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Code of Civil Procedure, 1908 : S.100-Partition suit-Ancestral property succeeded by partition between brothers and father of plaintiff-Further succeeded by partition among the brothers-High Court wrongly framed an issue whether the property was purchased in sale-Appreciation of evidence by High Court unwarranted to reverse the findings of facts recorded by first appellate court, as the final Court of fact.

Inge Viermetz

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PETITIONER:
NINGE GOWDA

 Vs.

RESPONDENT:
LINGE GOWDA & ORS.

DATE OF JUDGMENT: 28/10/1996

BENCH:
K. RAMASWAMY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:
 O R D E R
 Leave granted.
 We have heard learned counsel on both sides.
 This appeal by special leaves arises against the
judgment and decree of the Karnataka High Court made on
February 14,1995 in RSA No.350/90.
 The admitted position is that appellant's father Chenne
Gowda apart from himself being Chenne Gowda had four
brothers, namely, Linge Gowda, Hala Gowda, Bale Gowda and
Channiah. The appellants (defendants 8 and 7) are sons of
Chenne Gowda. The first defendant is the son of Linge
Gowda. Bole Gowda is the third defendant and Chenne Gowda
is the second defendant. Bole Gowda's sons are defendant
Nos. 4 to 6. The appellant had filed the suit for a
declaration of his title and injunction against all the
defendant to restrain them from interfering with his
possession. It is his specific plea that the property was
the ancestral property and prior to 1936, there was a
partition by meets and bound among five brothers of his
father . Subsequently, in 1936, there was a further
partition between the appellant and his brother, defendant 7
and 8 and the suit land had fallen to his share and since
then he has been in possession and enjoyment of it. From
1968 onwards, defendant started interfering with his
possession disclaiming his title. Ultimately, suit came to
be filed for a declaration. First defendant has set up his
defence in the written statement contending that this
property originally belonged to Huchamma, the grand-mother
of the defendant No.1, father of the appellant and others.
On her demise, this property devolved upon them. Ever since
they were jointly in possession and enjoyment of the
property which Chenne Gowda, father of the appellant had got
fraudulently mutated in the revenue records in the year
1929-30. Therefore, it does not bind them. The trial Court
dismissed the suit. On appeal, the appellate court reversed
the decree and decreed the suit. In the second appeal, the
High Court interfered with the appellate Court's decree and
confirmed the decree of the trial Court . In other words,
the suit now stands dismissed. Thus, this appeal by special
leave.
 It is seen from the record and it cannot be disputed
that the High Court has recorded a finding that there was a
partition between defendants 1 and 2, appellant's father
etc. and the courts below have rejected the plea of the
defendants of the succession from the grand-mother Huchamma.
The appellate Court as well as the High Court accepted the
finding that there was a prior partition between the first
defendant and his brother. The first defendant as DW-1
admitted that there was a partition between the appellant
and his brothers, defendant 7 and 8 and that they were in
possession and enjoyment and their respective properties
were partitioned by meets and bounds. It is also not in
dispute that in the year 1929-30, there was a transfer
mutation of the lands in the name of the father of the
appellant. The finding recorded by the appellate Court is
that on a joint application signed by all the brothers
under Ext.24, the property was mutated in the name of the
father of the appellant. No attempt was made from 1929-30
till date of the suit, challenging the mutation effected in
the name of the father of the appellant. Thus, these facts
conclusively establish that there was a prior partition
among five brothers including the father of the appellant
and thereafter necessarily the plaint schedule property had
fallen to the share of the plaintiff's father and mutation
was effected as per joint application, Ext.24 entered in the
year 1929-30. Consequently, there was partition by meets and
bounds among five brothers and it is admitted that the same
was accepted by the High Court as an admission. In view of
the admission by the first defendant as DW-12, that there
was further partition between the appellant and his
brother, necessarily the self-same lands stood in the name
of the appellant. The High Court wrongly framed an issue
whether the appellant has purchased the property by sale. It
is not the case of any of the parties that he had purchased
the property. It is ancestral property having been
succeeded after the demise of the father y a partition among
the brothers. Thereby he acquired the title to the property.
The appreciation of evidence by the High Court under
section 100, CPC is, therefore, unwarranted to reverse the
findings of facts recorded by the first appellate Court, as
the final Court of fact. Therefore, the respondents have no
manner of right whatsoever to interfere with his possession.
Accordingly, the decree of the appellate Courts stands
restored and that of the High Court stands set aside. The
suit stands decreed as prayed for.
 The appeal is accordingly allowed. No costs.

 

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