CHIKKARAMAPPA Vs. THIMMARAYAPPA

JUDGEMENT

(1.) The plaintiff in O.S. No.294/1994 on the file of II Additional Civil Judge (Jr. Dn.) at KGF has come up in this second appeal impugning the concurrent findings of both the courts below in dismissing his suit for the relief of declaration and permanent injunction in respect of the land bearing Sy.No.21 measuring 3 acres 31 guntas assessed at Rs.4.98 paise situated at Athigiri village, Kasaba Hobli, Bangarpet taluk.

(2.) Brief facts leading to this second appeal are as under:

(3.) In the said suit on service of notice original defendant Thimmarayappa entered appearance and filed his defence to the effect that the suit schedule property was not ancestral property of the joint family of Krishnappa and that the same was property of one Arasu Nanjundappa. However, when it comes to the cultivation of the same, the defendants defence is to the effect that the said land which was measuring to an extent of 4 acres 15 guntas inclusive of kharab was in joint cultivation of himself and plaintiff, his elder brother. He would also state that the extent of land that was in occupation and cultivation of his brother is 2 acres and 26 guntas inclusive of kharab and the land which was in his cultivation and enjoyment was 1 acre 29 guntas inclusive of kharab. The defence would also indicate that since both were brothers they did not choose to file two separate Form No.7, instead he allowed the elder brother to file Form No.7 with a clear understanding that as and when occupancy right is given in his favour, the same would be divided between himself and the defendant in accordance with the extent which are under their cultivation and accordingly when occupancy right was granted in favour of plaintiff on 31.03.1980, on the same day the premium which was imposed on them to be paid for granting of occupancy right was divided among themselves with reference to the extent of land held by each of them and accordingly he has paid a sum of Rs.640/- vide challan No.344 dated 31.03.1980 and with reference to remaining extent of land his brother has paid a sum of Rs.904/- as his share of premium under challan No.343 of the same date and based on that the property was divided. He would also state on that day an agreement was also prepared on the stamp paper which was purchased by his brother which is dated 31.03.1980, wherein all the aforesaid defence which he has raised in the written statement was reduced into writing and the extent of land is also identified. Based on which it is stated that they got the land measured and the property in possession of each of them was identified, the revenue records are updated.