HANUMAPPA BHIMAPPA KOUJAGERI Vs. BHIMAPPA SANGAPPA ASARI

JUDGEMENT

(1.) these two second appeals, that is, regular second appeal No. 132 of 1985 and regular second appeal No. 162 of 1985 respectively arise out of the common judgment and decree dated 10-10-1984, delivered by civil judge, gadag in r.c a. Nos. 62 of 1981 and 63 of 1981 which had been filed by the original defendant, allowing the appeal and dismissing the suit of the plaintiff after setting aside the common judgment delivered by the munsiff, ron, on 31-7-1981, in original suit No. 96 of 1979 and original suit No. 57 of 1980, whereby the learned munsiff, ron, had decreed the present plaintiff-appellant's claim for declaration and injunction and also for rectification of record of rights, which claim had been made in o.s. No. 96 of 1979, that is, claim of rectification only.

(2.) as per pleadings in both the suits, the subject matter of dispute is regular suit No. 244/2a. According to the plaintiffs case, originally the land was regular suit no. 244, totally measuring 12 acres 8 guntas and the same had been partitioned between bharamappa and sangappa, and the original land bearing No. 244/2a was equally divided into two portions, one bearing regular suit No. 244/1 and the another bearing regular suit No. 244/2, measuring 6 acres 4 guntas each. That regular suit No. 244/1, fell to the share of bharamappa and regular suit No. 244/2, fell to the share of defendant's father-sangappa. Further, according to the plaintiffs case, on 13-7-1926, sangappa the father of the defendant sold 3 acres of land of regular suit No. 244/2, in favour of the plaintiffs father by a registered deed. The plaintiffs further case is that sangappa-the father of defendant-respondent, on 7th of august, 1941, made a transfer by selling one more acre of land, by registered sale deed, from the land regular suit No. 244/2, in favour of the plaintiff-appellant and this was adjoining the 3 acres of land which had already been sold in favour of the plaintiffs father or plaintiff. According to the plaintiff under the two sale deeds dated 13-7-1926 and 7-8-1941, a total area of 4 acres southern land out of regular suit No. 244/2, had been transferred by sale and on the basis of those sale deeds, the plaintiff's father and plaintiff got the actual possession of the land and have been enjoying the same as such. So, then 2 acres 4 guntas out of 6 acres 4 guntas of land in regular suit No. 244/2 of the defendant or defendant's father remained with defendant. The plaintiff claimed to be in possession and enjoyment of that 4 acres. That in record of rights, the extent of the land regular suit No. 244/2a is shown as measuring 2 acres 30 guntas standing in the name of plaintiff and 3 acres 14 guntas has been shown wrongly as standing in the defendant's name. It is because of the wrong extent of land having been shown in the record of rights, defendant started attempting to encroach upon the land of the plaintiff which plaintiff purchased as mentioned above. That in view of the facts and circumstances, the cause of action arose to the plaintiff for filing the suit for declaration and permanent injunction as well as to file suit original suit No. 96 of 1979, seeking relief for rectification of revenue record entries. That defendant-respondent filed written statement in both the suits and the pleas raised therein are almost one and the same. The defendant in his written statement admitted that his father sold 3 acres of land to the father of the plaintiff-appellant by executing registered sale deed in respect thereof on July 13th, 1926. The defendant denied that plaintiffs ownership and possession over 4 acres of land, as according to the defendant, there has been no discrepancy or mistake in the description of the extents of the land belonging to defendant-respondent and plaintiff-appellant in the revenue record entries. Further, it is contended by defendant that the plaintiff is the owner of the land to the extent of 2 acres 30 guntas only. He further asserted that though sale deed dated 13-7-1926, was executed for 3 acres of land, but, 10 guntas out of 3 acres of land was never given possession to the plaintiffs father or plaintiff. That the sale deed dated 7-8-1941 was executed by defendant's father, but, it was only for security of loan obtained from the plaintiff and plaintiff did not come into possession of one acre of land. That loan was discharged by father of defendant. The plea of the defendant further has been to the effect that if however, sale deed dated 7-8-1941 is established and it is held by the court that the plaintiff had purchased one acre of land, but, plaintiff's not entitled to get the declaration of his rights thereunder as rights had been extinguished. That the suit of the plaintiff was barred by limitation. That no cause of action accrued to the plaintiff to file the present suits and that both the suits were asserted to be not maintainable and were liable to be dismissed.

(3.) on the basis of the pleadings of the parties, the learned munsiff framed the following issues in original suit No. 96 of 1979: 1. Whether plaintiff proves that he is the actual owner and in possession of 4 acres of land in regular suit No. 244/2 ? 2. If so, is plaintiff entitled for declaration and injunction sought for ? 3. Whether plaintiff is further entitled to the rectification in the r/r as prayed for ?