28 October 1996
Supreme Court
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NINGE GOWDA Vs LINGE GOWDA .

Bench: K. RAMASWAMY,G.B. PATTANAIK
Case number: C.A. No.-014578-014578 / 1996
Diary number: 10246 / 1995
Advocates: Vs P. R. RAMASESH


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PETITIONER: NINGE GOWDA

       Vs.

RESPONDENT: LINGE GOWDA & ORS.

DATE OF JUDGMENT:       28/10/1996

BENCH: K. RAMASWAMY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R       Leave granted.      We have heard learned counsel on both sides.      This   appeal by  special leaves  arises against    the judgment and  decree of  the Karnataka  High Court  made  on February 14,1995 in RSA No.350/90.      The admitted position is that appellant’s father Chenne Gowda  apart  from  himself  being  Chenne  Gowda  had  four brothers, namely,  Linge Gowda,  Hala Gowda, Bale  Gowda and Channiah. The  appellants (defendants  8 and  7) are sons of Chenne Gowda.  The first  defendant is  the son    of  Linge Gowda. Bole  Gowda is the third defendant and  Chenne  Gowda is the  second defendant.  Bole Gowda’s  sons are  defendant Nos. 4  to 6.  The appellant  had   filed   the suit  for  a declaration of  his title  and injunction  against  all  the defendant  to   restrain  them  from  interfering  with  his possession. It  is his  specific plea  that the property was the ancestral  property and  prior  to  1936,  there  was  a partition by  meets and  bound among  five brothers  of  his father  .   Subsequently,  in  1936,  there  was  a  further partition between the appellant and his brother, defendant 7 and 8  and the  suit land  had fallen to his share and since then he  has been  in possession  and enjoyment  of it. From 1968  onwards,   defendant  started   interfering  with  his possession disclaiming  his title.  Ultimately, suit came to be filed  for a  declaration. First defendant has set up his defence  in  the  written  statement  contending  that  this property originally  belonged to  Huchamma, the grand-mother of the  defendant No.1,  father of the appellant and others. On her  demise, this property devolved upon them. Ever since they were  jointly in  possession  and  enjoyment    of  the property which Chenne Gowda, father of the appellant had got fraudulently mutated  in the  revenue records  in  the  year 1929-30. Therefore,  it does  not bind them. The trial Court dismissed the  suit. On appeal, the appellate court reversed the decree  and decreed  the suit. In the second appeal, the High Court  interfered with the appellate Court’s decree and confirmed the  decree of  the trial  Court . In other words, the suit  now stands dismissed. Thus, this appeal by special leave.

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    It is  seen from  the record  and it cannot be disputed that the  High Court has recorded a finding that there was a partition between  defendants   1 and  2, appellant’s father etc. and  the courts  below have  rejected the  plea of  the defendants of the succession from the grand-mother Huchamma. The appellate  Court as  well as the High Court accepted the finding that  there was a prior  partition between the first defendant and  his brother.  The  first  defendant  as  DW-1 admitted that  there was  a partition  between the appellant and his  brothers, defendant  7 and  8 and that they were in possession and  enjoyment and  their  respective  properties were partitioned  by meets  and bounds.  It is  also not  in dispute that  in the  year 1929-30,  there  was  a  transfer mutation of  the lands  in the  name of  the father  of  the appellant. The  finding recorded  by the  appellate Court is that on  a joint  application signed   by  all the  brothers under Ext.24,  the property  was mutated  in the name of the father of  the appellant.  No attempt  was made from 1929-30 till date  of the suit, challenging the mutation effected in the name  of the  father of the appellant. Thus, these facts conclusively   establish that  there was  a prior  partition among five  brothers including  the father  of the appellant and thereafter  necessarily the plaint schedule property had fallen to  the share  of the plaintiff’s father and mutation was effected as per joint application, Ext.24 entered in the year 1929-30. Consequently, there was partition by meets and bounds among  five brothers and it is admitted that the same was accepted  by the High Court as an admission. In view  of the admission  by the  first defendant  as DW-12, that there was  further   partition  between   the  appellant  and  his brother, necessarily  the self-same  lands stood in the name of the  appellant. The  High Court  wrongly framed  an issue whether the appellant has purchased the property by sale. It is not  the case of any of the parties that he had purchased the  property.   It  is  ancestral  property    having  been succeeded after the demise of the father y a partition among the brothers. Thereby he acquired the title to the property. The appreciation  of evidence  by    the  High  Court  under section 100,  CPC is,  therefore, unwarranted to reverse the findings of  facts recorded by the first appellate Court, as the final  Court of fact. Therefore, the respondents have no manner of right whatsoever to interfere with his possession. Accordingly, the  decree  of  the  appellate  Courts  stands restored and  that of  the High  Court stands set aside. The suit stands decreed as prayed for.      The appeal is accordingly allowed. No costs.