SUSHEELAMMA Vs. VENKATALAXMAMMA

JUDGEMENT

(1.) THIS appeal is preferred by the appellants being aggrieved by the judgment and decree passed in O.S. No. 691/1990 on the file of the Principal Civil Judge (Jr. Dn.) & JMFC, at Maddur dated 24.7.2002 and the judgment and decree dated 7.10.2005 passed by the Civil Judge (Sr. Dn.), Maddur in R.A. No. 51/2002.

(2.) THE appellants have challenged the judgment and decree of the Courts below on the ground that it has failed to draw necessary inference and to hold that appellant No. 1 is in possession of 20 guntas of kharab land in view of their application for grant of the same. The Courts below have failed to note that respondents did not produce any documents in respect of the suit schedule property to prove their possession and enjoyment of the same. The documents produced by the respondents Exs. P2 to P12 did not refer to the suit schedule property. The trial Court has erred in relying upon Ex. P16, an endorsement issued by the Village Accountant to come to the conclusion that respondents are in possession of 35 guntas of kharab land. The trial Court has erred in not drawing adverse inference against the respondents in view of Ex. P17, a petition filed before the Land Grant Committee for 22 guntas of kharab land, which is contrary to the claim of the respondents that they are in possession of 35 guntas of kharab land. The trial Court has erred in dismissing I.A. No. 5, an application filed under Order 26 Rule 9 of CPC for appointment of ADLR, Maddur as Commissioner for local investigation to measure the suit schedule property. The first appellate Court has erred in dismissing I.A. No. 3 filed by the appellants under Order 13 Rule 10 of CPC to summon the records pertaining to the application filed by the first plaintiff for grant of oni kharab land of Karadkere village. The Courts below have failed to consider the evidence lead by parties in correct perspective. The judgment and decree of the Courts below are opposed to law and facts and equities of the case.

(3.) DEFENDANT Nos. 1 and 2 have filed their written statement contending that the allegation that kharab land was attached to the land in Sy. No. 90/6 is false. It is also false that it belongs to Thimmappagowda. But it is true that this kharab land called as oni kharab land, as per survey records situate on the northern side of the land in Sy. No. 90/6. It is also true that this kharab land was unauthorisedly occupied by the said Thimmappagowda and it was in his possession, but it was not attached to Sy. No. 90/6 and is not part of Sy. No. 90/6. It is also denied that plaintiffs are in lawful possession and enjoyment of the kharab portion of the land. Plaintiff No. 1 is not in possession of any extent of the land except the land she has purchased in Sy. No. 90/6 under the registered sale deed dated 24.1.1975. The allegations made in paragraph No. 5 of the plaint are false. The oni kharab land on the northern side of Sy. No. 90/6 subsequently and in the month of June 1975 was occupied by defendant No. 1 since Thimmappagowda did not come and cultivate the said area. This area measures about 20 guntas. As this 20 guntas of land is adjacent to the land of defendant No. 1 on its northern side, which is part of the suit schedule land, it is in possession and enjoyment of the defendants. The allegation that the said portion of the kharab land was given to the possession of plaintiffs is false. Plaintiffs raised sugarcane only in respect of 4 guntas which is a part of the suit schedule property on the eastern side. Adjacent to it, they have purchased land in Sy. No. 90/6. The 20 guntas of kharab portion has been in possession of defendant No. 1 ever since the month of June 1975. Hence, they have sought to dismiss the suit.