@ Moode (D) By Lrs. Vs. M. Abdul Jabbar & Ors  Insc 89 (24 February 2006)
Pasayat & R V Raveendran Raveendran, J.
civil appeals by special leave are filed against the judgment of the Karnataka
High Court dated 24.9.1998 in R.S.A. No.233/1996 and order dated 10.4.2001 in
R.P. No.745 of 2000.
first respondent herein filed O.S. No.91/1989 against Venkatappa (of whom
appellants 1 to 3 and respondents 2 and 3 are the legal heirs) and Military
Karigowda (of whom respondents 4(a) to 4(h) are the legal heirs) in O.S. No.91
of 1985 on the file of the learned Munsiff, Kanakapura, for a declaration that
he was the absolute owner of the suit property and for a permanent injunction
restraining the defendants from interfering with his possession and enjoyment of
the suit property (site measuring 8 guntas in Khata No.3458 being Southern
portion of Survey No.622/2, situated at Khalaknagar Road, Khalaknagar,
Kanakapura Town, Bangalore district, bounded on the East by Municipal drain and
conservancy road, West by houses of Sheriff Khan and house of Mohammed Sabu and
Syed Ahmed, North by vacant plot of Rajashekhar and South by Khalaknagar Road).
The trial court decreed the said suit, in part, by judgment and decree dated
11.12.1991 declaring the plaintiff to be the owner of 4 guntas of land on the
Southern side of Survey No. 622/2 on the Kanakapura village and consequently,
restraining the defendants from interfering with his possession in respect of
the said land. The suit of the plaintiff in regard to remaining 4 guntas was
The judgment and
decree of the trial court were challenged by plaintiff as well as the first
defendant. Feeling aggrieved by the rejection of relief in regard to 4 guntas,
the plaintiff filed R.A. No.6/1992 on the file of the Civil Judge, Ramnagaram.
Being aggrieved by the decree for injunction in regard to 4 guntas, the first
defendant filed R.A. No.10 of 1992.
the appeals were heard and dismissed by the first appellate court (Civil Judge,
Ramanagaram) by a common judgment and decree dated 13.11.1995, thereby
affirming the decree of the trial court.
by the rejection of his claim in regard to a portion of the suit property (4
guntas), the plaintiff filed R.S.A. No.233/1996 before the High Court of
Karnataka. The said second appeal was allowed by judgment dated 24.9.1998 and
the suit was decreed as prayed for, by granting the declaration and injunction
as sought, in regard to the entire extent of 8 guntas. The appellants herein (3
out of the five LRs. of first defendant) filed a petition (R.P. No.745/2000)
seeking review of the said judgment. The review petition was dismissed vide
order dated 10.4.2001. Feeling aggrieved, three of the LRs. of the first
defendant (the widow and two sons of Venkatappa) have filed these appeals
challenging the Judgment in second appeal and order in the review petition.
1.4.For the sake
of convenience, we will refer to the first respondent as plaintiff and the
deceased Venkatappa of whom appellants and respondents 2 and 3 are the LRs. as
first defendant, with reference to their rank/s in the suit.
filed the said suit for declaration of title and permanent injunction alleging
that one Puttaswamy was the owner of land bearing Survey No.622/2, Kanakapura;
that the said survey number consisted of 8 guntas of cultivable land and 8 guntas
of Kharab (land unfit for cultivating); that the said Puttaswamy had two wives
and one son (first defendant) through the first wife, and three sons (Kempa Venkata,
Venkataraju and Krishna) through his second wife Manchamma; that under a
registered Partition Deed dated 27.1.1949, the said land was divided equally
between Venkatappa (first defendant) on the one hand and the three minor
children of Manchamma on the other hand (certain other properties were also the
subject-matter of the said partition which are not relevant for the purpose of
these appeals); and that as 8 guntas was kharab land, the partition deed
referred to the division of the cultivable land only by mentioning that 4 guntas
were allotted to the share of the first defendant and 4 guntas were allotted to
the share of the three minor children of Manchamma; and that Venkatappa (first
defendant) was in possession of 8 guntas (including 4 guntas of Kharab) and Manchamma's
children were in possession of 8 guntas (including 4 guntas of Kharab) from the
date of partition.
alleged that the first defendant who was in possession of 8 guntas of land, sold
the entire land under 3 sale- deeds, namely, 2.75 guntas in favour of Venkatamma
on 7.9.1949, 2.75 guntas in favour of Siddayya on 7.4.1949 and the balance shown
as 2.75 guntas in favour of Manchayya on 30.9.1963 and did not retain any land
in the said Survey Number. On the other hand, Manchamma and her two sons sold
their portion of 8 guntas in Survey No.622/2 to the plaintiff under registered
Sale Deed dated 29.9.1978; that the plaintiff thereafter got the 8 guntas of
land purchased by him, measured through a surveyor, and fixed boundary stones;
that he obtained conversion of the said 8 guntas of land (measuring about
70'X125') to non-agricultural use, vide order dated 30.7.1979 of the Tahsildar,
Kanakapura Taluk; that he made an application to the Town Municipal Council,
Kanakapura and got the Khata of the said land registered in his name in the
Assessment Register of the Town Municipal Council vide Khata No.3458 and had
been regularly paying the property tax to the Municipality.
alleged that Venkatappa (the first defendant) forcibly removed the boundary
stones fixed by the plaintiff and by misrepresenting the facts, obtained Khata
No.3404 in his name and immediately sold 4 guntas to second defendant on
19.2.1979. It is in these circumstances the plaintiff filed the suit for
declaration and permanent injunction against the defendants in regard to 8
guntas of land.
defendant filed a written statement wherein he specifically admitted that the
extent of Survey No.622/2 was 16 guntas, as alleged by the plaintiff. He, however,
contended that the entire extent (i.e. 8 guntas of cultivable land and 8 guntas
of kharab land) fell to his share under the partition and, accordingly, he was
in possession of the entire extent of Survey No.622/2. He alleged that as Manchamma
and her children did not have any right, title, interest or share in the said
land and therefore, the plaintiff neither got possession nor title in regard to
any portion of Survey No.622/2. He also admitted that he had alienated three
portions, as alleged in the plaint, but contended that he was in possession of
the remaining extent out of the 16 guntas of land and that the remaining extent
was numbered as Khata No.3404 and he sold the same to the second defendant.
The trial court
and the first appellate court held that as the Partition Deed showed that the
extent of Survey No. 622/2 was eight guntas and the Northern half was allotted
to the share of the first defendant, and Southern half was allotted to the
children of Manchamma; and that therefore, plaintiff who purchased the portion
of Survey No. 622/2 from the three sons of Manchamma was entitled to a
declaration and permanent injunction in regard to the said extent of 4 guntas
being the Southern half portion of Survey No.622/2. On second appeal by the
plaintiff, the learned Single Judge of the High Court held that as the
plaintiff and first defendant both admitted in the pleadings and their evidence
that the extent of Survey No.622/2 was 16 guntas consisting of 8 guntas of
cultivable land and 8 guntas of Kharab land and as the said land was equally
divided between the first defendant on the one hand, and Manchamma's sons on
the other hand under registered Partition Deed dated 27.1.1949, the plaintiff
who purchased the portion of Manchamma's sons is entitled to the decree in
respect of 8 guntas (including 4 guntas of kharab land) as prayed in the suit,
and not just four guntas.
judgment of the High Court is challenged, inter alia, on the following grounds :
Partition Deed showed that the extent of Survey No. 622/2 was 8 guntas and the
plaintiff's vendor Manchamma and her sons were allotted the Southern portion of
Survey No.622/2 measuring 4 guntas, the High Court was not justified in
decreeing the suit in regard to the 8 guntas.
defendant, had sold only 4 guntas of land under Ex. P-12, P-13 and P-14 and had
retained 4 guntas. Therefore, the plaintiff's contention that Venkatappa had
sold the entire 8 guntas and did not own or possess any land in Survey No.622/2
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.
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' and 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.
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. The appeals are, therefore, dismissed.