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   NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.7089 OF 2010

Nanjegowda @ Gowda (D)  by LRs. & Anr.        ….Appellant(s)

VERSUS

Ramegowda      …Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1) This appeal is filed by the defendants against

the  final  judgment  and  order  dated  18.07.2006

passed by the High Court of Karnataka at Bangalore

in Regular Second Appeal No.498 of 2001 whereby

the Single Judge of the High Court while exercising

jurisdiction under Section 100 of the Code of Civil

Procedure,  1908,  allowed  the  appeal  filed  by  the

plaintiff  (respondent herein),  reversed the order of

the  First  Appellate  Court  and  confirmed  the

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judgment  and  decree  passed  by  the  Trial  Court

holding that the respondent was entitled to a decree

of title to the suit land.   

2) The facts of the case lie in a narrow compass.

Even the issue arising in the appeal is a short one.

It  would  be  clear  from  the  facts  mentioned

hereinbelow.

3) The  appellant  Nos.1(a)  to  (d)  are  the  legal

representatives of defendant No.1 - Shri Nanjegowda

- who died during the pendency of  this  litigation,

appellant  No.2  is  defendant  No.2  whereas  the

respondent is the plaintiff in the suit.

4) The  dispute  relates  to  an  agricultural  land

bearing Sy.No. 44/14 B measuring 0.09 Guntas and

Sy. No.44/14-D measuring 0.06 Guntas as detailed

in schedule to the plaint (hereinafter referred to as

“suit  land”)  situated at  village  Thondahalli,  Bellur

Hubali (Karnataka).

5) The  defendants (appellants) and the plaintiff

(respondent) are the members of one family.  They

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are first cousins from their father's side.  The family

owned ancestral properties which included the suit

land in question and other properties also.

6) In  the  year  1991,  the  plaintiff  (respondent)

filed a suit being O. S. No. 204 of 1991 in the Court

of  the  Munsif  at  Nagamangala  against  the

defendants  (appellants).   The  suit  was  for  a

declaration  that  the  plaintiff  (respondent)  be

declared  as  owner  of  the  suit  land  and  for

permanent  injunction  restraining  the  defendants

(appellants) from interfering in his possession over

the suit land.  

7) According to the plaintiff,  there had been an

oral partition effected as far back in the year 1935

among  the  respective  fathers  of  the  plaintiff,  the

predecessor-in-title of defendant No.1 and their real

uncles and pursuant thereto the suit land fell into

the share of the plaintiff’s father and on his death, it

was inherited by him.

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8) It  was  alleged  that  all  the  family  members

including  the  plaintiff,  defendants  and  their

ancestors got their names recorded in the Revenue

Records  in  relation to  their  respective  shares.   It

was alleged that the said partition was fully acted

upon for the last many decades with no interference

by anyone among all the members of the family.  It

was  alleged  that  the  defendants  started  asserting

their right, title and possession over the suit land to

the detriment of the interest of the plaintiff without

there  being  any  basis  whatsoever  and  hence  the

plaintiff  was  compelled  to  file  a  suit  to  seek

declaration and injunction against  the  defendants

in relation to the suit land.

9) The  defendants  filed  their  written  statement.

The  defendants  (appellants),  in  clear  terms,

admitted  the  relationship  between  the  defendants

(appellants) and the plaintiff (respondent) including

their  ancestors  as  alleged  by  the  plaintiff  in  the

plaint.  The defendants also admitted the existence

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and  factum  of  oral  partition  effected  among  the

family  members  as  alleged  by  the  plaintiff.   The

defendants,  however,  set  up  one  Release  Deed

executed by their grandfather in 1940 and claimed

share  in  the  suit  land  on  that  basis.   They  also

relied on some mutation entries to claim share in

the  suit  land  and  also  set  up  a  plea  of  adverse

possession over the suit land and claimed that they

have become the owner of the suit land by virtue of

adverse  possession  on  account  of  their  long,

peaceful and continuous possession.  

10) The  Trial  Court  framed  the  issues.   Parties

adduced  their  evidence.   The  Trial  Court,  by

judgment/decree  dated  17.03.1997,  decreed  the

plaintiff’s  suit.  The  Trial  Court  held  that,  the

plaintiff (respondent) is the owner of the suit land,

he is in possession of the suit land, he is entitled to

claim permanent injunction against the defendants

restraining  them  from  interfering  in  his  peaceful

possession,  the  defendants  failed  to  prove  their

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adverse possession over the suit land and also they

were not able to prove their right, title and interest

and  possession  over  the  suit  land,  the  alleged

Release-Deed did not relate to the suit land but it

pertained to other property of the family and lastly,

mutation  entries,  in  the  absence  of  any

documentary title over the suit land, were of no use.

11) The defendants (appellants) felt aggrieved and

filed an appeal being R.A. No. 46 of 1998 before the

Additional  Civil  Judge  (Senior  Division).    By

judgment/decree  dated  07.04.2001,  the  First

Appellate  Court  allowed the  appeal,  set  aside  the

judgment/decree of the Trial  Court and dismissed

the plaintiff’s suit.

12) The  plaintiff  (respondent)  felt  aggrieved  and

filed Second Appeal  being  R.S.A.  No.498 of  2001.

By impugned judgment,  the  Single  Judge allowed

the  appeal  and  while  setting  aside  of  the

judgment/decree  of  the  First  Appellate  Court

restored  the  judgment/decree  of  the  Trial  Court

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and, in consequence, decreed the suit as was done

by the Trial Court.  

13) The defendants (appellants) felt aggrieved and

have filed this appeal by way of special leave against

the  impugned judgment  of  the  High Court  before

this Court.      

14) Heard Mr. K.V. Mohan, learned counsel for the

appellants  and  Mr.  Karunakar  Mahalik,  learned

counsel for the respondent.  

15) Having  heard  the  learned  counsel  for  the

parties and on perusal of the record of the case, we

find no merit in the appeal.

16)  In our considered opinion, the Trial Court as

also the High Court were justified in decreeing the

respondent's  suit  and we find no good ground to

interfere in any of the findings of fact recorded by

the two Courts below for the following reasons.

17) It  is  not  in  dispute  that  the  defendants

(appellants)  admitted the relationship between the

parties.  It is also not in dispute, as was admitted by

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the defendants (appellants), that the parties through

their  ancestors  had  effected  oral  partition  as  far

back  in  1935  and  that  the  defendants’  ancestors

were  also  parties  to  such partition and the  same

was implemented in letter and spirit by allotting to

each of the members of the family their respective

share and also by getting the names of owners in

Revenue Records.

18) Once  the  defendants  admitted  these  two

material facts pleaded by the plaintiff then it was for

the defendants to prove by leading cogent evidence

as to how and on what basis they could claim to be

the owner of the suit land.  They failed to prove their

ownership with the aid of any evidence.  

19) In  our  opinion,  the  stand  taken  by  the

defendants was wholly inconsistent.  They first set

up a plea of adverse possession but it was rightly

held not proved. The defendants, however, did not

challenge this finding in the second appeal, which

became final.  Even otherwise,  the  plea of  adverse

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possession was wholly misconceived and untenable.

It  is  a  settled  law  that  there  can  be  no  adverse

possession  among  the  members  of  one  family  for

want  of  any  animus  among  them  over  the  land

belonging to their family.  

20) The defendants then claimed that they became

owner on the strength of one Release Deed of 1940

but again it was held rightly that such Deed did not

relate to the suit land but relate to some other land.

The  defendants  then  relied  on  some  entries  of

Revenue  Records.   It  was  again  held  rightly  that

firstly, they were challenged in Revenue Courts and

secondly, no documentary evidence was adduced to

prove the title to the suit land independent to such

disputed entries.

21)  In  our  considered  opinion,  the  High  Court,

therefore, was right in reversing the findings of the

lower Appellate Court, which were wholly perverse

and  legally  unsustainable  as  compared  to  the

findings of the Trial Court on all the material issues.

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22) We find that the appeal does not involve any

law point.  What is involved is pure question of fact

and hence the finding recorded by the High Court

warrants  no  interference  by  this  Court.   Even

otherwise, on examining the case of the defendants

(appellants) independently, we have found that they

have no case at all.

23) In  our  opinion,  it  is  a  clear  case  where  the

plaintiff and the defendants being members of the

family  got  their  share  in  the  family  properties

through  an  oral  partition  effected  among  their

ancestral members of family and on their deaths to

the  surviving  members  by  inheritance,  i.e.,  the

plaintiff and defendants.  So far as the suit land is

concerned,  it  fell  into  the  share  of  plaintiff's

ancestors, which was evidenced by an oral partition

duly acted upon for a long time back in 1935 and

then on the plaintiff.  

24) Learned  counsel  for  the  appellants

(defendants),  however,  took  us  through  pleadings

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and the evidence adduced by the parties with a view

to  show that  the  findings  of  facts  are  not  legally

sustainable.  

25) In our  view,  we  cannot  entertain  any of  the

submissions  of  the  learned  counsel  for  the

appellants(defendants)  in  an  appeal  under  Article

136 of the Constitution and nor can we appreciate

any oral evidence  de novo in this appeal as all his

submissions  were  on  facts/evidence.   It  is  not

permissible  in  law  to  probe  the  evidence  at  this

stage.  Moreover, in the light of what we have held

above, these submissions have no merit.

26) In  view  of  foregoing  discussion,  we  find  no

merit in the appeal.  It is accordingly dismissed.       

               ………...................................J.   [ABHAY MANOHAR SAPRE]

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

New Delhi; December 04, 2017