DURAGAPPA Vs. KENCHAPPA

JUDGEMENT

(1.) This regular second appeal is preferred by the appellants-plaintiffs being aggrieved by the judgment and decree dated 16.07.2005 passed in R.A.No.74/2005 by the Addl. District Judge (FTC-III), Raichur, and also the judgment and decree dated 12.10.2004 passed by the Trial Court in O.S.No.368/1992 dismissing the suit of the plaintiffs.

(2.) Brief facts leading to the suit filed by the appellants-plaintiffs before the Trial Court are that the subject matter of the suit is agricultural land bearing Sy.No.366 measuring 17 acres 6 guntas situated within the limits of Balaganur village of Sindhanur Taluk in Raichur District. The suit land is owned and possessed by the plaintiffs since time immemorial as it is an ancestral property. Plaintiffs are shown as the pattadar and cultivator in possession of the suit schedule land in ROR and in the year 1967-68, the defendants in collusion with concerned Village Accountant and the Revenue Inspector got entered their name in the ROR, in patta and cultivator's column to the extent of 8 acres 23 guntas in the suit schedule land. It is strange to know that in Column No.10 of the ROR, it is stated that "As mutated as per mutation order". But they have not shown the number of mutation date and year of the mutation in Column No.10 of the ROR for the year 1967-68. Defendant No.1 is in no way concerned either to the plaintiffs or to the suit land. Hence, the said entry is got up with sole intention of defrauding the plaintiffs. The plaintiffs are innocent, illiterate and ignorant persons. It is further pleaded that in the year 1991, again mutated in favour of defendant No.2 to an extent of 4 acres 12 guntas and balance of 4 acre 12 guntas shown at the pattadar in his name, and the said division of it is in Sy.No.366/B to the extent of 4 acres 12 guntas in the name of defendant No.1, and 4 acres 11 guntas in the name of defendant No.2, which is quite illegal and it has no scantity in the eye of law. Defendant No.1 in collusion with Village Accountant and the Revenue Inspector got it done to make the case more complicate. Defendant Nos.1 and 2 have no right or authority over the suit land to an extent of 8 acres 23 guntas. The plaintiffs came to know about the illegal entries in the ROR only about two months back and hence, he came to Sindhanur filed the petition before the Tahsildar to issue the certified copy of mutation in this regard, office copy of the application and the endorsement issued by the Tahasildar dated 19.08.1992 are produced. Plaintiffs along with some elders and well-wishers contacted the defendants on 01.07.1992 and enquired about the entries in the ROR and also about the interference over the suit schedule land, but the defendants gave evasive replies. Hence, there is a cause of action to file the suit. By the said suit, plaintiffs sought the relief of declaration that they are absolute and exclusive owners of the suit schedule land to the extent of 8 acres 23 guntas in land Sy.No.366 of Balganur Village and for possession of the same from the defendants, they also sought decree for rectification of the revenue records.

(3.) The defendants appeared in the said suit and filed the written statement contending that the suit is liable to be dismissed. It is contended that the suit of the plaintiffs for the said reliefs is not maintainable as the plaintiff has not filed any schedule of the suit land and not described which portion is the suit land in Sy.No.366 measuring 17 acres 6 guntas of Balganur Village. Therefore, for want of description of the suit land, correct survey number and extent, suit deserves to be dismissed. Plaintiffs have not at all averred in the plaint when the defendants came into the suit land by dispossessing the plaintiffs and not averred that they were in possession of suit land within 12 years prior to filing the suit. Therefore, lack of this plea, plaintiffs' suit for possession is not maintainable. Plaintiff having his younger brother by name Sannappa and he is alive, without his presence, the present suit will not be decided effectively. Hence, said suit is bad for nonjoinder of necessary parties. Separate bits are in possession of defendant Nos.1 and 2 and without showing separate bits, present suit for recovery of possession of 8 acres 26 guntas is bad for mis-joinder of cause of action, and hence, suit is barred by law of limitation. The contents of paragraphs 2, 3, 4 and 5 are denied in toto, so also the contents of paragraphs 6, 7, 8 and 9 are also denied. Plaintiffs made valuation of the property at Rs.20,000/-, which is not correct, in-fact the suit property is worth more than a sum of Rs.1,00,000/-, therefore, the Court has no pecuniary jurisdiction to try the suit and plaint is liable to be returned, and the Court fee paid is insufficient. There is no cause of action for filing the suit, the defendants have also pleaded about the facts that the land in Sy.No.366 measuring 17 acres 6 guntas of Balganur village was the joint family property of the plaintiffs' and defendants' ancestors, out of the suit land an area of 8 acres 26 guntas was exclusively fallen to the share of defendants' ancestors towards north, and southern portion was fallen to the share of the plaintiff's ancestors. Defendants have also given the family pedigree in paragraphs 23 of the written statement. The land in Sy.No.366 of Balaganur village is the joint family property of plaintiffs and defendants' ancestors and it was partitioned 40 years back orally in that partition northern portion is fallen to the share of defendants' father and southern portion is fallen to the share of plaintiff and his brother. After the death of the defendants' father, the land is fallen to their share got mutated in the name of defendant No.1 and the land fallen to the share of plaintiff ancestors kept continued in the name of the plaintiff. Defendants are the lawful owners and possessors to an extent of 8 acres 26 guntas towards northern land in Sy.No.366 and the plaintiff and his brother have no right or title over the suit schedule land. Plaintiff and his brother Sanneppa were partitioned in the land in Sy.No.366/A measuring 8 acres 22 guntas and in that partition, towards western patti fallen to the share of plaintiff's brother Sanneppa and western patti fallen to the share of plaintiff. The partition in between the plaintiff and his brother took place between 20 years back. The defendant Nos.1 and 2 have partitioned orally about 15 years back and in the said partition in land Sy.No.366/B, an area of 4 acres 12 guntas fallen to the share of defendant No.1 towards west and an area of 4 acres 11 guntas fallen to the share of defendant No.2 towards east.