NINGE GOWDAversusLINGE GOWDA AND ORS.

A                              NINGE GOWDA
                                       v.
                          LINGE GOWDA AND ORS.                                  •
                             OCTOBER 28, 1996

B             [K. RAMASWAMY AND G.B. PATTANAIK, JJ.]

         Code of Civil Procedure, 1908 :

        S.100-Partition suit-Ancestral property succeeded by partition
  between brothers and father of plaintiff-Further succeeded by partition
C 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 offact.

D        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 14578 of
    1996.

         From the Judgment and Order dated 14.2.95 of the Kamataka High
    Court in R.S.A. No. 350 of 1990.         ·

E        Chandrasekhar, P.P. Singh for the Appellant.
                                                                                    .
         P.R. Ramasesh for the Respondents.

         The following Order of the Court was delivered :

F        Leave granted.




G
         We have heard learned counsel on both sides.

          This appeal by special leave arises against the judgment and decree
                                                                                    -
    of the Kamataka 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
H   Gowda, Hal a Gowda, Bale Gowda and Channiah. The appellants (defendants
                                        32 '
                       NINGE GOWDA v. LINGE GOWDA                           33


    8. and 7) are sons of Chenne Gowda. The first defendant is the son of A
    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 defendants 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 bounds among five B
    brothers of his father. Subsequently, in 1936, there was a further partition
    between the appellant and his brothers, defendants 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, defendants 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 C
    contending that this property originally belonged to Huchamma, the grand-
    mother of the defendant No. I, 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 has got fraudulently mutated in the revenue records in the
    year 1929-30. Therefore, it does not bind them. The trial Court dismissed D
    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
                                                                                 E
    Court has recorded a finding that there was a partition between defendants
    I 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 brothers. F
    The first defendant as DW-1 admitted that there was a partition between


-   the appellant and his brothers, defendants 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 G
    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 H
    34                      SUPREME COURT REPORTS [1996] SUPP. 8 S.C.R.


A 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 a 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
B further partition between the appellant and his brothers, 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 by .partition between the
  brothers and the father of the plaintiff and was further succeeded after the
C demise of the father by a partition among the brothers. Thereby he acquired
  the title to the property. The appreciation of evidence by the High Court
  under Section JOO, 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 Court stands
D restored and that of the High Court stands set aside. The suit stands decreed
  as prayed for.

          The appeal is accrodingly allowed. No costs.

E G.N.                                                       Appeal allowed.