KHEMU Vs. GOUSEMOHADDIN

JUDGEMENT

(1.) This appeal is directed against the concurrent finding in O.S.No.97/2003 by the Civil Judge (Sr.Dn.) Basavana Bagewadi and R.A.No.64/2005 by the Prl. District Judge, Bijapur, whereby the suit filed by the plaintiff came to be decreed declaring that the plaintiff is the absolute owner of Sy.No.136/1 measuring 10 acres 31 guntas and consequential relief. The parties are referred as per their ranks before the Trial Court for the sake of convenience.

(2.) The brief facts are as below: The plaintiff filed a suit for declaration that he is the absolute owner of Sy.No.136/1 measuring 10 acres 31 guntas shown by letters ABCD in the plaint hand sketch and consequential relief of injunction to restrain the defendants from interfering in the peaceful possession and enjoyment of the same. The plaintiff contended that the Rs. No.136/1 and Rs. No.136/2 were formerly numbered as R.S.No.91/2, 92/3 & 96/1 of Managuli village and in the year 1951 one of the brother of plaintiff namely Hussain Pasha sold his 1/3rd share to the plaintiff which is evident from mutation entry No.9139, 10494 which are at Ex.P4 and Ex.P5 of Managuli village. Therefore, it is contended that the plaintiff has become owner of 2/3rd share and the defendant No.1 became the owner of 1/3rd share in the same. Therefore, the defendant No.1 was owner to the extent of 5 acres 16 gunthas and the division in the land was made in view of the certification of M.E.No.18249 dtd. 2/10/1981. Measurements were held with respect to the share of the plaintiff and defendant No.1 which were wrongly shown. Therefore, the plaintiff raised objections and RTC proceedings were initiated. In the meanwhile, the defendant No.1 sold his 1/3rd share to the defendant No.2 showing the excess area than the one he actual possesses which was only 5 acres 16 gunthas. The defendant No.1 had shown that he is the owner of 6 acres 36 gunthas and executed the sale deed in favour of the defendant No.12 by taking undue advantage of the said recital. The defendant No.2 by taking advantage of the recital in the sale deed started causing obstruct to the peaceful possession of the plaintiff and therefore the plaintiff filed the suit.

(3.) In response to the suit summons, the defendant No.1 did not appear but the defendant No.2 appeared and filed the written statement. Later the defendant No.1 appeared and filed a memo stating that he will adopt the written statement filed by the defendant No.2. The defendant No.2 in his written statement contended that he is the owner in possession of 6 acres 36 gunthas by virtue of the sale deed executed by defendant No.1. He denied that the plaintiff is the owner of Southern and East-West strip measuring 1 acre 20 gunthas, that is the property which is in dispute, and is included in Survey No.136/1. he also denied that the plaintiff is in possession of the area mentioning in by letter EFCD in the hand sketch map of the plaint. He further denied there were wrong entries regarding measurement of property in view of division as Sy.No.136/1 and 136/2. He contended that plaintiff was never in possession of the disputed 1 acre 20 gunthas and he had purchased the property only after seeing all the records and confirming that the defendant No.1 was owner of Sy.No.136/2 measuring 6 acres 36 gunthas. He also contended that the plaintiff even if had any right in the suit property, had lost his by virtue of the efflux of time and the defendant No.1 had become owner by adverse possession.