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CASE NO.: Appeal (civil)  945-946 of 2003

PETITIONER: Venkatappa @ Moode (D) by LRs.           

RESPONDENT: M. Abdul Jabbar & Ors.                           

DATE OF JUDGMENT: 24/02/2006

BENCH: Arijit Pasayat & R V Raveendran

JUDGMENT: J U D G M E N T

RAVEENDRAN, J.

       These civil appeals by special leave are filed against the  judgment of the Karnataka High Court dated 24.9.1998 in  R.S.A. No.233/1996 and order dated 10.4.2001 in R.P. No.745  of 2000.  

1.1)    The first respondent herein filed O.S. No.91/1989 against  Venkatappa (of whom appellants 1 to 3 and respondents 2 and 3  are the legal heirs) and Military Karigowda (of whom  respondents 4(a) to 4(h) are the legal heirs) in O.S. No.91 of  1985 on the file of the learned Munsiff, Kanakapura, for a  declaration that he was the absolute owner of the suit property  and for a permanent injunction restraining the defendants from  interfering with his possession and enjoyment of the suit  property (site measuring 8 guntas in Khata No.3458 being  Southern portion of Survey No.622/2, situated at Khalaknagar  Road, Khalaknagar, Kanakapura Town, Bangalore district,  bounded on the East by Municipal drain and conservancy road,  West by houses of Sheriff Khan and house of Mohammed Sabu  and Syed Ahmed, North by vacant plot of Rajashekhar and  South by Khalaknagar Road). The trial court decreed the said  suit, in part, by judgment and decree dated 11.12.1991  declaring the plaintiff to be the owner of 4 guntas of land on the  Southern side of Survey No. 622/2 on the Kanakapura village  and consequently, restraining the defendants from interfering  with his possession in respect of the said land. The suit of the  plaintiff in regard to remaining 4 guntas was dismissed.  

1.2)    The judgment and decree of the trial court were  challenged by plaintiff as well as the first defendant. Feeling  aggrieved by the rejection of relief in regard to 4 guntas, the  plaintiff filed R.A. No.6/1992 on the file of the Civil Judge,  Ramnagaram. Being aggrieved by the decree for injunction in  regard to 4 guntas, the first defendant filed R.A. No.10 of 1992.  Both the appeals were heard and dismissed by the first appellate  court (Civil Judge, Ramanagaram) by a common judgment and  decree dated 13.11.1995, thereby affirming the decree of the  trial court.  

1.3)    Feeling aggrieved by the rejection of his claim in regard  to a portion of the suit property (4 guntas), the plaintiff filed  R.S.A. No.233/1996 before the High Court of Karnataka. The  said second appeal was allowed by judgment dated 24.9.1998

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and the suit was decreed as prayed for, by granting the  declaration and injunction as sought, in regard to the entire  extent of 8 guntas. The appellants herein (3 out of the five LRs.  of first defendant) filed a petition (R.P. No.745/2000) seeking  review of the said judgment. The review petition was dismissed  vide order dated 10.4.2001. Feeling aggrieved, three of the LRs.  of the first defendant (the widow and two sons of Venkatappa)  have filed these appeals challenging the Judgment in second  appeal and order in the review petition.   

1.4)    For the sake of convenience, we will refer to the first  respondent as plaintiff and the deceased Venkatappa of whom  appellants and respondents 2 and 3 are the LRs. as first  defendant, with reference to their rank/s in the suit.

2.      The plaintiff filed the said suit for declaration of title and  permanent injunction alleging that one Puttaswamy was the  owner of land bearing Survey No.622/2, Kanakapura; that the  said survey number consisted of 8 guntas of cultivable land and  8 guntas of Kharab (land unfit for cultivating); that the said  Puttaswamy had two wives and one son (first defendant)  through the first wife, and three sons (Kempa Venkata,  Venkataraju and Krishna) through his second wife  Manchamma; that under a registered Partition Deed dated  27.1.1949, the said land was divided equally between  Venkatappa (first defendant) on the one hand and the three  minor children of Manchamma on the other hand (certain other  properties were also the subject-matter of the said partition  which are not relevant for the purpose of these appeals); and  that as 8 guntas was kharab land, the partition deed referred to  the division of the cultivable land only by mentioning that 4  guntas were allotted to the share of the first defendant and 4  guntas were allotted to the share of the three minor children of  Manchamma; and that Venkatappa (first defendant) was in  possession of 8 guntas (including 4 guntas of Kharab) and  Manchamma’s children were in possession of 8 guntas  (including 4 guntas of Kharab) from the date of partition.  

2.1)    The plaintiff alleged that the first defendant who was in  possession of 8 guntas of land, sold the entire land under 3 sale- deeds, namely, 2.75 guntas in favour of Venkatamma on  7.9.1949, 2.75 guntas in favour of  Siddayya on 7.4.1949 and  the balance shown as 2.75 guntas in favour of Manchayya on  30.9.1963 and did not retain any land in the said Survey  Number. On the other hand, Manchamma and her two sons sold  their portion of 8 guntas in Survey No.622/2 to the plaintiff  under registered Sale Deed dated 29.9.1978; that the plaintiff  thereafter got the 8 guntas of land purchased by him, measured  through  a surveyor, and fixed boundary stones; that he  obtained conversion of the said 8 guntas of land (measuring  about 70’X125’) to non-agricultural use, vide order dated  30.7.1979 of the Tahsildar, Kanakapura Taluk; that he made an  application to the Town Municipal Council, Kanakapura and  got the Khata of the said  land registered in his name in the  Assessment Register of the Town Municipal Council vide  Khata No.3458 and had been regularly paying the property tax  to the Municipality.  

2.2)    The plaintiff alleged that Venkatappa (the first defendant)  forcibly removed the boundary stones fixed by the plaintiff and  by misrepresenting the facts, obtained Khata No.3404 in his  name and immediately sold 4 guntas to second defendant on  19.2.1979. It is in these circumstances the plaintiff filed the suit  for declaration and permanent injunction against the defendants  in regard to 8 guntas of land.

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3.      The first defendant filed a written statement wherein he  specifically admitted that the extent of Survey No.622/2 was 16  guntas, as alleged by the plaintiff. He, however, contended that  the entire extent (i.e. 8 guntas of cultivable land and 8 guntas of  kharab land) fell to his share under the partition and,  accordingly, he was in possession of the entire extent of Survey  No.622/2. He alleged that as Manchamma and her  children did  not have any right, title, interest or share in the said land and  therefore,  the plaintiff neither got possession nor title in regard  to any portion of Survey No.622/2. He also admitted that he had  alienated three portions, as alleged in the plaint, but contended  that he was in possession of the remaining extent out of the 16  guntas of land and that the remaining extent was numbered as  Khata No.3404 and he sold the same to the second defendant.  

4.      The trial court and the first appellate court held that as  the Partition Deed showed that the extent of Survey No. 622/2  was eight guntas and the Northern half was allotted to the share  of the first defendant, and Southern half was allotted to the  children of Manchamma; and that therefore, plaintiff who  purchased the portion of Survey No. 622/2 from the three sons  of Manchamma was entitled to a declaration and permanent  injunction in regard to the said extent of 4 guntas being the  Southern half portion of Survey No.622/2. On second appeal by  the plaintiff, the learned Single Judge of the High Court held  that as the plaintiff and first defendant both admitted in the  pleadings and their evidence that the extent of Survey No.622/2  was 16 guntas consisting of 8 guntas of cultivable land and 8  guntas of Kharab land and as the said land was equally divided  between the first defendant on the one hand, and Manchamma’s  sons on the other hand under registered Partition Deed dated  27.1.1949, the plaintiff who purchased the portion of  Manchamma’s sons is entitled to the decree in respect of 8  guntas (including 4 guntas of kharab land) as prayed in the suit,  and not just four guntas.  

5.      The said judgment of the High Court is challenged, inter  alia, on the following grounds :

(i)     When the Partition Deed showed that the extent of  Survey No. 622/2 was 8 guntas and the plaintiff’s vendor  Manchamma and her sons were allotted the Southern  portion of Survey No.622/2 measuring 4 guntas, the High  Court was not justified in decreeing the suit in regard to  the 8 guntas.  (ii)    Venkatappa, first defendant, had sold only 4 guntas of  land under Ex. P-12, P-13 and P-14 and had retained 4  guntas.  Therefore, the plaintiff’s contention that  Venkatappa had sold the entire 8 guntas and did not own  or possess any land in Survey No.622/2 was erroneous.

It is seen that what the appellants (LRs. of Venkatappa) have  contended in the Special Leave Petition, is contrary to the  written statement filed by Venkatappa. In the written statement,  Venkatappa clearly admitted that the extent of Survey No.622/2  was 16 guntas consisting of 8 guntas of cultivable land and 8  guntas of Kharab land. He, however, untenably contended that  the entire 16 guntas of land was allotted to his share and  Manchamma’s sons were not allotted any portion of Survey  No.622/2. This was disproved by the Partition Deed (Ex. P-11)  which showed equal extents in Survey No. 622/2 were allotted  to Venkatappa (4 guntas) and to sons of Manchamma (4  guntas). The reason why only 4 guntas were mentioned is  explained in the evidence of PW-1 (plaintiff) and PW-2

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(Venkatarama, son of Manchamma and predecessor-in-title of  plaintiff). Ex.P-1 which is the sale deed in favour of plaintiff  executed on 29.9.1978 traces the title of the vendors of plaintiff  and gives the measurement of the property sold to plaintiff as  East to West : 95’ on the Northern side, 70’ on the Southern  side and North to South : 125’. The conversion certificate  (Ex.P3) gives the measurement of plaintiff’s property as  70’x125’. The measurements show that what was purchased by  plaintiff was about 8 guntas and not 4 guntas.  

6.      The first defendant Venkatappa admitted the plaint  averment that he (the first defendant) had sold an extent of 2.75,  2.75 and 2.75 guntas (in all 8.25 guntas) of land in Survey  No.622/2 to Venkatamma, Siddhayya and Manchayya under  Sale Deeds dated 7.9.1949, 7.9.1949 and 30.9.1963 (in Para 6  of the written statement). But in the Special Leave Petition filed  before this Court, the LRs. of the first defendant are putting  forth a wholly different case. They are contending that 8 guntas  of land was allotted to first defendant and 8 guntas of land was  allotted to the sons of Manchamma. But they now allege that  what was sold by Venkatappa (first defendant), under the three  Sale Deeds dated 7.9.1949, 7.9.1949 and 30.9.1963 was only 4  guntas and he had retained 4 guntas. This is contrary to the  pleadings and evidence. The appellants herein are bound by the  pleadings in the written statement filed by the first defendant  and cannot be permitted to put forth a new case.  

7.      In these circumstances, the High Court has held that there  was no dispute about the total extent and about the partition of  the said land equally and that the plaintiff had made out the title  in regard to 8 guntas and decreed the suit for in respect of 8  guntas. The High Court modified the findings of fact in second  appeal, as the courts below erroneously proceeded on the basis  that the total extent of Survey No. 622/2 was only 8 guntas  ignoring the admission contained in the pleadings and evidence  of first defendant which supported the plaintiff’s case that the  total extent of Survey No. 622/2 was 16 guntas. Though what  was purchased by the plaintiff was made up of 4 guntas  cultivable land and 4 guntas of Kharab land, when the entire  extent was converted to non-agricultural use vide order dated  30.7.1979 (Ex.P-3) of Tehsildar,  Kanakapura, the land ceased  to be ’cultivable land’ and ’Kharab land’ and became non- agricultural land. The High Court has, therefore, held that the  plaintiff has established his title and possession in regard to the  8 guntas and he was entitled for permanent injunction  restraining the defendants from interfering with his possession.  It is true that the High Court has not given detailed reasons. But  on a careful examination, we are satisfied that the ultimate  finding recorded in the second appeal does not call for  interference. The appeals are, therefore, dismissed.