PEERAPPA Vs. MALLAPPA

JUDGEMENT

(1.) This appeal is filed is filed under Sec. 100 of Civil Procedure Code, 1908 ('CPC' for short) by the Legal Representatives of defendant No.1 against the judgment and decree dtd. 15/4/2008 passed by the Civil Judge (Sr.Dn.) at Basavakalyan ('First Appellate Court' for short) in Regular Appeal No.29/2001.

(2.) For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the trial Court.

(3.) The brief factual matrix leading to the case is that, the plaintiff has filed a suit for declaration and alternatively prayed for partition in the suit schedule property . It is the case of the plaintiff that the suit survey No.112 was originally owned by one Tarunnisa Begum Jagirdar and there was dispute between Khaja Begum and defendant No.1 in respect of suit survey number and it was also the subject matter of 145 Cr.PC . proceedings and the said proceedings ended in favour of defendant No.1 holding him as possessor of the same. Subsequently, Khaja Begum filed suit against Defendant No.1. In the said suit, defendant No.1 has taken plea on behalf himself and as well as on behalf of the plaintiffs that, the suit survey number is owned by him. In the said proceedings defendant No.2 was doing 'Pairwi' and as he being the close relative of plaintiff and defendant, was well conversant with the official work. There was an agreement between the plaintiff as well as defendant Nos.1 & 2 to the effect that, in case of success, defendant No.2 to be given 1/3rd share in suit survey number. Subsequently, the suit was decided in favour of defendant No.1. As such, Khaja Begum has preferred first appeal before the High Court. Subsequently, after enforcement of Karnataka Land Reforms Act, defendant No.1 on his behalf has filed an application under Sec. 48A of the Act and he was declared as the tenant. According to the plaintiff, he and defendant No.1 are in joint cultivation and enjoyment of the suit schedule property and as per the order of the Tribunal, he has also jointly cultivating the suit land. It is the case of the plaintiff that, in 1979, as per agreement, partition took place in respect of the suit land and 1/3rd area measuring 5 acres 23 guntas land was exclusively allotted to the share of the plaintiff which is shown in Red colour, while 1/3 rd portion of the said suit shown in green colour was the share allotted to defendant No.1 and another portion of land shown in blue colour was given to defendant No.2, which is also measuring 5 acres and 23 guntas as per the agreement. It is asserted that, the plaintiff is in possession and enjoyment of the suit schedule property all along. After the death of defendant No.2, his legal heirs have relinquished their share in favour of the plaintiff and defendant No.1, who are enjoying 1/2 share each in suit schedule property. It is further asserted that, as per the order of the Tribunal, the name of defendant No.1 was mutated in the record of rights. It is for the benefit of the entire family. But, defendant No.1 taking undue advantage of entries made in the record of rights in his name, by colluding with others, causing interference with the lawful possession of the plaintiff over the suit land. Hence, the plaintiff has filed a suit for declaration. The plaintiff alternatively claims that, he has got 1/2 share in the suit survey number totally measuring 16 acres and 17 guntas and prayed for partition and separate possession of 1/2 share.