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NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.7089 OF 2010
Nanjegowda @ Gowda (D)
by LRs. & Anr. ….Appellant(s)
VERSUS
Ramegowda …Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) This appeal is filed by the defendants against
the final judgment and order dated 18.07.2006
passed by the High Court of Karnataka at Bangalore
in Regular Second Appeal No.498 of 2001 whereby
the Single Judge of the High Court while exercising
jurisdiction under Section 100 of the Code of Civil
Procedure, 1908, allowed the appeal filed by the
plaintiff (respondent herein), reversed the order of
the First Appellate Court and confirmed the
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judgment and decree passed by the Trial Court
holding that the respondent was entitled to a decree
of title to the suit land.
2) The facts of the case lie in a narrow compass.
Even the issue arising in the appeal is a short one.
It would be clear from the facts mentioned
hereinbelow.
3) The appellant Nos.1(a) to (d) are the legal
representatives of defendant No.1 - Shri Nanjegowda
- who died during the pendency of this litigation,
appellant No.2 is defendant No.2 whereas the
respondent is the plaintiff in the suit.
4) The dispute relates to an agricultural land
bearing Sy.No. 44/14 B measuring 0.09 Guntas and
Sy. No.44/14-D measuring 0.06 Guntas as detailed
in schedule to the plaint (hereinafter referred to as
“suit land”) situated at village Thondahalli, Bellur
Hubali (Karnataka).
5) The defendants (appellants) and the plaintiff
(respondent) are the members of one family. They
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are first cousins from their father's side. The family
owned ancestral properties which included the suit
land in question and other properties also.
6) In the year 1991, the plaintiff (respondent)
filed a suit being O. S. No. 204 of 1991 in the Court
of the Munsif at Nagamangala against the
defendants (appellants). The suit was for a
declaration that the plaintiff (respondent) be
declared as owner of the suit land and for
permanent injunction restraining the defendants
(appellants) from interfering in his possession over
the suit land.
7) According to the plaintiff, there had been an
oral partition effected as far back in the year 1935
among the respective fathers of the plaintiff, the
predecessor-in-title of defendant No.1 and their real
uncles and pursuant thereto the suit land fell into
the share of the plaintiff’s father and on his death, it
was inherited by him.
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8) It was alleged that all the family members
including the plaintiff, defendants and their
ancestors got their names recorded in the Revenue
Records in relation to their respective shares. It
was alleged that the said partition was fully acted
upon for the last many decades with no interference
by anyone among all the members of the family. It
was alleged that the defendants started asserting
their right, title and possession over the suit land to
the detriment of the interest of the plaintiff without
there being any basis whatsoever and hence the
plaintiff was compelled to file a suit to seek
declaration and injunction against the defendants
in relation to the suit land.
9) The defendants filed their written statement.
The defendants (appellants), in clear terms,
admitted the relationship between the defendants
(appellants) and the plaintiff (respondent) including
their ancestors as alleged by the plaintiff in the
plaint. The defendants also admitted the existence
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and factum of oral partition effected among the
family members as alleged by the plaintiff. The
defendants, however, set up one Release Deed
executed by their grandfather in 1940 and claimed
share in the suit land on that basis. They also
relied on some mutation entries to claim share in
the suit land and also set up a plea of adverse
possession over the suit land and claimed that they
have become the owner of the suit land by virtue of
adverse possession on account of their long,
peaceful and continuous possession.
10) The Trial Court framed the issues. Parties
adduced their evidence. The Trial Court, by
judgment/decree dated 17.03.1997, decreed the
plaintiff’s suit. The Trial Court held that, the
plaintiff (respondent) is the owner of the suit land,
he is in possession of the suit land, he is entitled to
claim permanent injunction against the defendants
restraining them from interfering in his peaceful
possession, the defendants failed to prove their
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adverse possession over the suit land and also they
were not able to prove their right, title and interest
and possession over the suit land, the alleged
Release-Deed did not relate to the suit land but it
pertained to other property of the family and lastly,
mutation entries, in the absence of any
documentary title over the suit land, were of no use.
11) The defendants (appellants) felt aggrieved and
filed an appeal being R.A. No. 46 of 1998 before the
Additional Civil Judge (Senior Division). By
judgment/decree dated 07.04.2001, the First
Appellate Court allowed the appeal, set aside the
judgment/decree of the Trial Court and dismissed
the plaintiff’s suit.
12) The plaintiff (respondent) felt aggrieved and
filed Second Appeal being R.S.A. No.498 of 2001.
By impugned judgment, the Single Judge allowed
the appeal and while setting aside of the
judgment/decree of the First Appellate Court
restored the judgment/decree of the Trial Court
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and, in consequence, decreed the suit as was done
by the Trial Court.
13) The defendants (appellants) felt aggrieved and
have filed this appeal by way of special leave against
the impugned judgment of the High Court before
this Court.
14) Heard Mr. K.V. Mohan, learned counsel for the
appellants and Mr. Karunakar Mahalik, learned
counsel for the respondent.
15) Having heard the learned counsel for the
parties and on perusal of the record of the case, we
find no merit in the appeal.
16) In our considered opinion, the Trial Court as
also the High Court were justified in decreeing the
respondent's suit and we find no good ground to
interfere in any of the findings of fact recorded by
the two Courts below for the following reasons.
17) It is not in dispute that the defendants
(appellants) admitted the relationship between the
parties. It is also not in dispute, as was admitted by
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the defendants (appellants), that the parties through
their ancestors had effected oral partition as far
back in 1935 and that the defendants’ ancestors
were also parties to such partition and the same
was implemented in letter and spirit by allotting to
each of the members of the family their respective
share and also by getting the names of owners in
Revenue Records.
18) Once the defendants admitted these two
material facts pleaded by the plaintiff then it was for
the defendants to prove by leading cogent evidence
as to how and on what basis they could claim to be
the owner of the suit land. They failed to prove their
ownership with the aid of any evidence.
19) In our opinion, the stand taken by the
defendants was wholly inconsistent. They first set
up a plea of adverse possession but it was rightly
held not proved. The defendants, however, did not
challenge this finding in the second appeal, which
became final. Even otherwise, the plea of adverse
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possession was wholly misconceived and untenable.
It is a settled law that there can be no adverse
possession among the members of one family for
want of any animus among them over the land
belonging to their family.
20) The defendants then claimed that they became
owner on the strength of one Release Deed of 1940
but again it was held rightly that such Deed did not
relate to the suit land but relate to some other land.
The defendants then relied on some entries of
Revenue Records. It was again held rightly that
firstly, they were challenged in Revenue Courts and
secondly, no documentary evidence was adduced to
prove the title to the suit land independent to such
disputed entries.
21) In our considered opinion, the High Court,
therefore, was right in reversing the findings of the
lower Appellate Court, which were wholly perverse
and legally unsustainable as compared to the
findings of the Trial Court on all the material issues.
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22) We find that the appeal does not involve any
law point. What is involved is pure question of fact
and hence the finding recorded by the High Court
warrants no interference by this Court. Even
otherwise, on examining the case of the defendants
(appellants) independently, we have found that they
have no case at all.
23) In our opinion, it is a clear case where the
plaintiff and the defendants being members of the
family got their share in the family properties
through an oral partition effected among their
ancestral members of family and on their deaths to
the surviving members by inheritance, i.e., the
plaintiff and defendants. So far as the suit land is
concerned, it fell into the share of plaintiff's
ancestors, which was evidenced by an oral partition
duly acted upon for a long time back in 1935 and
then on the plaintiff.
24) Learned counsel for the appellants
(defendants), however, took us through pleadings
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and the evidence adduced by the parties with a view
to show that the findings of facts are not legally
sustainable.
25) In our view, we cannot entertain any of the
submissions of the learned counsel for the
appellants(defendants) in an appeal under Article
136 of the Constitution and nor can we appreciate
any oral evidence de novo in this appeal as all his
submissions were on facts/evidence. It is not
permissible in law to probe the evidence at this
stage. Moreover, in the light of what we have held
above, these submissions have no merit.
26) In view of foregoing discussion, we find no
merit in the appeal. It is accordingly dismissed.
………...................................J.
[ABHAY MANOHAR SAPRE]
…...
……..................................J.
[NAVIN SINHA]
New Delhi;
December 04, 2017
