Karnataka High Court
Govinda Balsu Salunke vs Keer Mukund Salunke on 2 August, 2013
Author: N.Kumar
Bench: N.Kumar
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
Dated this the 2nd day of August 2013
Before
THE HON'BLE MR.JUSTICE N.KUMAR
Regular Second Appeal No.1112/2002
Between:
1. Govinda Balsu Salunke,
Aged about 70 years, Agriculturist,
2. Mahabaleshwar Balsu Salunke,
since deceased by his LR
UFA Sri Nivas @ Shrinivas,
S/o. Mahabaleshwar Salunke,
Both are residents of Asnoti
in Karwar Taluk. ...Appellants
(By Sri. Santosh Nargund for Sri. A.S.Patil, Adv., for A1
Sri. Vigneshwar S.Shastry, Advocate)
And:
1. Keer Mukund Salunke,
aged 58 years, Agriculturist,
R/o.Madhewada in
Asnoti in Karwar Tq.,
2. Nanda Mukund Salunke,
aged 54 years, Constable
SRP Group, No.Ii, Rama Tokadi
F Company, Pune-22. ...Respondents
(By Sri. K.V.Narasimhan, Advocate)
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This appeal is filed under Section 100 of Civil
Procedure Code against the judgment and decree dated
30.08.2002 passed in R.A. No.57/1998 on the file of the
Prl. Civil Judge (Sr.Dn.), Karwar, dismissing the appeal
and confirming the judgment and decree dated
23.06.1998 passed in O.S. No.3/1989 on the file of the
Civil Judge (Jr. Dn.), Karwar.
This appeal coming on for final hearing this day,
the Court delivered the following:
JUDGMENT
This is plaintiff's appeal against the judgment and decree of the Courts below dismissing the suit of the plaintiff for declaration and decreeing the counter claim of the defendant wherein they have sought for partition and separate possession of their half share in the plaint schedule properties.
2. The subject matter of the suit is property bearing Sy. No.65 Hissa 6 measuring 2 acres 10 guntas situated in Madhewada Savantwada, Karwar. The plaintiff and defendant No.3 are brothers. As the 3rd :3: defendant could not join at the time of filing of the suit, he has been arrayed as 3rd defendant.
3. The case of the plaintiff is one Shri. Balsu Poku Naik (Salunke) purchased the suit schedule property along with other properties from Smt.Pandari kom Shiva Naik under a registered sale deed dated 07.06.1992. The suit schedule property on the date of purchase was numbered as Sy.No.65 Hissa 5 measuring 2 acre 10 guntas and assessment 9 annas and 6 damdi. The original Sy.No.65 Hissa 4 and Sy.No.65 Hissa 5 was one plot measuring 5 acres 5 guntas. One Smt.Yamune alias Devaki kom Fakru Naik and Balsu Poku Naik were in possession of Sy.No.65 Hissa 4 + 5 measuring 5 acres 5 guntas and both of them were enjoying half share in the said survey number. During year 1929 fresh survey of pot-hissas were done and survey number 65 Hissa 4 + 5 was redesignated as Sy.No.65 Hissa 6 measuring 2 acres 10 guntas and Sy.No.65 Hissa 10 measuring 2 :4: acres 8 guntas. The land of Shri. Balsu Poku Naik was designated as Sy.No.65 Hissa 6 and the land of Smt. Yamune @ Devaki was designated as Sy.No.65 Hissa 10. During the lifetime of Smt.Yamune @ Devaki kom Fakru Naik, she sold her properties to Ram Kheer Naik, the elder brother. After the pot-hissas were freshly measured in the year 1929, on the basis of Hissa, form No.12 entries are made in the record of rights wherein it was clearly shown that Shri. Balsu Poku Naik is the owner in possession of Sy.No.65 Hissa 6 measuring 2 acres 10 guntas and Shri. Ram Kheer Naik is the owner in possession of Sy.No.65 Hissa 10 measuring 2 acres 8 guntas. Even the pot-hissa map prepared by the surveyor on 5.11.1929 show that Shri Balsu Poku Naik is the owner in possession of Sy.No.65 Hissa 6 measuring 2 acres 10 guntas. The plaintiff and his predecessor in title have paid the land revenue of the suit schedule property. All the pot-hissas of Sy.No.65 are within one compound wall and the house of all the :5: persons enjoying as owners in possession of various pot-hissas are in Sy.No.65 only.
4. Plaintiff and defendant No.3 joined for service in the police department during the lifetime of their father Balsu. They had no occasion to go through the entries in the record of rights. During April 1986, plaintiff noticed that in the record of rights pertaining to the suit schedule property, the names of defendants No.1 and 2 are shown as 'Samayikadars' having half right in suit schedule property. Therefore, he gave an application to the Tahsildar to delete the names of defendants No.1 and 2 in the record of rights pertaining to the suit schedule property as they have absolutely no right, title, interest in the suit schedule property. On the basis of the application given by the plaintiff mutation entry No.4145 of Madhewada village was made deleting the names of defendants No.1 and 2 in the record of rights. Defendant No.1 objected to the said entry. The :6: matter was heard by the Taluka Sheristedar, Karwar. By order dated 24.10.1996, the Taluka Sheristedar deleted their names. Defendant No.1 preferred an appeal in the court of Assistant Commissioner, Karwar, who, by his order, dated 26.09.1988 allowed the appeal and cancelled the mutation entry No.4145. It is in those circumstances, the plaintiff was constrained to file a suit for declaration and consequently to get the mutation entries rectified.
5. After service of summons, defendants entered appearance. Defendant No.1 filed his detailed written statement denying all the allegations made in the plaint. The 1st defendant denied the purchase of suit schedule properties by the plaintiff. It is his specific case that the suit land is the joint property of the plaintiff and the defendants and that the plaintiff and defendant No.3, after the death of their mother, have got half share in the suit schedule property and the :7: defendant No.1 and 2 have got the half share pertaining to the suit schedule property. The plaintiff and the defendants have been and are enjoying the suit schedule property as co-owners - 'Samayikdars'. There is no sub-division by metes and bounds according to their share in respect of the suit schedule land. They are enjoying the suit schedule property jointly. There is 'angan' which is more than 17' in length and 40' in width. The steps to enter the residential house bearing No.154 belonging to defendant No.1 and 2 is also situated in the said 'angan'. They have been in possession of the said 'angan' since many years. They are in possession of the same for more than 12 years continuously, openly and peacefully with the knowledge of the plaintiff and defendant No.3 and their predecessor-in-title. They admit the proceedings before the Tahsildar and the Assistant Commissioner. Further, they pleaded that the plaintiff is not at all in exclusive possession of the suit land at any point of time. The :8: present suit for declaration and consequential relief of rectification of the record of right is not at all maintainable as per Section 135 of the Karnataka Land Revenue Code, as the plaintiff is not at all in exclusive possession of the suit land at any time prior to the filing of the suit for more than 12 years. The suit land originally belonged to one Yamuna @ Devaki Fakru Naik and after her death on 19.05.1959, it was entered in the name of her younger brother Rama Kheer naik as the said Yamuna @ Devaki had no children. The said M.E.No.3493 of Madhewada Village was certified. After the death of said Rama Kheer Naik on 27.02.1971 as he had not left any children to represent his estate as per mutation entry No.3731, the names of defendant no.1 and 2 were entered pertaining to the suit land along with some other persons in the capacity of the legal heirs of the deceased Rama Kheer Naik as they being the sons of younger brother of the deceased Rama Kheer Naik. The said mutation entry was also certified in the :9: year 1971 itself. As per the law of limitation, as per the law of principles of estoppel and the law of laches the plaintiff and defendant No.3 cannot claim the exclusive right pertaining to the suit land. Even their mother and father were enjoying the suit properties jointly along with their joint owners through whom the defendants No.1 and 2 have inherited the properties. Therefore, the present suit for declaration on the basis of exclusive possession is not at all maintainable. Plaintiff has lost his right by virtue of Article 65 of the Limitation Act. Defendants No.1 and 2 have got right to half share in the suit schedule properties. Therefore, they have put-forth their counter-claim seeking for partition and separate possession of their half share.
6. On the basis of the aforesaid pleadings, the Trial Court framed as many as 10 issues which are as under:
"1. Whether the plaintiffs prove that himself and defendant No.3 are the exclusive : 10 : owners of the suit land by way of inheritance through their father Balasu?
2. Whether the defendants 1 and 2 prove that the suit land is the joint property of plaintiff and defendants, and they are in joint possession and enjoyment of the same?
3. Whether the defendants 1 and 2 prove that they have acquired right over an area of 17' x 40' of the suit land which is in front of their residential house, by way of adverse possession?
4. Whether the defendants 1 and 2 prove that suit is barred by limitation?5. Whether the defendant No.1 and 2
prove that the suit is hit by Section 135 of Karnataka Land Revenue Code?
6. Whether the defendants 1 and 2 prove that they have got ½ share in the suit land?
7. Whether the defendants 1 and 2 prove that they are entitled for partition and : 11 : separate possession of their share in the suit land?
8. Whether the plaintiff proves that entries in the revenue records of the suit land, in the name of defendant No.1 and 2 is incorrect and liable to be corrected?
9. To what relief the parties are entitled for?
10. What order and decree?"
7. Plaintiffs in order to substantiate their claim examined first plaintiff as PW-1 and produced 11 documents which are marked as Exs.P-1 to P-11. Defendant No.1 examined himself as DW-1. He also examined a witness as DW-2 and he produced three documents which are marked as Exs.D-1 to D-3.
8. The trial Court on appreciation of the oral and documentary evidence on record held that the plaintiffs have failed to establish their exclusive title and : 12 : possession over the suit schedule property. However, the defendants have proved that plaintiffs 1 and defendant No.3 and defendants 1 and 2 have half share in the schedule property. The defendants 1 and 2 have also proved that an area of 17 feet/40 feet angala is there in front of their house. From the house through the steps, they pass through the said land and as they are in possession for more than 12 years continuously, openly and without hostility, they have perfected their title by adverse possession. The suit is also barred by limitation. Therefore, it granted a decree for partition and separate possession but dismissed the suit of the plaintiffs for declaration.
9. Aggrieved by the said order, plaintiffs preferred regular appeal. The lower appellate Court has affirmed the finding of the trial Court. That is how against the two judgments, the plaintiffs have preferred this appeal.
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10. This appeal came to be admitted on 20/01/2003 to consider the following substantial questions of law:
a) Whether the respondents are entitled for counter claim of partition in a suit filed by the appellant for declaration of title and also correction of mutation entries?
b) Whether the respondents are entitled to claim adverse possession and also partition of the suit schedule properties.?
11. I have heard the learned counsel for the appellants.
12. In order to decide the aforesaid substantial questions of law, I looked into the evidence of the trial Court as well as the appellate Court. The learned Judge of the trial Court has taken pains to refer to the oral and documentary evidence of the witnesses and also the documents produced by them and having taking into : 14 : consideration the various judgments relied on by the parties, has recorded a finding and dismissed the suit of the plaintiffs. However, in appeal, the lower appellate Court has short circuited the whole process. Neither it has referred to any oral or documentary evidence on record nor has considered the judgment of the trial Court in a proper perspective and after dismissing the application filed for production of additional evidence, it proceeded to hold, without any reason or discussion, that the finding recorded by the trial Court do not call for any interference.
13. Order XLI Rule 31 of the Code of Civil Procedure deals with contents, date and signature of judgment of the appellate Court which reads as under:
" 31. Contents, date and signature of judgment- The judgment of the Appellate Court shall be in writing and shall state-
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and : 15 :
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled, and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein. "
14. If we look into the points for determination framed by the lower appellate Court, it shows the casual way in which the lower appellate Court has dealt with the mater and it shows complete non-application of mind to the facts of the case a well as to the statutory requirement. Absolutely no reasons are forthcoming in the said order for supporting the findings which it has recorded. Therefore, the judgment of the lower appellate Court is not in accordance with Order XLI Rule 31 of the CPC. When the lower appellate Court has not recorded a finding in the manner that is contemplated under Order XLI Rule 31 of CPC, in second appeal, in order to answer the substantial questions of law it : 16 : would not be proper for the Court to decide the case on merits solely based on the judgment of the trial Court.
15. Therefore, in my view, proper course would be to set aside the judgment of the lower appellate Court and remand the matter to the lower appellate Court to pass the judgment in confirmity with the Order XLI Rule 31 of the CPC. That would meet the ends of justice.
16. In that view of the matter, there is no need to answer the substantial questions of law. Hence, I pass the following order:
The appeal is allowed. The judgment and decree of the lower appellate Court is set aside. The matter is remanded back to the lower appellate Court with a direction to restore the appeal to its file keeping in mind the provisions of Order XLI Rule 31 of the CPC and decide the appeal on merits and in accordance with law.: 17 :
Ordered accordingly. Parties to bear their own costs.
Sd/-
JUDGE Kms & kmv