Siddappa Shivanappa Kurabar vs Ningappa

Mr. Budihal R.B., J.—This is the second appeal preferred by the plaintiffs-appellants challenging the judgment and decree passed by the Trial Court which is confirmed by the First Appellate Court.

The appellants filed the suit in O.S.No.21/2004 seeking the relief of possession and mesne profits as against the defendants. It is averred in the plaint that suit is filed to recover the possession measuring 1 acre, 15 guntas out of land bearing Sy.No.18/2 in Gudnal village and whereas 1 acre, 39 guntas out of land bearing Sy.Nos.122/1 A and 122/1B of Bevoor village along with mesne profits with costs of the suit and also for other reliefs.

The plaintiffs described the land schedule property in plaint paragraph No. 5. As it is mentioned in the judgment plaintiffs have furnished the genealogy of the family. It is the case of the plaintiffs that the father of the plaintiffs and their senior uncle and junior uncle were in joint cultivation of the lands situated at Gudnal village at Sy.Nos. 17 and 18 and at Bevoor Sy.No. 122. But however they got partition effected between them in a year 1958. As per the partition, the properties were came to the plaintiffs under respective allotment. In the said partition, when the lands bearing Sy.Nos.18 and 122 pot hissa were measured by land Survey Department on 24.07.2002, the plaintiffs realised that they are in possession of the suit schedule properties and the defendants are in excess possession. Therefore, the suit has been filed to recover the excess possession, which is said to be with the defendants.

The defendants filed the written statement denying the case of plaintiffs. It is submitted by the defendants that during the year 1958, a partition took place between the son of the propositus Siddappa and all the lands left behind by Siddappa with proportionate equally partitioned in the presence of village elders in the year 1958. The boundaries were also fixed to their respective lands under the allotment of partition. They also put up a big bund between the lands of the plaintiffs and their lands, which is more than 45 years old with having height of 7 feet. The defendants admitted that, the land Survey Department surveyed the land as per their respective possession. But, however, the plaintiffs challenged before the ADLR, Bijapur, but their request turned down and they did not prefer the appeal. The plaintiffs have filed the said suit without any cause of action with regard to order of ADLR, Bijapur. Hence, they sought for dismissal of the said suit.

On the basis of the said pleadings, the Trial Court framed five issues, which are as under:-

Whether the plaintiffs prove that the defendants are in possession of lands measuring 01 acre, 15 guntas and 01 acre, 39 guntas, total 03 acres, 14 guntas in the suit schedule properties as per the measurement of Taluka Surveyor, which is given for their possession as per the partition of the year 1958?

Whether the defendants prove that their father had put-up bund, which is more than about 45 years back and they are cultivating the land upto the bund after the partition of the family properties and they are making ''vahiwat'' and enjoying the lands since from the date of the partition as per boundaries fixed by the elders?

Whether the defendants prove that suit of the plaintiffs is barred as per Article 58 of the Limitation Act?

Is there any cause of action to file this suit?

Whether plaintiffs are entitled for the suit reliefs?

What decree or order?

Thereafter, the parties led their evidence before the Trial Court and after evaluating the materials, the Trial Court, ultimately dismissed the suit. The appellants-plaintiffs preferred the appeal before the first appellate Court challenging the legality and correctness of the judgment and decree passed by the Trial Court dismissing the suit. The first appellate Court, after re-appreciating the materials placed on record and also considering the submissions made by both sides at the Bar, dismissed the appeal confirming the judgment and decree passed by the Trial Court.

Being aggrieved by the dismissal of the suit by the Trial Court and its confirmation by the first appellate Court, the appellants-plaintiffs are before this Court in this regular second appeal.

I have heard the arguments of tHe learned counsel appearing for the appellants on admission.

Learned counsel for the appellants has submitted that though the defendants were in possession of excess area for which they have no right at all and though the plaintiffs made out a case before the Courts below, the Trial Court wrongly dismissed the suit. He has further submitted that the relief was sought even for mesne profits also, but the Trial Court has not framed the issue regarding mesne profits. Hence, he has submitted that matter requires consideration in this appeal and submitted to admit the appeal.

I have perused the grounds urged in the appeal memorandum, judgment and decree passed by the Courts below.

Looking to the contention of the appellants-plaintiffs regarding excess area in possession of the respondents-defendants, the Courts below have assessed the evidence placed before them and considered the oral evidence of the parties and thereafter, both the Courts below came to the concurrent finding that the appellants-plaintiffs failed to establish the case that the defendants are in excess possession of the schedule property. This is the factual aspect, and regarding the said factual aspect, when there are concurrent findings of the Courts below, I am of the opinion that there are no substantial questions of law involved in this appeal. Therefore, there is no merit in the appeal and hence, same/is hereby dismissed at the admission stage itself.