BASAWANAPPA Vs. NANA RAO

JUDGEMENT

(1.) THE appeal filed against the judgment and decree passed in RA No. 34/88 on the file Additional Civil Judge, Gulbarga arising out of the judgment and decree passed in O. S. No. 23/82 on the file of Principal Munsiff, Aland. The appellant is the plaintiff filed a suit for declaration of title in respect of suit schedule lands and for possession and mesne profits. The plaintiff claims that the suit schedule land measuring 6 acres out of total extent of 10 acres in Sy. No. 33 is purchased under a sale deed executed by the mother of the first defendant as a minor guardian. The defendants 2 and 3 are the purchasers of the remaining extent of 4 acres of land in survey No. 33 it is in no way connected with the disputed property claimed by the plaintiff. On the strength of the registered sale deed the plaintiff claims that he came into possession of the land and continued till the year 1982 when he came to be illegally dispossessed by the plaintiff. Within a couple of years, the suit is filed for declaration of title. The first defendant is the only contesting party, contends that the sale made by his mother during his minority is not binding and it is not for any legal necessity or benefit of the minor and without the permission of the Court, further claims that he is in continuous possession and enjoyment of the land and denies the plaintiffs possession between 1970 to 1980, submits that such a plea is taken only to over come the period of limitation.

(2.) IN the sale deed executed under Ex. P. 1 the properties sold in favour of plaintiff is described as survey No. 32 by mistake instead of survey No. 33. It is the contention of the plaintiff that the first defendant never owned Sy. No. 32 at any point of time. The only land available to their family is Sy. No. 33 and the said land is the one sold under Ex. P. 1. The boundaries mentioned in Ex. P. 1 accords with the boundaries of Sy. No. 32 and not Sy. No. 33 and therefore contends that land sold under Ex. P. 1 is to be taken as land situate in Sy. No. 33 and not survey No. 32.

(3.) THE trial court upholds the contention of the plaintiff that the family of the first defendant owned only Sy. No. 33 and they had no right over survey No. 32. It was by mistake in the sale deed property is shown as Sy. No. 32 instead of Sy. No. 33 and thus upholds the claim of the plaintiff that the sale deed Ex. P. 1 should be taken as one relating to survey No. 33. The trial court also upholds the contention of the plaintiffs possession and dispossession and grants a decree in favour of plaintiff. The first appellate court reversed the findings of the trial court reversed the findings of the trial court regarding the claim of possession and dispossession and further holds that the first defendant is in continuous possession without interruption despite Ex. P. 1 and that the plaintiff has failed to prove that the sale is for the benefit of the minor or for the legal necessity and also holds that it is not necessary for the minor in possession to seek cancellation of the sale deed Ex. P. 1 and that he can resist the claim as a defendant without a relief for cancellation of the sale deed. In that view allowed the appeal and dismissed the suit of the plaintiff. As a result this appeal is filed.