RAMAIAH HANUMAIAH Vs. RUDRAMMA T N CHANNAGIRIYAPPA

JUDGEMENT

(1.) Heard the learned counsel for the appellant and the learned counsel for the respondents. The parties are referred to by their rank before the Trial Court, for the sake of convenience.The appellant was the third defendant in the suit filed by the first respondent which was a suit for declaration of title and consequential injunction restraining the defendants from interfering with the suit property. The suit having been decreed, this appeal is filed. The present Defendant No.3 was the only contesting defendant. It was the case of the plaintiff that she was the absolute owner in possession of land in Sy. No. 45/4 of Thonachanakuppe Village. Nelamangala Taluk, measuring 2 acres 10 guntas. The same was purchased by her under a registered sale deed dated 17.03.1981 from one Doddabylappa, S/o. Hucha Honnaiah, the filth defendant in the suit. Subsequent to such acquisition, she has been in possession and enjoyment and was cultivating the property with the assistance of her sons. The pahanis were written in her name and mutation entries were also effected in her name, copies of which were all produced before the Trial Court. However, in the sale deed, it was noticed that the property was described as Sy. No. 45 instead of 45/4. The plaintiff, after noticing the discrepancy, approached the fifth defendant to explain the discrepancy. 'Then, it was realised that the total extent of 45/4 was 3 acres and 16 guntas. out of which an extent of 16 guntas was phut kharai. Out of this. Honnaiah who had initially purchased the suit property under a sale deed dated 16.06.1944 had purchased an extent of 2 acres and 10 guntas of land and the remaining extent was sold by his vendor to one Kalaiah, Son of Doddabyraiah of the said village. Honnaiah had two sons namely Maraiah and Huchahonnaiah. Maraiah had no issues. Huchahonnaiah had one son by name Doddabylappa. Maraiah and Hucha Honnaiah had partitioned the property of their father, namely the suit property, equally between them. Doddabylappa inherited his father's property measuring 1 acre 5 guntas in Sy.No. 45/4 and other half measuring 1 acre 5 guntas in Sy.No.45/4 belonging to Maraiah was purchased by the aforesaid Doddabylappa under a registered sale deed dated 5.9.1962 and he was holding a total extent of 2 acres and 10 guntas and the plaintiff purchased the same from Doddabylappa. Copies of those sale deeds were also produced. It is the plaintiff's complaint that during the year 1994, the Tahsildar. Nelamangala Taluk had visited the suit property and had obtained a thumb impression of the plaintiff and her sons, on certain papers. The plaintiff and her children were illiterate and were unaware of the reason why their thumb impressions were obtained. Since it was the Tahsildar who required such thumb impression, they had no inkling that it would lead to any mischief. Subsequently, it was realised that persons in the neighbourhood were making attempts to grab the suit property and were attempting to effect changes in the entries of the revenue records as well as in the survey settlement office relating to the suit property. Thereafter, the plaintiff had approached her younger brother who was a resident of Bangalore, to make discreet enquiries and when certified copies of the tippany were applied for, the documents were not provided. Thereafter, a legal notice was issued to the Tahsildar in respect of the same. The plaintiff had also approached the Deputy Commissioner Bangalore Rural District for a direction to the Tahsildar to issue the certified copies. But. the same were not provided. In the meanwhile, the fourth defendant had instituted a suit in the Court of Munsiff, Nelamangala. in O.S. No. 121/1993 and the plaintiff was impleaded as the first defendant in the said suit and after receiving suit summons, she had entered appearance through counsel and that suit, was pending as on the date of the suit filed by the plaintiff. Thereafter, it was dismissed. The fourth defendant had sought for injunction restraining the plaintiff and some others from interfering with the properties measuring 3 acres 27 guntas in Sy. No. 45/3 and an extent of 3 acres 22 guntas in Sy. No. 45/4. The plaintiff learnt that the fourth defendant was one of the persons falsely seeking to lay claim over the suit property. The plaintiff had also learnt that Defendants 1 to 3 were actively plotting to lay claim over the suit property by tampering with the records and that they had sought for a survey of the lands, particularly in Sy. No. 45/4. which has been sub-divided into Sy. No. 45/4A, 4B and 4C, which was without notice to the plaintiff, and behind her back, even if such an exercise has been carried out. Therefore, the plaintiff claims that any such variation in the survey numbers would not bind her or take away the title conferred and it is in that background that, the suit was filed.

(2.) As already stated, the suit was contested by Defendant No. 3, who denied the plaint averments and if is contended that several persons had purchased several portions of land in Sy. No. 45 and accordingly, he had also purchased 2 acres 5 guntas in Sy. No. 45/5. However, none of those purchasers were in possession and enjoyment of the properties in accordance with the survey numbers indicated in their sale deeds. So, representations had been made to the revenue authorities to locate the correct extent and the parties who are entitled to possession of the same. This was in the year 1992-93. According to defendant. No. 3, the plaintiff was also one of the signatories to the representation and pursuant to which a survey was conducted by the Department and it was found that the third defendant was in actual possession of 1 acre in Sy. No. 45/5. 26 guntas in Sy. No. 45/4 and 27 guntas in Sy. No. 45/3 which were renumbered as Sy. No. 45/5C. 45/4C and 45/3C and that the new numbers assigned by the Department, tally with the boundaries shown in the sale deed and as per actual enjoyment, so also the other holders of lands. According to the survey, the plaintiff was found to be in possession of Sy. No. 45/6B and not 45/4. as claimed. Further. the extent of land held by both the third defendant and the plaintiff does not get reduced if the plaintiff and the third defendant are in fact put in possession of the said new survey numbers Notwithstanding the same, the plaintiff is seeking to claim land which is other than the land described in her sale deed by inference to the earlier Sy. No. 45/4. It is therefore the claim of the Defendant No. 3 that by virtue of the survey having been conducted and new numbers having been assigned, the plaintiff has the right to lay claim only to the land in Sy. No. 45/6B and not what is defined as Sy. No. 45/4 in her sale deed. It is also pertinent to mention that after filing of the suit, the plaintiff had obtained a rectification deed insofar as her sale deed is concerned, to indicate land in Sy. No. 45/4 instead of Sy. No. 45, and that was also placed on record at Exhibit D4 at the trial. The court below had. framed the following issues:

(3.) It is seen that the court below has addressed the title Deed of the plaintiff with reference to the earlier title deeds in respect of the very suit property and has found that the boundaries of the suit property described under the sale deed of the plaintiff as well as that of her vendors, is consistent and that the plaintiff has established title over the suit property and since the defendant in any event was not claiming the suit property, but was only complaining of the identity of the suit property as indicated by the survey number, the court below has held that since the so-called survey conducted at the instance of the third defendant and others including the appellant, though there was no material produced to indicate that the appellant had joined the representation seeking such survey, the court below has held that the complaint of the plaintiff that the survey if any, it has been conducted behind her back without notice to her and therefore, would not be binding on her is accepted and hence, the court below has declared that the plaintiff is entitled to protection of her property, title to which has been established and accordingly, has decreed the suit.Therefore the learned counsel for the Defendant No. 3 insisting that the findings of the court below are incorrect and lead to an anomalous situation, can be rectified if a fresh survey is conducted, in accordance with law, after notice to the plaintiff and conforming to the known procedure. Therefore, the appellant would not he prejudiced if the judgment and decree of the Trial Court is affirmed subject to a further survey being conducted at the instance of the appellant, who shall approach the competent authorities in this regard and the competent authorities after issuing notice to the concerned, including the plaintiff, may conduct a fresh survey in order to clear the discrepancy and doubts if any, as to the actual properties which are held by the respective parties, in accordance with law. Therefore, the appeal is disposed of without prejudice to a further survey being conducted in terms as above.