Karnataka High Court
Mahabaleshwar Ganapathi Bhat vs Ganapathi Ganapathi Bhat on 19 July, 2012
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 19TH DAY OF JULY, 2012
BEFORE
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
RSA NO.758/2007
C/W
RSA NO.757/2007
IN RSA NO.758/2007
BETWEEN
1. MAHABALESHWAR GANAPATHI BHAT,
AGE : 66 YEARS,
2. GANAPATHI GANAPATHI BHAT,
AGE : 61 YEARS,
3. RAMACHANDRA GANAPATHI BHAT,
AGE : 59 YEARS,
4. GANAPATHI RAM BHAT,
AGE : 61 YEARS,
5. NARAYAN VIGNESHWARA BHAT,
AGE : 61 YEARS,
ALL ARE R/O. DASANABUDILU,
VAJAGODU VILLAGE, SIDDAPURA TALUK,
NORTH KANARA DIST - PIN : 581 355.
...APPELLANTS
(By Sri.S R HEGDE : R.GOPAL, ADVS.)
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AND
1. GANAPATHI GANAPATHI BHAT,
AGE : 66 YEARS,
R/O.DASANAHUDILU
VAJAGODU VILLAGE,
SIDDAPURA TALUK,
N.K. DIST, PIN - 581 355.
... RESPONDENT
(By Sri.N S BHAT, ADV.)
*****
THIS RSA FILED U/S.100 OF CPC AGAINST THE
JUDGEMENT AND DECREE DTD:7.12.2006 PASSED IN
R.A.NO.4/2001 ON THE FILE OF THE PRESIDING
OFFICER, FTC-II, KARWAR, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGEMENT AND DECREE
DTD:6.2.2001 PASSED IN OS NO.45/1995 ON THE FILE OF
THE CIVIL JUDGE (SR.DN) SIRSI.
IN RSA NO.757/2007
BETWEEN
1. MAHABALESHWAR GANAPATHI BHAT,
AGE : 66 YEARS,
2. GANAPATHI GANAPATHI BHAT,
AGE : 61 YEARS,
3. RAMACHANDRA GANAPATHI BHAT,
AGE : 59 YEARS,
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4. GANAPATHI RAM BHAT,
AGE : 61 YEARS,
5. NARAYAN VIGNESHWARA BHAT,
AGE : 61 YEARS,
6. SUBRAYA VIGNESHWARA BHAT,
AGE : 51 YEARS,
7. VEERABHADRA VIGNESHWARA BHAT,
AGE : 41 YEARS,
ALL ARE R/O.DASANAHUDILU,
VAJAGODU VILLAE, SIDDAPURA TALUK,
NORTH KANARA DISTRICT,
PIN - 581 355.
...APPELLANTS
(By Sri.R GOPAL, ADV.)
AND
1. GANAPATHI GANAPATHI BHAT,
AGE : 66 YEARS,
R/O.DASANAYHUDILU,
VIJAGODU VILLAGE,
SIDDAPURA TALUK,
N.K.DISTRICT,
PIN - 581 355.
... RESPONDENT
(By Sri.S R HEGDE HUDLAMANE-C/R)
****
THIS RSA FILED U/S.100 OF CPC AGAINST THE
JUDGEMENT AND DECREE DTD:7.12.2006 PASSED IN
R.A.NO.3/2001 ON THE FILE OF THE PRESIDING
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OFFICER, FTC-II, KARWAR, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGEMENT AND DECREE
DTD:6.2.2001 PASSED IN OS NO.105/1996 ON THE FILE
OF THE CIVIL JUDGE (SR.DN) SIRSI.
THESE APPEALS COMING ON FOR ADMISSION THIS
DAY, COURT DELIVERED THE FOLLOWING:-
COMMON JUDGMENT
These second appeals arise out of the common judgment and decree passed in R.A. No.4/2001 and R.A. No.3/2001 respectively dated 7.12.2006 passed by the District Judge, Fast Track Court II, Karwar. By the said judgment and decree both the appeals were dismissed. The said appeals arose out OS No.45/1995 and OS No.105/96 respectively. These suits were tried together by the Civil Judge (Sr.Dn.), Sirsi, and by a common judgment and decree, OS No.45/1995 was dismissed whereas OS No.105/1996 was decreed declaring defendant No.1 to be the owner and in possession of the suit schedule property. -5-
2. For the sake of convenience, the parties shall be referred to in terms of their status before this court.
3. The appellants in both the appeals had filed OS No.45/1995 seeking a declaration that they had acquired title to the suit schedule properties by adverse possession. The suit schedule properties are the land bearing Sy. Nos.123/2 and Sy. No.123/5 whereas OS No.105/1996 is a suit filed by the common respondent in these appeals seeking a declaration that he is the owner in possession of the aforesaid properties and also seeking the relief of permanent injunction.
4. It is the case of the appellants that the respondent herein was making preparation to put up a building on a portion of the lands in question that they had objected to the same. Moreover, there had been no survey or boundary stone fixed in respect of the suit schedule properties. That the suit schedule properties had not been divided between the parties who are related to -6- each other as their respective fathers were brothers and that the suit schedule properties are joint family properties. In the circumstances, they sought the relief of adverse possession. The respondent herein filed the written statement stating that he has been in possession of Sy. No.123/2 and 123/5 pursuant to a division made between the parties that he is entitled to 2/5th share in the total area, measuring 3 acres 34 guntas in Sy.No.123 that the appellants together are entitled to 3/5th share in the said property. That there has been a proper division of properties by way of boundary stone being fixed and that he has been in continuos and uninterrupted possession and enjoyment of the suit schedule properties. He therefore sought dismissal of the suit.
5. The respondent herein in OS No.105/1996 sought the relief of declaration and injunction of the very same properties on the premise that pursuant to the division -7- of the property between the parties he has been enjoying the said survey numbers. However the appellants tried to encroached his portion of the property and therefore, he sought the relief of declaration and injunction.
6. On the basis of the rival pleadings, the trial court framed the following issues in OS No.105/1996 and OS No. 45/1995 respectively.
O.S.NO.105/1996
i. Whether the plff proves that he is the owner of the suit properties?
ii. Whether the plff proves that he was in lawful possession and enjoyment or the suit properties as on the date of suit?
iii. Whether the defts prove that they have perfected their title to the suit properties by adverse possession?
iv. Whether the plffs proves the alleged interference by the defts?
v. Whether the plff is entitled to decree prayed for?
vi. What decree or order? O.S.NO.45/1995 -8- i. Whether the plffs prove that they and defts 2 and 3 are in actual
possession and enjoyment of share of deft no.1 in the suit property since for the last 50 years in exclusion of deft no.1?
ii. Whether the plffs prove that right, title and interest of deft no.1 over the suit property has been lost by virtue of adverse possession?
iii. Whether the plffs prove that they and defts 2 and 3 have acquired title over the share of deft no.1 in the suit property by way or adverse possession?
iv. Whether the deft.no.1 proves that shares or parties to the suit in the suit property on the basis of actual possession has been divided by way of survey and measurement officially, with the consent of all and accordingly it has been effected in the revenue records?
v. Whether the plffs prove that deft.no.1 caused interference and obstruction in their use and enjoyment of the suit property, by making an attempt to put up a structure over the suit property?
vi. To what reliefs the plffs are entitled for?
vii. What order and decree?
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7. In support of their case, the respondent herein let- in the evidence of two witnesses as PW-1 and PW-2 and produced eighteen documents which were marked as Exs.P-1 to 18, while the appellants herein let-in the evidence of two witnesses as DW-1 and DW-2 and produced four documents which were marked as Exs.D- 1 to D-4.
8. On the basis of the said evidence, the trial court answered the issues as follows:
In OS No.45/1995, issue Nos.1 to 3, 4 and 6 were answered in the negative, while in OS No.105/1996 issues Nos.1, 2,4 and 5 were answered in the affirmative, while issue No.3 was answered in the negative. The trial court dismissed OS No.45/1995 and decreed the OS No.105/1996, declaring that the respondent herein is the owner in possession of the suit schedule properties and also granted the relief of permanent injunction.
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9. Being aggrieved by the said judgment and decrees, the appellants preferred R.A.No.3/2001 and R.A.No.4/2001 before the first appellate Court. Both the appeals were heard together. The first appellate Court formulated the following points for its consideration:-
i. Whether the plaintiffs in O.S.No.45/95 prove that senior Ganapati Ganapati Bhat, the defendant No.1 therein has lost his right, title and interest by adverse possession? ii. Whether the plaintiff in O.S.105/96 senior Ganapati Ganapati Bhat proves his title to the suit property?
iii. Whether plaintiff senior Ganapati Ganapati Bhat in O.S.105/1996 proves his lawful possession of the suit property?
iv. Whether plaintiffs prove interference to their possession of suit property by the defendant No.1, viz., senior Ganapati Ganapati Bhat in O.S.No.45/95?
v. Is interference to the findings of the trial Court necessary?
vi. What Order?
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After hearing the arguments on both sides the 1st Appellate Court answered Point No.1,4 and 5 in the negative and Point Nos.2 & 3 in the affirmative and dismissed the appeals.
10. Being aggrieved by the said judgment and decree of the First Appellate Court these appeals have been preferred.
11. I have heard the learned counsel for the appellants and the learned counsel for the respondent.
12. It is contended on behalf of the appellants that no doubt the respective shares of the appellants and respondent are not in dispute. It is not in dispute that the appellants are together entitled to 3/5th share and respondent is entitled to 2/5th share in Sy.No.123. As per the actual division made in the year 1994 Sy.No.123/1, Sy.No.123/3 and Sy.No.123/4 were allotted to the appellants and Sy.No.123/2 and
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Sy.No.123/5 were allotted to the respondent. Though there is no dispute with regard to the share of land, which the parties are entitled to, nevertheless, the re- survey and consequent phoding of Sy.No.123 has been made behind back of the appellants and as a result there has been improper and unequal division of the land in question between the parties. In other words, the contention is that the respondent has had an advantage insofar as the extent of land which has been allotted to him. It is also brought to my notice that as far as the re-survey and subsequent mutation made in the revenue records appeals were filed and presently the matter is pending before the Karnataka Appellate Tribunal at Bangalore. Be that as it may. He contended in the absence of there being an equal division of the properties with regard to the division in the form of metes and bounds the appellants are at disadvantage. This aspect of the matter has not been
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considered by both the Courts below and therefore substantial questions of law arises in these appeals.
13. Per contra, learned counsel for the respondent has drawn my attention to the prayer sought by the appellants and has stated that on the one hand appellants have sought for the relief of declaration of adverse possession insofar as Sy.No.123/2 and Sy. No.123/5 are concerned and on the other hand appellants have also sought that they are the joint owners of the said properties. That there is no dispute with regard to the division of properties between the parties in the year 1994. It is in terms of the said division that the mutation entries were changed in the names of the respective parties. The parties have been in respective possession of the property since then and the challenge made to the mutation entries has nothing to do with the actual division that had taken place in year 1994. He therefore submitted that both the Courts
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were right in rejecting the case of the appellants and granting the relief to the respondent, which decrees do not call for any interference in his appeal.
14. Having heard the learned counsel on both the sides, it is noted that the parties of the appeals are related in as much as they belong to the same family. The lands in question namely Sy.No.123, totally measuring 3 acres 34 guntas was a joint family property. The said property was divided into five portions by allotting separate numbers i.e. Sy.No.123/1, Sy.No.123/2, Sy.No.123/3, Sy.No.123/4, Sy.No.123/5. It is also not in dispute that the appellants together are entitled to 3/5th share in the land (1/5th share to each appellant), whereas the respondent is entitled to 2/5th share. Therefore, the share of the Respondent is twice that of the share of each appellant. The division of properties insofar as shares are concerned was made in the year 1994. However, the only controversy is with
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regard to the actual division of the property by metes and bounds.
15. It is the case of the appellants that the suit schedule property was in joint possession and enjoyment till the year 1994 and the phoding was made in the year 1994 by the survey authority as per the possession and enjoyment of the lands by the respective sharers. The phoding made by the surveyor is challenged before the Karnataka Appellate Tribunal.
16. In this context, the contention of the appellants is what was the actual possession of the parties has not been divided. But, the respondent has had an advantage in getting a certain extent of land, which was originally in the possession of the appellants. Therefore, the phoding of the lands in question has been contested by appellants before the Karnataka Appellate Tribunal, which is presently seized of the matter.
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17. Having regard to the RTC extracts, it is noted by the courts below that the respondent herein was in joint possession with the appellants. On the other hand, if the appellants were in exclusive possession then they could have sought for change of RTC in their respective names. That is not the case. On the other hand, the RTC produced by the respondent herein as Ex.P1 clearly shows that respondent is in possession of the suit schedule property to an extent of 2/5th share.
18. Therefore, the contention of the appellants that they are in adverse possession though pleaded has not been proved. The trial court has also noted that as per Ex.D-2 an application made to the Tahashildar, appellants have admitted that the respondent is in possession of 36 Guntas in Survey No.123. Therefore, the appellants cannot be in possession of the said extent. The trial court has also relied upon the Ex.P1 and P2, the RTCs, Exs.P6 and P7 the Khata extracts, Ex.P11 another RTC, Exs.P13 to 15 mutation registered
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extracts, which evidences the fact that the respondent was in possession of the suit properties is owner thereof. These documents would show the respondent's possession and enjoyment of the suit schedule properties as a owner to an extent of 2/5th share. Therefore, the appellants have failed to show that they have perfected their title by adverse possession.
19. The trial court has also placed reliance on the evidence of an independent witness PW2, who has stated in cross examination that the appellants herein are cultivating the land in Survey No.123 separately, to the extent of their share. This would prove the fact that the appellants and the respondent are not in joint possession of survey No.123. DW-2 has also stated that the respective shares have been harvesting crops of the respective lands separately. The evidence of DW2 therefore negates the contention of the appellants that they are in exclusive possession over the suit properties by way of adverse possession. Therefore, no case for
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adverse possession is made out. On the other hand, the respondent has made out a case that he is the owner is in possession over the suit properties.
20. What has to be borne in mind in the instant case is the nature of relief, which has been sought by the appellants, in the suit filed by them, namely, OS No.45/1995. When the appellants admit that the suit schedule properties was originally the joint family properties belonging to the family in question, the relief of adverse possession would not arise at all, as till the division of properties by metes and bounds they would be in a joint possession of the properties. If the division of properties by metes and bounds is questioned, then the relief of adverse possession sought by the appellants would not arise at all for the reason that the division had been made only in the year 1994 and in order to claim the relief of adverse possession, there has to be continuos uninterrupted possession to the knowledge of the person who claims to be the owner of the property.
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That is not the situation in the instant case. The alternative relief sought by them that they are in joint possession would also not be a proper relief which can be considered having regard to the fact that in the first instance plaintiffs have sought adverse possession.
21. That apart it is noted that the share of the respondent being 2/5th has been accepted by the appellants herein. The only point that would arise is whether the respondent would have been granted a portion in Sy.No.123/2 and Sy.No.123/5 as per Survey. The allotments of these two survey numbers to the respondent as per Survey is a subject matter of proceedings which is now seized by the Karnataka Appellate Tribunal. That a-part what has to be seen is the fact that the appellants and the respondent have continued to be in possession of the respective sub- survey numbers since the year 1994. Therefore, keeping aside the controversy as to whether the
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respondent had the right to mutate the survey Nos.123/2 and 123/5, I do not find that there is any substantial question of law, which can be raised by the appellant so as to entertain these second appeals. The reasoning of the trial court as well as the first appellate court clearly bring out the fact that the respondent has been granted possession in terms of his 2/5th share in the division of the property. The fact that the individual share of respondent is larger than the individual share of the plaintiff and defendants Nos. 2 and 3 cannot be lost sight.
21. In that view of the matter there is no merit in these appeals. Appeals are accordingly dismissed. Parties to bear their own costs.
Sd/-
JUDGE Vmb/Ct:mrk