CHANDRASHEKHAR JAYANGOUDA PATIL Vs. SHIDAGIREPPA

JUDGEMENT

(1.) Defendant-1 in Original Suit No.367 of 1957 on the file of the Civil Judge, Junior Division, Bijapur, is the appellant in this second appeal. The plaintiffs who are four in number filed the above suit for a declaration that they were the owners of two guntas of land in Survey No.329 of Kunte Village, Bijapur Taluk, on which there is a bund and for possession. It is stated that on the said bund, there are some trees which are fairly old. The case of the plaintiffs is that they had become the owners of the above extent oi land in S. No.229 by virtue of their right which they had acquired by adverse possession over the statutory period prior to some day in the month of May 1955 on which day the defendants dispossessed the plaintiffs. In support of the above case, the plaintiffs pleaded that S. No.229 which belonged to defendant-1 was at a higher level and S.No.242 which belonged to them was at a lower level and but for the bund which was admittedly on S.No.229, rain water which would fall on S. No.229 would flow into S. No.242 causing damage to them, and, therefore, in order to prevent such flow oi water, their ancestors put up this bund in S. No.229 over 100 years ago and since then the said bund had been exclusively in the possession of the plaintiffs continuously, adversely and as of right. The plaintiffs, therefore, prayed for a decree declaring their title to the said bit of land and for possession of the same. Defendant-2 has no interest in the land in dispute. Defendant-1 pleaded that his father purchased S. No.229 in Court auction and got possession of the same through Court in the year 1943 and that he had been in possession of the entire S. No.229 including the strip of land measuring two guntas on which the above bund was situated since then. It appears that there was some dispute regarding the boundary mark between S. No.242 and S. No.229 sometime prior to May 1955 and the matter was referred to the survey authorities. After survey, it was found that the strip of land in dispute with the bund and the trees thereon, was within S. No.22.

(2.) The plaintiffs thereafter instituted the present suit for declaration of their title and for possession on the basis of their title by adverse possession. The trial Court after recording evidence and hearing both the parties, decreed the suit and against the judgment and decree, defendant-1 filed an appeal before the District Judge, Birjapur, who by his judgment dated 28-2-1961 modified the decree passed by the trial Court holding that the bund in question was the common property of the plaintiffs and defendant-1. Against that decision, a second appeal was filed before this Court in SA.392 of 1961. This Court set aside the -judgment and decree of lower appellate Court and remanded the case to the lower appellate Court for deciding the case after taking into account the oral evidence which had been let in by the parties. After remand, the matter was again heard by the learned District Judge and he confirmed the judgment of the trial Court decreeing the suit as prayed for. Aggrieved by the said judgment and decree, defendant-1 has riled this second appeal.

(3.) Sri Mandagi, the learned Counsel for the appellant, contended that the lower appellate Court was wrong in coming to the conclusion that the plaintiffs had proved their title by adverse possession. He urged that even if the entire oral evidence adduced by the plaintiffs was accepted, no case of acquisition of title by adverse possession had been made out by the plaintiffs and in support of this submission, he took me through the oral evidence adduced by the parties Sri K A. Swami, the learned Counsel for the respondents, contended that it was not permissible for the High Court in second appeal to investigate into questions of fact however perverse and erroneous they might have been and the findings on fact given by the Court below should be treated as binding on the High Court in second appeal. The contention of Sri Swami overlooks the fact that we are concerned in this appeal with a case in which the plaintiffs are asserting their title on the basis of their adverse possession and the question whether a party is in adverse possession of a property or not is not a pure question of fact. It involves certain questions of fact which will have to be primarily decided by a Court and the inferences which have to drawn from those facts. It may be appropriate here to refer to the decision of the Supreme Court in Sree Meenakshi Mills Ltd., Madurai v. Commr. of Income Tax, Madras, AIR. 1957 SC. 49. In that decision Venkatarama Ayyar, J: was considering a case which arose under the Income-Tax Act.