Dismissed

Goolappa Since Dead by Lrs v. Goolappa S/O Nanjappa

Karnataka HC8 Oct 2021RFA/1158/2006

Case brief

AI extract

What is this about?

First appeal against dismissal of a suit for declaration of title and possession over agricultural land. The land was granted in the name of the plaintiffs' predecessor while the family lived together; the defendants claimed a family partition allotted it to their father. The court upheld the findings of joint family grant, partition and no proved dispossession, and dismissed the appeal.

What the court decided

AI extract

Goolappa Since Dead by Lrs Vs Goolappa S/O Nanjappa — Partition | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH DAY OF OCTOBER, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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R.F.A.NO.1158/2006 (DEC)

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BETWEEN:

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GOOLAPPA SINCE DEAD BY LRs’.

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NANJAMMA, W/O LATE GOOLAPPA, AGED ABOUT 76 YEARS.

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MAHADEVAPPA, S/O LATE GOOLAPPA, AGED ABOUT 43 YEARS.

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BOTH ARE R/O HALLIKERE HUNDI VILLAGE, CHIKKAIAHNA CHATRA HOBLI, NANJANGUD TALUK, MYSURU DISTRICT. … APPELLANTS

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(BY SMT. N.R. PADMA, ADVOCATE)

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AND:

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GOOLAPPA, S/O NANJAPPA, AGED ABOUT 45 YEARS.

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NANJAPPA, S/O NANJAPPA, AGED ABOUT 40 YEARS.

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UDDANAPPA, S/O NANJAPPA, AGED ABOUT 38 YEARS.

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APPAJAPPA, S/O NANJAPPA, AGED ABOUT 36 YEARS.

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MAHADEVASWAMY, S/O NANJAPPA, AGED ABOUT 34 YEARS.

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ALL ARE R/O HALLIKEREHUNDI VILLAGE, CHIKKAIAHNA CHATRA HOBLI, NANJANGUD TALUK, MYSURU DISTRICT-571 301. ... RESPONDENTS

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(BY SRI N.D. MANJUNATH, ADVOCATE FOR R-1 TO R-5)

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THIS R.F.A. IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 21.02.2006 PASSED IN O.S.NO.60/2000 ON THE FILE OF THE CIVIL JUDGE, (SR. DN.) AND JMFC, NANJANGUD, DISMISSING THE SUIT FOR DECLARATION AND POSSESSION.

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THIS R.F.A. HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 08.9.2021 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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J U D G M E N T

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This appeal is filed challenging the judgment and decree dated 21.02.2006 passed in O.S.No.60/2000 on the file of the Civil Judge (Sr.Dn.) and JMFC at Nanjangud, questioning the dismissal of the suit.

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The parties are referred to as per their original rankings before the Trial Court to avoid the confusion and for the convenience of the Court.

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The case of the plaintiffs before the Trial Court is

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that the suit schedule property bearing Sy.No.401/2 measuring 3 acres 38 guntas was granted in favour of plaintiff No.1 on 25.09.1948. From that date, the property is under the cultivation of plaintiff No.1 and in pursuance of the grant, saguvali chit was also issued in favour of plaintiff No.1. From the date of grant, the plaintiffs are in possession of the suit schedule property. It is also their case that earlier the suit schedule property survey number was 237 and subsequent to the durasth, the same is numbered as 401/2. The plaintiffs are the owners of the suit schedule property. It is also the averment in the plaint that, defendant Nos.2 and 3 have got changed the khatha in their favour before the Tahsildar vide M.R.No.12/199697. He went and verified the revenue records and in M.R.No.10/87-88 dated 04.03.1988, there was a khatha in favour of Goolappa. Before changing the khatha, no notice was given to the plaintiffs by the Tahsildar and the defendants got changed the revenue records in their favour. The same has been questioned before the Assistant Commissioner in RRT No.28/1998-99 and hence, the Assistant Commissioner remanded the matter to the Tahsildar to enquire into the matter

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and pass appropriate order. The Tahsildar has not granted any stay and taking the advantage of not granting any stay, it is the case of the plaintiffs that four years ago, the defendants by forming an unlawful assembly took the possession of the suit schedule property from the plaintiffs. In spite of the repeated request to hand over the possession in their favour, they have not handed over the possession, but they have denied even the ownership of the plaintiffs. The plaintiffs have obtained the legal opinion and thereafter filed the suit seeking the relief of declaration and possession from the defendants.

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In pursuance of the suit, notice has been ordered and the defendants have appeared and filed the written statement. Defendant No.3 in the written statement denied the contention of the plaint averment, but admitted that the plaintiff No.2 is the son of plaintiff No.1 and they have not divided the properties. It is the contention of the defendants that Nanjappa and plaintiff No.1 Goolappa are the sons of Udbur Madappa. The defendants have not disputed that the property was granted on 05.09.1948 by the Government in the name of plaintiff No.1.

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But plaintiff No.1 is not the absolute owner of the property, since the grant was for the benefit of the joint family of plaintiff No.1

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and his brother Nanjappa. The plaintiffs cannot claim absolute title over the suit schedule property. It is contended in the written statement that Survey No.401 measures 5 acres 38 guntas, out of which plaintiff No.1 who was the manager of the family, at that time sold 2 acres to Doddegowda S/o Komarigowda on 21.08.1949. The joint family continued its existence till the year 1970 and in the year 1970, partition took place in the family between plaintiff No.1 and Nanjappa and his brothers Puttamadappa and Devanna, wherein the suit property came to the share of the defendant’s father Nanjappa and ever since then the property is in the hands of Nanjappa and his sons. The khatha of the property was transferred to the name of Goolappa S/o Nanjappa in M.R.No.10/1987-88 and later on, the property was divided among the sons of Nanjappa i.e., the defendants.

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In the suit, plaintiff No.1 has sought for the declaration of the title over the suit schedule lands for which the other two brothers Puttamadappa and Devanna are necessary parties since Puttamadappa was deceased and his wife and children are alive and they are necessary parties. The suit is bad for non-joinder of necessary parties. It is contended that in the

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year 1970, while dividing joint family properties, plaintiff No.1 and the defendants’ father and other brothers of plaintiff No.1 pooled all the properties belonging to the joint family together and then divided the same. Sy.Nos.201 and 197/21 were also included in the partition. Sy.No.201 was purchased in the name of the father of the defendants and Sy.No.197 was granted by the Government on the darkasth to the name of the defendants’ father. Apart from this, another vacant site purchased in the name of the defendants’ father was also divided amongst the brothers of plaintiff No.1. Likewise, Sy.No.401 was also included in the joint family properties and in the partition, it came to the share of the defendants’ father. Plaintiff No.1 was very well aware of this fact, he was aware of the mutation proceedings that took place in 1987-88 and he is a party to the mutation proceedings and the allegations made by plaintiff No.1 in paragraph No.4 of the plaint that the plaintiffs came to know mutation proceedings till recently is false. It is contended that the other allegation that there is a collusion between the defendants and the revenue authorities is also false. The revenue authorities have changed the khatha only after observing all the formalities and the very contention of the

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plaintiffs cannot be believed that the documents are changed at the instance of the defendants. The defendants admit the appeal filed before the Assistant Commissioner and the Tahsildar. Both the proceedings went against the plaintiffs. The defendants also denied the allegation that they have taken unlawful possession of the suit schedule property four years prior to the filing of the suit and contended that there is no exchange of notices with regard to taking of the possession or seeking of any possession from the defendants and the very contention that they took unlawful possession is false and the plaintiffs have to prove the same.

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Based on the pleadings, the Trial Court framed the

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following issues:

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1. Whether the plaintiffs prove that they are the owners of the suit schedule property?

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2. Whether the defendants prove that the suit property was granted for the benefit of the joint family in the name of plaintiff No.1 by the Government?

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3. Whether the defendants prove that in the year 1970, plaintiff No.1 and his brothers partitioned their joint family properties and in

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that partition the suit property fell to the share of the defendant No.1 and hence, the defendant No.1 is the owner of the suit property?

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4. Whether the plaintiff proves that the defendants took illegal possession of the suit schedule property as not 4 years prior to the written statement of this suit?

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

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6. Whether the plaintiffs are entitled for declaration of title and possession in respect of the suit property?

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7. To what order or decree?

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Before the Trial Court, plaintiff No.2 is examined as

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P.W.1 and got marked the documents at Exs.P.1 to 8. On the

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other hand, the defendants examined three witness as D.W.1 to D.W.3 and relied upon the documents at Exs.D.1 to 20. The Trial Court after considering both oral and documentary evidence placed on record, comes to the conclusion that the properties belong to the joint family and there was a partition among the brothers in the year 1970 and accepted the contention of the

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defendants and answered issue No.4 in the negative regarding taking of the possession illegally by the defendants and dismissed the suit. Hence, the present appeal is filed before this Court.

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The main contention of the appellants before this Court in this appeal is that the Trial Judge erred in answering issue No.1 that the plaintiffs have not made out a case, but the plaintiffs have produced the document of the year 1948, which establishes the title of the plaintiffs and the Court has to give presumption under Section 90 of the Evidence Act as it is ancient document more than 30 years old, instead the Court below has given the erroneous finding. It is also contended that the Court below has not at all considered the relevant documents like RTC Ex.P.2, mutation extract Ex.P.3, application for darkasth grant Ex.P.4, tippani copy Ex.P.5 and index of lands copy Ex.P.6, which documents clearly goes to show the clear title of the plaintiffs and illegal revenue entries in favour of the defendants are relied upon by the Trial Court. The learned Trial Judge erred in holding issue No.2 in favour of the defendants, even though the defendants have utterly failed to prove that the grant is for the benefit of the joint family, per contra Ex.P.3 application of the

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year 1946 clearly shows that plaintiff No.1 had given the application under darkasth in individual capacity and not for the benefit of the family.

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It is also contended that the Trial Court got confused in several occasions while discussing the issue No.2 and gone to the extent of holding that plaintiff No.1 has signed Ex.D.1, in fact the said document is partition deed dated 10.09.1994 between the defendant brothers and the name of plaintiff No.1 and defendant No.1 is the same and therefore it has confused with the name of defendant as the name of plaintiff No.1 and given

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an erroneous finding that plaintiff No.1 is also a signatory to the document Ex.P.1. It is also contended that the Trial Court has not at all considered the fact that whether the defendants have proved issue No.2 to the effect that the grant in the year 1948 was for the benefit of the joint family or for plaintiff No.1 and father of the defendants, the defendants have not at all produced any documents to show the same and hence committed an error in answering issue No.2 affirmatively. The Trial Court also failed to consider that no documents are

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produced before the Trial Court to show that there was a partition between plaintiff No.1 and defendants’ father in 1970,

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in spite of it, on the basis of partition deed Ex.D.1 comes to the conclusion that there was a partition between plaintiff No.1 and the defendants’ father in 1970 without any cogent evidence.

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The learned counsel for the appellants would vehemently contend that when the documents are changed in favour of the defendants in the revenue Department and the same was questioned before the Tahsildar and also before the Assistant Commissioner and the Assistant Commissioner has remanded the matter and hence it is clear that changing of entry in the name of the defendants in respect of the suit schedule property has been questioned and the very contention that the same has not been questioned cannot be accepted. The judgment and decree of the Trial Court is opposed to oral and documentary evidence placed on record and it requires interference of this Court. The learned counsel would contend that when the revenue entries are changed in favour of the defendants, they took the possession forcibly taking advantage of the same and the plaintiffs have pleaded and proved the same and in spite of it, the Trial Court comes to the conclusion that there was no such dispossession and in the absence of any documentary proof of partition between the brothers of plaintiff

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No.1, the Trial Court ought not to have come to the conclusion that already there was a partition.

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Per contra, the learned counsel for the respondents

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would vehemently contend that it is not in dispute that the suit schedule property was granted in favour of plaintiff No.1 in the year 1948, but it is contended that the same was in favour of the joint family and also admitted in the cross-examination that at the time of grant, all were living together. The learned counsel would contend that the property was partitioned in the year 1970 and the same was an oral partition. Ex.P.4 discloses that plaintiff No.1 himself gave the statement to transfer the property in favour of defendant No.1 Goolappa in the year 1988. The Trial Court also taken note of Ex.D.18 to that effect and Ex.P.2 also clearly discloses that the same stands in the name of defendant No.1. The mutation was entered in the revenue records in the year 1987-88 as mutation No.10/1987-88 and based on subsequent partition among the defendants, M.R.No.12/1996-97 also taken place. The learned counsel would contend that defendant No.1 also purchased the property when

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they were living together and portion of the property has fallen to the share of plaintiff No.1 in the partition. The plaintiff also

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admitted in the cross-examination that Sy.No.201 purchased by defendant No.1 was to the extent of 15 guntas allotted in favour of plaintiff No.1. The learned counsel would submit that Sy.No.197 was granted in favour of father of the defendants to the extent of 1 acre 30 guntas and out of that 17½ guntas was given to the share of the plaintiffs. The learned counsel would contend that the revenue entries are changed based on the statement given by the plaintiff before the revenue authorities. The learned counsel would contend that regarding partition between the brothers of plaintiff No.1, D.W.2 who is none other than the brother of plaintiff No.1 also gave the evidence before the Court regarding partition that the suit schedule property has fallen to the share of the father of defendant No.1.

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D.W.3 is the cousin brother of plaintiff No.2 and defendant No.1 also confirmed that there was a partition and the suit schedule property has fallen to the share of the father of defendant No.1. The learned counsel brought to the notice of this Court that Sy.No.197 to the extent of 1 acre 30 guntas was granted in the year 1962 in favour of the defendants’ father and all of them have partitioned the said property each to the extent of 17½ guntas as four shares. Sy.No.201 to the extent of 1

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acre 24 guntas purchased by the father of the defendants in the year 1967 was also divided amongst the brothers 15 ¾ share as four shares. The other property granted in favour of plaintiff No.1 in Sy.No.398 to the extent of 3 acres 3 guntas in the year 1948 was also equally divided as four shares to the extent of 20½ guntas each. The learned counsel would contend that Sy.No.399 to the extent of 3 acres 17 guntas was also granted in favour of plaintiff No.1 in the year 1948 and the same was also equally partitioned to the extent of 30½ guntas. The learned counsel would contend that Sy.No.197 was also equally divided to the extent of 20 guntas equally and the same was also granted in favour of plaintiff No.1 in the year 1963. The learned counsel would submit that plaintiff No.1 purchased the property in Sy.No.430 in the year 1967 to the extent of 1 acre 37 guntas and the same was also equally divided to the extent of 19 guntas. The learned counsel would contend that 4 acres 26 guntas in Sy.No.441 is purchased by plaintiff No.1 in the year 1963 and the same was equally divided. Sy.No.103 was purchased in the name of plaintiff No.1 and the same was divided equally and so also Sy.No.104 is purchased by plaintiff No.1. The defendants’ father had purchased the property in site

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No.473 in the year 1965 and the said site was given to plaintiff No.2. The suit schedule property measuring 3 acres 38 guntas though granted in favour of plaintiff No.1, in the partition of the year 1970, the same was given to the defendants’ father and thereafter khatha was changed in the year 1986-87 and subsequently in the year 1996-97 in terms of M.R.No.12/199697. The plaintiff No.1 taking advantage of the grant made in favour of him in the year 1948, made the claim that he has got the title and if really the property is not given to the father of defendant No.1, he ought to have claimed the declaration in respect of other properties also, but the same is not done. Hence, it is clear that plaintiff No.1 has made efforts to knock off the property of defendant No.1. The Trial Court having considered both oral and documentary evidence placed on record, rightly comes to the conclusion that the suit schedule property is divided among the brothers of plaintiff No.1 and there was a partition and no grounds to interfere with the findings of the Trial Court.

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Having heard the contentions of the respective learned counsel and also on perusal of the material available on record, this Court has to re-appreciate the material and while re-

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appreciating the material available on record, the following points arise for the consideration of this Court:

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(i) Whether the Trial Court has committed an error in dismissing the suit seeking the relief of declaration of title and possession in respect of the suit schedule property?

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(ii) Whether the Trial Court has committed an error in coming to the conclusion that the property was granted for the benefit of the joint family in the name of plaintiff No.1 and all of them have divided in the year 1970 and the suit property has fallen to the share of defendant No.1?

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(iii) Whether the Trial Court has committed an error in answering issue No.4 disbelieving the contention of the plaintiffs/appellants regarding taking illegal possession of the suit schedule property.

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(iv) What order?

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Point Nos.(i) to (iii):

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Having considered both oral and documentary

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evidence placed on record, this Court has to re-appreciate both

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the question of fact and question of law as being the First Appellate Court. This Court while exercising the appellate

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jurisdiction has to consider whether the Trial Court has ignored the material available on record. On appreciation of the evidence available on record, the plaintiffs before the Trial Court in order to prove their case examined one witness as P.W.1 and got marked the documents at Exa.P.1 to 8. On the other hand, the defendants examined one witness i.e., defendant No.1 as D.W.1 and other two witnesses as D.W.2 and D.W.3 and got marked the documents at Exs.D.1 to 20. The plaintiffs in the oral evidence, reiterated the averments of the plaint that the property was allotted in favour of P.W.1 in the year 1948 and hence plaintiff No.1 is the absolute owner of the suit schedule property and hence, it requires an order of declaration. It is also their contention that the defendants forcibly took the possession from them. P.W.1 was subjected to cross-examination.

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In the cross-examination, P.W.1 categorically admits with regard to that the matter was taken up before the Tahsildar and also the Assistant Commissioner and the matter was remanded to the Assistant Commissioner and ultimately the Assistant Commissioner dismissed the suit. Hence, the plaintiffs’

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claim that the present suit is filed for the relief of declaration. In

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the cross-examination, he says that he does not know when his

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father i.e., plaintiff No.1 and his uncle Nanjappa got partitioned the property. It is suggested that till 1970, they were together and in the year 1970 they have partitioned the property and started to live separately and the same was denied as he was not aware of the same. He admits that the property was granted in the year 1949 and at that time his father and uncle were living together. He also admits that his father was cultivating the property of the family. He also admits that the property in Sy.No.197/21 was allotted to his uncle Nanjappa, but he claims that Nanjappa has retained the said property. However, he says that Sy.No.201 was purchased in the name of his uncle Nanjappa or not he is not aware of it, but he admits that in respect of Sy.No.201, his father and his brothers have divided the same. But he claims that Sy.No.197/21 was not divided. He admits that the portion, which was given to his father in Sy.No.201 in the partition, his father is in possession and also he admits that in the said survey number, his father got 15¼ guntas and the same is standing in the name of his father and also he admits that the said khatha was transferred ten years back in his name.

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16. It is suggested that Sy.No.401, 6 acres 3 guntas is

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the total extent and out of that, 2 acres was sold to Doddegowda and he says that he is not aware of the same, but admits that remaining extent of 4 acres 3 guntas continued in the RTC. It is suggested that the same is continued in the name of his uncle and the same was denied. It is suggested that when the partition was taken place in the year 1970, the said extent of the land was given to uncle Nanjappa and the same was denied. He admits that his father has filed a suit against the defendants’ father ten years ago before the Civil Judge (Jr.Dn.) and he admits that his father had withdrawn the suit two years ago. He admits that the said suit is filed in respect of Sy.Nos.398, 399, 397/20 and 197/21. It is suggested that in the said suit, an averment is made that these all are the properties partitioned in the year 1970 and the same was denied. He admits that the said case was filed making an allegation of encroachment and the same was withdrawn voluntarily. He admits that his father got the share in the above four survey numbers, but he claims that Sy.No.197/21 is still in the name of his uncle Nanjappa and the same is in their possession, but he claims that no share was given to them. He admits that now the suit schedule property is

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in the possession of the defendants. It is also suggested that original grant certificate was given to his uncle at the time of partition and he says that he is not aware of the same, but he claims that certain documents were stolen from his house. He admits that Exs.P.3 to 5 were taken two years prior to filing of the suit. He claims that recently he came to know about the transferring of the property to the names of the defendants. He also admits that when the matter was pending before the Tahsildar, the Tahsildar visited the spot and the Tahsildar has given the report that the defendants are in possession and he says that he is not aware of the same. The same is also mentioned in the order of the Tahsildar and he says that he is not aware of the same.

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In the cross-examination of D.W.1 regarding granting of land in favour of his uncle, i.e., plaintiff No.1, he admits the same and also admits selling of 2 acres of land out of total extent of land and also admits that 2 acres is in the possession of Doddegowda. He admits that in the year 1988, he got changed the khatha in his name, but he is not aware of whether the partition of the year 1970 was reduced in writing or not and he did not enquire his father about the document. He

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admits that even after the partition of the year 1970, the RTC in cultivator’s column he claims his name was mentioned. It is suggested that the name of plaintiff No.1 was continued and the same was denied. He admits the remanding of the matter by the Assistant Commissioner to the Tahsildar, but he claims that subsequently an order was passed in their favour. It is suggested that the suit schedule property was not granted in favour of the joint family and the same was denied. It is also suggested that till 1996, the property was in possession of the plaintiffs and the said suggestion was denied. It is suggested that he is falsely claiming that the suit schedule property was allotted to his father’s share and the same was denied. A question was put to him that in terms of the partition, property was not transferred in the name of his father and he claims that the khatha was changed in his name. It is suggested that the plaintiffs have not given any consent to transfer the khatha and the same was denied.

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The other witness is D.W.2, who is the brother of plaintiff No.1. He admits that the property was granted in favour of plaintiff No.1, but his evidence is that during the time of partition, the same was allotted to the father of the defendants

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and the plaintiff also given consent to transfer the khatha and his statement was also recorded while transferring the khatha. In the cross-examination, he admits that he cannot tell the exact date of partition, but it was taken place 28 years ago and also he cannot give the details of each and every survey numbers, which were subjected to partition but he claims that they got partitioned four shares and also he says that the document was reduced into writing and the same is in the custody of plaintiff No.1.

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The other witness is D.W.3, who is the son of one of the brother of plaintiff No.1 and he also reiterated in his evidence in the line of evidence of D.W.2. In the crossexamination, he says that he knows that the partition was taken place between his father and plaintiff No.1 and father of defendant No.1 and he claims a document was reduced into writing after four years of the said partition, but the same is in the custody of the plaintiffs and he also cannot give the details of each survey number and he was aged about ten years at the time of partition.

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Having considered both oral and documentary evidence placed on record, it is not in dispute that the suit schedule property was granted in the name of plaintiff No.1. It is also not in dispute that when the land was granted, all the brothers were living together and there is an admission to that effect by P.W.1. It is important to note that P.W.1 in the crossexamination categorically admits that all of them were living together in the year 1948-49, but when a suggestion was made that partition was effected in the year 1970, he claims that he is not aware of the same and it is his specific evidence that no such partition was taken place. It is elicited in the cross-examination of P.W.1 that in respect of the properties allotted and purchased by the father of defendant No.1 also, his father got the share. Hence, it is clear that there was a partition between the brothers of plaintiff No.1 and father of the defendants and other two brothers.

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P.W.1 categorically admits that in Sy.No.201, which is purchased by the father of defendant No.1 also his father got the share, but he claims that in Sy.No.197/21, his uncle Nanjappa continued and no share was given. But in the crossexamination, he categorically admits that his father had filed a

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suit 11 years ago in respect of Sy.Nos.398, 399, 397 and 197/21 and the said suit was withdrawn. But in the cross-examination, he categorically admits that his father had got share in all the above four survey numbers. When there is an admission on the part of P.W.1 that his father had got share in Sy.No.197/21, but he claims that no share was given in Sy.No.197/21. Further, he admits that the said suit was filed against the father of defendant No.1 that the said case is filed for encroachment and sought for possession. These are the answers elicited from the mouth of P.W.1 and it is clear that there was a partition and all the family properties were partitioned in the year 1970 itself. No doubt, the khahta was transferred in the name of defendant No.1 in the year 1987-88 in terms of M.R.No.10/1987-88 and subsequently on account of partition among them in the year 1994, the khatha was transferred in the name of other two defendants in M.R.No.12/1996-97.

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It is the main contention of the defendants that plaintiff No.1 also gave the consent while transferring the property in respective names of the brothers. To substantiate the same, Ex.D.18 discloses that the khatha was transferred based on the statement of plaintiff No.1, but plaintiffs disputes

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that no such statement was given. In terms of Ex.D.18, khatha was transferred in the year 1986-87 wherein a specific averment is made that the khatha was transferred based on the statement of plaintiff No.1. It is also evident from document Ex.D.10 that the Tahsildar made an averment that spot inspection was conducted and in terms of the consent of plaintiff No.1, khatha was transferred in respect of the suit schedule property in favour of the defendants. P.W.1 in the cross-examination admits that the Tahsildar inspected the property, but denies the suggestion that mahazar was drawn and when the Tahsildar inspected the property and passed the order in terms of Ex.P.10 and also plaintiff failed to succeed before the Assistant Commissioner and the same is also admitted. When such being the facts and circumstances of the case, the very contention of the appellants that there was no partition among the brothers cannot be accepted. No doubt, the property was allotted in the year 1948 in favour of plaintiff No.1 and I have already pointed out that there is an admission that all of them were living together and it is important to note that other properties were also granted in favour of plaintiff No.1 as he was the elder member of the family and the same is also not in dispute.

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It is also not in dispute that some of the properties

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are purchased by the father of defendant No.1 and all the properties are subjected to partition and respective parties are enjoying the same in terms of the partition. Hence, I do not find any force in the contention of the learned counsel for the appellants. No doubt, the land was granted in the year 1948 and also it is important to note that a suggestion was made that original grant certificate was given to the father of defendant No.1 after the partition, but original grant certificate is not placed before the Court and only certified copy of the document Ex.P.1 is placed before the Court. However, P.W.1 says that some of the documents are stolen from the house and in order to substantiate the same, no material is placed before the Court. Hence, I do not find any force in the contention of the learned counsel for the appellants that the property is exclusively granted in favour of plaintiff No.1 when they have continued for a larger period from 1948 to 1970 and got divided the property. Hence, the Trial Court has rightly come to the conclusion that the property granted was not in favour of plaintiff No.1 only and it is in favour of the entire family and the other family members, who got the property by way of grant and also by way of

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purchasing the land also got divided among the members of the family.

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The other contention of learned counsel is that when

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the property was got transferred in favour of defendant No.1 family, the same was challenged before the Tahsildar. There is no dispute that the same was challenged before the Tahsildar and also the Assistant Commissioner and the plaintiffs have suffered the orders against them in both the Courts. The contention of the learned counsel for the appellants that if plaintiff No.1 has given the consent, the plaintiffs would not have challenged the same and the said contention cannot be accepted. I have already pointed out that the documents Exs.D.10 and 18, reflects giving of statement and based on the statement, the khatha was transferred and the same was done at the undisputed point of time and the suit is filed in the year 2000, but the khatha was transferred in 1986-87 itself in favour of defendant No.1. No doubt, the Trial Court has committed an error in mentioning that plaintiff No.1 has signed the document Ex.D.1 partition, taken place among the defendants and the said

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finding of the Trial Court is erroneous, but the same will not take away the case of the defendants by merely mentioning

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erroneously that it was the signature of plaintiff No.1, but that is the signature of defendant No.1 who is party to the document Ex.D.1. But the name of plaintiff No.1 and also defendant No.1 is one and the same. It appears that there was a confusion and the said finding was given by the Trial Court. Hence, I do not find any error in coming to the conclusion that already there was a partition among the brothers of plaintiff No.1.

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Now the other contention of the appellants is that they were dispossessed four years prior to filing of the suit and in order to prove the factum of dispossession, except the pleadings, nothing is placed on record and no complaint was given and also they kept quiet and not filed any suit even though they were dispossessed four years prior to filing of the suit and there is no material that they were dispossessed. But the fact that the possession is with the defendants is not in dispute and P.W.1 categorically admits the same. It is important to note that D.W.2, one of the brother of plaintiff No.1 and D.W.3 who is the brother’s son of plaintiff No.1 categorically deposed regarding partition and the suit schedule property was allotted to the share

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of the father of the defendants. In the cross-examination of D.W.2 and D.W.3 with regard to the partition and allotting of the

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¶129

suit schedule property in favour of the defendants father, nothing is elicited. In the absence of any documentary evidence regarding dispossession is concerned, the Trial Court has rightly come to the conclusion that dispossession has not been proved and the properties are standing in the names of defendants after 1987-88.

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26. Having considered the material available on record,

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though it is contended by the appellants that the property was allotted in favour of plaintiff No.1 in the year 1948, the material discloses that when all the family members were living together, the same was granted and all the family members have got partitioned the property, which have been granted and purchased in the name of plaintiff No.1 and the father of defendant No.1. It is also not in dispute that the properties were also partitioned among plaintiff No.1 and his brothers and P.W.1 categorically admitted that his father got the share in the survey numbers, which is the subject matter of the earlier suit, which has been withdrawn. All these material discloses that the suit schedule property was allotted in favour of the father of defendant No.1 and the same is substantiated by the evidence of D.W.2 and D.W.3 and except the oral and self-serving statement

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of the plaintiffs that it is the exclusive property of plaintiff No.1 and not in favour of joint family property ,cannot be accepted taking note of the material available on record in toto. Hence, I do not find any force in the contention of the learned counsel for the appellants that the Trial Court has committed an error in dismissing the suit. The Trial Court having considered both oral and documentary evidence placed on record, rightly comes to the conclusion that the plaintiffs have not made out a case to declare the plaintiffs as owner of the suit schedule property and when dispossession is not proved, the plaintiffs are also not entitled to any relief of possession. Hence, I do not find any merit to reverse the finding of the Trial Court.

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Point No.(iv):

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In view of the discussions made above, I pass the

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following:

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ORDER

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The appeal is dismissed.

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Sd/JUDGE

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Goolappa Since Dead by Lrs v. Goolappa S/O Nanjappa

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Goolappa Since Dead by Lrs v. Goolappa S/O Nanjappa

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