Karnataka High Court
Ramachandra Annayya Bhat vs Subray Venkatraman Bhat on 5 December, 2022
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RFA No. 737 of 2007
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 5TH DAY OF DECEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE R.NATARAJ
REGULAR FIRST APPEAL NO. 737 OF 2007 (PAR)
BETWEEN:
1. RAMACHANDRA ANNAYYA BHAT
AGED ABOUT 89 YEARS
2. DIVAKAR RAMACHANDRA BHAT
AGED ABOUT 52 YEARS
BOTH ARE OCC : RYOTS
R/AT TATTIKAL,
SIDDAPUR TALUK - 581 340.
...APPELLANTS
(BY SRI. VIJAY KUMAR B. HORATTI, ADVOCATE FOR
SRI. RAVI G. SABHAHIT, ADVOCATE)
AND:
1. SUBRAY VENKATRAMAN BHAT
AGE MAJOR
2. MANJANATH VENKATRAMANA BHAT
AGED MAJOR
POWER OF ATTORNEY HOLDER OF
RESPONDENT NO.1
BOTH ARE R/AT TATTIKAL,
TALUK - SIDDAPUR - 581340.
...RESPONDENTS
(BY SRI. S.M. KALWAD, ADVOCATE FOR R1 & R2)
THIS RFA IS FILED U/S 96 OF CPC AGAINST THE JUDGEMENT
AND DECREE DT.15.12.2006 PASSED IN OS.NO.108/1997 ON THE
FILE OF THE CIVIL JUDGE, SR.DN., SIRSI, PARTLY DECREEING THE
SUIT FOR DECLARATION AND INJUNCTION, PARITITON AND
POSSESSION.
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RFA No. 737 of 2007
THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the defendants in O.S.No.108/1997 challenging the judgment and decree dated 15.12.2006 passed by the Civil Judge, (Sr. Dvn.), Sirsi (henceforth referred to as 'Trial Court' for short), by which the Trial Court decreed the suit for partition.
2. The parties shall henceforth be referred to as they were arrayed before the Trial Court.
3. The plaintiffs and defendants are the first cousins. The plaintiffs filed a suit for declaration that they are entitled to 7 guntas of land in Sy.No.249 of Sarkuli village, Umbalamane Hobli, Siddapura Taluk. Along with a plaint, they enclosed a rough hand sketch of the property claimed by them. The same is extracted below for immediate reference:- -3- RFA No. 737 of 2007
4. The plaintiffs claimed that Smt. Chandrabai @ Ramabai Vithalrao was the owner of the land bearing Sy.No.249. She executed a moolageni dated 25.01.1943 in favour of the father of the plaintiffs. The plaintiffs claimed that from that day onwards, the plaintiffs are in possession of 7 guntas of land including kharab, which is marked with the letters 'AB' in the rough hand sketch. The plaintiffs claimed that they alone are entitled to the suit property. They contend that on the northern side of the above property, lay the -4- RFA No. 737 of 2007 property of the defendants. It is claimed that the plaintiffs and the defendants have an equal share in the aforesaid land and that they are in possession of the same eversince the year 1943. Further, they contend that the said survey number was not partitioned. They contend that in moolageni dated 25.01.1943, though the plaintiffs were entitled to half share but it was mentioned as 5 guntas out of 14 guntas to the plaintiffs and 9 guntas out of 14 guntas to the defendants, yet in the revenue records, it was mentioned as half share in favour of the plaintiffs and the defendants. Further, they contend that due to reason beyond their control, the revenue officials recorded the name of the plaintiffs to the extent of 5/14 and in respect of defendants as 9/14. They claimed that from the year 1943, no survey was conducted in respect of land bearing Sy.No.249. The defendants submitted a request to conduct a survey in respect of Sy.No.249 based upon which, a notice was issued to the plaintiffs. Though the plaintiffs requested the surveyor to conduct a survey based on the possession, however it was done illegally based on the revenue records, which indicated that the defendants were in possession of 9/14 guntas. The plaintiffs challenged this order before the Assistant -5- RFA No. 737 of 2007 Director of Land Records, which was dismissed and taking advantage of the same, the defendants had attempted to interfere with the possession of the plaintiffs in the portion marked as 'CDEB' in the rough hand sketch. They contend that they were in possession of the said portion, where they had a cattle shed, building and coconut trees, which was surrounded by a stone compound along side 'EB' line and from 'B' towards east. They claimed that on 05.09.1997, the defendants attempted to harvest coconuts from the trees existing in the property lying on the southern side of AB line and Therefore, the plaintiffs were constrained to lay their claim for half share in the suit schedule property.
5. The defendants contested the suit and claimed that the plaintiffs' father was in possession of 5 guntas out of 14 guntas of land in Sy.No.249 in respect of which, a moolageni was executed and that remaining 9 guntas was in possession of the defendants from the year 1943. They contend that proceedings were initiated against the father of the plaintiffs and the defendants under the provisions of the Bombay Agricultural Debts Relief Act, 1947, in proceedings No.449/1947 in which case too, the father of the plaintiffs had claimed only 5 -6- RFA No. 737 of 2007 guntas out of 14 guntas. They claimed that the property lying on the northern side of AB line along with kharab belonged to them. They denied that the plaintiffs were entitled half share in the entire land in Sy.No.249. They also denied the rough hand sketch attached to the plaint and contended that from the year 1943, the plaintiffs are in possession of 5 guntas while defendants are in possession of 9 guntas. They also claimed that the suit was highly belated and therefore, it was not maintainable.
6. Based on these contentions, the Trial Court framed the following issues:-
i) Whether the plaintiffs prove the description of the suit property as shown in the plaint and hand sketch map?
ii) Whether the plaintiffs prove that by virtue of Moolgeni deed dated 23.1.1943 they have acquired the right, title to the extent of ½ portion in the suit Sy.No.249 to the southern side of AB line as shown in the hand sketch map?
iii) Whether the plaintiffs prove that the measurement which shown in the record of right of suit property, does not take away the -7- RFA No. 737 of 2007 right, title of plaintiffs over 0-7-0 in Sy.No.249?
iv) Whether the plaintiffs further prove the
interference by the defendants with the
peaceful possession of the suit property by plaintiffs?
v) Whether the defendants prove that the suit of the plaintiffs is barred by limitation in view of the proceedings bearing No.449/47 under the Bombay Agriculture Debt Relief Act that took place from 1947 to 1950?
vi) Whether the defendants prove that the suit of
the plaintiffs for the relief of partition
declaration and injunction is not maintainable?
vii) Whether they further prove that they have right, title over 0-9-0 in the suit Sy.No.249 to the northern side and the defendants to the extent of 0-5-0 in the southern side?
viii) What Order or Decree?
7. The plaintiff No.2 was examined as PW.1 and a surveyor who surveyed the property as per Ex.P11 was examined as PW.2 and Exs.P1 to P11 were marked. The defendant No.1 was examined as DW1 and he marked Exs.D1 to D17.
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8. Based on the oral and documentary evidence, the Trial Court decreed the suit holding that the plaintiffs are entitled to half share in the land bearing Sy.No.249 situate at Sarkuli village, Umbalamane Hobli, Siddapura Taluk and hence, declared that the plaintiffs have right, title and interest in half portion of Sy.No.249 situate on the southern side of AB line to an extent of 7 guntas and directed the revenue records to be properly entered in the name of the plaintiffs. It further directed the defendants not to interfere with the peaceful possession and enjoyment of the plaintiffs in the property situate on the southern side of AB line. It also reserved liberty to the plaintiffs and defendants to get their boundaries of their suit properties fixed in accordance with their respective half share by approaching competent survey authority.
9. Being aggrieved by the same, the present appeal is filed by the defendants.
10. The learned counsel for the appellants/defendants submitted that the total extent of land in Sy.No.249 situate at Sarkuli village, Umbalamane Hobli, Siddapura Taluk, was 14 guntas and as per Ex.P4, a Moolageni was executed in favour of -9- RFA No. 737 of 2007 the plaintiffs' father on 25.01.1943 in respect of 5 guntas out of 14 guntas. Likewise, a moolageni was executed on the same day in favour of father of the defendants in respect of 9 guntas of land. He submitted that in both these documents, it was specifically mentioned that the house, backyard, well etc., was situate on the southern side of the Sy.No.249 and that both plaintiffs and defendants were entitled to half share in the said house, backyard well etc., He therefore contends that the Trial Court committed an error in assuming that the plaintiffs and defendants were entitled to half share each in Sy.No.249. He invited the attention of the Court to Ex.P.2 and Ex.P.3 which were also marked as Ex.D.4 and Ex.D.5 which indicates that the plaintiffs' father had 5 guntas of land in Sy.No.249 while the father of the defendants was entitled to 9 guntas. He also submitted that this state of affairs continued from the year 1934-35 to 1964-65 and therefore, the plaintiffs cannot now contend that the father of the plaintiffs was entitled to half share in the entire Sy.No.249. He further submitted that Ex.P.11 which is the PT sheet itself indicated that the defendants were in possession of the 'CDEB' portion and the evidence of PW-1 clearly indicated that there was a gap
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RFA No. 737 of 2007 between the house of the plaintiffs and the defendants and that a compound wall was erected separating the property of the plaintiffs and the property of the defendants. He therefore, submitted that the evidence on record and the documents clearly indicated that the plaintiffs were entitled to 5 guntas including half share in the house, backyard, well etc., The learned counsel submitted that the appreciation of the evidence by the trial Court was sloppy and therefore, the impugned judgment and decree passed on such wrong appreciation of evidence deserves to be set aside.
11. Per contra, learned counsel for the defendants submitted that the house, backyard, well etc., were admittedly situate on the southern side of Sy.No.249. He submitted that in Ex.P.4 as well as Ex.D.1, it was specifically mentioned that plaintiffs and defendants are entitled to an equal half share and therefore, the trial Court was justified in decreeing the suit and declared that plaintiffs and defendants are entitled to half share in Sy.No.249. He further submitted that in terms of Ex.P.6 which was the Mutation Entry No.696, the defendants had acknowledged that the plaintiffs have half share in the entire survey number.
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RFA No. 737 of 2007
12. I have considered the submissions made by the learned counsel for the plaintiffs and the learned counsel for the defendants.
13. Based on the appreciation of pleadings, oral and documentary evidence as well as the judgment and decree of the trial Court, the following point arise for consideration in this appeal:
"Whether by virtue of Ex.P.4 and Ex.D.1, the father of the plaintiffs was entitled to an equal share in the land bearing Sy.No.249?"
14. In order to answer the aforesaid question, it is necessary to trace the history of the right, title and interest of the plaintiff and defendants from the year 1943. It is not in dispute that the land bearing Sy.No.249 of Sarakuli village, Umbalamane hobali, Siddapur taluk, belonged to Smt.Chandrabagi @ Ramabai and measured 14 guntas in all. She executed a moolageni deed in favour of the plaintiffs on 25.01.1943 in respect of 5 guntas of land and contemporaneously executed another moolageni deed in favour of the father of the defendants in respect of 9 guntas of land. She reserved the southern side house, backyard, well etc., to
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RFA No. 737 of 2007 both the father of the plaintiffs and the father of the defendants in equal shares. The recital relating to the aforesaid, is extracted below:
"F ¥ÀæPÁgÀ D¹ÛAiÀÄÄ ªÀtð£ÉAiÀiÁVgÀÄvÀÛzÉ. ¸ÀzÀj D¹ÛUÀ¼À ¥ÉÊQ ¸ÀªÉð £ÀA§gÀ 249 £ÉÃzÀgÀ°ègÄÀ ªÀ ªÀÄÆgÀÄ CAPÀt eÁ©£À 15 CAPÀt vÀPÛÀ ¥ÉÆò jÃ¥ÀÄ ¥ÀPÁ±É ºÁQ ªÀÄAUÀ¼Æ À gÀÄ ºÉAZÀÄ ºÉÆaÑzÀ ¨ÉøÁAiÀÄ G¥ÀAiÉÆÃUÀzÀ ªÀÄ£É Cr¸ÀܼÁ PÉÆnÖUÉ ªÀÄ£É G¥ÀUæÀºÀ, ¨Á«»vÀÄè PÀÆqÀ ¸ÁªÀiÁ¬ÄPÀ 1/2 zÀQët ¢QÌ£ÀzÄÀ F PÀgÁjUÉ ±ÉÃjzÁÝVgÀÄvÀÛzÉ.
F ¥ÀæPÁgÀ D¹ÛAiÀÄÄ ªÀtð£É AiÀiÁVgÀÄvÀÛzÉ. ¸ÀzÀj D¹ÛUÀ¼À ¥ÉÊQ ¸ÀªÉð £ÀA§gÀ 249 £ÉÃzÀgÀ°ègÄÀ ªÀ ªÀÄÆgÀÄ CAPÀt eÁ©£À 15 CAPÀt vÀPÛÀ ¥ÉÆò jÃ¥ÀÄ ¥ÀPÁ±É ºÁQ ªÀÄAUÀ¼ÀÆgÀÄ ºÉAZÀÄ ºÉÆaÑzÀ ¨ÉøÁAiÀÄ G¥ÀAiÉÆÃUÀzÀ ªÀÄ£É Cr¸ÀܼÁ PÉÆnÖUÉ ªÀÄ£É G¥ÀUæÀºÀ, ¨Á«»vÀÄè PÀÆqÀ ¥ÀÄgÀªÀuÉ 1£ÉÃzÀÄ ¸ÁªÀiÁ¬ÄPÀ 1/2 GvÀÛgÀ ¢QÌ£ÀzÄÀ F PÀgÁjUÉ ±ÉÃjzÁÝVgÀÄvÀÛzÉ."
15. The earliest revenue entries are Ex.P.2 and Ex.P.3 which are the mutation extracts 848 and 849 in respect of the plaintiffs and defendants. In M.E.No.848, the plaintiffs are shown to be owners of 5 guntas out of 14 guntas and against their names, the decimal ½ is mentioned. Similarly, in M.E.No.849, the father of the defendants is shown to be entitled to 9 guntas out of 14 guntas after rounding off the decimal ½. It is seen from Ex.D.6 that a proceeding was initiated against the father of the plaintiffs and the father of the defendants under the provisions of the Bombay Agricultural Debts Relief Act, 1947, where too the father of the plaintiffs
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RFA No. 737 of 2007 was shown to be the owner of 5 guntas out of 14 guntas and father of defendants was shown as owner of 9 guntas out of 14 guntas and the revenue documents such as Ex.D.2 and Ex.D.3 which are M.E.No.740 and 741 indicate that plaintiffs' father was moolagenidaar of 5 guntas while defendants' father was moolagenidaar of 9 guntas of land. Even in Form No.7 filed as per Ex.D.8, the plaintiffs' father claimed 5 guntas while the defendants' father claimed 9 guntas of land in the aforesaid survey number. Consequently, the revenue entries from the year 1964-65 to 1975-76 continued in the name of father of the plaintiffs to an extent of 5 guntas while RTC for the year 1977-78 to 1981-82 as per Ex.D.10 continued in the name of the father of the defendants in respect of 9 guntas of land.
16. A proceeding was initiated for bifurcation of Sy.No.249 and phut hissa proceedings were initiated, and it was found that 2 guntas of kharab out of 5 guntas was in possession of the father of the plaintiffs while 3 guntas of kharab out of 9 guntas was in possession of the father of the defendants. Consequently, resurvey was conducted to bifurcate 249 into Sy.Nos.249/1 and 249/2. Sy.No.249/1 was in respect of share of the defendants while Sy.No.249/2 was in respect of share of the plaintiffs. Mutation proceedings were
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RFA No. 737 of 2007 initiated in M.E.1397 in respect of Sy.No.249/1 and Sy.No.249/2 and the RTC for the year 1996-97 (Ex.D.11 and Ex.D.12) shows the name of the father of the defendants in respect of 9 guntas in Sy.No.249/1 and the name of the father of the plaintiffs in respect of 5 guntas in Sy.No.249/2. The documentary evidence therefore demonstrate beyond doubt that the land in Sy.No.249 measured 14 guntas of which 9 guntas was given away in favour of the defendants while 5 guntas was given away to the father of the plaintiffs by 2 separate deeds of Moolageni deed dated 26.01.1943.
17. It is undisputed that a house, backyard, well and other facilities were available within this 14 guntas of land and the owner Smt.Chandrabagi reserved right in the house, backyard and well in favour of the father of the plaintiffs as well as the defendants. Therefore, the plaintiffs were entitled to 5 guntas including half share in the house, backyard and well while the defendants were entitled to 9 guntas of land including their half portion of the house, backyard, well etc., The finding of the trial Court that the documents established that the plaintiffs were entitled to half share in the suit property is without any basis but is based on an assumption that the landlady had executed a moolageni in respect of 5 guntas and
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RFA No. 737 of 2007 also half share in the house. However, the documents speak otherwise and indicate that the plaintiffs were entitled to 5 guntas while the defendants were entitled to 9 guntas including the house, backyard, well etc., in Sy.No.249.
18. Now turning to the oral evidence on record, PW-1 in his cross-examination admitted that there was only one house that existed in Sy.No.249. However, he contends that from the time of his grandfather, plaintiffs and defendants were residing separately. He also admitted that they had demolished the house that fell to their share and reconstructed a new house. He also admitted that as per the Moolageni deed dated 26.01.1943, their names were entered in the revenue records (Ex.P4) in respect of 5 guntas in Sy.No.249/2 and that the father of the plaintiffs did not challenge the same during his life time. He claimed that his father died in the year 1953 and thereafter his name was entered in the revenue records. He admitted that from the year 1953, he did not submit any representation for registering his name to an extent of half share. He further deposed that the portions of the land in Sy.No.249, as per mutation entry 848 and 849, were in respective possession and enjoyment of the defendants. He also claimed that there was a gap between the new house
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RFA No. 737 of 2007 constructed by the plaintiffs and the old house belonging to the defendants. He also admitted that in Sy.No.249 there was a compound wall which separated the plaintiffs' portion and the defendants' portion and that it was the defendants who constructed the compound wall. He also admitted that he did not oppose the defendants when they constructed the compound wall but contended that the compound wall did not demarcate the actual possession of the parties.
19. PW-2 was the Surveyor who prepared Ex.P.11. The survey sketch is relevant and the same is extracted below:
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RFA No. 737 of 2007
20. He deposed that a road ran through Sy.No.249 from east to west measuring 50 ft X 12 ft. He deposed that on the northern side of this road was the residential house of the plaintiffs. He deposed that when he inspected the property, there were no construction or compound. Per contra, the evidence of DW-1 indicates that he admitted the revenue records as per Ex.P.7 and Ex.P.8. He also admitted that the cattle pen of the plaintiffs lay on the southern edge of Sy.No.249 and claimed that it lay outside the area shown as 'CDEF' in the plaint sketch.
21. The aforesaid oral and documentary evidence clearly indicate that from the year 1943 and onwards, the father of the plaintiffs and the father of the defendants were in possession of 5 guntas and 9 guntas respectively in Sy.No.249. The only basis on which the plaintiffs have laid a claim to half share in the Sy.No.249 is Ex.P.4 and Ex.D.1, where it is mentioned that plaintiffs and defendants father were entitled to half share in the house, backyard, well etc., There is no evidence to establish that the plaintiffs were in possession of more than 5 guntas of land including the half portion of the
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RFA No. 737 of 2007 house or 7 guntas being the half portion of 14 guntas in Sy.No.249. On the contrary, all the records indicate that the plaintiffs were in possession of 5 guntas of land in Sy.No.249 which included their half share in the house, backyard and well etc., Therefore, the trial Court committed a serious error in misconstruing the recital in Ex.P.4 and Ex.D.1 that the plaintiffs are entitled to half share in the entire survey number. In addition, the plaintiffs and the defendants categorically admitted that the road measuring 50 ft X 12 ft was formed in Sy.No.249 running east to west. The rough hand sketch appended to the plaint shows that plaintiffs have also laid a claim in respect of this road. The trial Court, even after noticing this fact, decreed the suit by assuming that plaintiffs and defendants are entitled to half share in the suit schedule property. The trial Court did not gather the wisdom of the landlady in indicating "5/14" and "9/14" in Ex.P.4 and Ex.D.1 which indicated that what was given to the plaintiffs father was only 5 guntas on moolageni and not 7 guntas. In addition, the evidence of PW-1 demonstrates beyond doubt that the plaintiffs were in possession of 5 guntas of land excluding the road measuring 50 x 12 ft found in Ex.P.11.
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RFA No. 737 of 2007
22. In that view of the matter, the point for consideration framed by this Court is answered against the plaintiffs and in favour of the defendants and it is held that the plaintiffs were in possession, enjoyment and title in respect of 5 guntas only in Sy.No.249/2 and not 7 guntas as claimed by them and therefore, the trial Court committed an error in decreeing the suit.
23. In that view of the matter, this appeal is allowed and the impugned judgment and decree dated 15.12.2006 passed by the Civil Judge, Sr.Dn., Sirsi, is set aside. Consequently, the plaintiffs are declared to be the owners of 5 guntas of land in Sy.No.249/2 of Sarkuli village, Umbalamane Hobli, Siddapura Taluk and they are in possession of the same and consequently, the defendants are restrained from interfering with the possession of the plaintiffs in respect of 5 guntas of land in Sy.No.249/2 of Sarkuli village, Umbalamane Hobli, Siddapura Taluk. The suit for the relief of possession of the portion marked as 'CDEF' in the rough hand sketch is dismissed.
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RFA No. 737 of 2007
24. It is needless to mention that the plaintiffs are entitled to the house that is situate beyond 'CDEB' marked in the reference sketch produced by them along with the plaint.
Sd/-
JUDGE PMR/JM List No.: 1 Sl No.: 22