Nanjegowda @ Gowda (D) By Lrs.Anr vs Ramegowda on 4 December, 2017

                                                           NON-REPORTABLE

                               IN THE SUPREME COURT OF INDIA

                               CIVIL APPELLATE JURISDICTION

                                CIVIL APPEAL No.7089 OF 2010


                         Nanjegowda @ Gowda (D)
                         by LRs.  Anr.                           ….Appellant(s)

                                               VERSUS

                         Ramegowda                            …Respondent(s)


                                         JUDGMENT

Abhay Manohar Sapre, J.

1) This appeal is filed by the defendants against

the final judgment and order dated 18.07.2006

passed by the High Court of Karnataka at Bangalore

in Regular Second Appeal No.498 of 2001 whereby

the Single Judge of the High Court while exercising

jurisdiction under Section 100 of the Code of Civil

Procedure, 1908, allowed the appeal filed by the
Signature Not Verified

Digitally signed by
ASHA SUNDRIYAL
Date: 2017.12.04
plaintiff (respondent herein), reversed the order of
16:07:21 IST
Reason:

the First Appellate Court and confirmed the

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judgment and decree passed by the Trial Court

holding that the respondent was entitled to a decree

of title to the suit land.

2) The facts of the case lie in a narrow compass.

Even the issue arising in the appeal is a short one.

It would be clear from the facts mentioned

hereinbelow.

3) The appellant Nos.1(a) to (d) are the legal

representatives of defendant No.1 – Shri Nanjegowda

- who died during the pendency of this litigation,

appellant No.2 is defendant No.2 whereas the

respondent is the plaintiff in the suit.

4) The dispute relates to an agricultural land

bearing Sy.No. 44/14 B measuring 0.09 Guntas and

Sy. No.44/14-D measuring 0.06 Guntas as detailed

in schedule to the plaint (hereinafter referred to as

“suit land”) situated at village Thondahalli, Bellur

Hubali (Karnataka).

5) The defendants (appellants) and the plaintiff

(respondent) are the members of one family. They

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are first cousins from their father’s side. The family

owned ancestral properties which included the suit

land in question and other properties also.

6) In the year 1991, the plaintiff (respondent)

filed a suit being O. S. No. 204 of 1991 in the Court

of the Munsif at Nagamangala against the

defendants (appellants). The suit was for a

declaration that the plaintiff (respondent) be

declared as owner of the suit land and for

permanent injunction restraining the defendants

(appellants) from interfering in his possession over

the suit land.

7) According to the plaintiff, there had been an

oral partition effected as far back in the year 1935

among the respective fathers of the plaintiff, the

predecessor-in-title of defendant No.1 and their real

uncles and pursuant thereto the suit land fell into

the share of the plaintiff’s father and on his death, it

was inherited by him.

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8) It was alleged that all the family members

including the plaintiff, defendants and their

ancestors got their names recorded in the Revenue

Records in relation to their respective shares. It

was alleged that the said partition was fully acted

upon for the last many decades with no interference

by anyone among all the members of the family. It

was alleged that the defendants started asserting

their right, title and possession over the suit land to

the detriment of the interest of the plaintiff without

there being any basis whatsoever and hence the

plaintiff was compelled to file a suit to seek

declaration and injunction against the defendants

in relation to the suit land.

9) The defendants filed their written statement.

The defendants (appellants), in clear terms,

admitted the relationship between the defendants

(appellants) and the plaintiff (respondent) including

their ancestors as alleged by the plaintiff in the

plaint. The defendants also admitted the existence

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and factum of oral partition effected among the

family members as alleged by the plaintiff. The

defendants, however, set up one Release Deed

executed by their grandfather in 1940 and claimed

share in the suit land on that basis. They also

relied on some mutation entries to claim share in

the suit land and also set up a plea of adverse

possession over the suit land and claimed that they

have become the owner of the suit land by virtue of

adverse possession on account of their long,

peaceful and continuous possession.

10) The Trial Court framed the issues. Parties

adduced their evidence. The Trial Court, by

judgment/decree dated 17.03.1997, decreed the

plaintiff’s suit. The Trial Court held that, the

plaintiff (respondent) is the owner of the suit land,

he is in possession of the suit land, he is entitled to

claim permanent injunction against the defendants

restraining them from interfering in his peaceful

possession, the defendants failed to prove their

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adverse possession over the suit land and also they

were not able to prove their right, title and interest

and possession over the suit land, the alleged

Release-Deed did not relate to the suit land but it

pertained to other property of the family and lastly,

mutation entries, in the absence of any

documentary title over the suit land, were of no use.

11) The defendants (appellants) felt aggrieved and

filed an appeal being R.A. No. 46 of 1998 before the

Additional Civil Judge (Senior Division). By

judgment/decree dated 07.04.2001, the First

Appellate Court allowed the appeal, set aside the

judgment/decree of the Trial Court and dismissed

the plaintiff’s suit.

12) The plaintiff (respondent) felt aggrieved and

filed Second Appeal being R.S.A. No.498 of 2001.

By impugned judgment, the Single Judge allowed

the appeal and while setting aside of the

judgment/decree of the First Appellate Court

restored the judgment/decree of the Trial Court

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and, in consequence, decreed the suit as was done

by the Trial Court.

13) The defendants (appellants) felt aggrieved and

have filed this appeal by way of special leave against

the impugned judgment of the High Court before

this Court.

14) Heard Mr. K.V. Mohan, learned counsel for the

appellants and Mr. Karunakar Mahalik, learned

counsel for the respondent.

15) Having heard the learned counsel for the

parties and on perusal of the record of the case, we

find no merit in the appeal.

16) In our considered opinion, the Trial Court as

also the High Court were justified in decreeing the

respondent’s suit and we find no good ground to

interfere in any of the findings of fact recorded by

the two Courts below for the following reasons.

17) It is not in dispute that the defendants

(appellants) admitted the relationship between the

parties. It is also not in dispute, as was admitted by

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the defendants (appellants), that the parties through

their ancestors had effected oral partition as far

back in 1935 and that the defendants’ ancestors

were also parties to such partition and the same

was implemented in letter and spirit by allotting to

each of the members of the family their respective

share and also by getting the names of owners in

Revenue Records.

18) Once the defendants admitted these two

material facts pleaded by the plaintiff then it was for

the defendants to prove by leading cogent evidence

as to how and on what basis they could claim to be

the owner of the suit land. They failed to prove their

ownership with the aid of any evidence.

19) In our opinion, the stand taken by the

defendants was wholly inconsistent. They first set

up a plea of adverse possession but it was rightly

held not proved. The defendants, however, did not

challenge this finding in the second appeal, which

became final. Even otherwise, the plea of adverse

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possession was wholly misconceived and untenable.

It is a settled law that there can be no adverse

possession among the members of one family for

want of any animus among them over the land

belonging to their family.

20) The defendants then claimed that they became

owner on the strength of one Release Deed of 1940

but again it was held rightly that such Deed did not

relate to the suit land but relate to some other land.

The defendants then relied on some entries of

Revenue Records. It was again held rightly that

firstly, they were challenged in Revenue Courts and

secondly, no documentary evidence was adduced to

prove the title to the suit land independent to such

disputed entries.

21) In our considered opinion, the High Court,

therefore, was right in reversing the findings of the

lower Appellate Court, which were wholly perverse

and legally unsustainable as compared to the

findings of the Trial Court on all the material issues.

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22) We find that the appeal does not involve any

law point. What is involved is pure question of fact

and hence the finding recorded by the High Court

warrants no interference by this Court. Even

otherwise, on examining the case of the defendants

(appellants) independently, we have found that they

have no case at all.

23) In our opinion, it is a clear case where the

plaintiff and the defendants being members of the

family got their share in the family properties

through an oral partition effected among their

ancestral members of family and on their deaths to

the surviving members by inheritance, i.e., the

plaintiff and defendants. So far as the suit land is

concerned, it fell into the share of plaintiff’s

ancestors, which was evidenced by an oral partition

duly acted upon for a long time back in 1935 and

then on the plaintiff.

24) Learned counsel for the appellants

(defendants), however, took us through pleadings

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and the evidence adduced by the parties with a view

to show that the findings of facts are not legally

sustainable.

25) In our view, we cannot entertain any of the

submissions of the learned counsel for the

appellants(defendants) in an appeal under Article

136 of the Constitution and nor can we appreciate

any oral evidence de novo in this appeal as all his

submissions were on facts/evidence. It is not

permissible in law to probe the evidence at this

stage. Moreover, in the light of what we have held

above, these submissions have no merit.

26) In view of foregoing discussion, we find no

merit in the appeal. It is accordingly dismissed.

……………………………………..J.
[ABHAY MANOHAR SAPRE]

……

………………………………….J.

[NAVIN SINHA]

New Delhi;

December 04, 2017

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Article source: Supreme Court

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