Dismissed

Sri Eshwarachari v. Smt Huchamma

Karnataka HC13 Nov 2020RSA/1317/2006

Case brief

AI extract

What is this about?

Five second appeals by defendants against the appellate decree declaring the plaintiffs owners of land in Sy.No.49 and granting possession with mandatory injunction to remove constructions. The court held the defendants failed to establish title through Nanjamma or adverse possession, found no infirmity in the concurrent findings, and dismissed the appeals.

What did the court decide?

Appeals dismissed; mesne profits for wrongful possession restricted from the date of filing of the present appeals.

Sri Eshwarachari Vs Smt Huchamma — Property and Title | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF NOVEMBER, 2020

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BEFORE

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THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO

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R.S.A.No.1317/2006

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C/W R.S.A.Nos.1315/2006, 1316/2006, 1318/2006, 1319/2006

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IN RSA No.1317/2006

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BETWEEN:

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SRI ESHWARACHARI S/O. KALACHARI AGED 82 YEARS R/O BOREMEGALA KOPPALU CHINAKURALI HOBLI PANDAVAPURA TALUK - 571 434 MANDYA DISTRICT. ...APPELLANT

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(BY SRI K.N. NITISH, FOR SRI K.V.NARASIMHAN, ADVOCATE)

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AND

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SMT. HUCHAMMA W/O NARASEGOWDA SINCE DEAD BY HER LRS

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SMT. BETTAMMA W/O. BETTEGOWDA AGED ABOUT 62 YEARS

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2 . SMT. DEVAMMA W/O. C KARIGOWDA AGED ABOUT 57 YEARS

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ALL ARE RESIDENTS OF BOREMEGALA KOPPALU CHINAKURALI HOBLI PANDAVAPURA TALUK - 571 434. MANDYA DISTRICT. ..RESPONDENTS

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(BY SRI R.B.SADASIVAPPA & MANJU M, ADVOCATE FOR R-1 AND R-2)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DTD: 18.2.2006 PASSED IN R.A.NO.67/2001 ON THE FILE OF THE PRL.CIVIL JUDGE (SR.DN.) AND JMFC AT SRIRANGAPATNA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD:27.6.2001 PASSED IN O.S.86/1999 ON THE FILE OF THE LEARNED CIVIL JUDGE (JR.DN.) AT PANDAVAPURA.

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IN RSA No.1315/2006

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BETWEEN:

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SMT. KAMALAMMA W/O PUTTEGOWDA AGED 48 YEARS R/O. BOREMEGALA KOPPALU CHINAKURALI HOBLI PANDAVAPURA TALUK - 571 434 MANDYA DISTRICT. ...APPELLANT

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(BY SRI K.N. NITISH, FOR SRI.K.V.NARASIMHAN, ADVOCATE)

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AND:

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SMT. HUCHAMMA W/O. NARASEGOWDA SINCE DEAD BY HER LRS

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SMT. BETTAMMA W/O BETTEGOWDA AGED ABOUT 62 YEARS R/O. BOREMEGALA KOPPALU CHINAKURALI HOBLI, PANDAVAPURA TALUK- 571 434, MANDYA DISTRICT.

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2 . SMT. DEVAMMA W/O C KARIGOWDA AGED ABOUT 57 YEARS

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ALL ARE RESIDENTS OF BOREMEGALA KOPPALU CHINAKURALI HOBLI PANDAVAPURA TALUK - 571 434. MANDYA DISTRICT. ...RESPONDENTS

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(BY SRI R.B.SADASIVAPPA, ADVOCATE FOR R-1 & R-2)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DTD: 18.2.2006 PASSED IN R.A.No.67/2001 ON THE FILE OF THE PRL.CIVIL JUDGE (SR.DN.) AND JMFC AT SRIRANGAPATNA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD:27.6.2001 PASSED IN O.S.86/99 ON THE FILE OF THE LEARNED CIVIL JUDGE (JR.DN.) AT PANDAVAPURA.

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IN RSA No.1316/2006

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BETWEEN:

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SRI MOGANNAGOWDA S/O DOLLEGOWDA SINCE DEAD BY HIS LRS.

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SMT. PUTTAMMA W/O. LATE MOGANNAGOWDA AGED 75 YEARS,

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2 . SRI KRISHNEGOWDA S/O. LATE MOGANNAGOWDA AGED 55 YEARS.

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3 . SRI SHIVARAMEGOWDA S/O. LATE MOGANNAGOWDA AGED 47 YEARS.

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4 . SRI SRINIVASU S/O. LATE MOGANNAGOWDA AGED 43 YEARS.

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ALL ARE RESIDENTS OF BOREMEGALA KOPPALU, CHINAKURALI HOBLI, PANDAVAPURA TALUK - 571 434. MANDYA DISTRICT.

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5 . SMT. MARIYAMMA D/O LATE MOGANNAGOWDA AGED 49 YEARS R/O. NALLENAHALLI CHINAKURALI HOBLI MANDYA DISTRICT - 571 434.

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6 . SMT. CHIKKATHIMMAMMA D/O LATE MOGANNAGOWDA

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AGED 45 YEARS R/O. HULKERI, CHINAKURALI HOBLI PANDAVAPURA TALUK MANDYA DISTRICT - 571 434

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7 . SMT PRABHAVATHI D/O. LATE MOGANNAGOWDA AGED 39 YEARS R/O. CHINDEGOWDANAKOPPALU ARAKERE HOBLI, SRIRANGAPATNA TALUK MANDYA DISTRICT - 571 438. ...APPELLANTS

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(BY SRI K.N. NITISH, FOR SRI K.V.NARASIMHAN, ADVOCATE)

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AND:

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SMT. HUCHAMMA W/O. NARASEGOWDA SINCE DEAD BY HER LRS.

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SMT. BETTAMMA W/O. BETTEGOWDA AGED ABOUT 62 YEARS

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2 . SMT. DEVAMMA W/O. C. KARIGOWDA AGED ABOUT 57 YEARS

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ALL ARE RESIDENTS OF BOREMEGALA KOPPALU CHINAKURALI HOBLI PANDAVAPURA TALUK - 571 434 MANDYA DISTRICT.

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3 . SMT. SAROJAMMA D/O. LATE MOGANNAGOWDA

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SINCE DEAD BY HER LRS.

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3 (A). SRI CHANDRAHASA HUSBAND OF SAROJAMMA AGED ABOUT 40 YEARS.

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3 (B). DHANANJAYA S/O CHANDRAHASA AGED ABOUT 10 YEARS

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3 (C). SUJATHA D/O CHANDRAHASA AGED ABOUT 5 YEARS

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ALL ARE RESIDENTS OF HULKERE PANDAVAPURA TALUK MANDYA DISTRICT - 571 434. 3(B) AND 3(C) ARE MINORS AND THEY ARE REPRESENTED BY THEIR FATHER AND NATURAL GUARDIAN.

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...RESPONDENTS

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(BY SRI.R.B.SADASIVAPPA, FOR SRI MANJU M., ADVOCATE FOR R1 & R2; R-3(A)-ARE SERVED; R-3(B&C)- ARE MINORS REPRESENTED BY R-3 (A))

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THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DTD: 18.2.2006 PASSED IN R.A.No.67/2001 ON THE FILE OF THE PRL.CIVIL JUDGE (SR.DN.) AND JMFC AT SRIRANGAPATNA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD:27.6.2001 PASSED IN O.S.86/1999 ON THE FILE OF THE LEARNED CIVIL JUDGE (JR.DN.) AT PANDAVAPURA.

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IN RSA No.1318/2006

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BETWEEN:

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SRI VISHWESHWARA S/O CHIKKALINGACHAR AGED ABOUT 42 YEARS R/O BOREMEGALA KOPPALU CHINAKURALI HOBLI PANDAVAPURA TALUK – 571 434. MANDYA DISTRICT. ...APPELLANT

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(BY SRI.K.N. NITISH, FOR SRI.K.V.NARASIMHAN, ADVOCATE)

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AND:

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SMT. HUCHAMMA, W/O NARASEGOWDA, SINCE DEAD BY HER LRS

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SMT. BETTAMMA W/O. BETTEGOWDA AGED ABOUT 62 YEARS

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2 . SMT. DEVAMMA W/O. C KARIGOWDA AGED ABOUT 57 YEARS

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ALL ARE RESIDENTS OF BOREMEGALA KOPPALU CHINAKURALI HOBLI PANDAVAPURA TALUK-571 434 MANDYA DISTRICT. ..RESPONDENTS

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(BY SRI.R.B.SADASIVAPPA, FOR SRI MANJU M., ADVOCATE)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DTD: 18.2.2006 PASSED IN R.A.No.67/2001 ON THE FILE OF THE

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PRL.CIVIL JUDGE (SR.DN.) AND JMFC AT SRIRANGAPATNA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD:27.6.2001 PASSED IN O.S.86/1999 ON THE FILE OF THE LEARNED CIVIL JUDGE (JR.DN.) AT PANDAVAPURA.

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IN RSA No.1319/2006

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BETWEEN:

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SRI NINGEGOWDA S/O. KAPANI NINGEGOWDA AGED 67 YEARS R/O. BOREMEGALA KOPPALU CHINAKURALI HOBLI PANDAVAPURA TALUK - 571 434 MANDYA DISTRICT. ..APPELLANT

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(BY SRI.K.N. NITISH, FOR SRI.K.V.NARASIMHAN, ADVOCATE)

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AND:

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SMT. HUCHAMMA W/O NARASEGOWDA SINCE DEAD BY HER LRS

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SMT. BETTAMMA W/O. BETTEGOWDA AGED ABOUT 62 YEARS

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2 . SMT. DEVAMMA W/O. C KARIGOWDA AGED ABOUT 57 YEARS

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ALL ARE RESIDENTS OF BOREMEGALA KOPPALU CHINAKURALI HOBLI PANDAVAPURA TALUK - 571 434

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MANDYA DISTRICT. ..RESPONDENTS

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(BY SRI.R.B.SADASIVAPPA, FOR SRI MANJU.M., ADVOCATE)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DTD: 18.2.2006 PASSED IN R.A.No.67/2001 ON THE FILE OF THE PRL.CIVIL JUDGE (SR.DN.) AND JMFC AT SRIRANGAPATNA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD:27.6.2001 PASSED IN O.S.86/1999 ON THE FILE OF THE LEARNED CIVIL JUDGE (JR.DN.) AT PANDAVAPURA.

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THESE APPEALS COMING ON FOR HEARING THIS DAY, THE COURT THROUGH VIDEO CONFERENCE AT BENGALURU DELIVERED THE FOLLOWING:

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JUDGMENT

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These five appeals are directed against the Judgment and decree dated 18.02.2006 passed in R.A.No.67/2001 on the file of the Principal Civil Judge (Sr.Dn) and JMFC, Srirangapatna, wherein appeal came to be allowed and Judgment and decree dated 27.06.2001 passed in O.S.No.86/99 by the Civil Judge (Jr.Dn), Pandavapura, was set aside and consequently suit of plaintiffs was decreed. For the purpose of

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convenient reading operative portion of the appeal is

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extracted and it reads as under:

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“The appeal is hereby allowed. The Judgment and decree passed by the trial court in O.S.No.86/99 dated 27.06.2001 on the file of Civil Judge (Jr.Dn), Pandavapura are hereby set asided.

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Consequently the suit of plaintiffs is decreed. The plaintiffs are hereby declared as owners of suit land and they are entitled to recover the possession of the suit land from defendants.

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Issue mandatory injunction directing defendants to remove the constructions, put up over the suit land and to hand over the vacant possession of suit land to the plaintiffs within 3 months from the date of decree.

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Under the circumstances I direct both the parties to bear their own costs.

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Draw decree accordingly.

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Send back the trial court records along with a copy of judgment immediately.”

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Thus, defendants/appellants in all the five

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appeals have challenged the Judgment and decree dated 18.02.2006 passed in R.A.No.67/2001. The details are as under:

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SL. NO.	O.S.NO.	R.A.NO.	R.S.A.NO.
1.	86/99	67/2001	1317/2006 by 3^rddefendant
2.	86/99	67/2001	1315/2006 by 1^stdefendant
3.	86/99	67/2001	1316/2006 by 2^rddefendant
4.	86/99	67/2001	1318/2006 by 5^thdefendant
5.	86/99	67/2001	1319/2006 by 4th defendant

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In order to avoid confusion and overlapping the

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parties are referred in accordance with their ranks as held by them before the trial Court.

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When the suit came to be filed there were three

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plaintiffs namely (1) Huchamma, 75 years, W/o Narasegowda, (2) Bettamma, aged 50 years, W/o Bettegowda, (3) Devamma, aged 50 years, W/o C.Karigowda and all are residents of Boremegala Koppalu, Chinakurali Hobli, Pandavapura Taluk and their were five defendants namely (1) Kamalamma,

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aged 40 years, W/o Puttegowda, (2) Mogannagowda, W/o Dollegowda, dead by Lrs.-Puttamma, Krishnegowda, Shivaramegowda and Srinivas. Mariyamma aged 42 years, W/o Subbegowda, Nallenahalli, Chinakurali Hobli, Pandavapura Taluk. Sarojamma, aged 34 years, W/o Chandregowda, Hullakkeri, Chinakurali Hobli, Pandavapura Taluk (3) Eshwarachari (4) Ningegowda and (5)

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Vishweshwaraiah.

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The brief facts leading to dispute between the parties are as under:

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The claim of the plaintiffs is suit schedule property belongs to them. Earlier it belonged to Narasamma, W/o Bettegowda @ Chikkannaiah who is the mother-in-law of plaintiff No.1 and grandmother of other defendants. Considering the same revenue authorities made relevant entries in the records. The extent of land forming the schedule property is 28

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guntas (74 ares) in Sy.No.49, out of which, 24 guntas (ares) of land is taken away for MellukoteChinnakurali Road. Remaining land belonged to plaintiffs. Defendants 3 and 5 encroached the land towards western side of the road which is in middle of the property and thereby encroached the schedule property about 2 years back. After encroaching the land they have also got constructed their houses similarly, defendants 1, 2 and 4 have encroached the land of the plaintiffs towards eastern side of the road and constructed their houses. For clarity in understanding, the plaintiffs claim that to the western side of the road where defendants 3 and 5 have constructed their houses and remaining defendants 1, 2 and 4 have encroached the eastern side of the road and constructed houses. When the plaintiffs got the land measured on 29.06.94, encroachment of the land by the defendants was revealed. Out of them

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defendant No.1 encroached 9 guntas, defendant No.2 encroached 8 guntas, defendant No.3 encroached 5 guntas and 5^th defendant encroached 5 guntas.

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Defendant No.2 was in possession of 5 guntas of land and defendant No.5 is in possession of 5 guntas of land. Recently their names were entered in the relevant revenue records. It is also stated that there is no order of any kind for enabling the change of revenue entries in the records pertaining to the suit schedule property and defendants have no right to get the revenue entries recorded in their favour. After surveying the land demarcated measurement, the defendants refused to hand over the said encroached land and the plaintiffs have filed the suit.

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The defendants in their written statement denied

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the claim of the plaintiffs regarding ownership of Narasamma over the schedule property. They also

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denied that plaintiffs are not the legal heirs of Narasamma who is the wife of Bettegowda @ Chikkanaiah. The said Bettegowda @ Chikkanaiah never had a wife by name Narasamma. Landed property in Sy.No.49 belonged to Nanjamma, W/o Bettegowda. Thus, wife of Bettegowda @ Chikkanaiah is one Nanjamma. The land in Sy.No.49 was Government Beedu -abandoned. It was taken over by the Government long back and the said land has not been made or granted in favour of anybody. Presently land in Sy.No.49 is the Panchanyat property of Sanaba Village, Manikanahalli, Laxmisagara. Nanjamma and her husband died long back and they are issueless. Except the averment of presence of road in the middle of the suit property, survey number, other averments made by the plaintiffs are all false. Defendants have obtained permission and constructed houses long back. The plaintiffs in

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collusion with revenue officials created false records.

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The defendants are owners and in possession of the schedule property for more than 3 decades i.e. from past 30 years. They also claimed to have perfected their title through adverse possession. According to defendants there is no cause of action to the suit. The Government is not made as a party to the suit.

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Trial court based on the material proposition asserted by one and denied by another framed following issues:

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“1. Whether the plaintiffs prove that the schedule property originally belonged to Narasamma W/o Bettegowda @ Chikkannaiah?

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Whether the plaintiffs prove that the road leading to Melukote from Chinakurali bifurcates the Sy.No.49 and 0-24 ares of kharab is deducted for the purpose of the said road & remaining 0-50 ares belong to the plaintiffs?

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Whether the plaintiffs prove that defendants’ no.1 to 5 wrongly occupied a portion of the schedule property and constructed the houses on eastern and western side of the road?

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Whether the plaintiffs are entitled for the relief as sought for in the plaint?

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Whether the defendants prove that Sy.No.49 of Sanaba village belonged to Nanjamma W/o Bettegowda @ Chikkannaiah and both of them died issueless and the land is forfeited to the Government?

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Whether the defendants prove that the suit is barred by adverse possession?

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Whether the defendants prove that this court has no pecuniary jurisdiction to try this suit?

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Whether the defendants prove that the suit is bad for non-joinder of necessary parties?

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For what order/decree?

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Learned trial Judge was accommodated with the

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following oral evidence and documentary evidence on both sides as under:

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Oral evidence on behalf of plaintiffs and defendants:

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PW(1)-Huchamma PW(2)-Chaluvegowda PW(3)-Bettegowda

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DW(1)-Ningegowda DW(2)-Mogannagowda DW(3)-Kamalamma DW(4)-Ishwarachari

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DW(5)-Vishweshwara

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Documentary evidence on behalf of plaintiffs and defendants:

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Ex.P(1)-Agreement to sell Ex.P(2)-.. Ex.P(3)-4-R.T.C Ex.P(5)-Record of rights Ex.P(6)-Index of land Ex.P(7)-Aakhara Bandh Ex.P(8)-Mutation Ex.P(9)-Survey Sketch Ex.P(10)-Copy of Mahazar Ex.P(11)-Patta receipt Ex.P(12)-Tax receipt Ex.P(13)-Copy of Tippani Ex.P(14)-Kharab utar Ex.D(1)-Demand Register copy Ex.D(2)- .. Ex.D(3-4)-Tax Paid Receipt Ex.D(5)-Preliminary Record Ex.D(6)-Riklas Nakalu Ex.D(7)-Endorsement Ex.D(8)-copy of number of Voters Ex.D(9)-Tax Receipt Ex.D(10)- -- Ex.D(11)-Assessment copy Ex.D(12)-Copy of Khatha Ex.D(13)-Copy of Demand Register Ex.D(14)-Khatha Extract Ex.D(15)-Receipt

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Upon conclusion of trial, suit was dismissed on

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27.06.2001 by the trial court. It was against this

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judgment and decree, plaintiffs 1, 2 and 3 preferred

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an appeal before the first appellate court in RA 67/2001 which came to be allowed on 18/02/2006 and Judgment and decree dated 27.06.2001 passed in O.S.No.86/99 by the trial court was set aside and suit of plaintiffs came to be decreed. The same is challenged by the defendants in these second appeals.

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This regular Second Appeal was admitted by this Court on 13.07.2009 and following are the substantial questions of law framed by this court in all the five appeals:

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“1. Whether the Lower Appellate Court is justified in reversing the Judgment and decree of the trial court dismissing the suit for declaration, by assuming that name of Smt.Narasamma through whom the respondent-plaintiffs claim title has been written in some previous records as Nanjamma by mistake, without there being any pleadings and proof in that regard.

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Whether the Lower Appellate Court was justified in decreeing the suit of the respondents-plaintiffs for declaration of title though the lands in question had been forfeited by the Government for non-payment of revenue and the said order of forfeiture having not been annulled in the process known to law?”

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After hearing, the following additional substantial questions of law arise for consideration:

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Whether the trial court was right in relying upon the pancayat records?

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Whether the presumptive value under the Karnataka Land Revenue Act coupled with panchayat records over ride the parallel panchayat records?

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Learned counsel for defendants/appellants would submit that the schedule property originally belonged

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to one Nanjamma wife of Bettegowda and that

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plaintiffs have concocted the records in their favour in collusion with the revenue officials.

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Learned counsel Sri. Manju for Sri. R.B.

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Sadasivappa for respondent Nos. 1 and 2/plaintiff Nos.1 and 2 in all the five cases would submit that the property originally belonged to one Narasamma wife of Bettegowda @ Chikkannaiah and after the death of said Narasamma, plaintiff No.1 Huchamma and grand daughters plaintiffs 2 and 3 inherited the same. He would further submit that total extent of land in survey No.49 consisted of 74 ares and out of that, 24 guntas were acquired by the State Government for the purpose of formation of road from Chinakurali to Melukote. The said road passes from South to North and the remaining land of 50 guntas remained on either side of the road, namely, 10 guntas on one side and 40 guntas on the other. Defendants cooked up and concocted records to tell

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the schedule property is a ‘padav land (Beedu/Beelu)’ and started claiming that they are in occupation of the same and also raised structures there. As a matter of fact, defendant No.1-Kamalamma encroached 9 guntas of land; defendant No.2-Mogganagowda encroached 8 guntas of land; defendant No.3Eswarachari encroached 08 guntas; defendant No.4Ningegowda encroached 05 guntas of land and defendant No.5-Vishveshwaraiah encroached 01 gunta. Thus, the question of title and possession are claimed to be under attack by the defendants.

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Learned counsel plaintiffs/respondents further submits that there is no source of ownership over the schedule property. Defendants do not have any documents or narration for tracing title.

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Defendants contention is that, plaintiffs are nowhere related to the schedule property. The

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relationship of plaintiff No.1 being daughter-in-law is denied. Plaintiffs have concocted the records illegally in respect of the suit land in collusion with revenue officials. The defendants are residing for a period of more than 30 to 40 years. It is also their contention that Survey No.49 belonged to one Narasamma wife of Bettegowda @ Chikkannaiah. Defendants assert that land was forfeited by the Government and that they are in possession of the remaining schedule property.

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The trial court framed the issues regarding title of Narasamma wife of Bettegowda @ Chikkannaiah, formation of road from Chinakurali to Melukote, unauthorized construction by defendants, entitlement for the title, ownership of Nanjamma over the land in survey No.49 and defendants claim of adverse possession.

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Here, it is necessary to mention that lands in a particular village are used for two purposes. One is used for agriculture exclusively and another one is used for residential purpose. The land under the scheme of cultivation or agriculture, normally come within the domain of revenue head and the survey number, extent, assessment, name of the owner or owners, mutation number, karab details are all mentioned in the RTC which is also termed as Pahani. In many cases due to requirement of land for residential purpose, step by step the residential houses, shops, were constructed. Mainly lands used for the purpose of residential and other activities, including formation of road come under the domain of Panchayat. Thus in respect of reference of revenue land is concerned, it is the Tahasildar of a particular taluk which may consists certain number of hoblies and each hobli consists of several villages and some

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villages among them will be under the jurisdiction of Grama Panchayat which maintains the records pertaining to village properties and also the residential lands which comes under the village Panchayath is called as Gramathana. A vacant land need not be revenue land right from the inception and get it converted or transformed into panchayat or residential land. It is in this process agricultural land and panchayat lands are governed with distinct identity. The above discussion can be necessary in the light of Ex.P3 which is the RTC extract in respect of survey No.49 of Sanaba village, Chinakurali hobli, Pandavapura Taluk.

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Here it is necessary to mention that the case of the defendants is that survey No.49 is padav land. In other words, abandoning from agricultural work and road was formed therein. Defendants further contends that on either side of the road, defendants are in

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possession of different packets of land and the property which is claimed by the plaintiffs who admits the possession of the defendants over the same. The plaintiffs claim is, originally property belonged to one Narasamma.

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RTC or Form No.2 describes the nature of land, ownership, encumbrances and other details. It is necessary to mention details of respective columns of RTC pertaining to revenue land which are as under:

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“Column No.1 is meant for survey Number;

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Column No.2 is meant for any sub division in the survey Number;

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Column No.3 is meant for total extent of land in acres. Here it is necessary to clarify that in some part of the area, one acre is equal to 100 cents and in some other parts, 1 acre is equal to 40 guntas and further by virtue of bifurcation one gunta is equal to 2 ½ cents;

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In the present case, the extent of land is mentioned as ares which is equal to gunta which extends for 1089 sq.ft;

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Column No.4 is meant for Assessment;

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Column No.5 is meant for Type of soil;

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Column No.6 is meant for Patta/ Inam/Government;

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Column No.7 is meant for Number of Trees;

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Column No.8 is meant for Irrigation as per Khethwar;

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Column No.9 is meant for Name of owner of Khabjedar with father’s name. Khate No;

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Column No.10 is meant for Nature of Possession;

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Column No.11 is meant for other rights and liabilities;

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Column No.12 is meant for Tenancy details;

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Column No.13 is meant for Land utilization and Agricultural Statistics;

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The name of the village, hobli, taluk and district are mentioned on the top.”

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The description of RTC in this case plays significant role for the reasons morefully assigned in coming paras.

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In Ex.P3, in column No.9, which is meant for ownership, name of Narasamma wife of Bettegowda @ Chikkannaiah is shown. Next survey number is 49. In column No.3 which is meant for extent, the total extent is mentioned as ‘74 guntas’. out of which, karab or land used for formation of road from South to North, in other words from Chinakurali to Melukote is 24 guntas and the remaining land is 50 guntas which admittedly spread over on either side of the road.

¶197

In the circumstances of the case, on the point of fact, the land in question is spread on both sides of the road, admittedly, to the extent of 24 guntas which runs South to North.

¶198

The case of the plaintiffs is that originally the suit schedule property belonged to Narasamma W/o. Bettegowda @ Chikkannaiah and out of the total extent of land in Sy.No.49, 24 guntas of the land was

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acquired or taken away by the Government for formation of Melukote-Chinakurali road and the defendants are admitted to be in possession of the said portion of the property and the plaintiffs claim that the defendants have illegally trespassed and encroached the different portions of the land in Sy.No.49 of the Sanaba Village, Chinakurali hobli, Pandavapura Taluk.

¶201

The defence of the defendants is that there was no wife to Bettegowda @ Chikkannaiah by name Narasamma. On the other hand, one Nanjamma is his wife. Incidentally, apart from the said averment or objection, the defendants do not provide correlating materials in the said context. On the other hand, there are two registered Sale Deeds marked as Exs.P1 and P2 produced by the plaintiffs. The said documents are in Kannada Language. Since I am acquainted with Kannada Language, I mention the translated version of

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¶203

the same i.e., “the sale deed is dated 05.03.1953 executed in favour of Narasegowda being the adopted son of Narasamma who is the wife of Chikkannaiah”. Here, it is pertinent to note that there is no dispute in the matter of Bettegowda being also called as Chikkannaiah. The defendants claim under Nanjamma and in the written statement they state that Nanjamma is the wife of Bettegowda. Ex.P2 is another sale deed dated 25.08.1953, executed in favour of Narasegowda who is the adopted son of Narasamma who is the wife of Chikkannaiah, which is also in Kannada Language.

¶204

Apart from this, when the written statement is perused in detail, it is noticed, the defendants claim that the records are concocted and Nanjamma who is the wife of Bettegowda @ Chikkannaiah is never related to the plaintiffs in any manner. Insofar as, the issue that was framed by the trial Court in respect of

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¶206

the adverse possession as issue No.6, is concerned, the said issue has been answered in the negative and there could be alternative even inconsistent plea that can be made by the defendants, though not allowed to the plaintiffs. But the question, is ownership comes from a lawful possession. When a person claims that he had several sources of ownership he is not firm, it shows, he is not firm. Nanjamma being the owner of the property, flow of title to Nanjamma and there onwards from Narasamma to the defendants are to be established. In this connection. I have gone through the cross-examination of DW.1. The tone and tenor of cross-examination of DW.1 indicates that he does not know as to whether Nanjamma was the owner of the schedule property. Further issuelessness of Bettegowda @ Chikkannaiah and Narasamma are also revealed, besides adoption of Narasegowda. Another

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limb of defence of the defendants is that they have perfected their title by adverse possession.

¶209

In order to establish adverse possession, they should have reason to know that a particular person is the owner of the property and possession is held continuously, un-interruptedly, exclusively and hostile to everybody including the owner that too, for a minimum period of 12 years. However, when a person claims adverse possession against the Government, the period gets extended up to 30 years. In the circumstances of the case, no doubt, it is a question of fact regarding the finding of adverse possession, both the courts have held that the defendants have not established the adverse possession.

¶210

Next aspect is, in a case wherein the pleadings or contentions of the defendants consists of only denials, the onus falls on the plaintiffs to discharge

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the burden. When defendants take up the special plea of his ownership generating title to the schedule property through a separate source, in the sense, when the defendants contend that the original source of ownership lies in a different angle than to that of the one claimed by the plaintiffs, invariably, then the defendants have to establish the source on which they claim to be the owners. Here, Nanjamma’s ownership is claimed but not established by cogent materials. Secondly, adverse possession is claimed but it runs helter and skelter. Except saying that they are in possession of structures on either side of the road, it is not mentioned when the possession was entered into, because there is essential aspects of possession, i.e., corpous possessionis and animus possidendi , the former one related to very object or subject matter of the possession. The latter one is mental element. A person with lawful possession can

¶213

¶214

have a right of feeling that he is entitled to possession and had many ground to continue his possession to others. The lawful possession is that when a person indebted lawful and indebtedful is lawful subsequent holding, any happening of an event makes it lawful possession. Though possession and ownership are different aspects, possession when it is adverse satisfying the concept of adverse possession, then it is a title. It is not this particular possession forms source of ownership, subject to fulfillment of all the qualities.

¶215

Here, having said the Nanjamma was the owner of the property there is no further progress and it is an objection taken by the defendants for the sake of objection without there being any substance in it. Further the defendants also says that the land in Sy.No.49 is a ‘beelu’ or beedu which means ‘abandoned’. When it is abandoned land, it becomes

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¶217

ownerless. The land which is ownerless is called res nullius , in respect of which the persons who comes into possession becomes the owner, just like fish in a sea. But here when the plaintiffs are strongly asserting that they are the owners of the property, right from the beginning as claimed in the plaint, and which is morefully indicated in exhibits which cannot be a abandoned land or ‘beelu’ land. As in Col.9 of RTC, it includes substantial owner or kabjedar, there should have been a mention of fact of ‘beelu’. So there is no whisper or mention of ‘beelu’ in Ex.P3. The Government is a residuary owner of the such among all the lands. Even in respect of the owners, all the privately owned land and remaining land invariably belongs to Government. In this connection, no document is produced to show that the defendants either have perfected the title through possession and the point of fact answered by both the courts below is

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¶219

that there is no documents filed by Nanjamma to show that she was the owner of the property and she was the wife of Bettegowda @ Chiakkaiah.

¶220

Per contra, plaintiffs pleadings and documents are in alignment with possession of land, which entitles for them to the relief what they have prayed for. In this connection, in all the five appeals, the defendants’ common defence is having lost before the trial court, they approached the first appellate court in regular appeal, however, insofar as present appeals are concerned, they are five in number and I do not find illegality, infirmity or lack of application of mind calling for interference in concurrent judgment and decree of the trial Court and also appellate Court. The substantial questions of law framed are answered in favour of the respondents/plaintiffs.

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In the result appeals are dismissed. No order

¶223

as to costs.

¶224

In the context and circumstances of the case, the mesne profits regarding the wrongful possession is restricted from the date of filing of the present appeals.

¶225

Sd/JUDGE

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SBN/tsn*/HJ

Sri Eshwarachari v. Smt Huchamma

Case brief

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Sri Eshwarachari v. Smt Huchamma

Case brief

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