GURULINGAPPA Vs. CHANNAPPA

JUDGEMENT

(1.) R. S. A. No. 867/2003 by the defendant is directed against the judgment and decree passed by the Court of the civil Judge (Sr. Dn.), Nanjangud, in R. A. No. 105/1999 dated 11-8-2003, dismissing the appeal and confirming the judgment and decree passed by the Court of the Civil Judge (Jr. Dn.), Nanjangud, in O. S. No. 70/1991 dated 31-7-1999, decreeing the suit of the plaintiff for declaration of title and permanent injunction. R. S. A. No. 866/2003 by the plaintiff is directed against the judgment and decree passed by the Court of the Civil judge (Sr. Dn.), Nanjangud, in R. A. No. 16/ 1998 dated 11-8-2003. confirming the judgment and decree passed by the Court of the civil Judge (Jr. Dn.), Nanjangud, in O. S. No. 525/1990 dated 21-1-1998 only in respect of declaration of title of the plaintiff in respect of southern 351/2 guntas of land, out of the suit schedule property and dismissing the suit of the plaintiff for declaration of title in respect of the northern 35 Guntas of land out of the suit schedule property and for possession of 31 Guntas of land which forms northern portion of the suit schedule land. The essential facts of the case leading up to these appeals with reference to the rank of the parties before the trial Court are as follows:

(2.) O. S. No. 525/19so was filed by gurulingappa, the plaintiff against his Uncle channappa, the defendant seeking for declaration that the plaintiff is the owner of the suit schedule land and to direct the defendant to put the plaintiff in peaceful possession and enjoyment of the encroached portion in the suit schedule land and also for an order of award for costs. The suit schedule property is described as land bearing Sy. No. 325/2 of Hallare Village, Hullahalli hobli, Nanjangud Taluk, measuring 01 Acre 31 guntas bounded as per the description given in the schedule to the plaint. It is averred in the plaint that the plaintiff is the owner of the suit schedule land bearing Sy. No. 325/2 of Hallare Village, being his ancestral property and all the revenue records are in his name. The defendant is a neighbouring land owner on the northern side of the plaint schedule land. It is averred that the land in the suit schedule was mortgaged with possession in favour of the brother of the defendant and the defendant and his brother were in possession of the properties mortgaged to them between 1966 and 1980, when the mortgage was redeemed by the plaintiff. Upon redemption, the plaintiff received back the possession of the suit land. The plaintiff got suspicious about the extent of the land handed over by the mortgagee and finally approached the Assistant director of Land Records of Nanjangud, for measurement of the land to know the exact extent of encroachment by the defendants. or in other words, the exact area of which possession was not handed over by the defendant's brother to the plaintiff, On 11-8-1990, the Surveyor attached to the Assistant Director of Land records Office measured the land and found that about 0-31 guntas of land in the suit schedule land had been encroached by the defendant on the northern side of the suit schedule land and wherefore, the suit for the above said reliefs.

(3.) THE suit was resisted by the defendant by filing the written statement denying the material averment made in the plaint that the plaintiff is the absolute owner of the suit schedule property bearing Sy. No. 325/2 of Hallare Village. It is averred that the averments made in the plaint that the suit property was mortgaged in favour of the brother of the defendant and the defendant and his brother were in possession of the suit schedule property till redemption in 1980 and that after redemption, the plaintiff got suspicious about the extent of the land redeemed and got the land measured and found that the defendant has encroached upon the property are concocted and are not true and tenable. It is further averred that the suit schedule land and the other lands are the ancestral properties of the defendant and the plaintiff. One channaiah, son of Maliyappa is the grand father of the defendant and the plaintiff. Channaiah had three sons : Puttappa, channa-basappa and another son, who died without marriage. The plaintiff is the son of channabasappa, son of Channaiah and the defendant is the son of Puttappa, son of channaiah. It is further averred that there was a partition of the properties belonging to the family about 60 years next before filing of the written statement and all the properties were equally divided and the suit schedule land bearing Sy. No. 325/2, is also one of the items got divided equally between puttappa and Channabasappa and as such the northern half of the suit land measuring about 35 Guntas of land fell to the share of the defendant's father and the southern half of the suit land measuring 35 guntas fell to the share of the plaintiffs father and the plaintiff and the defendant have succeeded to the said portions of the land in Sy. No. 325/2 and have been in possession and enjoyment of the same and the question of encroaching upon the land belonging to the plaintiff does not arise and the defendant has filed original suit, O. S. No. 70/1991 against the plaintiff for declaration of his title and for permanent injunction with respect to the northern half share in the suit schedule property and wherefore, the suit is liable to be dismissed.