Chaluvegowda vs Chaluvegowda and Others

Ravi V. Malimath, J.—At the request of learned counsels, the matter has taken up for final disposal. Aggrieved by the concurrent findings recorded by both the courts below in decreeing the plaintiffs'' suit by declaring him as absolute owner of the suit schedule properties and directing defendant No. 1 to deliver possession of the suit schedule properties in his favour as well as to direct the defendants No. 2 and 3 to effect necessary entries, the defendant No. 1 has filed this appeal.

The parties would be referred to as per their rank before the Trial Court.

The case of the plaintiff is that he is the owner and in possession of the suit schedule properties by virtue of the grant of occupancy rights by the land tribunal in terms of EX.P7. He has paid the relevant taxes etc., The defendant No. 1 by colluding with defendant No. 3 has manipulated the record of rights of the suit schedule properties and on the strength of those fabricated records dispossessed the plaintiff. A notice was issued to the Government by the plaintiff which did not receive any response. Hence he filed the instant suit seeking for a declaration that the RTC entries with respect to Sy. No. 580/2 measuring 5 guntas and Sy. No. 580/1 measuring 21 guntas at Belagola hobli, Srirangapatna taluk standing in the name of the defendant be cancelled and to enter the name of the plaintiff. Secondly, to declare that the plaintiff is the owner entitled for possession of the suit schedule properties and consequential reliefs. The defendant entered appearance and denied the suit claim. Defendants No. 2 and 3, the State Government and the Tahsildar did not file any written statements. Defendant No. 1 contended that the land tribunal has granted various survey numbers to the defendant in terms of the order of the land tribunal vide EX.D1. Hence he claims that he is the owner and in possession of the said lands for the last 50 years. Therefore, the plaintiff has no right, title or interest over the same. He secondly contended that he has perfected his title by way of adverse possession and that the suit is barred by limitation.

On the basis of the pleadings, the Trial Court famed the following issues for consideration:

"1. Whether the plaintiff proves that he is the owner of the schedule properties as pleaded in the plaint?

Whether he proves that the defendant has trespassed upon the schedule property as pleaded in the plaint?

Whether the defendant No. 1 proves that he is the owner and in possession of the schedule properties?

Whether the defendant No. 1 proves that he is an adverse possession of the schedule properties and thereby he has perfected his title and possession in respect of the schedule properties?

Whether the plaintiff proves that the suit is well in time?

Whether the civil court has jurisdiction to try and entertain the matter when the Land Tribunal has conferred occupancy right in favour of the plaintiff and the defendant No. 1 and if so the suit is maintainable?

What order or decree?"

In support of his case, the plaintiff examined himself as PW-1 and got marked 20 exhibits. The defendant No. 1 was examined among other two witnesses and 57 documents were marked.

The Trial Court answered Issues No. 1, 2 and 6 in the ''affirmative'' and Issues No. 3 partly in ''affirmative'' and issue No. 4 in the ''negative'' and the suit was decreed. The plaintiff was declared as the absolute owner of the suit schedule properties. The defendant No. 1 was directed to hand over the possession of the same while directing defendants No. 2 and 3 to make necessary entries in the revenue records. Aggrieved by the same, the defendant has filed the first appeal, which was dismissed. Hence, the present second appeal.

Learned counsel for the appellant/defendant contends that both the courts committed an error in misreading EX.P7 and the order of land tribunal granting occupancy rights in the survey numbers mentioned therein. Therefore, both the courts below committed an error in misreading EX.P7 order of the tribunal in favour of the plaintiff as well as the order of the tribunal in terms of EX.D1. That the plaintiff in the guise of EX.P7 has trespassed on to the property of the defendants. The trial court having failed to notice the evidence, has wrongly decreed the suit. On the other hand the counsel for the respondents/plaintiffs supports the concurrent findings of the courts below. He contends that his claim is purely based on EX.P7. That he has neither encroached the defendant''s property nor is he claiming what has been granted to the appellant/defendant.

Hence the following substantial questions of law is framed for consideration:

"Whether the judgment and decree of both the courts below are right in law in misreading EX.P7 and EX.D1?" 9. The specific case of the plaintiff is that he has been granted his rights in terms of EX.P7. Even though various survey numbers were granted to him, the mischief created by the defendant is with respect to only two survey numbers. Hence even though various other survey numbers were granted, the suit is restricted only in so far as Sy. No. 580/2 and Sy. No. 580/1 measuring 5 guntas and 21 guntas respectively. It is therefore pleaded that the suit schedule properties are the exact properties as granted in terms of EX.P7. On the contrary the defendants contend that the lands of the very same number are to a greater extent. That he too has been granted lands by the land tribunal in terms of EX.D1 in Sy. No. 580/2 measuring 0.20 guntas and 0.21 guntas in Sy. No. 580/1. He too contends that he having been granted lands by the land tribunal, the plaintiff has falsely implicated the case against him. Hence he pleads that the suit may be dismissed.

On hearing learned counsels, I''am of the considered view that there is no error committed by the courts below. Whatever is sought to be claimed either by the plaintiff or the defendant cannot exceed any land that has been granted by the tribunal in terms of EX.P7 namely the lands granted to the plaintiff. Therefore, the plaintiff would be entitled only to that extent of land as found in EX.P7. Identically also, the defendant No. 1 would be entitled only to those lands and its respective survey number as has been granted to him in terms of the order of the land tribunal vide EX.D1 dated 06.10.1981. Therefore, the plaintiff could not claim any land beyond EX.P7 and the defendant cannot claim any land beyond EX.D1. However, what to sought to be contended is the overlapping of the lands. However, the trial court having considered the material has decreed the suit to the very same extent of the lands that have been granted by the land tribunal. Therefore, it cannot be said that any of the legal rights of the defendant No. 1 stands infringed. Both the courts below have rightly considered EX.P7 as well as EX.D1 and what has been decreed is purely in terms of the lands as granted by the land tribunal. However, this would not mean that in terms of the decree the plaintiff would be entitled to any of the lands as granted to the defendants in terms of EX.D1. The defendant is entitled to enjoy the lands granted to him vide EX.D1 as much as the plaintiff is entitled to, in terms of EX. P7.

Under these circumstances, the substantial question of law is answered by holding that there is no error committed by both the courts below in reading EX.P7 and EX.D1 while decreeing the suit of the plaintiff. Hence while answering the substantial question of law, the appeal is dismissed.

The pending IA stands rejected.

Sri R. Omkumar, learned AGA is permitted to file his memo of appearance on behalf of respondent Nos. 13 and 14 within four weeks.