed extent of 38 guntas was tenanted land and it would vest with the State, by operation of law. Therefore, the suit was bad for non-joinder in not having made the State as a party to the suit. In this vein, the learned counsel would seek that the judgment of the Court below be set aside. 10. It is pointed out by the learned counsel for the respondent that insofar as the first contention as regards the adoption deed set up by the plaintiff, being vague and a bogus document does not lie in the mouth of the defendants for it is a registered document and more than 30 years old. The contention that the Sub-Registrar had not indicated reasons for going to the residence of Laxmidevi is not a mandate in law. The Section cited merely requires the Sub-Registrar to satisfy himself that there is a reason to register a document executed at the residence of the Laxmidevi. Beyond that it does not lay down that an order in writing should be made in this regard. 11. Secondly, it is pointed out that the difference in signature would make no difference as it is quite possible that the same person could sign in two places in two different ways and a slight difference is always there in genuine signatures. It is only a forger, who would take pains to ensure that there is an accurate forgery and would seek to ensure that there is absolutely no difference between one signature and the other. Therefore, this would militate against the contention of the appellants. 12. Insofar as the contention that a suit for mere possession was incompetent and it should have been for declaration is also not tenable. If the adoption deed is established and the claim of the plaintiff under Laxmidevi is permissible, there was no need for seeking a declaration that he was the owner of the property. 13. Further, insofar as the contention that the disputed land is 38 guntas and that the plaintiff ought to have approached the Tribunal for seeking corrections of the extent of land etc, is wholly immaterial since the defendants had suffered an order of this court on the writ side, wherein the claim of the defendants in respect of the said land has been negatived and it has attained finality. Therefore, the defendants would be precluded from laying claim to the land. 14. The further contention that the State was a necessary party and that the suit would be bad for non-joinder since the land in question has vested in the State is also a contention which is not available to the appellants as there was no plea of non-joinder before the trial court and it was raised for the first time in the appeal. In any event it was an irregularity, there is no grant of occupancy rights in respect of the said land and the contention that it had automatically vested with the State by operation of law, is also not tenable. 15. In the light of the rival contentions and the grounds of appeal, the points that arise for determination are: 1. Whether the trial Court was justified in holding that the adoption deed had been established by the plaintiff? 2. Whether the suit was bad as no relief for declaration was sought by the plaintiff? 3. Whether the defendants can seek to claim the land to an extent of 38 guntas as described in Schedule B as being the land which was in their occupation all along? 16. Insofar as the first point is concerned, the adoption deed being a registered document and being 30 years old, the claim of the plaintiff having been upheld by the Court below cannot be faulted. The infirmities sought to be canvassed are of no relevance and therefore, if ownership is established through the adoption deed it falls into the place and that the suit prayer for possession was sufficient and adequate. There was no need for the plaintiff to seek the relief of declaration as well. 17. Insofar as the disputed extent of 38 guntas of land is concerned, since the defendants have suffered an order of this Court in the Writ Petition in laying claim to the said land and having regard to the admission by the defendants in more than one place that the plaintiff as being the adopted son of Laxmidevi, the defendants would not be in a position to either dispute the factum or lay claim to 38 guntas of land since the order has attained finality and the appellants are precluded from laying claim to the same. The appeal being devoid of merit, is, accordingly, dismissed.