. . 1 ‘I. IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 18TH DAY OF JULY 2011 PRESENT THE HON’BLE MR JUSTICE V.G.SABHAHIT AND THE HONELE MR JUSTICE B MANOHAR Regular First Appeal No. 234 of 200k Between: Smt.Umabai, w/o.Shankaragouda Patil, Aged about 64 years, 0cc: Household and agriculture, R/o.Hombal and also Behind Prasad Lodge, Gadag 590 013. .. Appellant (By Sri Mahantesh C. Kotturshettar, Adv.) And: Srikant Shankargouda Patil, Aged about 43 years, 0cc: Agriculture, R/o.Hombal, Tq. & Dist. Gadag — 590 013. .. Respondent (By Sri S P Kulkarni & Sri P V Manjunath, Advs. for Ri) This regular first appeal is filed U/S. 96 of CPC against the judgment and decree dt. 14.12.2005 passed in 0.S.No.17/2002 by the Civil Judge, (Sr.Dn.) Gadag, dismissing the suit. I This appeal coming oii for hearing this (1a3 Sabhahit. J.. delnertd the fol1oing: JUDGMENT This appeal is filed h3 the phuntiff in Os No. 1 7 (Jr 2002 on the file of the ft aned Cii1 .Judge (Senior Division) & (‘ t JM. Ciadag iwmg a2rieed In the judgment and decree dated 14.12.2003 wherein the &‘ ut filed by the plaintiff to declare that she is the absolute owner of suit land described in pant 1 of the plaint and to restrain the defendant from interfering with plaintiff’s peaceful possession and enjoyment of suit land or in the alternative direct the defendant to put the plaintiff in possession of the suit scheduTe property, is dismissed. 2. The esscntial facts of the case leading tip to this appeal with reference to the rank of the parties belore the trial court arc as follo s: The plaintiff appellant herein filed OS No.17 ‘2002 on 19. 1 .2002 contending that she is the mother of the defendant. There is a partitidn in respect of joint family properties between the plaintiff, her son-defendant. her husband-Shankaragouda Patil and another son Ranganagouda. The defendant was minor at the time of oral partition effected in the year 1973. After he attained majority, his name has been entered in ME No.9636, which is duly certified on 11.6.1978. As per the oral partition, the plaintiff was allotted 7 acres 12 guntas of land in RS No.33/2. She is the absolute owner of land bearing RS No.313/2. It is her further case that since the defendant is the youngest son, out of love and affection towards him. the plaintiff got entered his name in respect of suit land nominally. The plaintiff never intended to transfer the said land in favour of the defendant. She has not parted with possession of suit land. She has continued in actual possession and enjoyment of suit land inspite of change made in the revenue records. This mutation entry does not create any right, title or interest in favour of the defendant over the suit property and no registered document has been executed and the value of the property was worth more 4 than Rs.lOO/-. The said mutation entry is void in the eye of law. Inspite of partition, the plaintiff allowed the defendant to stay with family members alongwith her in her house. Since the defendant started quarreling with the plaintiff in the month of January, 2002, she filed the suit for the relief referred above. 3. The suit was resisted b the defendant by filing a written statement admitting the relationship with the plaintiff, his mother. He denied the averment made in the plaint that he is not put in possession of suit land at any point of time and the entry was made in ME No.12501. It is further averred that in respect of agricultural lands only, the partition was effected in the joint family of plaintiff and defendant headed by kartha in the year 1978. In the said partition, the lands allotted to the defendant were inferior comparing to the lands allotted to the share of plaintiff, brother Ranganagouda and father Shankargouda. To compensate this defendant and at the instance of Shankargouda Patil. the family agreement was effected on 11.9.1985. In the said family arrangement. southern 4 acres of RS No.313/2 has been allotted to the share of the defendant. By virtue of the family arrangement effected in the year 1985, the defendant has become the absolute owner of 4 acres towards east portion in RS No.313/2. vhich is numbered as RS No.313/28. The wardi was filed by the plaintiff to mutate the name of the defendant in the revenue records since 11.9.1985 the defendant has become absolute owner in possession of the said property. It is also averred that the defendant has drilled the borewell, developed the land, planted the fruit trees and erected a poultry centre and wormy culture unit by investing lakhs of amount by raising loan from Bank and the defendant sold a piece of land in RS No.313/2B measuring 10 guntas in favour of his father Shankaragouda and purchased 10 guntas of land in RS No.31 3/2A from the plaintiff under a registered sale deed. It is further averred that apart from agricultural lands, the house property and plot are ‘SW 6 still the joint family properties. Being one of the joint owners, the defendant is in possession thereof. The defendant’s father Shankaragouda Path expired on 17.6.2000 leaving behind his LRs. plaintiff. sons Ranganagouda and Shrikath (defendant) and a daughter. Kalindi. Thereafter, the plaintiff colluding with ill-wishers has created a false document purporting to be the will of the deceased Shankaragouda to deprive the rights and interest of the defendant. The defendant filed 05 No.150/2001. which is pending on the file of the learned Additional Civil Judge (Sr.Dn.) Ciadag. It is averred that the defendant is in actual possession of the suit land. Therefore. he prayed for dismissal of the suit filed by the plaintiff. 4. Having regard to the above pleadings. the following five issues were framed: 1. Whether the plaintiff proves that she is the absolute owner and possession of the suit properties? 7 2. Whether the plaintiff proves that the ME. No.12501 is sham and nominal one and void in the eye of law? 3. Whether the defendant prove family arrangement in 1985 and allotment of southern 4 acres in RS No.313/2 to his share as contended in para 3 of written statement? 4. Whether the plaintiff is estopped from questioning the validity of ME No.12501 effected on the basis of Wardi given by her? 5. Whether the plaintiff proves the alleged interference with the possession and enjoyment of the suit properties by the plaintiff? 6. Whether the suit is time barred? 7. Whether the plaintiff is entitled to the reliefs prayed for? 8. What order or decree’P 5. On behalf of the plaintiff, she was examined as PW 1 and a witness. Shivappa Bhimappa Pujar, who was S the employee of plaintiff, was also examined as PW2 and the documents — Exs.P1 to P3 were marked. On behalf of the defendant, he was examined as DW 1 and got marked the documents as Ex.Dl to 1)13. The learned Civil Judge after considering the cor tentions of the learned counsel appearing for the parties and appreciating the above referred oral and documentary evidence of the parties adduced before him by judgment dated 14.12.2005 answered the above issues as under: Issue No. I - In the negative Issue No.2 - Redundant Issue No.3 - In the negative Issue No.4 - Accordingly Issue No.5 - In the negative Issue No.6 - In the negative Issue No.7 - In the negative Issue No.8 - As per the final order. Accordingly, the suit filed by the plaintiff came to be dismissed. Being aggrieved by the dismissal of the suit, the plaintiff has preferred this appeal against the 9 judgment and decree passed by the trial court dated 14.12.2005. 6. We have heard the learned counsel for the appellant. 7. Learned counsel appearing for the appellant submitted that the oral and documentary evidence clearly show that the plaintiff is the absolute owner of the property in RS No.313/2 measuring 7 acres 12 guntas and out of love and affection towards the defendant, who is younger son, an entry was made in his favour and the same was numbered as RS No.313/2B only for the purpose of raising loan from the financial institution to put up a poultry farm and there was no document executed in his favour, though the value of the suit land was more than Rs. 100/-. He further submitted that the trial court has not properly appreciated the oral and documentary evidence on record in proper perspective. 10 8. Having regard to the above said contentions urged, the points that arise for our determination in this appeal are: I. Whether the finding of the trial couit that the plaintiff has failed to prove that she is the absolute owner in possession of suit schedule property and that the entry made under ME No.12501 is void in the eye of law is justified or calls for interference in this appeal? 2. Whether the trial court was justified in dismissing the suit of the plaintiff? 3. What order? 9. We have given careful consideration to the contentions of the learned counsel appearing for the appellant and scrutinize the material on record. The material evidence on record shows that there is no dispute with regard to the relationship between the plaintiff and her son defendant. The fact that there was a partition of the agricultural land and the plaintiff was H allotted the land bearing RS No.313/2 measuring 7 acres 12 guntas, which is not in dispute and further that she gave a wardi to the Revenue Author[ty to enter the name of the defendant to an extent of 4 acres and the same was mutated in his name t the revenue records of RS No.313/2B only for the purpose of raising loan from the financial institution, which is also not in dispute. In the family arrangement. the land to an extent of 4 acres in RS No.313/2 was conveyed by the plaintiff in the name of the defendant as the more extent of land was allotted to his elder brother, Ranganagouda, in order to compensate the said extent of lard and also got numbered as RS No.313/2B, The defendant is in possession and enjoyment of the said property. 10. PW1 has reiterated the averments made in her affidavit filed in lieu of examinationinchief. It is elicited in her crossexamination that there was a partition in the year 1978 and it was oral partition. She has not given a wardi to the Tahsildar. It is true that II I” there was a partition of agricultural land ltwn among herself, her husband and two sons in the year 1978 and mutation entry in ME No.9636 was effected. It is true that her elder son, Ranganagouda was allotted 35 acres of land. It is also true that her husband was allotted 23 acres 36 guntas of land, the defendant got 31 acres of land and she got 17 acres of land including RS No.313/2 measuring 7 acres 12 guntas. It is further true that she has not given a wardi in the name of defendant to an extent of 4 acres in R.S.No.313/2. She has denied the suggestion that the land was given to compensate the value of the property given to the defendant, which was lower than the value of the property allotted to the elder brother, Ranganagouda. It is averred that the temporary possession was given in the year 1985 to an extent of 4 acres. She has not produced any document to show that the temporary possession was given. It is true that after 4 acres of land given to the defendant, the entry in ME No.12501 was made and the land given to the defendant was 4 ‘3 numbered as RS No.313/28 and the remaining land to an extent of 3 acres and 12 guntas was numbered as RS No.313f2A. She also admitted that during year 1996, out of S.No.313/2B, 10 guntas of land was sold in favour of her husband, Shankaragouda PatH and the possession of the said land was given to her husband. She has further admitted that she sold 10 guntas of land in Sy.No.313/2A, which was in her possession, on 10.1.1996 and handed over the possession to the defendant on the same day. In the letter, it is stated that she is the owner of 3 acres 12 guntas of land in Sv.No.3 13/2A. 11. The plaintiff in her cross-examination stated that the defendant dug a borewell in the suit schedule land by taking loan of Rs.90.000/- from the Syndicate Bank by mortgaging the suit schedule land. She has denied the suggestion that the defendant planted mango and coconut trees in the suit schedule land. She has stated that she has herself got planted the said trees. She has 14 admitted that the defendant started a poultry farm in the suit schedule property and denied the wormy culture in the suit schedule property. It is further admitted by the plaintiff that in the year 1995, Sy.No.313/2A allotted to the plaintiff and Sy.No.313/2B allotted to the defendant were re-granted separately in their respective names. She has also admitted that OS No.150/2001 on the file of the Additional Civil Judge (Sr.Dn.), Gadag filed by the defendant against her for partition and possession of other properties. The said suit is pending. She has denied the suggestion put to her that the defendant is in possession of the property, but clarified that the defendant is in possession of only a portion where the poultry farm is put up. 12. PW2, Sri Shivappa Poojar, is the neighbouring owner of the land. He has filed an affidavit in lieu of examination-in-chief. According to him in his examination-in-chief, he has stated that he has been working in the land of the plaintiff for the last 34 years. 15 It is further averred in the affidavit that the land was entered in the name of the plaintiff to enable to start a poultry farm. ft is elicited in his cross-examination that he does not know the survey number and description of the property measuring 7 acres and 12 guntas. He stated that 4 acres of land was given to the defendant by the plaintiff about 18 years ago. The name of the defendant is shown in the revenue records. It is true that the defendant has dug a borewell and put up a poultry farm in the suit schedule property. He has been working in the suit schedule property since 34 years. I-fe has denied that he has been working in the house of the plaintiff when the suit land was allotted to the defendant. He has denied that he is deposing falsely against the defendant. 13. DWI has reiterated the averments made in the written statement by filing an affidavit in lieu of examination-in-chief, It is elicited in his cross examination that the land measuring 4 acres of land 16 was valued more than Rs.100/-. No document was executed for conveyance. No document was registered with regard to the family arrangement. He admitted that he was working in Hulakoti Engineering College as Lecturer and also doing agricultural work. He has given description of the suit schedule property. He has stated that he has mortgaged the property in favour of the Bank to obtain loan to start a poultry farm. He has denied that the partition was made in the year 1973, but it was effected in the year 1978. The documentary evidence shows that the land was given to the defendant measuring 4 acres in Sy.No.3 13/2, which has been shown as Sy.No.313/2B for the year 2000-2001 on the basis of the wardi given by the plaintiff to enter his name. 14. The material on record shows that on the basis of the said entry, the name of the defendant was entered and phoding was done by showing the number as Sy.No.313/2B and he is in possession of the land and 17 further the remaining extent of 3 acres 12 guntas was given number as 313/2A in the name of the plaintiff. The documentary evidence produced on behalf of the defendant are ROR extract of RS No.313/28, mutation entries, map of land, electricity bill, sanction of electricity power and sale deed vide Exs.t) I to Dl 3 respectively support the case of the defendant in respect of the suit schedule property. 15. On re-appreciation of the oral and documentary evidence adduced before the trial court that the relationship of the plaintiff and her son, defendant, is not disputed. The fact that there was a partition in respect of joint family properties between the plaintiff, her son-defendant, her husband-Shankaragouda Pafil and another son-Ranganagouda. is not disputed. In the oral partition, the land to an extent of 7 acres 12 guntas in RS No.313/2 allotted to the plaintiff is not disputed. The fact that the plaintiff gave a wardi to enter the, name of the defendant to an extent of 4 acres and the entries 18 L S made in his name is not disputed. It is elicited from the cross-examination of the plaintiff that in the year 1995, the government re-granted the land in respect of Sy.No.3 1 3/2A measuring 3 acres 12 guntas in favour of plaintiff and Sy.No.313/2B measuring 4 acres in favour of the defendant. The material on record shows that the plaintiff has failed to prove that she has been in actual possession and enjoyment of the suit schedule property and nominally she requested for making an entry to enable the defendant to obtain loan from the financial institution to enable him to put up a poultry farm. On the otherhand. the fact elicited in the cross-examination of PW I that since there was disparity in the extent of land allotted to the defendant and his elder brother, Ranganagouda. the plaintiff gave 4 acres under a family arrangement and thereafter voluntarily given a wardi to enter the name of defendant. Therefore, the finding recorded by the court below that the plaintiff has failed to prove that she is the absolute owner of the suit schedule property and the entry made under ME No.12501 is a sham document and nominal one, is justified. 16. Accordingly we hold that the judgment and decree passed by the trial court is justified and does not suffer from any error or illegality as to call for interference in this appeal and answer the points for determination accordingly and pass the following order: The appeal is dismissed. However, there shall be no order as to costs in the appeal. The judgment and decree dated 14.12.2005 in 05 No.17/2002 passed by the learned Civil Judge (Senior Division) and CJM, Gadag dismissing the suit of the plaintiff-appellant is confirmed. Sd/ JUDGE sd/I” JUDGE Bkm.