IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF OCTOBER 2019 BEFORE THE HON’BLE MR.JUSTICE S.SUNIL DUTT YADAV R.S.A. NO.11 OF 2015 BETWEEN:
BOMMARE GOWDA @ SANNEGOWDA DIED BY HIS LRs. OF SMT.GOWRAMMA AND OTHERS:
1(a) SMT.GOWRAMMA, W/O.LATE BOMMARE GOWDA @ SANNEGOWDA, AGED ABOUT 70 YEARS, HERIKYATHANAHALLI VILLAGE, GAVADGERE HOBLI, HUNSUR TALUK, MYSURU DISTRICT – 571 105.
1(b) SMT.MAHADEVAMMA, D/O.LATE BOMMARE GOWDA @ SANNEGOWDA, W/O.SOMANNA, AGED ABOUT 50 YEARS, R/AT MULLUR ROAD, SARIGE NAGARA, II STAGE, K.R.NAGARA TOWN, MYSURU DISTRICT.
1(c) SMT.MANJULA, D/O.LATE BOMMARE GOWDA @ SANNEGOWDA, W/O.MUNIYAPPA, AGED ABOUT 45 YEARS, R/AT.NO.LIG, 138, K.H.B.COLONY, KALKUNIKE, HUNSUR TOWN, MYSURU DISTRICT – 571 105.
1(d) SRI MAHADEVA, S/O.LATE BOMMARE GOWDA @ SANNEGOWDA, AGED ABOUT 35 YEARS, HERIKYATHANAHALLI VILLAGE, GAVADGERE HOBLI, HUNSUR TALUK, MYSURU DISTRICT – 571 105.
(BY SRI B.S.NAGARAJ, ADVOCATE) AND:
1 . SRI EREGOWDA, AGED ABOUT 85 YEARS, S/O LATE DEVEGOWDA;
2 . SMT LAKSHMAMMA, AGED ABOUT 65 YEARS, W/O LATE PAPEGOWDA;
3 . SRI CHANDREGOWDA, AGED ABOUT 46 YEARS, S/O LATE PAPEGOWDA;
4 . SRI KUMARA, AGED ABOUT 41 YEARS, …APPELLANTS S/O LATE PAPEGOWDA;
5 . SRI SAMPATH, AGED ABOUT 37 YEARS, S/O LATE PAPEGOWDA;
6 . SRI MAHESHA, AGED ABOUT 34 YEARS, S/O LATE PAPEGOWDA;
7 . SRI SURESHA, AGED ABOUT 30 YEARS, S/O LATE PAPEGOWDA;
8 . SRI DEVE GOWDA, AGED ABOUT 27 YEARS, S/O LATE PAPEGOWDA;
9 . SMT PUTTAMMA, AGED ABOUT 85 YEARS, W/O LATE PAPEGOWDA;
10 . SRI KRISHNEGOWDA, AGED ABOUT 55 YEARS, W/O LATE KALEGOWDA;
11 . SMT SHARADAMMA, AGED ABOUT 65 YEARS, W/O LATE KALEGOWDA;
12 . SRI KARI GOWDA, AGED ABOUT 71 YEARS, W/O LATE PUTTEGOWDA;
13 . SRI ERE GOWDA, AGED ABOUT 69 YEARS, W/O LATE PAPEGOWDA;
ALL RESPONDENTS ARE RESIDENTS OF:
HERIKYATHANAHALLI VILLAGE, GAVADGERE HOBLI, HUNSUR TALUK-571 105 ... RESPONDENTS (BY SRI P.M.SIDDAMALLAPPA, ADVOCATE FOR R1, R2 TO R13 ARE SERVED,) THIS APPEAL IS FILED UNDER SECTION 100 CPC AGAINST THE JUDGMENT AND DECREE DATED 02.08.2014 PASSED IN R.A.NO.1210/2009 ON THE FILE OF THE IV ADDL. DISTRICT JUDGE, MYSORE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 21.03.2009 PASSED IN O.S.NO.112/1999 ON THE FILE OF THE CIVIL JUDGE (SR.DN.), HUNSUR.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The appeal has been filed by defendant No.1 against the judgment of the Trial Court passed in O.S.No.112/1999 and the judgment of the First Appellate Court in R.A.No.1210/2009.
2. Plaintiffs had filed the suit for declaration and possession with respect to an extent of 6 acres 30 guntas of land in Sy.No.98/4 of Herikyathanahalli Village, Gavadagere Hobli, Hunsur Taluk. The plaintiffs have set out the case that the property comprising of the suit land was inherited from their father and that their father passed away about 30 years prior to filing of the suit leaving the plaintiffs in joint possession of the property. It is the further contention of the plaintiffs that they had left the land fallow for a prolonged period of time and had resumed cultivation in 1974-75 after clearing shrubs and other plants grown. It is further stated that the plaintiffs were under the assumption that they were in possession and enjoyment of the whole extent of 6 acres 30 guntas of land. It is only subsequently they realized that their possession was not to the full extent of 6 acres 30 guntas in Sy.No.98/4 and had filed an application to the survey department about 3 years prior to filing of the suit. It is submitted that the survey department in its report after measurement of the land had found that an extent of 2 acres 19 guntas had been encroached by the defendants. After having made demand on the defendants to surrender vacant possession of the encroached portion and the defendants not having complied with such demand, plaintiffs filed the suit. It is be noted that as per survey sketch, an extent of 2 acres 8 guntas in possession of the 1st defendant was denoted as ‘M’ and shaded in pink colour.
3. Before further consideration of appeal, at the outset, it is to be noted that except the 1st defendant, other defendants have not challenged the judgment and decree passed in O.S.No.112/1999 either before the Appellate Court or this Court and accordingly, the judgment and decree insofar as defendants 2 to 6 has become final and what is open for adjudication is only with respect to 2 acres 8 guntas occupied by the 1st defendant.
4. The 1st defendant has filed his written statement and denied all allegations made by the plaintiffs. He contended that the schedule furnished by the plaintiffs is not correct and that the finding in the survey report is erroneous and that he had perfected the title by way of adverse possession by enjoying the said portion of land as shown in the survey sketch for more than 12 years continuously and adverse to the knowledge of the plaintiffs. The Trial Court has framed six issues and after trial, by a detailed judgment, decreed the suit declaring that the plaintiffs are owners of suit schedule lands and are entitled for recovery of portion of land shown in the suit schedule from the defendants. The Trial Court has taken note of the case put forth by the plaintiffs that the property was inherited from their ancestors and has taken note of the revenue records i.e., pahanis marked as Exs.P2 to P6, index of land and record of rights marked as Exs.P7 & 8. The revenue records admittedly contain the names of the plaintiffs. In fact, column 12(2) of the pahani also finds an entry in the names of the plaintiffs. The Trial Court has taken note of Ex.P.15 which indicates that the 1st defendant had filed an application under the provisions of the Karnataka Land Reforms Act before the Land Tribunal for grant of occupancy rights in respect of land in Sy.No.98/4 belonging to the plaintiffs and that the 1st defendant had claimed to be cultivating an extent of 2 acres 20 guntas. It is not in dispute that the claim of the 1st defendant has been rejected by the Land Tribunal. The Trial Court, as regards the question of title, taking note of the case put forth by the plaintiffs and noticing the revenue records, has recorded a finding that the plaintiffs have proved their title with respect to the said land. Insofar as the question of recovery of possession and the defence of adverse possession put up by the defendants, the Trial Court has noticed that the defendants have not stated in the written statement as to when they actually came into possession of portion of the suit schedule land and as to when their possession became adverse to the interest of the plaintiffs. The Trial Court has also held that despite certain admissions relating to possession of the defendants, primary burden of proving the defence of adverse possession would be on the defendants and not having discharged that burden, the defence of adverse possession has also been rejected. The Trial Court has observed that the admission of P.Ws.1 to 3 cannot be a substitute for the evidence on the side of the defendants to prove the defence. The said judgment and decree has been challenged before the First Appellate Court which has confirmed the findings of the Trial Court both on the question of title as well as possession. The First Appellate Court has reiterated the findings of the Trial Court in particular with respect to the burden of proof on the defendant to prove his defence of adverse possession. It is also to be noted that the Trial Court has rightly held that in case of declaration with respect to title relating to inheritance, as regards ancestral property it would not be appropriate to insist production of title deeds and the revenue entries in the present case are sufficient to prove the case of the plaintiffs.
5. Taking note of the concurrent findings both on the question of title and as regards possession, no case is made out in the present appeal.
6. The Counsel for the appellants contends that the Trial Court ought not to have merely relied upon the case put forth on the basis of revenue entries and ought to have ensured that the case of the plaintiffs would succeed on the strength of the case put forth. However, taking note of the concurrent findings, noting that there is no perversity in the findings of fact and that no substantial question of law is made out in the appeal, and that the approach of the Trial Court as well as the First Appellate Court on the question of determination of title as well as rejection of the defence of the defendants regarding adverse possession being in accordance with the settled principles, the appeal is dismissed.
In view of dismissal of the appeal, I.A.2/2015 does not survive of consideration.
Sd/- JUDGE PKS