Vs. Linge Gowda & Ors  INSC 1339 (28 October 1996)
O R D
have heard learned counsel on both sides.
appeal by special leaves arises against the judgment and decree of the
Karnataka High Court made on February 14,1995
in RSA No.350/90.
admitted position is that appellant's father Chenne Gowda apart from himself
being Chenne Gowda had four brothers, namely, Linge Gowda, Hala Gowda, Bale Gowda
and Channiah. The appellants (defendants 8 and 7) are sons of Chenne Gowda. The
first defendant is the son of Linge Gowda. Bole Gowda is the third defendant
and Chenne Gowda is the second defendant. Bole Gowda's sons are defendant Nos.
4 to 6. The appellant had filed the suit for a declaration of his title and
injunction against all the defendant to restrain them from interfering with his
possession. It is his specific plea that the property was the ancestral
property and prior to 1936, there was a partition by meets and bound among five
brothers of his father . Subsequently, in 1936, there was a further partition
between the appellant and his brother, defendant 7 and 8 and the suit land had
fallen to his share and since then he has been in possession and enjoyment of
it. From 1968 onwards, defendant started interfering with his possession
disclaiming his title. Ultimately, suit came to be filed for a declaration.
First defendant has set up his defence in the written statement contending that
this property originally belonged to Huchamma, the grand-mother of the
defendant No.1, father of the appellant and others.
demise, this property devolved upon them. Ever since they were jointly in
possession and enjoyment of the property which Chenne Gowda, father of the
appellant had got fraudulently mutated in the revenue records in the year
1929-30. Therefore, it does not bind them. The trial Court dismissed the suit.
On appeal, the appellate court reversed the decree and decreed the suit. In the
second appeal, the High Court interfered with the appellate Court's decree and
confirmed the decree of the trial Court . In other words, the suit now stands
dismissed. Thus, this appeal by special leave.
seen from the record and it cannot be disputed that the High Court has recorded
a finding that there was a partition between defendants 1 and 2, appellant's
father etc. and the courts below have rejected the plea of the defendants of
the succession from the grand-mother Huchamma.
appellate Court as well as the High Court accepted the finding that there was a
prior partition between the first defendant and his brother. The first
defendant as DW-1 admitted that there was a partition between the appellant and
his brothers, defendant 7 and 8 and that they were in possession and enjoyment
and their respective properties were partitioned by meets and bounds. It is
also not in dispute that in the year 1929-30, there was a transfer mutation of
the lands in the name of the father of the appellant. The finding recorded by
the appellate Court is that on a joint application signed by all the brothers
under Ext.24, the property was mutated in the name of the father of the
appellant. No attempt was made from 1929-30 till date of the suit, challenging
the mutation effected in the name of the father of the appellant. Thus, these
facts conclusively establish that there was a prior partition among five
brothers including the father of the appellant and thereafter necessarily the
plaint schedule property had fallen to the share of the plaintiff's father and
mutation was effected as per joint application, Ext.24 entered in the year
1929-30. Consequently, there was partition by meets and bounds among five
brothers and it is admitted that the same was accepted by the High Court as an
admission. In view of the admission by the first defendant as DW-12, that there
was further partition between the appellant and his brother, necessarily the
self-same lands stood in the name of the appellant. The High Court wrongly
framed an issue whether the appellant has purchased the property by sale. It is
not the case of any of the parties that he had purchased the property. It is
ancestral property having been succeeded after the demise of the father y a
partition among the brothers. Thereby he acquired the title to the property.
appreciation of evidence by the High Court under section 100, CPC is,
therefore, unwarranted to reverse the findings of facts recorded by the first
appellate Court, as the final Court of fact. Therefore, the respondents have no
manner of right whatsoever to interfere with his possession.
the decree of the appellate Courts stands restored and that of the High Court
stands set aside. The suit stands decreed as prayed for.
appeal is accordingly allowed. No costs.