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Judgment
N. Kumar, J.—This is a defendant''s appeal against the judgment and decree of the trial Court, which has decreed the suit of the plaintiffs as
prayed for.
For the purpose of convenience the parties are referred to as they are referred to in the original suit.
The plaintiffs are the owners of three bits of agricultural land, which are clearly set out as item Nos. 1, 2 and 3 of �A� schedule. However,
in the �B� schedule they have clubbed all these three items and given a boundary covering all these three items and described it as ''B''
schedule.
The case of the plaintiffs is that they are agriculturists by profession and permanent residents of Attigere village in Davanagere Taluk. The 2nd
plaintiff is the younger brother of the 1st plaintiff and 3rd plaintiff is the son of the 1st plaintiff. The defendants are also agriculturists and residents of
Attigere village in Davanagere Taluk. The 2nd defendant is the wife of 1st defendant. Nandyappa was the propositus of the family of the plaintiffs.
He was an agriculturist by profession and permanent resident of Attigere village. He owned extensive immovable properties in Attigere village and
he was enjoying those properties with his son Channabasappa. After the death of Nandyappa, all his property devolved on his son,
Channabasappa, who was in possession and enjoyment of the family properties and he was cultivating the same personally. He was enjoying the
said properties with his two sons Nandibasappa and Kallappa, the plaintiffs 1 and 2. Channabasappa died in the year 1984 leaving behind
plaintiffs 1 and 2 as his legal heirs.
During the life time of Channabasappa the plaintiffs 1 and 2 and their father had effected division of all the family properties under the registered
sale deed dated 13.8.1971. In the said partition, the agricultural land bearing re-Sy.No. 84/4 measuring 2 acres 15 guntas of Attigere village i.e.,
item No. 1 of the ''A'' schedule was allotted to the share of Channabasappa, the father of plaintiffs 1 and 2. After the said division, Channabasappa
was enjoying all the properties allotted to his share as absolute owner. Channabasappa purchased the agricultural land bearing Sy.No. 84/3P
measuring 1 acre 24 guntas of Attigere village i.e.. item No. 2 of the ''A'' Schedule from its previous owner Karibasappa under a registered sale
deed dated 3.11.1976 for a valuable consideration and came in to possession of the same. After his death, his properties i.e., the property allotted
to the share of Channabasappa at the partition and the property which he acquired subsequent to partition devolved on the plaintiffs 1 and 2. Since
then they are in actual, peaceful possession and enjoyment of the said properties by cultivating the same personally. The 1st plaintiff has purchased
the agricultural land bearing re-Sy.No. 84/3P measuring 1 acre 24 guntas in the name of the 3rd plaintiff out of the income derived from the
agricultural land under a registered sale deed dated 20.5.1985 for a valuable consideration from its previous owner Sri. Basappa. He purchased
the said land, which is situated adjacent to the land purchased by his father in the same survey number. The defendants were fully aware and
conscious of the fact that the plaintiffs are the owners in possession of the suit schedule properties and are cultivating the same personally and that
they have no right, title or interest to any extent in the said properties.
Sy.No. 84/4 is situated to the north of the agricultural land bearing Sy.No. 84/3. Thus these two survey numbers are lying adjacent to each
other. After the purchase of the entire extent of re-Sy.No. 84/3P, the plaintiffs have started cultivating both lands together. As such, re-Sy.No.
84/4 and 84/3 have become one plot measuring 5 acres 23 guntas. Hitherto the plaintiffs used to raise the paddy crop and they have invested more
than Rs. 60,000/- for the improvement of these agricultural lands i.e., to level the agricultural lands by using the bulldozer, tractor, etc. They have
improved this agricultural land with an intention to convert the same in to Arecanul and coconut garden. The entire extent of land of 5 acres 23
guntas is described in detail in the ''B'' schedule. The property described as item Nos. 2 and 3 in the plaint ''A'' schedule i.e., re-Sy.No. 84/3 is
bounded on the western side by re-Sy.No. 84/1. There is a bund in between these two agricultural lands, which is about 2 feet in width and about
3 feet in height This bund is in existence since the time immemorial on the western side of Sy.No. 84/3. Abutting this bund on the western side is
the agricultural land bearing Sy.No. 84/1, which originally belonged to the four brothers i.e., Basappa, Channabasappa, Nandibasappa and
Revanasiddappa. All these four persons are no more. During their lifetime the four brothers had divided these properties. Nandibasappa sold his
share in this agricultural land to Sannasiddappa i.e., the father of the 1st defendant. Similarly, Revanasiddappa sold his share to Basappa. The land
of Basappa is abutting the bund on the western side. Thereafter the land of Sannasiddappa and Channabasappa is situated. The land of Basappa is
divided between his five sons Rudrappa, Nandibasappa, Jagannath Umapathy and Karibasappa. These five brothers have divided the land from
east to west. After the death of Sannasiddappa Channabasappa, his property devolved upon the 1st defendant. Thus there is bund and then the
agricultural land of son of Basappa in between the land of the defendants and the land of plaintiffs in Sy.No. 84/3 of Attigere village. The
defendants being jealous of the improvements made by the plaintiffs are bent upon harassing the plaintiffs in one way or the other arid to cause
obstruction to the plaintiffs in their cultivation of the suit schedule properties. The defendants inspite of having the knowledge that they have no
semblance of right, title or interest in the suit schedule properties forcibly entered upon the suit schedule properties during the 2nd week of
December 1999 with an intention to cultivate the same. The plaintiffs prevented them. The defendants being unsuccessful in their attempt went
away proclaiming that they will not allow the plaintiffs to cultivate the schedule properties peacefully. They are asserting that the suit schedule
properties belong to them. Thus disputing the title of the plaintiffs to the suit schedule properties. The plaintiffs lodged the police complaint. But they
have not taken any prompt action. Therefore, the plaintiffs were constrained to file the suit for declaration of title and for permanent injunction
against the defendants and for the other consequential reliefs.
After service of summons, defendants 1 and 2 entered appearance and have filed a joint written statement. It is a case of total denial. They have
denied all the allegations in the plaint. Thereafter they have specifically pleaded their case, which is contained in paragraph 13 of the written
statement. It is their case that one Channapla Sannasiddappa was the propositus of the family of defendant No. 1. During the lifetime of said
Sannasiddappa he was owning extensive movable and immovable properties deluding the landed property in re-Sy.No. 84/1 situated at Attigere
village in Davanagere Taluk. He was the owner in possession of the properties and was cultivating the same. After his death, his four sons
Basappa, Channabasappa, Nandibasappa and Revanasiddappa got divided the properties by way of a registered partition deed dated 16.3.1966.
Sy.No. 84/1 measuring 3 acres 23 guntas in total had fallen to the share of Basappa, Chanabasappa and Nandibasappa to an extent of 1 acre 8
guntas, 1 acre 7 guntas and 1 acre 8 guntas respectively under the said partition deed. From the date of partition they were enjoying the properties
till their death. In the said partition deed, the land bearing Sy.No. 84/1 measuring 1 acre 8 guntas situated towards the extreme eastern side had
fallen to the share of Basappa The land measuring 1 acre 8 guntas in Sy.No. 84/1 situated towards the western side of the share of Basappa fallen
to the share of Nandibasappa and the land measuring 1 acre 7 guntas to the west of Nandibasappa''s share fell to the share of Channabasapp i.e.,
the father of defendant No. 1. Subsequent to the death of Basappa, his sons Rudrappa, Manibasappa, Jagannath, Umapathi and Karibasappa are
in possession and enjoyment of the property fallen to the share of their father. Subsequent to the death of Nandibasappa his wife Jayamma
acquired the valid title and possession over the properties that had fallen to the share of her husband. On 23.1.1978 she sold several properties
including the land bearing Sy.No. 84/1 measuring 25 guntas situated towards eastern side of the share of the said Channabasappa s/o
Sannasiddappaa to Channabasappa the father of defendant No. 1 for a valid consideration. After the death of Channabasappa, the 1st defendant
is in possession of the property, which had fallen to the share of his father under the partition as well as the property purchased by him subsequent
to the partition. Thus he is the owner of 1 acre 32 guntas and the remaining extent of 23 guntas was sold by Jayamma to Basappa under a
registered sale deed. The revenue records are mutated in his name as per the aforesaid sale deed. The 1st defendant has secured loan from
Grameen Bank, Attigere and has developed his property. The description of the properties as set out in the schedule, are incorrect. The plaintiffs
are aware of the aforesaid facts. As their property is adjoining the Basappa''s property, Basappa and his children ought to have been made as
parties to the proceedings. They having not been made as parties, the suit is bad for non-joinder of necessary parties. Therefore, they sought for
dismissal of the suit.
On the aforesaid pleadings the trial Court has framed the following issues:-
1) Whether the plaintiffs prove their title to the suit schedule property?
2) Whether the plaintiffs prove their lawful possession over the suit schedule property?
3) Whether the plaintiffs prove the alleged interference by the defendants?
4) Whether the plaintiffs are entitled permanent injunction?
5) What decree or order?
The plaintiffs in order to substantiate their claim examined Nandibasappa as PW. 1, Onkarappa, Halappa and Basappa as PWs. 2, 3 and 4 and
produced 17 documents, which are marked as Exs. P1 to P17. On behalf of the defendants, the 1st defendant was examined as DW. 1 and he
has examined three witnesses Chandrappa, Rudrappa and Thimmappa as DWs. 2, 3 and 4 and produced 16 documents, which are marked as
Exs. D1 to D16.
Infact the Assistant Director of Land Reforms was appointed as a Court Commissioner to make a local investigation, prepare a sketch and to
submit his report. As the report filed by him was objected to, he has been examined as CW. 1 and he has produced 8 documents, which are
marked as Exs.C1 to C8.
The trial Court on appreciation of the oral and documentary evidence on record held that the plaintiffs have proved the title to the suit schedule
properties, the plaintiffs are in lawful possession and enjoyment of the suit schedule properties, they have also established interference by the
defendants in the enjoyment of the suit schedule properties and therefore, it granted the declaration of title and decree for permanent injunction, as
prayed for. Aggrieved by the said judgment and decree of the trial Court the defendants are in appeal.
Sri. R.S. Hegde, learned Counsel appealing for the appellants/defendants contended that the boundaries given in the schedule to the plaint do
not tally with the schedule given either in the partition deed or under the sale deeds under which the plaintiffs claim title to the property. The
Commissioner''s report also substantially proves the said case. Inspite of the same, the trial Court committed a serious error in granting the decree
for declaration and for permanent injunction and therefore, he seeks for interference.
Per contra, the learned Counsel appearing for the plaintiffs/respondents contended that the boundaries mentioned in the sale deeds and in the
plaint schedule do not tally completely. The Commissioner''s report filed shows that the boundaries given are correct. He submitted that in the
course of time the properties have changed hands and therefore, the persons who are the owners as on the date of the suit is given in the plaint
schedule and therefore, it cannot be found fault with.
In the light of the aforesaid facts and the rival contentions, the point that arises for consideration in this appeal is,
Whether the trial Court committed any illegality in granting the declaration as sought for as well as the decree for permanent injunction inspite of the
boundaries given in the schedule not tallying with the boundaries given in the sale deeds?
The material on record clearly establishes that item No. 1 of the plaint ''A'' schedule fell to the share of the 1st and 2nd plaintiff''s father
Channabasappa under a registered partition deed dated 13.8.1971, which is marked in the case as Ex. P1. The said Channabasappa after the said
partition purchased item No. 2 of the plaint ''A'' schedule property under a registered sale deed dated 3.11.1976 for a valuable consideration from
its previous owner one Karibasappa. The said sale deed is produced as Ex. P2. The 1st plaintiff purchased item No. 3 of the plaint ''A'' schedule
property in the name of his son, 3rd plaintiff under a registered sale deed dated 20.5.1985 from its previous owner Basappa and the said sale deed
is produced as Ex.P3. The defendants do not seriously dispute the aforesaid purchases and the documents. The defendants are nothing to do with
the said properties, which are the subject matter of those documents Not only the plaintiffs have produced the registered partition deed, registered
sale deed, they have also examined witnesses, produced mutation records, all of which would clearly go to show that the plaintiffs are the absolute
owners in possession of the aforesaid three items of property. It is true that the boundaries given in the schedule do not tally with the schedule given
in the respective documents. The plaintiffs have offered explanation. We have the Commissioner''s report. The 1st document is of the year 1971,
second document is in the year 1976 and the third document is in the year 1985, whereas the suit was filed in the year 2000. In the course of time,
the original parties are dead, their legal heirs have succeeded the property and in their name mutation entries have been made, property also has
changed hands, their names have been mutated and therefore, the plaintiffs have given the boundaries as existed on the date of suit. As long as this
description or differences in description do not affect the rights of the defendants or anybody else, it makes no difference as far as the claim of the
plaintiffs is concerned. The trial Court on proper appreciation of the oral and documentary evidence on record keeping in mind these differences in
the boundaries, looking in to the Commissioner''s report ha3 rightly held that the plaintiffs are the owners of these three items of schedule
properties. We do not find any infirmity in the said finding, which is based on the legal evidence and which calls for interference.
The grievance of the defendants appears to be is that the plaintiffs have clubbed all the three items of land and have given the boundary as set
out in the ''B'' schedule. Their apprehension is that by virtue of the details given in the ''B'' schedule, if a decree were to be passed, the plaintiffs
may attempt to interfere with the defendants property or get the defendants property included in the said schedule. It is in this context that they are
fighting this litigation. Therefore, it is necessary to find out whether the said apprehension has any basis and whether there is any intention on the
part of the plaintiffs to deprive the defendants of their valuable right in the property owned by them. Ex.P15 is the survey sketch, which is marked
in the case and which is not in dispute. The property claimed by the plaintiffs bears Sy.No. 84/3 and 84/4. Sy.No. 84/4 is situated on the northern
side of Sy.No. 84/3 and they are adjoining each other. The defendants have not claimed any right either in Sy.No. 84/3 or in Sy.No. 84/4. Their
claim pertains to Sy.No. 84/1. Sy.No. 84/1 is situated towards the western side of Sy.No. 84/3. It is the specific case of the defendants that
Sy.No. 84/3 originally belonged to their father. After the death of their father i.e., Sannasiddappa it devolved on his four sons. There appears to be
some inconsistency about the number of sons and the partition that is effected. Even if we accept the case of the defendants that under a registered
partition deed Sy.No. 84/3 was divided in to three portions, the property was divided north -south. Because on the southern side to all these
properties lies Kashipuradagadi. An extent measuring 1 acre 8 guntas in Sy.No. 84/1 fell to the share of Basappa. The said portion lies
immediately to the west of Sy.No. 84/3. To the west of Basappa''s portion fell to the share of Nandibasappa, which measured 1 acre 8 guntas and
to the west of Nandibasappa''s portion fell to the share of Channabasappa measuring to an extent of 1 acre 7 guntas. After the death of
Nandibasappa, his wife Jayamma sold 25 guntas in favour of Channabasappa i.e., the portion adjoining Channabasappa''s portion. Similarly, she
sold the remaining extent to Basappa, which is adjoining to Basappa''s portion. With these two sales Basappa and Channabasappa became the
adjoining owners. Sy.No. 84/3 is situated to the east of Basappa''s portion. Therefore, Channabasappa''s portion in Sy.No. 84/1 is not adjoining
to the plaintiffs property bearing Sy.No. 84/3. In between their property lies the property of Basappa, which roughly measures about 1 acre 31
guntas, as a buffer between the plaintiffs and the defendants'' property. The evidence on record shows that there is bund which is measuring 3 feet
in height and two feet in breadth, which separates Sy.No. 84/1 from Sy.No. 84/3, which portion is not situated in the property, which now belongs
to the defendants. If there is any dispute regarding the bund, that is between Basappa and the plaintiffs. Therefore, the contention of the defendants
that the plaintiffs are trying to encroach upon their property or get their property included with their property in the guise of clubbing these three
properties and thus affecting their rights has no substance. As the defendants property is not adjoining the plaintiffs property and in between their
property lies the property of Basappa, the question of plaintiffs encroaching upon the defendants property or getting their property included with
their property in any survey to be conducted or while getting mutation entries made is a misconception on the part of the defendants. Under that
ground the defendants are preventing the plaintiffs from enjoying the property and for cultivation and to develop the property. Therefore, the trial
Court was justified in not only granting the declaration of title but also in granting the decree for permanent injunction.
The revenue authorities or the survey authorities, if they were to conduct a survey and prepare a sketch, they are going to look in to the title
deeds and also the judgment in this case and then only prepare a sketch. Therefore, the defendants rights is not going to be affected by any such
exercise to be undertaken by the plaintiffs to get their property ascertained.
We do not see any merit in this appeal. Accordingly, it is dismissed. No costs.