2006 Supreme(SC) 165

2006(2) Supreme 649
Supreme Court of India
(From Karnataka High Court)
Arijit Pasayat and R.V. Raveendran, JJ.
Venkatappa @ Moode (D) by LRs. —Appellant
versus
M. Abdul Jabbar & Ors. —Respondents
Civil Appeal Nos. 945-946 of 2003
Decided on 24-2-2006
Counsel for the Parties :
For the Appellants : Ms. K. Sarada Devi, Advocate.
For the Respondents : Hardev Singh, Sr. Advocate, Ms. Madhu Moolchandani, Advocate.

Headnote:Civil Procedure Code, 1908—Admission in written statement—Suit for declaration and injunction based on regd. partition deed to declare plaintiff to be owner in possession of 8 guntas of land in survey No. 622/2—Trial Court and 1st appellate Court decreed suit to extent of 4 guntas on a finding that extent of Survey No. 622/2 was eight guntas—In second appeal High Court held that plaintiff and 1st defendant both admitted in pleadings and in evidence that extent of Survey No. 622/2 was 16 guntas and said land had been divided equally and decreed plaintiff’s suit for entire 8 guntas of land—Appeal—In written statement defendant admitted extent of Survey No. 622/2 was 16 guntas and took an intenable plea that entire 16 guntas was allotted to his share which stood disproved by Partition Deed—Appellants were bound by pleadings in written statement and could not be permitted to put forth a new case—Findings of High Court in second appeal called for no interference.

       Held : It is seen that what the appellants (LRs. of Venkatappa) have contended in the Special Leave Petition, is contrary to the written statement filed by Venkatappa. In the written statement, Venkatappa clearly admitted that the extent of Survey No. 622/2 was 16 guntas consisting of 8 guntas of cultivable land and 8 guntas of Kharab land. He, however, untenably contended that the entire 16 guntas of land was allotted to his share and Manchamma’s sons were not allotted any portion of Survey No. 622/2. This was disproved by the Partition Deed (Ex. P-11) which showed equal extents in Survey No. 622/2 were allotted to Venkatappa (4 guntas) and to sons of Manchamma (4 guntas). The reason why only 4 guntas were mentioned is explained in the evidence of PW-1 (plaintiff) and PW-2 (Venkatarama, son of Manchamma and predecessor-in-title of plaintiff). Ex. P-1 which is the sale deed in favour of plaintiff executed on 29.9.1978 traces the title of the vendors of plaintiff and gives the measurement of the property sold to plaintiff as East to West : 95 on the Northern side, 70 on the Southern side and North to South : 125. The conversion certificate (Ex. P3) gives the measurement of plaintiff’s property as 70’x125. The measurements show that what was purchased by plaintiff was about 8 guntas and not 4 guntas. The first defendant Venkatappa admitted the plaint averment that he (the first defendant) had sold an extent of 2.75, 2.75 and 2.75 guntas (in all 8.25 guntas) of land in Survey No. 622/2 to Venkatamma, Siddhayya and Manchayya under Sale Deeds dated 7.9.1949, 7.9.1949 and 30.9.1963 (in Para 6 of the written statement). But in the Special Leave Petition filed before this Court, the LRs. of the first defendant are putting forth a wholly different case. They are contending that 8 guntas of land was allotted to first defendant and 8 guntas of land was allotted to the sons of Manchamma. But they now allege that what was sold by Venkatappa (first defendant), under the three Sale Deeds dated 7.9.1949, 7.9.1949 and 30.9.1963 was only 4 guntas and he had retained 4 guntas. This is contrary to the pleadings and evidence. The appellants herein are bound by the pleadings in the written statement filed by the first defendant and cannot be permitted to put forth a new case. In these circumstances, the High Court has held that there was no dispute about the total extent and about the partition of the said land equally and that the plaintiff had made out the title in regard to 8 guntas and decreed the suit for in respect of 8 guntas. The High Court modified the findings of fact in second appeal, as the courts below erroneously proceeded on the basis that the total extent of Survey No. 622/2 was only 8 guntas ignoring the admission contained in the pleadings and evidence of first defendant which supported the plaintiff’s case that the total extent of Survey No. 622/2 was 16 guntas. Though what was purchased by the plaintiff was made up of 4 guntas cultivable land and 4 guntas of Kharab land, when the entire extent was converted to non-agricultural use vide order dated 30.7.1979 (Ex. P-3) of Tehsildar, Kanakapura, the land ceased to be ‘cultivable land’ and ‘Kharab land’ became non-agricultural land. The High Court has, therefore, held that the plaintiff has established his title and possession in regard to the 8 guntas and he was entitled for permanent injunction restraining the defendants from interfering with his possession. It is true that the High Court has not given detailed reasons. But on a careful examination, we are satisfied that the ultimate finding recorded in the second appeal does not call for interference. (Paras 5 to 7)