NAGAPPA GOWDA Vs. DODDAMANE GURUPADAPPA AND

JUDGEMENT

(1.) The plaintiff's suit for declaration of title, possession and mesne profits of a garden land has been party decreed by the District Judge, Shimoga and defendants 1 to 4 and 6 have appealed. Defendant 5 has been formally impleaded as respondent 2 and the plaintiff is respondent 1. The plaintiff has also filed cross-objections regarding the 4 share of the garden which has not been decreed in his favour.

(2.) According to the plaintiff, the suit property belonged to a joint Hindu family of one Benavanna- Gowda and his three undivided brothers. For failure to pay land revenue it was forfeited to Government in or about the year 1937, but it could not be disposed of in revenue auction for want of bidders and it was resumed or taken under Government "phada"; subsequently as Benavanna-Gowda paid up all the dues it was granted to him. For some monies due by him and his brothers the plaintiff filed a suit O. S. No. 27 of 35-36 in the Court of the Subordinate Judge at Shimoga, and in execution of that decree purchased the suit property along with some other items in Court sale on 1-10-42. After the sale was confirmed he was put in possession in Mis. No. 11 of 43-44 . At that stage the father of defendant 6, one Chennabasappa now dead and who was the then Manager of the family of the defendants filed a suit O. S. No. 160/43-44 in the Shimoga Munsiff's Court for a declaration of his title and for permanent injunction against the plaintiff alleging that he was in possession, and obtained an order of temporary injunction restraining the plaintiff from entering the suit garden. Under colour of that order he then removed the areca and paddy crop for the year 1943-44. Chennaba-sappa's suit was decreed in his favour by the Munsiff but, on appeal, was dismissed by the Subordinate Judge of Shimoga and the dismissal was confirmed in the High Court. In spite of that decision the deceased Chennabasappa and after him defendants 1 to 6 his legal representatives have been continuing in unlawful possession of the land and were liable to deliver up possession and mesne profits.

(3.) The defendants pleaded that the suit property belonged solely to Renevannagowda and was his self-acquisition. One Krishnappa filed a suit against him for some monies due by him in O. S. No. 335/26-27 in the Shimoga Munsiff's Court and brought it to sale in Ex. case No. 191 of 31-32 when it was purchased in Court auction by one Sundarasastry. After the sale was confirmed in his favour on 24-12-1934, Sundarasastry was put in possession through Court on 1-1-35 in Mis. No. 121/34-35. He subsequently sold the garden to Chennabasappa, father of defendant 6, on 30-6-43. Sundarasastry and after the sale by him Chennabasappa and the defendants were all along in possession and enjoyment of the suit property. The plaintiff had got the suit property attached before judgment in O. S. 27/35-36 which he had brought against Benavannagowda and his brothers. Sundarasastry had then put in a claim objecting to the attachment in Mis. Case No. 20V of 35-36. That claim had been allowed in favour of Sundarasastry as far back as on l4-3-1937. The plaintiff had not got that order set aside and the same had become conclusively binding on him. Nevertheless he had played a fraud on the Court by getting the suit property sold subsequently in execution in the Subordinate Judge's Court at Shimoga without disclosing to that Court the fact that Sundarasastry's claim against the attachment had been allowed as aforesaid & he could not acquire any right under such a fraudulent sale. The Suit O. S. No. 160/43-44 filed by Chennaba-sappa in the Munsiff's Court at Shimoga for a declaration of title and permanent injunction was decreed in his favour by the Munsiff, Shimoga, as admitted in the plaint. But on appeal in R.A. No. 16/45-16 the Subordinate Judge rejected the plaint only on a technical ground that an extract from the Record of Rights had not been filed along with the plaint, and in -- 'S. A. No. 356 of 1946-47 (Mys) (A)' that order was confirmed. There had been therefore no decision on the merits against the defendants in those appeals and three criminal complaints filed by the plaintiff against the defendants complaining of trespass and that in respect of the produce of this suit garden had ended in orders of discharge. The defendants had considerably improved the garden and in the event of the plaintiff succeeding they were entitled to be reimbursed the value of the same. The plaintiff had brought this suit on account of ill-will as a counter blast to some other litigation between the parties.