MANIKAPPA Vs. KALLAPPA AND OTHERS

JUDGEMENT

(1.) THE first defendant in OS No. 187/1995 aggrieved by the Judgment and Decree dated 19.1.2010 of the I Addl. Civil Judge (Jr. Dn.) Bidar declaring the plaintiff to be the owner of land in Sy. No. 58/2 measuring 3 acres 20 guntas and perpetual injunction against the first respondent by Judgment and Decree dated 19.1.2010 preferred RA No. 127/2010 before the Prl. District and Sessions Judge Bidar, which when was dismissed, by Judgment and Decree dated 16.10.2012 has presented this second appeal.

(2.) FIRST respondent instituted OS No. 187/1995 to declare him as the absolute owner of suit schedule immovable property bearing agricultural land measuring 3 acres 20 guntas in Sy. No. 58/2, bounded on East: by land of Manik; West: by land of one Bhagwan and defendants; North: by land of Laxman and; South: by land of Maruti Master, situated at Bagdal village Tq. and Dist. Bidar, and for a perpetual injunction against the defendants from interfering and obstructing plaintiff's peaceful possession of the said land arraigning the Appellant as the first defendant and respondent No. 2 to 9 as defendants 2, 3(a), 3(b), 4(a), 4(b), defendant No. 5, 6 and 7. According to the plaintiff 12 acres 13 guntas of land in Sy. No. 58 was Madad Mash Inam Land belonging to one Ismail Shah Inamdar from out of which 3 acres and 20 guntas was granted jointly in favour of the plaintiff and one Sharan by an order of the Deputy Commissioner under The Inam Abolition Act. Plaintiff is said to have secured a conveyance from the said Sharanu in respect of his portion of the property, i.e., 1 acre and 30 guntas from out of 3 acres 20 guntas, under a registered sale deed dated 7.5.1995. It is the assertion of the plaintiff that one Kallappa S/o Mallappa was granted occupancy rights over 6 acres and 20 guntas in Sy. No. 58 and 2 acres 8 guntas in favour of one Veerappa S/o Kallappa. That Kallappa, it is said, divided 6 acres 20 guntas amongst his brothers and nephews whence 3 acre 25 guntas fell to the share of Veerappa and Gundappa son of Mallappa and 3 acres and 15 guntas in favour of Kallappa S/o Mallappa, Narsappa, Manik, Maruti and Tukaram. It is the specific assertion of the plaintiff that 6 acres and 30 guntas was mutated in the names aforestated. While the first defendant's father was granted 2 acres and 8 guntas of land, it is alleged that the Village Officers wrongly recorded the extent as 3 acres 3 guntas in the record of rights and the defendants with mala fide intention prolonged the survey and phodi of their respective portions. It is the further allegation of the plaintiff that defendants dismantled the boundary marks and interfered with the plaintiff's possession on 10.9.1995, whence the defendants refused to have phodi of their respective shares, effected.

(3.) THE first defendant, on notice, filed written statement denying the plaint averments. According to the first defendant the order of the Special Deputy Commissioner Gulbarga granting the lands under the Inam Abolition Act was not based upon actual survey but on an approximation and that the father of the first defendant was in actual possession of an extent of 3 acres and 3 guntas though the grant is over an extent of 2 acres 28 guntas. First defendant asserted that in a survey the land in his possession was demarcated during the year 1990 and found to be an extent of 3 acres and 3 guntas where afterwards Form No. 10 was issued by the ADLR Bidar.