- (1.) These civil appeals by special leave are filed against the judgment of the Karnataka High Court dated 24.9.1998 in R.S.A. No. 233/1996 and order dated 10.4.2001 in R.P. No. 745 of 2000. (1.1) The first respondent herein filed O.S. No. 91/1989 against Venkatappa (of whom appellants 1 to 3 and respondents 2 and 3 are the legal heirs) and Military Karigowda (of whom respondents 4(a) to 4{h) are the legal heirs) in O.S. No. 91 of 1985 on the file of the learned Munsiff, Kanakapura, for a declaration that he was the absolute owner of the suit property and for a permanent injunction restraining the defendants from interfering with his possession and enjoyment of the suit property (site measuring 8 guntas in Khata No. 3458 being Southern portion of Survey No. 622/2, situated at Khalaknagar Road, Khalaknagar, Kanakapura Town, Bangalore district, bounded on the East by Municipal drain and conservancy road, West by houses of Sheriff Khan and house of Mohammed Sabu and Syed Ahmed, North by vacant plot of Rajashekhar and South by Khalaknagar Road). The trial court decreed the said suit, in part, by judgment and decree dated 11.12.1991 declaring the plaintiff to be the owner of 4 guntas of land on the Southern side of Survey No. 622/2 on the Kanakapura village and consequently, restraining the defendants from interfering with his possession in respect of the said land. The suit of the plaintiff in regard to remaining 4 guntas was dismissed. (1.2) The judgment and decree of the trial court were challenged by plaintiff as well as the first defendant. Feeling aggrieved by the rejection of relief in regard to 4 guntas, the plaintiff filed R.A. No. 6/1992 on the file of the Civil Judge, Ramnagaram. Being aggrieved by the decree for injunction in regard to 4 guntas, the first defendant filed R.A. No. 10 of 1992. Both the appeals were heard and dismissed by the first appellate court (Civil Judge, Ramanagaram) by a common judgment and decree dated 13.11.1995, thereby affirming the decree of the trial court. (1.3) Feeling aggrieved by the rejection of his claim in regard to a portion of the suit property (4 guntas), the plaintiff filed R.S.A. No. 233/1996 before the High Court of Karnataka. The said second appeal was allowed by judgment dated 24.9.1998 and the suit was decreed as prayed for, by granting the declaration and injunction as sought, in regard to the entire extent of 8 guntas. The appellants herein (3 out of the five LRs. of first defendant) filed a petition (R.P. No. 745/2000) seeking review of the said judgment. The review petition was dismissed vide order dated 10.4.2001. Feeling aggrieved, three of the LRs. of the first defendant (the widow and two sons of Venkatappa) have filed these appeals challenging the Judgment in second appeal and order in the revision petition. (1.4) For the sake of convenience, we will refer to the first respondent as plaintiff and the deceased Venkatappa of whom appellants and respondents 2 and 3 are the LRs. as first defendant, with reference to their rank/s in the suit.
(2.) The plaintiff filed the said suit for declaration of title and permanent injunction alleging that one Puttaswamy was the owner of land bearing Survey No.622/2, Kanakapura; that the said survey number consisted of 8 guntas of cultivable land and 8 guntas of Kharab (land unfit for cultivating); that the said Puttaswamy had two wives and one son (first defendant) through the first wife, and three sons (Kempa Venkata, Venkataraju and Krishna) through his second wife Manchamma; that under a registered Partition Deed dated 27.1.1949, the said land was divided equally between Venkatappa (first defendant) on the one hand and the three minor children of Manchamma on the other hand (certain other properties were also the subject-matter of the said partition which are not relevant for the purpose of these appeals); and that as 8 guntas was kharab land, the partition deed referred to the division of the cultivable land only by mentioning that 4 guntas were allotted to the share of the first defendant and 4 guntas were allotted to the share of the three minor children of Manchamma; and that Venkatappa (first defendant) was in possession of 8 guntas (including 4 guntas of Kharab) and Manchamma's children were in possession of 8 guntas (including 4 guntas of Kharab) from the date of partition. (2.1) The plaintiff-alleged that the first defendant who was in possession of 8 guntas of land, sold the entire land under 3 sale-deeds, namely, 2.75 guntas in favour of Venkatamma on 7.9.1949, 2.75 guntas in favour of Siddayya on 7.4.1949 and the balance shown as 2.75 guntas in favour of Manchayya on 30.9.1963 and did not retain any land in the said Survey Number. On the other hand, Manchamma and her two sons sold their portion of 8 guntas in Survey No. 622/2 to the plaintiff under registered Sale Deed dated 29.9.1978; that the plaintiff thereafter got the 8 guntas of land purchased by him, measured through a surveyor, and fixed boundary stones; that he obtained conversion of the said 8 guntas of land (measuring about 70'X125') to non-agricultural use, vide order dated 30.7.1979 of the Tahsildar, Kanakapura Taluk; that he made an application to the Town Municipal Council, Kanakapura and got the Khata of the said land registered in his name in the Assessment Register of the Town Municipal Council vide Khata No. 3458 and had been regularly paying the property tax to the Municipality. (2.2) The plaintiff alleged that Venkatappa (the first defendant) forcibly removed the boundary stones fixed by the plaintiff and by misrepresenting the facts, obtained Khata No. 3404 in his name and immediately sold 4 guntas to second defendant on 19.2.1979. It is in these circumstances the plaintiff filed the suit for declaration and permanent injunction against the defendants in regard to 8 guntas of land.
(3.) The first defendant filed a written statement wherein he specifically admitted that the extent of Survey No. 622/2 was 16 guntas, as alleged by the plaintiff. He, however, contended that the entire extent (i.e. 8 guntas of cultivable land and 8 guntas of kharab land) fell to his share under the partition and, accordingly, he was in possession of the entire extent of Survey No. 622/2. He alleged that as Manchamma and her children did not have any right, title, interest or share in the said land and therefore, the plaintiff neither got possession nor title in regard to any portion of Survey No. 622/2. He also admitted that he had alienated three portions, as alleged in the plaint, but contended that he was in possession of the remaining extent out of the 16 guntas of land and that the remaining extent was numbered as Khata No. 3404 and he sold the same to the second defendant.;