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2020 Supreme(Kar) 2114
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
ASHOK S. KINAGI, J.
Hulugappa S/o Hanumappa Hiremani and Ors – Appellant
Versus
Dundappa S/o Shekharappa Kolaji and Ors – Respondent
R.S.A. No.100662 of 2017
Decided On : 28-01-2020
Advocate Appeared:
For the Appellant : Sri B Sharanabasawa, Adv.
For the Respondent: Sri Sabeel Ahmed, Adv. For Sri A S Patil, Adv.
Headnote:
Limitation Act - Article 58 – Suit for possession – Decreed – Challenged - Plaintiffs that plaintiffs are the owners in possession of land said lands were earlier owned and possessed by their propositus and after demise of their ancestors, they succeeded to said lands. Plaintiff No.1 is grandson of deceased Hanumappa and plaintiffs are his uncles - Further contended by plaintiffs that father of the defendants filed an injunction suit before Munsiff Court, land only to extent of 2 acres out of 16 acres 9 guntas - Said suit filed by father of defendants was decreed and accordingly the name of father of defendants was mutated by M.E. pertaining to 2 acres 2 guntas - Held, Appellate Court after re-appreciating pleadings, oral and documentary evidence on record has held that the plaintiffs have failed to prove ownership as well as possession and thereby affirmed the findings of the trial Court that suit filed by the plaintiffs is barred by limitation - As discussed above, though the plaintiffs have filed suit for declaration of ownership, they have not produced any records to show that how the original propositus has acquired suit property. Further no records have been produced to show that the suit land was standing in name of propositus. Plaintiffs have failed to prove that after the death of propositus, they have succeeded to the suit properties. The Courts below have not committed any error in passing the impugned judgments. I do not find any substantial question of law involved in this appeal - Appeal is dismissed.
JUDGMENT :
1. This appeal is filed by the plaintiffs challenging the judgment and decree dated 01.02.2014 in O.S.No.23/2010 passed by the Civil Judge & J.M.F.C., Yelburga, and the judgment and decree dated 12.06.2017 passed by the Senior Civil Judge and J.M.F.C., Yalburga in R.A.No.5/2014.
2. The facts of the case of the plaintiffs that the plaintiffs are the owners in possession of land bearing Sy.Nos.203 measuring 16 acres 9 guntas and land bearing Sy.No.205/2 measuring 10 acres 6 guntas. The said lands were earlier owned and possessed by their propositus namely Hanumappa and after the demise of their ancestors, they succeeded to the said lands. The plaintiff No.1 is the grandson of deceased Hanumappa and plaintiffs No.2 to 4 are his uncles. Further it is contended by the plaintiffs that father of the defendants namely Shekharappa filed an injunction suit before the Munsiff Court, Yalburga in O.S.No.269/1/66 pertaining to land Sy.No.203 only to the extent of 2 acres out of 16 acres 9 guntas. The said suit filed by the father of the defendants was decreed and accordingly the name of the father of the defendants was mutated by M.E.No.39/1966-67 pertaining to 2 acres 2 guntas. The father of the defendants had also filed injunction suit against the grandfather of plaintiff No.1 and father of the plaintiffs No.2 to 4 in respect of Sy.No.203 only for 2 acres 10 guntas out of 16 acres 9 guntas in O.S.No.366/1/62. He had also filed another suit in O.S.No.363/1 for 2 acres 10 guntas in the said survey number against Yamanappa Madar and another suit in O.S.No.364/1/1962 for the said survey number of 2 acres 2 guntas against the grandfather of plaintiff No.1 and father of the plaintiffs No.2 to 4. Both the suits have been decreed in favour of father of defendants and all the three suits were on the basis of oral agreement for the relief of injunction. After the death of father of defendants, defendants have succeeded to the suit properties and gave an application for effecting mutation in their names. The revenue authorities after due enquiry, mutated the names of defendants on the basis of succession. Thereafter, both the defendants have partitioned their family properties including Sy.No.205/2 measuring 10 acres 6 guntas. Without having any right the revenue authorities mutated the name of defendant No.1 which is void and the mutation order passed by the Tahasildar, Yelburga on 23.01.2008 not in accordance with law. The plaintiffs preferred an appeal against the order passed by the Tahasildar before the Assistant Commissioner. The Assistant Commissioner upheld the order passed by the Tahasildar. The Assistant Commissioner directed the parties to approach the civil Court. The plaintiffs aggrieved by the order passed by the Assistant Commissioner, preferred revision before the Deputy Commissioner. The Deputy Commissioner confirmed the order passed by the Assistant Commissioner. The defendants with an intention to encroach upon the suit land are trying to interfere with the peaceful possession and enjoyment of the suit lands and therefore, the plaintiffs constrained to file the suit for declaration and injunction.
3. The defendants appeared and filed written statement denying the entire allegations made in the plaint. It is also denied that the propositus by name Hanumappa was the owner of the suit schedule property and after his death, the plaintiffs have succeeded to the suit properties. It is further contended that father of the defendants namely Shekharappa had purchased the suit schedule lands orally measuring 2 acres 2 guntas in Sy.No.203 (new No.205) during the year 1949 from its previous owner namely Hulagappa and others. The said persons obstructing the possession of the suit lands for which the father of the defendants had filed suit in O.S.No.269/1/1996 for declaration and injunction. The suit came to be decreed in favour of father of the defendants. Further it is contended that the defendants in O.S.Nos.363/1/1962, 366/1/1962,
