NINGE GOWDA versus LINGE GOWDA AND ORS.

Citation: [1996] SUPP. 8 S.C.R. 32 · Decided: 28-10-1996 · Supreme Court of India · Bench: K. RAMASWAMY · Disposal: Appeal(s) allowed

Judgment (excerpt)

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 of fact. 
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. 
We have heard learned counsel on both sides. 
G 
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 
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. 
E 
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 jo

Excerpt shown. Read the full judgment & AI analysis in Lexace.