Karnataka High Court
Chowdamma vs Ningamma on 11 December, 2012
Author: B.Sreenivase Gowda
Bench: B.Sreenivase Gowda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 11TH DAY OF DECEMBER, 2012
BEFORE
THE HON'BLE MR. JUSTICE B.SREENIVASE GOWDA
R.S.A. NO.3092 of 2007
BETWEEN:
1. Chowdamma, aged about 78 years,
2. Bommiah, aged about 64 years,
3. B. Chowdegowda, aged about 62 years,
4. Santhosha, aged about 24 years,
S/o late Shankara.
5. Puttaswamy, aged about 54 years.
6. Ramanna aged about 52 years,
7. Ningamma, aged about 40 years,
W/o late Ramesha
8. Bhavya, aged about 14 years,
D/o late Ramesha
9. Ananda, aged about 13 years,
D/o late Ramesha.
Appellants 8 to 9 are minors represented
By their guardian, their mother Ningamma
Appellant No.7.
10. Appaji, major.
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Appellants 1 is the wife and 2,3,5,6 and 10 are
Children of late Bommegowda.
All are appellants are residing at Ambarahalli
Village, C.A. Kere Hobli,
Maddur Taluk, Mandya District - 571 428.
...Appellants
(By Smt. Deepashree, Adv.)
AND:
1. Ningamma, major,
2. Thayakka, major,
3. Krishna, major,
4. Ramesha, major,
5. Savithri, major
W/o Kirshna.
6. Chowdegowda, major,
7. Chandra, major,
8. Channappa, major,
9. Shiva, major,
10. Appaji, major,
11. Kariya, major,
Respondent No.1 is the wife and
Respondents Nos. 2 to 11 are the children
Of Late Kale Gowda.
Respondent No.5 is residing at Hannakere
Village, Kasaba Hobli,
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Mandya Taluk - 571 428.
Mandya District.
All the respondents are residing at
Ambrahalli Village, C.A. Kere Hobli,
Maddur Taluk - 571 428,
Mandya District.
Gowramma, major,
W/o late Shankara, Dead by legal representative
R-12
12. Satisha, aged about 24 years,
S/o late Shankara
Both respondents 12 and 13 are residing at
Ambarahalli Village, C.A. Kere Hobli,
Maddur Taluk - 571 428.
Mandya District.
13. Mayamma, major,
E/o late Bommegowda,
14. Bhagyamma, major,
D/o late Bommegowda,
15. Gowramma, major, since dead by LRs
D/o late Bommegowda,
15(a) Kalegowda, aged 60 years,
S/o Vatte Kalegowda,
R/at Kabbanahalli,
Mandya Taluk and District - 571 404.
15(b) Madhushri, aged about 23 years,
W/o Mahadeva M
R/at 115, Kiragasuru (Purtha gram)
Kiragasuru, Malavalli,
Mandya - 571 417.
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Respondents 14 to 15 are residing at
Ambarahalli Village, C.A. Kere Hobli,
Mandya District - 571 428.
... Respondents
(By Sri. H.C. Shivaramu, Advocate for R1 - R6,
R8 to R11 and for C/R7 (CP NO.958/2007),
R12 to R14, R -15A and 15B - are served)
This RSA is filed under section 100 of CPC.,
against the Judgment and Decree dated 29.08.2007
passed in R.A. No.31/2003 on the file of the Civil
Judge, (Senior Division) Maddur, dismissing the appeal
and confirming the Judgment and Decree dated
24.06.2003 passed in O.S. NO.528/1989 on the file of
the Addl. Civil Judge, (Junior Division), Maddur.
This appeal coming on for admission, this day, the
court delivered the following:
JUDGMENT
This second appeal is by the unsuccessful plaintiff in O.S. No. 528/1989 on the file of the Addl. Civil Judge, (Junior Division), Maddur challenging the judgment and decree of the Courts below in dismissing the suit filed for the relief of declaration of title and for permanent injunction restraining the defendants from interfering with the possession and enjoyment of the suit schedule property.
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2. Heard the learned Counsel for the appellant and perused the judgment and decree of the Courts below.
3. For the sake of convenience parties are referred to as per their ranking in the suit before the trial Court.
The original plaintiff Bommegowda filed a suit O.S. No.528/1989 against the respondents herein seeking to declare him that he is the owner in possession and enjoyment of 1 acre 37 guntas of land in Sy. No. 10/2 situated at Madarahalli Village,C.A. Kere Hobli, Maddur Taluk as per the boundaries shown in the suit schedule property and for permanent injunction restraining the defendant from interfering with his possession and enjoyment of the suit schedule property and to declare that the land comprised in suit Sy. No.10/2 only and not 10/3 as mentioned by clerical mistake by the Survey Department as per the order of Hon'ble High Court.
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4. Brief facts of the case of the plaintiff is as under:
Plaintiff and defendants are brothers and defendant was given in adoption to the uncle of the plaintiff by name Karibommanalingegowda and thus, defendant has severed all his connections with the plaintiff's family and has no any right or title over the properties possessed by plaintiff's family. It is his ancestral dry land. He installed a I.P. set in the suit schedule property in the name of his brother Channaiah about 20 years back to irrigate the suit land. Plaintiff used to raise sugarcane, ragi crops etc. over the suit land every year. In addition to it he raised some coconut, Areca nut, Caesarian, Eucalyptus, Honge, Neeranji, Bamboo and Neem trees etc. in the suit land and is paying tax. In this regard he has produced RTC extract and tax paid receipt. Due to non-payment of electricity charges, the Power supply was disconnected due to I.P. set and this time he raised sugarcane crop over the entire suit schedule land by taking water through the hired diesel pumpset. The 7 Village Accountant has committed a mistake in showing in the revenue record that sugarcane crop is grown in one acre and Ragi crop is grown in the remaining land instead of showing sugarcane crop is grown in the entire land. He further contended that due to the clerical error made by the Survey Department has mentioned suit schedule property as survey number 10/3 instead of 10/2 which is wrong and opposed to existing facts and Rules and he filed an application through his son Puttaswamy to the Deputy Director of Land Records, Mysore to rectify the same and the said officer instead of rectifying the same erroneously changed the extents of survey numbers 10/2 and 10/3 which was in existence over the last 50 years as per his order dated 03.12.1984 passed in No.RNLSPRNMR 23/84-85. The said order was questioned by the plaintiff by was of appeal before the Joint Director of the Land Records, Mysore in TNL!/84-85and the said appeal was dismissed. Again he filed a second appeal against the said order before KRAT, Bangalore in No.319/85 and the said authority by order dated 8 19.06.1986 set aside both the orders and remanded the matter to DDLR, Mysore for fresh enquiry and for disposal in accordance with law and the said case is now pending. Thus, it is contended that the correct Hissa number of suit schedule property is 10/2 only and not 10/3 as wrongly mentioned by the clerical error in the Survey Department. Thus, it is contended that the defendant has no any right, title or interest whatsoever over the suit schedule property, he is not in possession of the same at any time and he prays for decreeing the suit as prayed for.
5. The defendant entered appearance in the suit and filed his written statement denying the averments made in the plaint, but he admitted the relationship of the parties. He contended that among the sons of the natural father of the defendant his second son Channaiah was an intelligent person, he was looking after the properties of his family as well as the affairs of the family of the defendant and on the request of the 9 defendant he got cancelled I.P. set in the suit schedule property in the name of Channaiah. It is contended that the defendant made all the expenses and he claims to be in possession of I.P. set. It is contended the property described in the plaint schedule was belonging to his adopted father and therefore he claims to be in continuous possession and enjoyment of the suit schedule property. He contended that the plaintiff has committed an error in mentioning Sy. No. 10/2 even though the property fully described in the plaint schedule bears Sy. No. 10/3 of Madarahalli Village. Defendant does not claim any interest or possession in the land bearing Sy. No. 10/2. Further he contended that the land of the plaintiff and his brothers bearing Sy. No. 10/2 is situated on the eastern side of the suit schedule property of the defendant. Plaintiff and his brother have partitioned Sy. No. 10/2 into three portions. The eastern 0-30 guntas is in possession of the plaintiff, western 0-20 guntas is in possession of his brother Chikkabomma @ Kulla Bommaiah and middle 0-20 guntas is in possession of his another brother 10 Chowdegowda. Thus, he denied that the suit schedule property is an ancestral property of the plaintiff and he installed I.P. set therein. On the other hand the defendant has installed the I.P. set in the suit schedule property, for some time plaintiff and his brothers were taking water to their lands from the said I.P. set of the defendant on payment of charges. The defendant has raised trees as referred to in the plaint. The plaintiff never paid tax in respect of the suit schedule property and he claimed to have got disconnected the electricity supply to I.P. set due to mechanical defects in the motor and other parts and he claimed to have installed diesel pump set in the suit schedule property and with the help of the same raising wet crops in the suit schedule property. Therefore he prays for dismissal of the suit.
6. The trial Court on the basis of pleadings of the parties has framed the following issues: 11
1. Whether the plaintiff proves that he is the owner in possession of the suit schedule property?
2. Whether the plaintiff proves that the defendant interfered with his possession of the suit property as alleged?
3. Whether plaintiff proves that he is entitled for the relief of declaration and permanent injunction as prayed for?
4. Whether the plaintiff proves that the property described in the plaint schedule bears S.No.10/2?
5. Whether the defendants proves that the property described in the plaint schedule is his property and suit schedule property bears S.No: 10/3?
6. What order or decree?
7. During the pendency of the suit original plaintiff Bommegowda died and his L.Rs were brought on record and they pursued the suit. The plaintiffs in order to prove their case have examined the 5th plaintiff as PW 1 and the ADLR, Mandya as PW 2 and have produced as many as 31 documents which were marked as Ex. P 1 to P 31. On behalf of the defendant the defendant himself was examined as DW 1 and he has produced 48 documents which were marked as Ex. D 1 to D 48. 12
8. The trial Court upon consideration of oral and documentary evidence on record has answered issue Nos. 1 to 4 in the negative and issue No. 1 in the positive holding that the plaintiff has utterly failed to prove his title and possession over the suit property by clear and convincing evidence and dismissed the suit.
9. The plaintiff challenged the said judgment and decree of the trial Court in R.A. 31/2003 before the lower Appellate Court. The lower Appellate Court on re-
appreciation of oral and documentary evidence on record has also dismissed the appeal and confirmed the judgment and decree of the trial Court. It is against the concurrent judgments and decrees of the Courts below plaintiff has preferred this second appeal.
10. The grievance of the plaintiffs is that by clerical error the Survey Department has mentioned the survey number of the suit schedule property as 10/2 instead of 10/3 and has changed t he extent of land of the said 13 survey numbers. The plaintiffs aggrieved by the same filed an application through his son Puttaswamygowda to the DDLR, Mysore to rectify the said mistakes and it was rejected, against which they preferred an appeal before JDLR, Mysore. The JDLR, Mysore dismissed the said appeal. Aggrieved by the same they preferred second appeal before KRAT, Bangalore and the Appellate Tribunal set aside both the orders and remanded the matter to DDLR, Mysore for fresh enquiry and for disposal in accordance with law and it is pending consideration. From the above admitted case of the plaintiff it is clear that the petition made by the plaintiff before DDLR for correction of the alleged clerical mistake with respect to suit survey number is still pending before one or the other Authority.
11. I have gone through the judgments and decrees of the Courts below and do not find any illegality or infirmity in the same which warrants interference. In 14 addition to that there is no substantial question of law which arises for consideration in this second appeal.
12. Accordingly, the appeal is dismissed as devoid of merit.
No orders as to cost.
Sd/-
JUDGE Vb/-* Ct-Hmr