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CASE NO.: Appeal (civil)  1869 of 2008

PETITIONER: Mahaboob

RESPONDENT: Maktumsab

DATE OF JUDGMENT: 10/03/2008

BENCH: Dr. Arijit Pasayat & P. Sathasivam

JUDGMENT: JUDGMENT

CIVIL APPEAL NO.     1869         OF 2008 (Arising out of S.L.P. (C) No. 2591 of 2006)

P. Sathasivam, J.

1)      Leave granted.

2)      This appeal is directed against the judgment and order  dated 08.07.2005 passed by the High Court of Karnataka at  Bangalore in Regular Second Appeal No. 242 of 2001  modifying the judgment and decree in part that the plaintiff is  owner and in possession only to an extent of 7.00 acres of  land.

3)      BRIEF FACTS: Mahaboobsab Modinsab Agasimani, plaintiff in O.S. No. 129 of  1990 on the file of the Principal Civil Judge, Hubli is the  appellant in the above appeal.  The appellant/plaintiff filed the  said suit for declaration declaring him as the absolute owner  of the suit property bearing RS. No. 93/3 measuring 7 acres  and 10 guntas situate at Palikoppa in Hubli.  According to the  plaintiff, he is the owner and in possession of the suit property  which came to the share of his father in the year 1973 in their  family adjustment among the brothers.  Subsequently, father  of the plaintiff and others got their shares entered vide ME No.  480.  The same has not been challenged by the defendant so  far.  The defendant is the owner and in possession of R.S. No.  98/2 measuring 6 acres 30 guntas since 1973.  Both the  lands are adjacent to one another.  Though the suit property  measuring 7 acres 10 guntas, there was an entry in the record  of rights to the extent of 7 acres and 30 guntas.  The plaintiff,  by filing an application to the Revenue Authority, got it  rectified as 7 acres 10 guntas.  The defendant got the extent of  his land entered as 7 acres instead 6 acres 30 guntas.  This  entry made by the Revenue Authority was illegal and without  the knowledge of the plaintiff.  No notice was issued to him.   Right from the date of partition in the year 1973, defendant is  cultivating the land measuring 6 acres 30 guntas and the  plaintiff is cultivating the land measuring 7 acres and 10  guntas.  Therefore, the order made by the ADLR in PH No.  192/87 was illegal and contrary to the provisions of the  Karnataka Land Revenue Code.  Therefore, certification of ME  No. 781 was illegal and not binding on the plaintiff.  Though  variations were made in the record of rights, the plaintiff  continued to enjoy 7 acres and 10 guntas, whereas the  defendant is in actual possession of only 6 acres and 30

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guntas.  Since the defendant started denying the title of the  plaintiff to the entire extent, the plaintiff constrained to file the  suit for declaration of his title.  4)      Defendant resisted the suit, inter alia, contending in his  written statement that the plaintiff has wrongly described the  property as 7 acres and 10 guntas.  RS.No. 98 originally  belonged to the father of the defendant, Hasansab and his  brothers.  During 1973, there was an oral partition of RS No.  98 and accordingly M.E. No. 480 came to be certified.  As per  the oral partition, RS No. 98/1 measuring 6 acres 30 guntas  was given to Nabisab A Agasimani, RS No. 98/2 measuring 6  acres 30 guntas was given to Dawalsab Agasimani and RS No.  98/3 measuring 7 acres 10 guntas was given to father of the  defendant.  It was further stated that subsequently Dawalsab  Agasimani to whom RS No. 98/2 was allotted, given up his  claim in respect of that land and thus the said RS No. 98/2  was allotted to the share of defendant’s father.  Therefore, RS  No. 98/2 also came to the share of defendant’s father.   Accordingly, M.E. No. 600 came to be made on 01.05.1980.  In  this way, defendant and his brothers became the joint owners  of RS No. 98/2 and 98/3.  Subsequently, all the five sons of  Hasansab partitioned these properties in the year 1985.  In  that partition, RS No. 98/2 measuring 7 acres fallen to the  share of defendant and RS No. 98/3 measuring 7 acres fallen  to the share of the plaintiff.  In this way, M.E. No. 712 came to  be certified on 20.01.1985.  In short, according to the  defendant, he has been the owner in possession of 7 acres in  RS No. 98/2 and the plaintiff is the owner in possession of 7  acres in RS No. 98/3.  5)      On the above pleadings, plaintiff himself was examined  as PW. 1 and one Lalsab as PW.2 apart from exhibiting  documents, namely, Ex.P-1 to P-16.  On the side of the  defendant, his son has been examined as DW.1 and one  Dawalsab Agasimani as DW.2 apart from marking Ex.D-1 to  D-16 in support of his defence.  The trial Judge, after framing  necessary issues and considering the relevant materials,  decreed the suit declaring the plaintiff as the absolute owner  of suit property measuring 7 acres 10 guntas in RS No. 98/3  of Palikoppa village.  6)      Aggrieved by the aforesaid judgment and decree of the  trial Court, the defendant preferred Regular Appeal No. 66 of  1994 before the First Addl. District Judge, Dharwad.  The First  Appellate Court, after framing necessary points for  consideration, accepted the findings rendered by the trial  Court and dismissed the appeal on 06.02.2001.  Not satisfied  with the judgment and decree of both the Courts below, the  unsuccessful defendant filed Regular Second Appeal No. 242  of 2001 before the High Court of Karnataka at Bangalore  under Section 100 CPC.  The High Court, by  impugned  judgment dated 08.07.2005, modified the judgment and  decree of the Courts below and held that the plaintiff is owner  in possession only to an extent of 7.00 acres.   Questioning the  modified decree to the extent of 10 guntas, the plaintiff, after  obtaining special leave, has filed the present appeal.  7)      Heard Mr. M. Khairati, learned counsel appearing for the  appellant.  None appeared for the respondent.  8)      The only point for consideration in this appeal is whether  the High Court is justified in interfering with the conclusion  arrived at by both the Courts below? 9)      In view of narration of the pleadings of both parties in  earlier paragraphs, there is no need to advert to the same once  again.  The dispute relates to 0.10 acres or 10 guntas of land  in Sy.No.98.  The High Court proceeded on the basis that it  was during 1985 as per arrangement in Ex.D-11, RS. Nos.  98/2 and 98/3 were equally divided between two brothers i.e.

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grandfather of the plaintiff and father of the defendant and  each got 7 acres to their share, the same was intimated to the  village accountant and on that basis entry was made.  In other  words, the High Court based its reliance as per Ex.D-11.   Learned counsel appearing for the appellant has brought to  our notice that the High Court failed to appreciate that there  has been only one partition in the year 1973 among the  brothers of the defendant and father of the plaintiff, based on  the same the plaintiff remained in possession of the property  which came in the share of his father in 1973.  In other words,  after partition in the year 1973, the plaintiff continued to be in  possession of 7.10 acres.  Both the trial Court as well as the  First Appellate Court discussed the issue in detail and rightly  came to the conclusion that the plaintiff is the absolute owner  of 7.10 acres and not 7 acres as alleged and erroneously  concluded by the High Court.  10)     It is relevant to point out that issue Nos.1-3 framed by  the trial Court relate to the main question.  The discussion of  the trial Court on these issues clearly shows that the  document Ex.D-11 does not contain the date and as to when  the same was returned and intimated to the village  accountant.  On verification of Ex.D-11, the trial Court came  to the conclusion that it does not bear even the signature and  seal of the office of the village accountant of Palikoppa.   DW.2,  who was examined to prove Ex.D-11, has stated that the  plaintiff has signed Ex.D-11,  did not identify the signature of  the plaintiff.  When the plaintiff has totally denied the  execution of Ex. D-11 and more particularly when DW.2 who  was examined to prove Ex.D-11 has not identified the  signature of the plaintiff, the High Court is not justified in  relying on Ex.D-11.  That being our conclusion, as rightly  concluded by the trial Court, the consequent action taken on  the basis of Ex.D-11 cannot be accepted.  DW.1 is none else  than son of the defendant.  As rightly observed by the trial  Court, he is aged about 26 years as on February, 1994,  whereas partition was taken place in the year 1973.  This  shows that he was just aged about 7 years in 1973.  In such  circumstances, it is difficult to believe that he was aware of the  transaction that took place in 1973.  Even if we accept his  statement is correct, he admitted that as per Ex.P-1 the  plaintiff’s father got 7 acres 10 guntas.  The trial Court has  also raised a doubt that there is nothing on record to show  that Ex.D-11 and D-13 were given to village accountant with  the consent of the plaintiff.  Like that of the trial Court, the               First Appellate Court raised a doubt about the factum of 1985  partition.  The Appellate Court also concluded that as per  Ex.P1 the extent of RS No. 98/3 is 7 acres and 10 guntas.  In  the light of the factual conclusion arrived by the trial Court as  well as the First Appellate Court analyzing the oral and  documentary evidence, we are of the view that the High Court  has committed an error in interfering on a question of fact  which was not permissible under Section 100 CPC vide P.  Chandrasekharan and Others vs. S. Kanakarajan and  Others, 2007 (5) SCC 669 and Basayya I. Mathad vs.  Rudrayya S. Mathad in Civil Appeal No. 1349 of 2001 dated  24.01.2008 [2008 (1) Current Tamil Nadu Cases 537].  It is  settled law by this Court, that, it is impermissible for High  Court to interfere on a question of fact particularly when both  the Courts below rejected Ex.D-11 as not admissible since the  same was not properly proved by the defendant.  The      conclusion arrived at by the High Court is not acceptable and  the decision arrived by the trial Court and the First Appellate  Court declaring the plaintiff as the owner in possession of 7.10  acres is acceptable.  11)     In the light of the above discussion, the conclusion

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arrived at by the High Court cannot be sustained and the  same is set aside.  The civil appeal is allowed.  No costs.