VENKATAPPA ALIAS MOODE Vs. M ABDUL JABBAR

JUDGEMENT

(1.) 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.

(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.

(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.