C.E.KUBERAIAH Vs. THIMMEGOWDA

JUDGEMENT

(1.) THE appellant has preferred this appeal against the judgment and decree dated 2.9.2011 passed in R.A. No.490/2008 by the Senior Civil Judge and JMFC, Arkalgud, wherein the judgment and decree dated 5.4.2008 passed in O.S. No.107/2006 by the Civil Court (Jr. Dn.) and JMFC, Arkalgud, has been confirmed. Appellant was the plaintiff before the Trial Court and respondent was the defendant.

(2.) BRIEF facts of the case of the plaintiff before the Trial Court are that, originally, the suit schedule property was a Government land and earlier, he was cultivating the suit schedule property unauthorizedly for more than 23 years and thereafter, the Government on 5.10.2002 granted the suit 3 schedule property in his name. Thereafter, he became absolute owner of the suit schedule property and was in possession and enjoyment of the said property. The defendant though has no manner of right, title or interest over the suit schedule property, interfered with possession of the plaintiff and enjoyment of the property. Hence, the plaintiff filed a suit in O.S. No.257/2003 on the file of the Civil Judge (Jr. Dn.) And JMFC, Arkalgud, against the defendant seeking permanent injunction. The defendant appeared in the said suit and filed written statement stating that the land measuring 1 acre 13 guntas in Sy. No.62/1 and 0.20 guntas in Sy. No.62/2 has been granted in his favour. It is contended that since the date of grant, he is in possession and enjoyment of the suit schedule property and the plaintiff has no manner of right, title or interest over the suit schedule property. He has further contended that the suit is not maintainable and the same has to be dismissed. After considering the merits of the case, ultimately, the Trial Court dismissed the suit. The suit of the appellant -plaintiff is confirmed by the First Appellate Court in R.A. No.490/2008"

(3.) LEARNED Counsel appearing for the appellant - plaintiff, during the course of his arguments, submitted that, though the appellant -plaintiff earlier filed a suit in O.S. No.257/2003 and entered into compromise with the respondent -defendant, but the same is not valid in the eye of law, because the lands are granted to the appellant -plaintiff by the Government. The appellant -plaintiff cannot enter into the said compromise and give up his title on the said land in favour of the respondent -defendant. The learned Counsel further submitted that even though it is presumed that the appellant -plaintiff has entered into such a compromise with the respondent -defendant, it is against the grant rules and the said compromise is not binding on the appellant -plaintiff. The learned Counsel further made a submission that the defendant though granted with two pieces of lands in Sy. 5 Nos.62/1 and 62/2, he wrongly claimed title over the properties granted in favor of the appellant -plaintiff. Hence, the learned Counsel submitted that unless and until a portion of the land belonging to the respondent -defendant were identified, the respondent -defendant cannot claim any right over the suit schedule property. The learned Counsel further submitted that the Courts below have not at all taken into consideration these aspects and without properly appreciating the oral and documentary evidence on record, have dismissed the suit. Hence, the learned Counsel submitted that the substantial question of law is involved in this appeal and that the appeal is to be admitted.