Basappa and A.R. Mallehappa vs B. Manjunath and Others

K.L. Manjunath

The concurrent findings of the courts below are called in question in this appeal. The appellants were defendants 1 and 2 in O.S. No. 57/2004 on the file of Civil Judge (Sr. Dn.), Kadur, which suit was instituted by respondents 1 to 3 herein to declare them as absolute owners of the suit land and also to direct the defendants to deliver possession of the suit property. The suit property is Sy. No. 275 measuring 3 acres 26 guntas situated in Garugadahalli village in Kadur taluk. According to the plaint averments 5 acres of land in Sy. No. 86 of Garugadahalli village in Kadur taluk was granted to the first plaintiffs father in the year 1962-63. While doing pakka phodi work a fresh measurement was made and it was found that only 3 acres 26 guntas of land was in possession of the plaintiffs. Accordingly, survey number was renumbered as Sy. No. 275. The defendants who are no way connected to the schedule property had obtained the mutation in their favour in the revenue records. On coming to know the same the plaintiffs filed an appeal before the Assistant Commissioner, Chickmagalur in R.A. No. 97/1999-2000 which appeal came to be allowed on 31.12.1999 and the name of the plaintiffs came to be mutated by deleting the name of the defendants. The defendants aggrieved by the order of the Assistant Commissioner had filed a revision before the Deputy Commissioner, Chickmagalur, in Revision No. 41/99-2000 which also came to be dismissed. On the ground that the defendants are in unlawful possession, the suit was filed for declaration of title and for possession. The appellants did not contest the case by filing the written statement.

The defendants for a similar relief had filed a suit in O.S. No. 409/2000 in respect of the suit property on the file of the Prl. Civil Judge (Jr Dn.), Kadur, which later transferred to the Civil Judge (Sr. Dn.) Kadur, and renumbered as O.S. No. 92/2006. Both the suits were tried together. The suit filed by the defendants in O.S. No. 92/2006 for declaration and for injunction came to be dismissed. The suit filed by the plaintiff in O.S. No. 57/2004 came to be decreed by the court on the ground that the suit land in question was granted to the plaintiff''s father and they are entitle for the relief of declaration and for possession.

Aggrieved by the dismissal of the suit of the appellants in O.S. No. 92/2006 the appellants did not challenge the same. In other words judgement and decree passed in the suit of the appellants herein has become final and they have lost their title. However, the appellants filed an appeal aggrieved by the judgement and decree passed in O.S. No. 57/2004 in R.A. No. 19/2007 before the Addl. District Judge, Chickmagalur. The Addl. District Judge, Chickmagalur having heard the parties confirmed the judgment and decree of the trial court. Challenging the concurrent findings of the courts below the present appeal is filed.

I have heard the learned counsel for the appellant. Having heard the learned counsel for the appellant this court does not see any substantial question of law arises in this appeal for the following reasons.

Admittedly, the land in question was granted to the respondent''s father under darkast and the revenue records were wrongly mutated in the name of the appellants. Later on in an appeal filed by the plaintiffs, the Assistant Commissioner, Chickmagalur has set aside the revenue entries made in the name of the appellants, which order has been confirmed by the Deputy Commissioner, Chickmagalur also. The appellants had also filed a suit for declaration in O.S. No. 92/2006 and both the suits were clubbed together. The suit of the appellants came to be dismissed and the suit filed by the respondent has been decreed. The finding of the trial court has been confirmed by the first appellate court also. The appellants who filed the suit for declaration of title did not challenge the dismissal of their suit by filing an appeal. In other words they have lost right and title over the property. When they are not the owners of the property and when the courts below have confirmed the title of the respondent in the suit filed by the respondent, this court cannot interfere with the concurrent findings of fact in the second appeal because whether the plaintiffs are the owners of the property or not is a question of fact and not a question of law. As the appellant is also not disputing the grant of land in favour of respondent/plaintiff this court has no other option than to dismiss the appeal.

Accordingly, the appeal is dismissed.