KILLOOR MANTHAMME Vs. PADMAVATHI

JUDGEMENT

(1.) Defendants 1, 2, 3, 5 and legal representatives of deceased defendant No.4 in OS.No.163/1997 have come up in this second appeal impugning the divergent finding rendered by the lower appellate court in its judgment and decree dated 5.7.2017 in RA.No.49/2002 on the file of First Additional Civil Judge (Sr.Dn), Mangalore, wherein it has set aside the judgment and decree dated 9.11.2001 passed in OS.No.163/1997 on the file of Principal Civil Judge (Jr.Dn), Mangalore.

(2.) Brief facts leading to this second appeal are as under: Appellants herein claim themselves to be the tenants in respect of several portions of land bearing Sy.No.139 of Pavoor village, Mangalore Taluk, Dakshina Kannada District. The admitted facts would reveal that respondent herein, who is plaintiff in the original suit, was one of the purchasers of aforesaid land bearing Sy.No.139 to an extent of 4 acres 60 cents under registered sale deed dated 23.12.1974 from its erstwhile owner Lakkanna Rai. The execution of said sale deed by Lakkanna Rai in favour of plaintiff in the original suit along with three other persons, namely Lokayya Shetty, Shantha Kumari and Pushpavathi, is not in dispute. The records would further disclose that on 18.1.1982 said Lokayya Shetty, Shantha Kumari and Pushpavathi have executed a release deed releasing their right, title and interest in 4 acres 60 cents of land in Sy.No.139 in favour of plaintiff - Padmavathi Shenava to be held along with her right in the said land and to continue to enjoy the same as an absolute owner. When matter stood thus, suit in OS.No.163/1997 was filed initially for the relief of permanent injunction on 27.2.1997 seeking to restrain the defendants in the said proceedings from disturbing possession and enjoyment of suit schedule property by plaintiff.

(3.) In the said proceedings, on service of summons, defendants 1 to 5 entered appearance. It is seen that defendants 1, 3 to 5 have filed their written statement, however, defendant No.2 filed counter claim, wherein it was contended by them that they have become the owners to an extent of 2 acres each from defendants 1 to 4 and 1 acre by defendant No.5 in aforesaid land bearing Sy.No.139 pursuant to orders passed by the land tribunal on different dates in LRT.Nos.722, 726, 720, 718 and 719 of 1980-1981 respectively. The records would indicate that the applications for occupancy right in Form No. 7 under Section 48-A of Karnataka Land Reforms Act, was filed by them respectively on 21.8.1974, 22.8.1974, 2.6.1979, 26.9.1974 and 21.8.1974. In fact, the said applications would clearly indicate that none of the applicants had sought for occupancy right in respect of land bearing Sy.No.139 of Pavoor village. Instead, they had sought for occupancy right over different extents of land in different survey numbers of Pavoor village, which was the subject matter for consideration before the Land Tribunal - IV, Mangalore. Admittedly, in all the five applications filed by each one of the defendants in the aforesaid manner, the landlord against whom they had sought occupancy right is shown as Lakkanna Rai. The records would indicate that he was duly served with notice and he has not appeared before the tribunal. Further, it is seen that no particular stand is taken by him with reference to land bearing Sy.No.139.