KODI SANKARA BHATTA Vs. MOIDIN

JUDGEMENT

(1.) The plaintiff is the appellant. Plaintiff owns a warg land marked 17/27 in the plan Ex. C as the reversionary heir of the husband of one Devamma. Devamma granted a usufructuary mortgage Ex. A in 1890, not only of the warg lands 17/27, but also of plaint item (1) which was the slope of a hill adjoining the warg land. Item (1) is marked A, A 1 and B in the plan. It is well known that in South Kanara, warg lands have what are called kumaki rights over 41 certain extent of adjoining waste land. Hence Devamma usufructuarily mortgaged in 1890 both her warg lands and the plaint item (1) in dispute and put her mortgagee in possession and the said mortgagee and his successors in title including the 1st defendant have been in possession of item (1) along with the warg land all along from 1890.

(2.) In the settlement of 1902, pattah was issued for the warg lands alone, item (1) being classed as waste poramboke.

(3.) The plaintiff who owned the equity of redemption in the lands usufructuarily mortgaged, took advantage of the fact that item (1), a portion of the lands, belonged to the Government and was at its absolute disposal (though under the dharkast rules the Revenue Officers charged with the duty of granting lands on darkast were directed to prefer the neighbouring wargdars), applied for the darkast grant of item (2) in 1910 and obtalned a grant of it to himself in March 1911. (See Exhibit B). The plaintiff thereupon brought, this suit against the mortgagee the 1st defendant (who died after suit and whose legal representat.ves are the defendants 2 to 5) for possession of the plaint item (1) on the strength of his title under the above darkast grant. The plaintiff cleverly omitted in his plaint all mention of the fact that his predecessor-in-title (Devamma) had usufructuarily mortgaged the plaint item (1) also in 1890 to the 1st defendant s predecessors- in-title and that the 1st defendant and his predecessors- in-title had been in possession of plaint item (1) along with other lands as usufructuary mortgagees from 1890. On the other hand, he told a falsehood in the plaint that the defendants trespassed upon the Government land item (1) only in December 1910, that he was in possession of it before and that he was granted the land by Government, while he was so in possession of it on behalf of a stanom. The plaintiff also sued for recovery of plaint item (2) (ridge bunds on which trees stand and called Kattupannis) alleging that the defendants unlawfully trespassed at the same time (in December 1910) on these Kattupanni Lands also. The real truth was that these kattupannis were also included in the mortgage of 1890 (except the portion marked XY in the plan) and have all along been in the possession of the mortgagee and his successors- in-title. The District Munsif gave a decree to the plaintiff for the portion XY of the Kattupannis (to which the defendants laid no claim) and dismissed the plaintiff s suit in other respects on the ground that the plaintiff in order to evade his liability to give compensation for the house built on item No. (1) by the 1st defendant (which plaintiff would have to do if the plaintiff sued to redeem item (1) and the warg land and the Kattupannis except on the mortgage of 1890) has brought this suit in ejectment as regards items (1) and (2) alone, excluding the warg land, making the false allegation of trespass in December 1890 as regards the items 1 and 2. The Subordinate Judge on appeal confirmed the Lower Court s decree.