NON­REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(s). 5134 OF 2013

KOTTANGADA B. MOTAIAH ...APPELLANT(S)

VERSUS

MACHIMADA BELLIAPPA AND OTHERS      ...RESPONDENT(S)

JUDGMENT

NAVIN SINHA, J.

The  appellant,  who was defendant  no.13 in the  partition

suit filed by respondent nos.1 to 7, is aggrieved by the dismissal

of his Regular First Appeal, affirming the decree in the suit

declining to allot any share to the appellant.  

2. The plaintiffs and the appellant are different branches of the

same family.  In the suit filed for partition, it was averred that the

appellant was in possession of 10 acres of the suit lands as an

encroacher, seeking his eviction. The appellant filed his written

statement claiming that he was an absolute owner and in

possession along with defendants nos. 1 to 7 of the wet lands

bearing survey nos. 180, 183, 179/1, 179/2 situated at

Ballyamandoor village.   He therefore had a share in the “bane”

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suit  lands also. The suit was decreed in favour of the plaintiff

holding that the appellant had failed to establish that he was in

possession of any wet lands, so as to entitle him to any share in

the suit “bane” lands, apparent from his own evidence. The High

Court declined to interfere with this finding of fact upon

consideration of the evidence in the Regular First Appeal

preferred by the appellant.  

3. Learned counsel for the  appellant submitted that “bane”

lands could not be partitioned.  The suit itself was therefore not

maintainable. Reliance was placed on  Nandinaravanda

Medappa vs. Nandinaravanda Ganapathy,  (1979) 2 Kant LJ

22.  A “bane” tenure  only constitutes certain  privileges to  be

enjoyed by agriculturists holding attached wet lands. There is no

concept of ownership of “bane” lands so as to make it susceptible

to partition. The plaintiff should have taken recourse to Section

79(2) of the Coorg Land and Revenue Regulation, 1899 before the

Revenue Authorities as they are basically lands granted by the

State Government for limited enjoyment. Reliance was placed on

a decision of the Karnaraka High Court in  B.R.

Sharathchandra  (D)  by  LRs.  Vs.  K.D.Poovaiah and others,

RSA No. 258 of 1999.   It was fairly stated that these grounds

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were not raised in the suit or in the Regular First Appeal.   But

being a pure question of law, they could well be considered in the

present appeal.  

4. It  was  next submitted that the  Trial  Court  has erred in

appreciation  of the  appellant’s evidence  and misconstrued the

same to hold that there was an admission by the appellant that

he did not hold wet lands in  Ballyamandoor village.   The

appellant in fact in his evidence had clearly intended to the

contrary.

5. Learned Counsel for respondent nos.1­7 contended that the

suit was maintainable in view of Section 79(2) of the Karnataka

Land Revenue Act, 1964 as ruled by a full bench of the

Karnataka High Court in Machettira Machaiah and Others vs.

Machettira kariappa and Another,  AIR  1994 Karnataka 52,

and which overruled Nandinaravanda (supra).

6. It was next submitted that the claim of the appellant to be

in possession of wet lands in survey nos. 180, 183, 179(1), 179(2)

in Ballyamandoor village did not find favour with the Civil Judge

who has held that defendant nos.  1 to 6 are  in possession of

survey no. 180, defendant No. 7 was in possession of survey nos.

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179(1), 179(2), survey no. 183 was in the possession of defendant

Nos. 5 to 7. The appellant having failed to establish possession of

any wet lands in Ballyamandoor village, he has rightly been held

not to  be  entitled to  any  share in the “bane”  suit lands.  The

appellant was residing at Harihara Village where he owned lands.

7. We have considered the submissions on behalf of the parties

and have also  been  taken through the relevant  pleadings and

evidence.   “Bane” lands are defined in the Coorg Revenue

Manual, 1954 (Appendix III) as lands adjacent to private lands.

They are assigned to owners of such private lands, free of

revenue, for the beneficial enjoyment of the private wet lands by

grant of rights to collect fire wood, green leaves, manure, timber

and use the same for grazing of cattle.  The private  lands are

called “warga” lands.   The issue with regard to the

maintainability of the suit need not detain us in view of the Full

Bench decision of the Karnataka  High Court in  Machettira

Machaiah (supra) holding that the suit was maintainable.

8. The “bane” lands in survey no.190/1 constituted the

schedule lands. It was attached to the “warga” lands in survey

nos. 175, 184/2, 183/3, 184/4, 180,  181,  182,  183,  121/4,

179/1 and 179/2 at Ballyamandoor village. The plaint

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specifically averred that the appellant was in wrongful occupation

of 10 acres of the schedule lands as trespasser, liable for eviction.

The appellant denied that he was an encroacher contending that

he was the absolute owner  in possession of wet  lands bearing

survey nos. 180,183,179/1 and 179/2 in Ballyamandoor village

staking his claim for proportionate share in the adjacent “bane”

lands.  But in his cross­examination, the appellant admitted that

he was residing at Harihara village and that in the family mazar

he was allotted lands in Harihara village.   It was also admitted

that he was not in possession of any attached wet land to the

schedule “bane” lands in the suit.   The Civil Judge on

appreciation of evidence held that the appellant was not in

possession of  any private lands  in  Ballyamandoor  village.  The

survey numbers in which he claimed possession were in fact in

possession of other defendants. The High Court further noticed

that unlike some of the other defendants, the appellant had not

even claimed ownership on basis of  perfecting title  by adverse

possession.  

9.   The submission on behalf  of the appellant that there has

been erroneous appreciation of his evidence or that the same has

been wrongly construed does not appeal to us as we find that his

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statements  are  very  specific  and clear  without  any  ambiguity.

Though he claimed that he had 3 “batties” of wet lands in

Ballyamandoor village, and mentioned certain survey numbers in

his written statement, but in his deposition he stated that he did

not know the survey numbers of the wet lands in his possession

in Ballyamandoor village.   

10. We find no reason to interfere with the concurrent finding of

fact by two courts based on appreciation of the appellant’s

evidence itself that he had been allotted lands in Harihara village

pursuant to a family partition and that he had completely failed

to lead any evidence with regard to his being in possession of any

wet lands in  Ballyamandoor village so as to entitle  him to  a

proportionate share  in the schedule “bane”  lands.   The appeal

therefore lacks merit and is dismissed.

…………...................J. [NAVIN SINHA]

…………...................J. [INDIRA BANERJEE]

NEW DELHI AUGUST 28, 2019.

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