IN THE HIGH mum or KARNAMIQ, " V
DATED THIS THE mm DAY:'»9FéR;I§i}? "
BEFQRE,
THE HGNBLE MR. Au 3 B2(}P1u§4Ni\lAV g
REGULAR Q}? 2002
BETWEEN :
rd
M 1»ARAv.A3m'~1.T.V V} : f-- _ _ A
snares z:;x:¢f;a.A;s-§:§i:_ V
SM? PA.I§V&fFfi?s.%.£M&_'.V M " %
W go LA'I"E5$Ri PAR'AVAIAH_ %
smgzg --.l3ECE1%$*E}13M BY' .1-:39 LRS
MAL;;Esw.NNA .-- %
S10 mm M FAPAV-Ala"
é';..(3w-'EI;) ABOiJT_ 60 YEARS
" ' P 5631-I£lfa¥I'~IABAA'.5V'é;\'?A$iAIri
j = .. Sm LA'FE; 'MPARAVAIAH
" _A€.'«E_.'D.V_A1%G1j'1f.58 YEARS
' A 'i' P mpmm
"-S/O-__'LA'-I'E M PARAVAIAH
smca; DECEASED BY HIS LRS
* =J_Ac.AmMBHA
v W.'/0 LATE MALLAPPA
AGED ABOUT 50 YEARS
MAMATHA
D /0 LATE '12? MIALLAPFA
AGEE) ABOUT 25 YEARS
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H
(BY SR! (3 s VENKATASUBBA FAQ; Ki)':
SR1 R B SADASIVAPPA, Abvs; ' 1. _
AND :
I
NANJAMMA
W/O SHNANNA
55 YEARS
ALL THE APPELLANTS ARE V
R /0 THEETI-IA, KORATA/{(3.313 CROSS SEDDAGANGA EXTENSION
{ii} -.442§!ALL§¥{:A3RA.3UNAIAH
S] O" SADASHIVAIAH
AGE 45 YEARS
" : .R/O"IiI C-ROSS SIDDAGANGA EXTENSION
S
"fi_JN£I<IUR
NIRAN-JAN
sxo LATE samsrvaxsm
AGE 39 YEARS
R/O III CROSS SIDDAGANGA EXTENSION
TUMKUR
t
(iv}'I' S SHASI-HDHARA
M
(Vii
S/O LATE SADASHIVAIAH
AGE 36 YEARS
R/O III CROSS SIDDAGANGA
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T S NANDESH V'
S/O LATE SADASHIVAIAH '
AGE 30 YEARS ' "
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1. A "-FUMKUR:
""s;os;§.i«a';"§i~:E CHANNAPPA
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AGE "YO YEARS
DECEASED ANI) HER LRS ARE
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(C1)
(6)
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ALREADY ON RECORD
AS 4(1)) TO 46)
VEERABHADRAIAH
s/0 LATE HOSAMANE
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AGE 55 YEARS
CHIKKEERAPPA .
s/0 LATE HOSAMANE _ I
CHANNAPPA T '
AGE 53 YEARS .... ..
CHANNASOMFsNNA ,
S/0 I~{o_sA'MAa;E_--.cHANnA?Pr.<' v
AGE 51%YEAR$'
G0wRzuv.iNEA in "
mg yIOSA?-fi~AHE'«CHA:N'NAPP&
AGE 49 'YEARS.
RUDRAPPA, "
S/0 LATE I-EOSAMANE CHANNAPPA
"§GE47YEAR$A
.1m. %
' " 53fC)_Vl.A"lfE HQSAMANE CHANNAPPA
(h) '
"siiéijaéaezxvaran
Qzswsévzéman
';<3;0= LA'rE HOSAMANE CHANNAPPA
AGE 43 YEARS
'V 'T 'PRAKASH
V 9..-/0 LATE HOSAMAISIE CHANNAPPA
AGE 41 YEARS
VRISPHBHENDRAIAH
S/O LATE HGSAMANE CHANNAPPA
AGE 39 YEARS
"iv
RESPONDENTS ARE ALL
R’/O THEERTHA VILLAGE V
KORATAGERE TALUK
TUMKUR DISTRICT
(BY SR1 J CHANDRASEKHA AH, _VR– 2
THIS ma IS FILED U_;’S. 0_1r-..c:9c–.A0A1Nsr THE
JUDGMENT AND 0001220 ’13V.e.o2,m’s.<;Ei3 10:" R.A.NO. 13/as
ON THE FILE 09*-ma ¢]VIL~…i1J.D:.";E.V_ {SR.1DN), MAD}-IUGIRI,
ALLOWING THE APP;..'-."s3_£.'L 10:0 ::SET1'ING'A'E«';ID.E THE JUDGMENT
AND DEGREE 23.3.1.8?' ~PA~ssEi3 I.1~:.o.s.N0.206/7'2 on THE
mm: 00 THE 30:33.'… MUbiSiP'FfANfl ggnupamwc, MADHUGIRI.
"0n~«.00R"?:~;~zAL HEARING THIS DAY,
THE comm' nEr.:x;fg,Rar«.'*:)%'mE+§0:,L0w1Ne:
H B x 'r
defendants in 0.8. 119.206,! 1972.
…m im judmcns: dated 23.1 1.1937 dismissai
tiii;-.'s£1;_i_t1df4 on the gmund of Iilnitafion, though
'the Ifiéatctifii igfiiues went held in favour of the plaintiffs. The
" " 'T to bc aggtricved by the said judgment and
were before the First Appclhtc Court in
ff v;2.AfNo.1s/as. The First Appcllairz Court by its judgment
ilatcd 13.06.2002 has allowed the appeal and deemed the
1.
suit. The defendants therefore c-laixnmg to be
the judment of the First Appellate C’ou:rt is before _
in this: appeal. The parties are mfened to ”
as assigned to them before the Trial T
convenience and clarity.
2. The plainfifis mmtmmmeme ir;*x§i:a1coug~t”scé1;i1ag fbr
a judgment and decree to are the
owners in the schedule ‘Av to
the 1:31.351′ and szepaxate pcs:3essau’ n
of the of Madhya Venkatapuxa
‘V V’ ‘i’he jmkaintifis in that regard was that the
gifted the eastern portion measuring 1
of land under a deed dated 10.01.1941.
7{‘hcugh~~ said area was: gven to the plaintififi, the same
Vtjict demarcated definitely, but being a close relative, the
was being ctfltivated by the defendants for the
“”v.V1.:’ne’t1efit of piainfifis and some produce was being fiver: every
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year. Ultimately szinee the said ext_e11t._ef ‘A u
been gified had not been handed baa; :¢_yfz;:;e
the demand wee made, the plaiitgtiifs were
the suit.
3. The defendant; emm the suit;
summons filed the Clfiilil put forth by the itself was disputed and in since the p}aintifi's
had Iaotiebeeeu’ of the ploperty alleged to
have been deed, no right can be clan’ ned
by ” edth regard to the case put forth by
‘ ing the produce being gven every year,
tiie S;-éjgeev’ by the defendants. In addition to the
said the defendants had 3131:) set–up the
” ” “that in any event, considering the time lapse, the
had perfected the title 130 the property by way of
possession and the contention with regantl no the
A” ~ itation waa also raised.
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‘as
4». The ‘I’.ual’ Court on eon:.=uic}cI’z3:.:11g
put fcarth by the mxties, framed. as méxz13;’–as eight 1
its eonsidelafion, which read as fiefezmder; ”
1. Whether that first defi::udé1:1_t mil: ofmd in % . 011 1501. 1941 u ' ~ proves that " _ 4' , the parfion of 1 " of land?
. 7-._W1:1ethc:r the first defendant proves
” V”1~tii.at he is in possession of 9 acres
« >6 guntas in S.No.50 and he is in
3 enjoyment of the same?
H 4. Whether the defendant proves that
he is “m poasession of the property
adverse to the plaintiff since 1941
1
openly and as a .’
the plamtifi?
5. Whether the
that is .1:get_7
maintaisggime as i:t.Vi:§~«1;a1:*1e(l under
My.-3-are Land’ . V n
6. J u by
A
_ Xi’eiv3;¢£he;+-:1§’ee.p1aiaeeis entitled for
A’ ” M
‘V8; V”}’e..;s:e_ttat:I’eliefs p£aintifi’ Tm entitled?
‘ ” 53 E1;V01*_de§i*’to discharge the burden «met on the parties,
flee’ examined herself as PW-1 and marked
* ;io(:u1¥ic1..1iiea.t 4Exs.P1 to P12. The defendants examm ed DW3
marked documents at Exs.D1 to D8. The Trial
assessing the evidence on zeemd though heki
J “that the 911 deed had been executed in favour of the
” ‘”p1aimi£rs, ultimately dismissed the suit as being barred by
J:
p
t
7. In order to cxmsider the ezf
framed in this appeal, I have ‘V
Rae, learned counsel for
Chandrashekamiah, the
Ie9P0ndent3. t Vt
8. The question of law
framed the queseoa to
be oonsitieled’ regard to the question as
to whether “the anti ” the plaintiffs was within time.
On uaepect bf ;tt1_atter as already noticed, the Triai
isaue 110.6 for its oo1mide1’at1on’ . While
issue, the Tag; Court had 11ot:aoed’ the
t ease “put fettittlztvy the plainiifih and also the date of the gift
which the praimaes had claimed right. In that
T'”x~égm:1;.–‘thc me extracts at Ex3.P1O and P11 were nohced’ .
K Trial Court aflier considering these aspects of the matter
taking note of the fiaet that the gift deed had been
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executed on 10.01.1941 and sinus}: tl-15 suit
year 1973?, was cf the vu:’vv’ that
instzitutcd the suit for
that the suit was institutefi as 32;-ch, the
Trial Court came to the ‘suit was barmd
by time. That being go, had held the
main issues. regard to the
cxec1,;t1’on_gvVfE ” the plaintiifs had
decIinod’.fltk1c}_ . the suit was dismissed.
The the said fiding were before
the. Apptgliatfi Since the First Appellate Court
}’1asV fimiing has also come to the
suit filed was within time and thercfbzrc
the entitled to a decme. The reasoning
~ : -v, adoptw” the First Appellate Court based on the re-
of the ev1d’ cnoe which was avafia’ bk: on this
of the matter mquIm’ 3 to be natured’ in the
Lbackgmulld of the said contcnticxn. However before
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cozlsieiering this aspect of the mafier,__e13e_ethei? u ”
requJre’ s to be not1eed° is that as ahead’ rye
other material issues with
deed and the ownership illfiitespect
of the said extent of 1 tieed had
been held in favetzr of findings
rendered by chailenged by
the defendmite ‘agpeaz not had the
vemss-appeal when the
judgment and decree of the
T1173} as which had been Iendeled
the **** 11:1 this context, the First Appellate
that theme is no challenge to that porizion of
the defendants, has not adverted to that
‘ ‘aspect Qf matter and has only answered the issue with
the limitation which had been eilaflellged by the
It Though the laeanled eouzuaci for the appellants
” eentcnds that the First Appellate Court was not
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justified in not eonaitieling the iaaae, xaatme V
could have been exaaxined by the Firat
by exercising the power under njttier 4-1*.’
Rule 33 of CPC, what is be -iau even
in the absence of a 05;’ whether
any contentions were before the
First Appellate Fizst Appellate
Court had in the absence of
9. A of ttigiudwent of the First Appellate
mag that the only oontmtion urged Was’
V. possession aspect of the matter which also was
{ereoaskier the question regarding liinitatitrm
_a;ud as siatehgkthe judgment passed by the First Appellate
£3063″ not on the fme of it indicate that the findings
Iendexed against the defendants had been
assailed even in the absence of an appeal or
~ “Verna;-‘m-objecizion. in this Iegard, the learned counsel for the
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appellants has placed reliance on a decision of the
Suprczsm: Court in the case cyf SHRE
SHARMA vs. THE STATE 0;? ASSAM 65 ”
1999 SAR (CIVIL) 837 to cxmtcnd
cmsswobjection under Older I
but purely optional. Insofar 1″.’i 1e1§can31ot
be any quarrel, but the isf th4§ alixs.cn(:c: of
such c:mss~4:1-bjcction or would have
to be “”” ‘b3;jV5»§:}1et¢:)u;:'<§nte1:£i that the findings
which wém againsf 'ti;g:. ap;§§11a§-aats had been assailed and the
First Viiifusod to oo;u$;ic1c1' the same. The
appellants has pi reliance on
of the H¢,)Il'b}c Suplemc Court in the case af
K.§;1;}*i'HU$§§i;;§;:i1V GOUNDER vs. N.PA!.ANIAPPA GOUNDER
i;epon§c.1 1993 SAR {CIVIIJ 322 to contend with regard to
tiizscrtgfionaxy powers available to the Court under Order
I' 33 also would not be ofasaiatancc to the appellants
" the very same reason, since the same has not been
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fir
poinhed out. Even assuming for a moment it is _
all the contentions which have been put__ VV ”
appellants were not in fact noted by {no e
during the course of the o1fiex,_”it wés3.”‘i:1cu1n}3é1;ttV on
defendants] appellants to raise nan.
in the present second urged challenging the findings against the
appellants had ;::o€.#b’_een jig’ Vpresent case, a
perusal ‘ doesanot indicate such gmumi
and as xézzeh, First Appellate Court not
itself oo;esis1ef”‘.the correctness or othelwise of
* the 1§ere’–*i’;eld against the defendants cannot be
‘fo1nVitfi any contention with regard to the same
calinot be by this malt
” ~ is in this backdlop, the substantial question of
llave to be considered based on the findings
T “–.:f1*e1iTclerc>£i by the First Appellate Oourt lelating in linfltation.
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A perusal of the judment of the First Appellate ”
indicate that the First Appellate Court had ‘
as point No.1 for its consideration. ea-nei1i:.ei”i1;gv
aspect of the matter, the First VAppeiiate’__€L’om’f 1jes».nolaeeein ”
the evzidelaee pie on If:(}0I’liV ef the
wherein mm who had ‘~-carliez?’ the
evidence of DWS 5 and 6.” than son of the
original fest defendant «figs referred to by
the Fi1’sf; I§%1;;v:eB.;=i?;e jte.§omc.’et;55¢om1usien with regard
to the of was being enjeyed by the
plaintiffs as 4332 ‘the kflefendants as contended in the
v A ….. .. e
regard, the evidence tendered by PW-1 is
Though the platint averments are not very
V’ the ultimate case however put forth by the
~«T.’1’p1;3ig§tifls is that by the said gr: deed dated 10.01.1941 an
” eéfitent of 1 acre 30 guntas had been game in savour of the
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original plaintifi’ and thexeafter since fhe vibe ” ” 2
first defendant being close xelafivee,
possession had been given to’ -the
proper demarcation had been ti1e~ itself.
In that context, the plaii§flfifi’a the that
since the defendants cultivated
the property for§ihe«£.}§enei:«’Ait of giving flflem
mmm Plnduee the said land. The
on’@1aJ as PW–1 has humm-
stated of the matter and in her
deposition she’ “stated that “the defeneiant is
” :13: la¥id”‘{§i1 my behalf’. it is further stated by
which was gifted had been shown to
thm’ g is that the same had not been
_ ‘ngeasuxeed given to her by metes and btzrund.-3.
N In this background, the evidence tendered by
‘ and 6 would assume impolfanee as if to compiiment
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the said evidence put forth by flue ” ”
also stated that they were culfivaflzjg t11e..2§3id “:’lv§é.t1’Al.i”‘7.e
was being gven to the
ta the produce which was as
“keru” to contend as if the finds as
tenants and lease.
In this regard, cnlfivafing the
property in rejected by the
Trial t§+t}i¢” Land Refmms Act and
this the First Appellate Court.
However, what requ:i1’es to be noticed
v ._i._’3 no for occupancy right whatsoever
_DWs.5 and 6 claiming to be tenants of the
etvetement made at this juncture that the
was being given to the piainiifis was by
V’ “koru” cannot be accepted. Therefom, in that
the evidence of the plainfifis that the defendants.
T u were cnlfivating the land an their behalf and tevwanis the
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same, the produce was being gven to them would , V.
accepted. Tllerefere, once the DVJS 5 and 6 tttaifi M
are cultivating the land as the
piaintifih, the First Appellate Court
the end” enee of the said’ uritneiefie. define
that the possession of the defepdeiits the laaeds can
only be permissive. No d6tfl5t,. which the First
Appellate Court hf indicate that
it is notglaappiiye’ the feet that the plaiutifi’s had
stated the? uthep cultivating the land on their
behalf’ and gsiefcsldénigv has aim» indicated that it was
V’ beingréuitivated produce was being given to the
Izee fort1fie’ :3 the eontenflan of the p}.a1′:nt.ifi’s
met deed was executed, there was no proper
and the joint possession of the property was
to that extent of the property which had been
under the gifl deed, the F113′ t Appellate Co-urt in any
uefient, was justified in cmning to the oolztelusion that it was
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pe:rm1’asIve’ possession, though the ‘A x
such specific words in that regani but the
The First Appellate Oourt piilef
documents which were marked that
the land revenue was :’Of__tI1e plaintifi.
13. The :eensieie1′:i:ng this
aspect of the nature of
defiandant.-5 and also
failed in their contention
with award posse: “~ ‘ 11 before the ‘T1131′ Court, has
appxegfiiaiely in the present facts and
the ease, Article 65 of the schedule to the
apply and in such circumstance, the
_p;esents.azit-am bytheplaintiffsiswithm time’ . Smce’ the
-hm E jam had already been held in favour of the plaintiifs
the First Appellate Court W88 of the view’ that the
anigt was within time, the First Appellate Court was justified
decret:ing the suit of the plajnfifls.
la