CHEPUDIRA MADAIAH Vs. MALLENGADA CHENGAPPA

JUDGEMENT

(1.) The present appellant was the defendant No.1 in O.S.No.77/1999, on the file of learned Civil Judge (Sr.Dn.), Virajpet, (hereinafter for brevity referred to as 'trial Court'), which suit was instituted by the present respondent Nos.1, 2 and 3 for the relief of possession of the suit schedule properties, which are the two pieces of land measuring 2.25 acres and 0.50 cents. The present respondent No.4 was defendant No.2 in the trial Court. After contest, the said suit came to be decreed. Challenging the same, the present appeal has been filed.

(2.) The summary of the case of the plaintiffs in the trial Court was that the plaintiff Nos.1 and 2 are the children of plaintiff No.3, who was the wife of one deceased Bopaiah. The said Bopaiah had died three years prior to filing of the suit. The defendants are the sons of one late Muthanna, who died six years prior to filing of the suit. The said Muthanna had filed a civil suit against Bopaiah in O.S.No.48/1983, in the Court of Addl.Munsiff, at Virajpet for possession of two bits of land measuring 35 cents and 10 cents, in Survey No.48/2 and Survey No.48/3 respectively and sought for possession of the said alleged encroached land. Bopaiah, as a defendant, contested the suit and alleged that he has not encroached any land of the plaintiff-Muthanna, on the other hand, the said Muthanna himself had encroached some portions of his lands. However, the said suit instituted by Muthanna came to be decreed on 22/2/1989, wherein it was held that the plaintiffMuthanna was entitled for the possession of the land to an extent of 35 cents in Survey No.48/2 and 10 cents in Survey No.48/3. Bopaiah preferred a Regular Appeal in R.A.No.9/1991, before the learned Senior Civil Judge, Virajpet. In the said appeal, at the instance of said Bopaiah, a Commissioner was appointed for survey of the lands. In the survey, it was found that said Bopaiah had encroached about 20 cents of land in Survey No.48/2 and 10 cents of land in Survey No.48/3 and Muthanna had encroached 2.25 acres of land in Survey No.48/9 and 50 cents in Survey No.48/11. The learned Civil Judge, Virajpet, where the appeal was pending, after considering these aspects, held that though the plaintiffs have encroached only 30 cents of land, but the defendants have encroached 2.25 acres of land. Observing that both parties were guilty of encroachment, wherein the defendants are guilty of encroaching a larger area and the balance of justice had to be held evenly, by its judgment dtd. 8/12/1994, allowed the appeal. In the meantime, the father of the plaintiffs Bopaiah and father of defendants Muthanna had died. As such, the present defendants filed a Regular Second Appeal No.486/1995 before this Court. The said appeal came to be allowed by this Court by its judgment dtd. 11/8/1998, however, it also observed that the defendants therein were entitled to file a suit in the competent Court of law to evict the plaintiffs from the encroachment of the suit schedule properties and recover possession of the same. It is thereafter the legal representatives of the defendants in O.S.No.48/1983 have filed the present suit in O.S.No.77/1999 for recovery of the alleged encroached land.

(3.) In response to the summons served upon them, the defendants appeared through their counsel and filed their written statement, wherein they admitted that Sri M.S.Bopaiah was the owner of the bane lands bearing Survey Nos.48/9 and 48/11, situated at Nokya Village and that the said Bopaiah died in November 1998, leaving behind the plaintiffs and one Sri M.B.Belliappa as his legal heirs. They further contended that their father Muthanna, was the absolute owner and in possession of the property bearing Survey No.48/2, measuring 1 acre and Survey No.48/3, measuring 7.30 acres. In the year 1980-81, the above said Bopaiah had unlawfully encroached a portion of the said property. It is in that regard, Muthanna had filed a suit in O.S.No.48/1983 for recovery of possession of the land. The defendants also contended that the Commissioner's report called for in R.A.No.9/1991 was not binding on them.