MANOHAR ANNAPPA BHATKANDE Vs. BABU ANNAPPA BHATKANDE

JUDGEMENT

(1.) THE defendant of O.S. No.643/2008 which was pending on the file of the 4th Additional Civil Judge & JMFC, Belgaum, is before this Court as he is aggrieved by the divergent judgment of the first appellate Court passed in R.A. No.167/2012 dated 21.11.2013. The respondent herein is the plaintiff in the said suit. Parties will be referred to as plaintiff and defendant as per their ranking in the trial Court.

(2.) SUIT filed by the plaintiff for the relief of permanent injunction in respect of 1 acre of land in Sy. No. 510/2 of Belgaum against the defendant came to be dismissed by a considered judgment and decree dated 30.10.2012. Against the said judgment and decree an appeal came to be filed by the plaintiff in R.A. No.167/2012 before the III Additional Senior Civil Judge, Belgaum u/S 96 of CPC. The said appeal has been allowed and dismissal of the suit has been set aside. Consequently, the relief of permanent injunction as prayed for has been granted. It is this divergent judgment which is called in question on various grounds as set out in the appeal memo filed before this Court.

(3.) THE facts leading to the filing of the suit before the trial Court by the plaintiff against his own brother is as under: Plaintiff had filed a suit for the relief of partition and separate possession in respect of several properties inclusive of the present suit schedule property measuring 1 acre of land in Sy. No. 510/2 against the appellant, i.e., the first defendant. Said suit came to be decreed and final decree proceedings were initiated by the plaintiff on the basis of the preliminary decree. In the final decree proceedings, the final decree Court had ordered for separation of shares by metes and in this regard partition warrant had been issued to the jurisdictional Deputy Commissioner, who, after collecting necessary fee had divided the properties of the plaintiff and defendant in accordance with the decree. Accordingly, the suit land in question had been handed over by the Tahasildar on the direction of the Deputy Commissioner, to the plaintiff. Since then, the plaintiff is stated to be in lawful possession and enjoyment of the suit property. The report so submitted by jurisdictional Revenue Officer was accepted by the final decree court and the same is engrossed on the stamp paper in accordance with law. Thus the proceedings initiated for partition and separate possession have attained finality. The proceedings in the final decree court attained finality in the year 1983, the year in which possession of the property was handed over to the plaintiff. According to the defendant's written statement filed before the trial Court a sum of Rs.23,500/ - was required to be paid by the plaintiff to pay as the value to the other sharers. According to the defendant, plaintiff did not have the requisite amount at his disposal and hence the defendant paid him the entire amount of Rs.23,500/ -. On receipt of Rs.23,500/ - the plaintiff is stated to have handed over possession in favour of the defendant in the year 1987 and in this regard a statement was given by the plaintiff to the revenue authorities with a request to incorporate the name of the defendant in the revenue records since he had handed over possession. The defendant is stated to be in lawful possession ever since 1987, i.e., the year in which he paid amount to the plaintiff.