H D HANUMANTHAPPA Vs. MOHAMMED SAB

JUDGEMENT

(1.) The plaintiff - appellant, filed suit against the defendants - respondents, for relief of declaring him as the absolute owner of plaint schedule property, permanent injunction restraining the defendants from interfering with his possession and enjoyment of suit property and for a direction to the defendants by way of a mandatory injunction to make necessary applications to the revenue officials and get the katha of the schedule property restored in his name and for consequential reliefs.

(2.) In a nutshell, the case of the plaintiffs is follows:

(3.) Defendant No. 3 filed written statement, which was adopted by the other defendants. The defendants have traversed all the material averments made in the plaint. In addition, it is stated that, defendant No. 2 is the wife of defendant No. 3 and defendant No. 1 is the younger brother of defendant No. 2. It has been stated that, the propositus of the family of the plaintiff was one Sagarada Dasanna, who had a son by name Thimmanna. He had a wife by name Akkamma. Said Thimmanna had two sons by name Dasanna and Giriyappa. Plaintiff and one Thimmanna were the sons of Dasanna. The suit property belonged to said Sagarada Thimmanna. Prior to 1935, the said Dasanna and his son Thimmanna, incurred debts with Sheshappa and Dafedar Hanuma Nayaka. With a view to discharge the said debts, Dasanna and his son Thimmanna and the father and uncle of plaintiff, namely, Dasanna and Giriyappa, mortgaged an extent of 10 acres 24 guntas of land in Sy. No. 11 and an extent of 29 acres 5 guntas in Sy. No. 82, in favour of one Venkappa, by means of a simple mortgage. The plaintiff and his brother Thimmanna along with their uncle Giriyappa, sold an extent of 1 acre 26 guntas in re-survey No. 11/2 in favour of Aziz sab and his brother Fakruddin Sab for consideration of Rs. 800/-. The plaintiff and his brother Thimmanna were minors and hence their paternal grandmother Akkarnma acted as guardian for them and executed the conveyance deed. The executants sold the said land with a view to discharge the debt owed to Ujjain Venkappa and others who had obtained decrees in O.S. Nos. 375/38-39 and 579/38-39. The purchasers, namely, Aziz Sab and Fakruddin Sab, were put in actual possession of 11 acres and 28 guntas of land and they were in peaceful possession and enjoyment of the property. Aziz Sab and Fakruddin Sab got divided their land including Sy. No. 11 and that, Aziz Sab got 5 acres 34 guntas and Fakruddin Sab got 5 acres 34 guntas. Defendant No. 3 along with his sons Basha Sab, Abdul Hamid Sab and Nazeer Sab, purchased 5 acres 34 guntas from Aziz Sab and others for consideration of Rs. 2,000/-and he was put in actual possession of the land, the katha of which was mutated in his name and that, he is in peaceful possession and enjoyment of the said property. Defendant 2 purchased an extent of 20 guntas of land in Sy. No. 11/2 under a sale deed dated 11.5.1979, executed by defendant 1 and his brother Rahamat AN, for a consideration of Rs. 2,000/-. The first two sons of Fakruddin Sab got to their share, the land in Sy. No. 10/2 and the last two sons namely, defendant No. 1 and Rahamat Ali got to their share, the land bearing Sy. No. 11. 20 guntas of land in Sy. No. 11 purchased by defendant No. 2, belongs to defendant No. 1 and his brother Rahamat Ali. The mutation in respect of the said item of the property is entered in the revenue registers and defendant No. 2 is peacefully cultivating the said property. Defendant No. 4 purchased an extent of 1 acre 20 guntas of land in Sy. No. 11 under a sale deed dated 04.10.1980 executed by Rahamat Ali for consideration of Rs. 10,000/-and the katha has been transferred in his name and he has been enjoying the said property as the owner thereof. The lands purchased by defendant No. 2 and retained by defendant No. 1, are contiguous. Neither the plaintiff nor his predecessors had entered the suit lands, on and after the execution of the sale deed dated 19.6.1940. They have improved the property, which is now valuable and an irrigated land, on account of which, the plaintiff has instituted the suit, which is frivolous. They raised bar of limitation and also objections with regard to sufficiency of Court fee. Alternatively, it was claimed that, they have perfected their title to the suit property, having continuously enjoyed the same for more than 12 years, without any obstruction by anybody including the plaintiff.