MALA ALIAS MALAWWA Vs. IRAPPA

JUDGEMENT

(1.) The petitioners, who are the defendants filed the above Civil Revision Petition against the order dated 12.08.2013 on I.A. No. II made in O.S. No. 20/2011, rejecting the application filed under Order VII, Rule 11 read with Section 151 of the Code of Civil Procedure, 1908 (for short 'CPC'). Respondents Nos. 1 to 5, who are the plaintiffs in the trial Court, filed the suit for declaration that they are the owners of the suit schedule property, more fully described in paragraph No. 2 of the plaint and also sought for an alternative prayer that if the Court comes to the conclusion that the plaintiffs have not become the full owners of suit land in view of M.E. Nos. 363 and 399, then, it may kindly be declared that plaintiffs have become the owners of the suit land by way of adverse possession and consequently, for permanent injunction, contending that the plaintiffs are owners and in actual possession and enjoyment of the suit land. The defendants have no right, title or interest of whatsoever manner in the suit land. Prior to 1975, father of plaintiffs and father of defendants were forming a joint family. So, the then existed genealogy of the joint family is furnished in Schedule 'A', produced along with the plaint. The plaintiffs further contended that the father of plaintiffs late Bhimappa, and husband of defendant No. 2 and father of defendant Nos. 3 to 5, each had 1/3rd share, and late father of defendant No. 1 had 1/3rd share in the suit land. Late Yallappa in his lifetime has gifted his 1/3rd share in the suit land to late Bhimappa Mang, the father of plaintiffs, in the year 1975, etc. and also contended that the entries in the revenue records have been mutated, entering the name of the plaintiffs into the records of right of suit lands, which has remained unchallenged and unrebutted. Late Bhimappa and subsequent to him, the plaintiffs are in continuous possession and enjoyment of the suit land for more than 33 years; so whatever the defendants had right over the suit land by implication of Section 27 of the Limitation Act, as the plaintiffs and their propositus, late Bhimappa, have enjoyed the suit land for more than 12 years, openly, publicly, without obstruction by anybody else to the full knowledge of the defendants and public at large.

(2.) It is also contended that the defendants have filed Original Suit No. 165/2000 against the plaintiffs for partition and separate possession before the learned Prl. Civil Judge (Jr. Dn.), Mudhol, and the said suit came to be decreed in favour of the plaintiffs, allotting shares to them. Therefore, the said decree passed in the said suit is untenable and unexecutable; so it has no legal consequence. Hence, the instant suit is filed without prejudice to the decree passed in O.S. No. 165/2000 on 19.02.2002 by the Principal Civil Judge (Jr. Dn.), Mudhol. Inspite of the same, the decree passed in O.S. No. 165/2000, the defendants kept silent. But, very recently, in the month of February 2011, they started to deny the ownership of the plaintiffs over the suit land. Therefore, plaintiffs are constrained to file the present suit for declaration and consequential relief of injunction against the defendants. The cause of action for the suit arose in the month of February 2011, etc.

(3.) The defendants filed the written statement and denied the entire plaint averments and specifically contended that previously, the defendants have filed a suit for partition and separate possession against the plaintiffs in respect of the suit land in O.S. No. 165/2000 before the Civil Judge, Mudhol. The said suit came to be decreed allotting shares to the defendants. Thereafter, the plaintiffs preferred regular appeal before the Senior Civil Judge, Jamkhandi, sitting at Mudhol, in R.A. No. 57/2002, which came to be dismissed, confirming the judgment and decree of the trial Court, which is final and conclusive.